author: JENKINS, J.

text:
    PLEDGER v. BUSINESS MEN’S ACC. ASS’N OF TEXAS.
    (No. 5775.)

    (Court of Civil Appeals of Texas. Austin.
    June 13, 1917.
    Appellee’s Petition for Rehearing Granted and Judgment Affirmed, and Appellant’s Petition for Rehearing Denied Oct. 17, 1917.)
    1. Iusukance <&wkey;455 — “Accidental Death” —“Death by Accidental Means.”
    Where death is the result of an act, but was not designed or anticipated by the deceased, although in consequence of an act voluntarily done by him, it is accidental death, but where death is caused by some act of the deceased not designed by him or not intentionally done by him, it is death by accidental means.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accident; Accidental Means.]
    2. Insurance &wkey;>G70 — Action on Policy — Findings — Special Issue.
    In an action by the beneficiary in a mutual insurance policy, where the jury found that deceased’s heart was in diseased condition, their further finding that his death might reasonably have been expected from exertion in lifting cotton bales was not material on the question whether he could have reasonably anticipated such result from the facts known to him.
    3. Insurance <&wkey;455 — “Accidental Death.”
    Where the insured under a mutual insurance policy was shown to have died from a rupture of the heart caused by his lifting cotton bales, and it appeared that he was in apparent good health at the time, and did not know that anything was the matter with his heart, and was accustomed to lifting cotton bales, and had not before that time suffered any harmful results therefrom, and did not anticipate any injury from lifting the cotton bales at the time and in the manner he did, his death was accidental.
    4. Insurance <&wkey;464 — Accidental Death— “Death by Accidental Means.”
    If his act in lifting the cotton bales was just what he intended to do, and was done in the manner in which he intended, his death was not caused by accidental means.
    5. Insurance <&wkey;151(2), 152(1) — Contract— Certieioate — By-Laws—Application.
    The application, the certificate, and the bylaws of a mutual association are all parts of the contract of insurance and full effect must be given to* each if there is no ambiguity or contradiction in their terms, although in the case of such contradiction the certificate will prevail.
    6. Insurance c&wkey;455 — Mutual Associations —Policy—Construction.
    Where a mutual insurance certificate provided that amount of the certificate should be payable “in case of accidental death,” a provision in the by-laws that a member shall be entitled to benefits for injuries, and his beneficiary for benefits for death of member, caused during his membership “solely and exclusively by external, violent, and accidental means,” is ambiguous and, although the by-laws were made a part of the contract of insurance, should not control the plain provisions of the policy, since a plain provision in an insurance policy or certificate should not be allowed to be nullified by a lurking provision in the policy or by-laws, and one could hardly be expected to search the by-laws for such provision or even a materially qualifying provision, unless the language of the policy plainly directed him to it.
    7. Insurance &wkey;>455 — Evidence — Presumption.
    Where the meaning of accidental death in legal terminology had been well settled before a certificate of mutual insurance was issued, the insurer is presumed to have prepared such certificate with reference to such meaning.
    8. Insurance <&wkey;146(3) — Mutual Association— Certificate — Construction.
    Considering an application for mutual insurance, the certificate, and by-laws as one instrument, the rule of law is that it should be construed most strongly against the insurance company.
    9. Insurance <&wkey;668(ll) — Action on Certificate — Jury Question.
    If a mutual insurance certificate insured only against death by accidental means, whether the death of the insured was caused solely and exclusively by accidental means held for the jury.
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by Minnie Pledger against the Business Men’s Accident Association of Texas. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded for another trial.
    Lyndsay D. Hawkins and E. R. Pedigo, both of Austin, for appellant. White, Cart-ledge & Graves, of Austin, for appellee.

      For opinion on rehearing reversing judgment, see 198 S. W. 810.

   Findings of Fact.

JENKINS, J.

Appellee is a mutual assess • ment accident association incorporated undet the provisions of chapter 5, title 71 of the Revised Statutes. Beauregard Pledger, the husband of appellant, held a certificate issued by appellee. He was a cotton buyer, and on the 7th of December, 1915, was engaged in his usual occupation, and was looking after his cotton in his cotton yard. At about noon on that day he was seen by Roy Davis to attempt to lift a cotton bale and he let it fall. Davis went to bis assistance at his call, and was told by Pledger that he had lifted several bales, and it “got next to his wind.” After remaining in the cotton yard a few minutes he told Davis that he felt like he ought to go home and lie down. He left and went to his office, and in a few minutes was seized by an attack in the region of the heart, which continued until about 5 o’clock that afternoon, when he died. The case was submitted to the jury upon special issues as follows:

“Q. No. 1. Did Beauregard Pledger on December 7, 1915, and shortly before his death, lift certain bales of cotton? Answer. Yes. Q. No. 2. If you have answered the preceding question in the affirmative, then answer this question— would the death of the said Beauregard Pledger have occurred at the time it did had he not lifted said bales of cotton? Answer. No. Q. No. 3. If you have answered the first question submitted to you in the affirmative, then answer this question — did the lifting of said cotton cause the said Beauregard Pledger to suffer a rupture of his heart or heart vessels? Answer. Yes. Q. No. 4. If you have answered the next preceding question in the affirmative, then answer this question — was the death of said Beauregard Pledger caused by a rupture, if any, to his heart or heart vessels? Answer. Yes. Q. No. 5. Did the said Beauregard Pledger before lifting said bales of cotton have a diseased condition of the heart or blood vessels of the heart? Answer. Yes. Q. No. 6. If you answer question No. 5 in the affirmative, then answer this question — did the diseased condition, if any, of the heart or blood vessels of the heart of said Beauregard Pledger assist in causing his death? Answer. Yes. Q. No. 7. If you find in answer to question No. 2 that the said Beauregard Pledger would not have died at the time he did had he not lifted said cotton, and if you have further found in response to question No. 5 that said Pledger before lifting said cotton had a diseased condition of the heart or blood vessels of the heart, then you will answer this question — would the death of the said Beauregard Pledger under such circumstances have been a usual or reasonably expected result of the physical effort involved in lifting said cotton? Answer. Yes.”

The findings of the jury as above set out are sustained by the evidence, except as to No. 7, and their answer to that question is true in the sense that they doubtless íyieant it; that is to say, that, from all of the facts and circumstances shown by the evidence and known to them at the time they answered said question, the death of said Beauregard Pledger was reasonably to be expected from the result of his physical effort involved in lifting said cotton.

Opinion.

The controlling issue in this case is'whether the deceased was insured against accidental death, or only against death by accidental means. The distinction is well recognized in numerous decisions and various jurisdictions, and may be briefly stated thus:

Where the death is the result of some act, but was not designed and not anticipated by the deceased, though it be in consequence of some act voluntarily done by him, it is accidental death. Where death is caused by some act of the deceased not designed by him, or not intentionally done by him, it is death by accidental means. In other words, accidental death is an unintended and undesigned result, arising from acts done ;■ death by accidental means is where the result arises from acts unintentionally done.

Death by accident and death by accidental means is discussed and recognized in the following, among other, cases: Bryant v. Cas. Co. (Sup.) 182 S. W. 673, L. R. A. 19160, 945; Ins. Co. v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 64; Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 50, 74 Am. St. Rep. 112; Feder v. Ass’n, 107 Iowa, 538, 78 N. W. 252, 43 L. R. A. 693 , 70 Am. St. Rep. 212; Lehman v. Acc. Ass’n, 155 Iowa, 737, 133 N. W. 752, 42 L. R. A. (N. S.) 567; Shanberg v. Cas. Co., 158 Fed. 1, 85 C. C. A. 343, 19 L. R. A. (N. S.) 1206; Hood v. Cas. Co., 206 Mass. 223, 92 N. E. 329, 30 L. R. A. (N. S.) 1192, 138 Am. St. Rep. 379 ; Hastings v. Trav. Ass’n (C. C.) 190 Fed. 260; Niskern v. United Bro., 93 App. Div. 364, 87 N. Y. Supp. 640; Horsfall v. Ins. Co., 32 Wash. 132, 72 Pac. 1028, 63 L. R. A. 425, 98 Am. St. Rep. 846; Beile v. Trav. Ass’n, 155 Mo. App. 629, 135 S. W. 497; Clidero v. Scot. Acc. Ins. Co., 19 R. 355; 29 Scott, L. R. 303.

In the case last above cited the court said:

“A person may do certain acts, the result of which acts may produce unforeseen consequences and may produce what is commonly called accidental death; but the means are exactly what the man intended to use, and was prepared to use. The means are not accidental, but the result might be accidental.”

Which is to say the death may be accidental, though not caused by accidental means.

Corpus Juris, vol. 1, p. 390, in defining “accident” says:

“In its most commonly accepted meaning the word denotes an event that takes place without one’s foresight or expectation; an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore was not expected; * * * an event which under the circumstances is unusual and unexpected by the person to whom it happens.”

A similar definition of accident is given in 14 R. C. L. 1238. The texts of these excellent treatises are amply supported by the numerous authorities cited in their notes.

On the other hand, the means by which a result is produced can never be said to be accidental, if the act done is just what the party intended to do.

These observations are made in view of the fact that appellant contends that the event insured against was accidental death while it is the contention of the appellee that it insured the deceased only against death from accidental means. The fact which appears to have been found by the jury in answer to the seventh question, namely, that knowing the diseased condition of the deceased’s heart, as they did from the evidence, his death might reasonably have been expected from his exertion in lifting the cotton bales, is immaterial. The question is could he have reasonably anticipated such result from the facts known to him.

The deceased is shown by the evidence to have died from rupture of the heart caused •by his lifting cotton bales. He was in apparent good health; he did not know anything was the matter with his heart. He was accustomed to lifting cotton bales and had not suffered any harmful results therefrom. He did not anticipate any injury from lifting the cotton bales at the time and in the manner that he did. Under the authorities above cited, which we think comport with a common sense view of the matter, his death was accidental.

On the other hand, if his act in lifting the cotton bale was just what he intended to do, and was done in the manner in which he intended, that is, if he did not slip, or unintentionally lot the bale slip, or stumble or fall, and was thereby caused to exert himself beyond what he intended, his death was not caused by accidental means.

The difference between appellant and appellee as to whether or not appellee is liable on the policy sued on arises from the use of certain language in the by-laws, hereinafter set out.

The application, the certificate, and the bylaws are all parts of the contract of insurance, and full effect must be given to each If there is no ambiguity or contradiction in their terms. Laker v. Frat. Union, 95 Mo. App. 353, 75 S. W. 709. If there be any such contradiction the certificate will prevail. Davidson v. Ben. Soc., 39 Minn. 303, 39 N. W. S03, 1 L. R. A. 482; Trav. Asso. v. Branum 169 S. W. 391; 1 C. J. 416.

The application Is upon a printed form prepared by appellee, and bears, among other things, the following inscription: “$5,000.00 in case of accidental death.” It also contained the following declaration:

“I hereby agree that immediately upon receipt of the certificate of membership, and a copy of the by-laws of the association, I will ■examine them, and if satisfactory retain them. If not satisfactory I will return them to the association within three days, and my membership fee will be returned to me.”

There was no other reference in the application to either the certificate or by-laws.

The certificate recites that in consideration of the application for membership, and in consideration of the admission fee paid, and the further payment of annual dues—

■“to be paid as provided by the by-laws of said association * * * and of all assessments made and assessed upon him as a member of said association * * * in the case of accidental death of said member, there shall be payable to Minnie Pledger (wife), of Manor, Tex., * * * the sum of $5,000.00.”

The certificate, after reciting that the association reserves the right to pay said $5,000 in annual installments of $1,000 each, contains the following:

“Such annual payments shall bear interest at the rate of 6 per cent, per annum from the date of the first payment, and any and all such payments or liabilities to pay shall be, and is, in accordance with and subject to each and all of the provisions, limitations, and exceptions of the by-laws of said association, and of the provisions, limitations, and exceptions of any and all amendments, alterations, and new issues of said by-laws, which said by-laws are hereby referred to and made a part hereof as fully as if they were recited at length over the signatures hereto affixed * * * and the said Beauregard Pledger hereby, and by the acceptance hereof, agrees to abide and be bound by said by-laws and each of them, and by any and all lawful amendments, alterations, and new issues thereof or any of them.”

Upon the certificate is indorsed, among other things, the following:

“The by-laws of this association are a part of your contract and a copy of same should be kept with this certificate of membership.”

No other reference to the by-laws is made in the certificate.

The by-laws consist of 45 sections and cover 17 legal cap typewritten pages of the statement of facts. Section 27 of the by-laws, under the subhead of “Policies,” reads in part as follows:

“Subject to the provisions, exceptions, and limitations prescribed by, and contained in, the policy issued to the members of the association, a member shall be entitled to benefits for injuries, and his beneficiary to benefits for the death of a member, caused during his membership solely and exclusively by external, violent, and accidental means, as follows: Death, $5,-000”

. — followed by statements as to amounts to be paid for loss of a foot, hand, eye, etc.

Numerous exceptions to liability are set forth in this and the two succeeding sections of the by-laws, such as, if the injury does not occur in the United .States, or if it occurs from infectious disease, or in the violation of law, etc., and explanations are given as to what is meant by loss of foot, eye, etc., and by disability, and other matters pertaining to loss of time from accidental injuries.

It is upon the words “caused solely and exclusively by external, violent, and accidental means,” in section 27 of the by-laws as above set forth, that appellee relies to defend liability.

It will be seen by reference to preceding statement that the application was for insurance against accidental death, and that the certificate, when considered without reference to the by-laws, insured the deceased against accidental death. Accidental death has been defined by numerous decisions of courts of last resort, and its meaning in legal terminology had been well settled before the certificate herein was issued, and the ap-pellee is presumed to have prepared such certificate witli reference to such meaning. A plain provision in an insurance policy or certificate should, not be allowed to be nullified by a “lurking provision” in either the policy or by-laws. One would hardly be expected to search the by-laws for ,such nullifying provision, or even a materially qualifying provision, unless the language of the policy plainly directed him to it. In the instant case the reference to the by-laws and liability thereunder was in immediate connection with the time in which the appellee might make payments. The language is: “And any and all such payments, or liability to pay, shall be in accordance with and subject to each and all of the provisions, limitations, and exceptions of the by-laws.” Had the insured’s attention been attracted by the expression “liability,” and had he read the by-laws, he would have seen that there were plainly stated therein many exceptions as to particular injuries and diseases, and limitations of liability depending upon the time and manner of making proof of death or injury, and he might well have supposed that the word “liability” in the certificate referred to those. Had his attention been attracted by section 27 of the by-laws, he would have seen that the limitation therein as to payment “for the death of the member caused solely and exclusively by external, violent, and accidental means” was “subject to the provisions * * * contained in the policy issued to the members of the association,” and by examining his policy he would have seen that it plainly stated that his beneficiary Should be paid $5,000, in the event of his accidental death; and he might well have concluded that as this section of the by-laws which began by saying that it was subject to the provisions of his policy it did not mean to nullify same.

We think that this section of the by-laws is ambiguous and should not control the policy.

Considering the application, certificate, and by-laws as one instrument, the rule of law is that it should be construed most strongly against the maker, and that is peculiarly applicable to insurance companies. Laker v. Frat. Union, 95 Mo. App. 353, 75 S. W. 709; Ford v. Ins. Co., 103 Tex. 522, 131 S. W. 406; Goddard v. Ins. Co., 67 Tex. 71, 1 S. W. 906, 60 Am. Rep. 1; Ben. Ass’n v. Holt, 167 Ky. 806, 181 S. W. 649.

In obedience to this rule we hold that the certificate herein insured the deceased against accidental death.

The conclusion which we have reached as above set, forth requires a reversal of this case. But we think it should be reversed, even if appellee’s theory as to its liability be adopted. If that theory is correct, then the issue of fact to be determined by the jury was: Was the death of Beauregard Pledger caused solely and exclusively by accidental means? Appellant requested that this issue be submitted in these exact words. The court refused such request.

For the reasons stated the judgment of the trial court is reversed, and this cause is remanded for another trial.

Reversed and remanded.
      «S^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests-and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    McDONALD et al. v. STANFIELD et al.
    (No. 255.)
    (Court of Civil Appeals of Texas. Beaumont.
    July 7, 1917.
    Rehearing Denied Oct. 10., 1917.)
    1. Acknowledgment &wkey;33 — Deeds — Record — Evidence—Defective Acknowledgment-Seal.
    A certificate of acknowledgment not bearing the seal of the notary was insufficient to admit the deed to record, and such deed was inadmissible in evidence in support of the five years statute of limitations in trespass to try title.
    2. Alteration of Instruments c&wkey;24(2) — Memorandum Under TEn-Year Statute-Deed — Explanation of Alteration.
    In trespass to try title, a deed, though showing upon its face that it had been altered by erasures and insertion of new matter regarding which no explanation was given, was admissible as a memorandum under the ten years statute of limitations.
    3. Adverse. Possession <&wkey;97 — Holding ex Trespasser — Extent.
    When the actual owner enters, the trespasser is thereafter confined to the land inclosed or of which he has actual pedal possession, and can acquire title only to the land occupied by him.
    4. Adverse Possession &wkey;>10(2) — Marking Boundaries.
    The mere marking of lines will not amount to a disseisin of the owner, nor give a constructive possession which will support a plea of the statute of limitations to lands not in actual possession.
    5. Adverse Possession &wkey;>100(2) — Constructive Possession — Unrecorded Deed.
    Under the ten years statute of limitation, possession does not extend to the land of a deed not duly recorded.
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Suit by T. K. Stanfield and others against Mary E. McDonald and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    Moody & Boyles and Stevens & Stevens, both of Houston, for appellants. H. E. Marshall, C. H. Cain, and D. J. Harrison, all of Liberty, for appellees.
   BROOKE, J.

This suit was an intervention filed by appellees against appellants, in an action of trespass to try title, and severed from the main suit and ordered docketed as a separate suit, with appellees as plaintiffs and appellants as defendants. Upon a trial before a jury upon special issues, judgment was rendered in favor of appellees for the land sued for.

Appellees’ case is based entirely upon the statutes of limitation. Two separate tracts of land, known as the 160-acre tract and the 104-acre tract, are in controversy, both of which are parts of a large grant to J. F. De Romayor, and are parts of a large tract out of said grant, of which the record title was conveyed to R. McDonald, on December 27, 1006, and passed under his will to appellee, Mary E. McDonald, in whom the same is still vested. Concerning the 160-acre tract, it was agreed that appellees do not claim any possession prior to July 1, 1898.

It seems at some time prior to July 1, 1898, S. K. Stanfield, the father of appellees, moved on the land and built a house, and inclosed about 80 acres, which housé and inclosure have ever since remained as originally located, and S. K. Stanfield continued to reside there until his death, on August 13, 1912. The record contains no field notes or description of the land occupied by the house and inclosure. On June 5, 1902, he took a deed to the 160-acre tract from W. S. Coleman, but the inelosure remained as originally located. On January 2, 1907, R. McDonald, the owner of a tract of 9,008 acres of the Romayor grant, including the land in controversy, conveyed all of the timber on same and other lands to the Miller & Vidor Sawmill Company and T. B. Allen & Co., and also conveyed to them the exclusive right of possession to said lands.

On January 2, 1907, the Miller & Vidor Sawmill Company was located on said 9,008-acre tract and had built a commissary and was putting in a log pond, and was also building some tenant houses. First and last, they built a couple of hundred tenant houses on the tract of land, put up a hotel, built a big mill claimed to cut 100,000 feet of lumber per day, and continued to occupy that property with their mill and those houses, and to cut timber and saw it up, until about 1912 or 1913. They built about 16 miles of tramroad and spurs on the Ro-mayor tract. T. B. Allen & Co. began their operation on the same land in '190S. They built a hardwood mill and stave mill, and continued to cut hardwood timber from all parts of the Romayor tract that they could get to, up until about 1913 or 1914.

R. McDonald died on January 21, 1910, and all of his estate passed, under his will, to appellee, Mary E. McDonald. There is no evidence as to when administration proceedings under his will were begun. S. K. Stan-field died on August 13, 1912, and there was no administration upon his estate. Appellants claim only as his heirs. This suit was filed June 14, 1913.

The jury was asked:

“Did S. K. Stanfield have and hold actual, peaceable, and adverse possession of the 160-acre tract of land described in the intervener’s petition or any part thereof, cultivating, using, or enjoying the same for a period of 10 years?”

—which question the jury answered in the affirmative, and in answer to question No. 5 they found that the portion of said land inclosed by S. IÍ. Stanfield, during the period beginning at the time the Miller & Vidor Sawmill Company or T. B. Allen & Co. took possession of a part of the Romayor grant, contained 30 acres.

The court entered judgment in favor of appellees for the entire 160 acres. No issue was submitted to the jury as to the five-year statute of limitations concerning the 160-acre tract, because the deed to S. K. Stanfield was neither acknowledged nor proven for record, and hence was not duly registered.

With reference to the 104-aere tract, it appears that on May 23, 1906, S. K. Stanfield took a deed to it from J. P. Crow, and, according to the testimony of appellees, he fenced it in April, 1907, there being no fence on it prior to that time, and kept cattle in the inclosure until the time of his death. Attached to the deed from Crow to S. K. Stanfield are two certificates of acknowledgment. As shown by the original deed, which has been sent up with the record, the first certificate bears no seal. The second certificate bears a seal but does not purport to be a certificate of the acknowledgment of the grantor in the deed.

The following issues were submitted to the jury:

“Question No. 3. Did S. K. .Stanfield have and hold actual, peaceable, and adverse possession of the 104-aere tract of land described in intervener’s petition, cultivating, using, or enjoying the same for a period of five years prior to the 13th day of August, 1912, claiming the same under a deed duly registered, and paying taxes thereon as same accrued?
“Question No. 4. Did S. It Stanfield, or in-terveners herein, have and hold actual, peaceable, and adverse possession of the 104-acre tract of land described in interveners’ petition, cultivating, using or enjoying the same for a period of five years prior to the 14th day of June, 1913, claiming the same under a deed duly registered, and paying taxes thereon as same accrued ?”

The jury answered both of these questions in the affirmative, and the court rendered judgment in favor of appellees for the tract of land.

The first assignment of error complains that the court erred to the prejudice of defendants in admitting in evidence the deed from J. P. Orow to S. K. Stanfield over the objections of defendants, as shown by their bill of exceptions No. 1. The proposition is:

“A certificate of acknowledgment to a deed which does not bear the seal of the notary is insufficient to admit the deed to record, and such a deed is not admissible in evidence in support of the five years statute of limitations over the objection that it is irrelevant and immaterial, and cannot form the basis of the five years statute of limitations.”

We are inclined to believe that the appellants are correct in their contention.

It was held in the case of Daugherty v. Yates, 13 Tex. Civ. App. 651, 35 S. W. 939, as follows:

“The acknowledgment of the deed from Bailey Daugherty to J. S. Gilkey is herein copied. It shows it to have been made before J. B. New-berry, ‘J. P., nrecinct No. 2, in and for Kaufman county,’ on the 3d day of June, 1870. The letters ‘J. P.,’ used in the connection they are, both in the body of the certificate of acknowledgment, and after Newberry’s signature, evidently mean that he was the justice of the peace of precinct No. 2 of Kaufman county when the acknowledgment was made; for it is by these letters, used in this way, that such officers indicate their official character in their signature to documents requiring them. When the acknowledgment certified to was made, justices of the peace were ex officio notaries public, and, as such, authorized to take acknowledgment of deeds; but, in taking them, like all other officers, they were required to affix their official seal to their certificates of authentication, which was the seal of a notary public, and which a justice of the peace was authorized to use ex officio, and the only one, he having none as justice of the peace, independent of his being ex officio a notary public. This seal should have been affixed to the certificate of acknowledgment to entitle the instrument to record; and, if it was not, the deed was not properly recorded, and hence not constructive notice of its contents. Nor would its record, even jf seen, convey such knowledge as would put a party upon inquiry. It is stated in appellee’s brief that ‘the seal affixed was the notarial seal.’ We have searched the record in vain for a verification of this statement. While we do not question its truth, there is nothing in the record from which it can be inferred. The inference might be made if the instrument had been introduced under the provisions of article 2312, Rev. St. 1895; but the record shows that ‘plaintiff proved the execution of this deed,’ presumably as at common law. £>o no inferences, one wav or the other, as to the seal of the notary being affixed to the certificate of acknowledgment, should be drawn. And, as the copy in the record does not indicate such seal, we must conclude there was none. Assuming, then, that no seal was affixed to the certificate of acknowledgment, and, therefore, that the deed was not entitled to record, we think the appellant was entitled to his improvements made on the land, if they were, after due diligence to ascertain the location of appellee’s land, placed there in good faith, without knowledge of the fact, if it be a fact, that the land in controversy was the property of the appellee, and the court should have so instructed the jury.”

Believing, as we do, that appellant was correct in his position, and that the certificate of acknowledgment to a deed which does bear the seal of the notary is not sufficient to admit the deed to record, and that such deed is not admissible in evidence in support of the five years statute of limitation, over objection we sustain the first assignment of error.

The second assignment of error complains that the court erred to the prejudice of defendants in admitting in evidence the deed from W. iS. Coleman to S. K. Stanfield, over the objections of defendants, as shown by their bill of exceptions No. 2.

The deed shows upon its face that it has been altered by erasure and insertion of new matter, of which alteration no explanation is given, and it is therefore contended that it is inadmissible in evidence. The deed was admitted as a written memorandum under the ten years statute. We think, under the circumstances, without going into detail as to the reasons for the action of the court, that the admission of this deed in evidence was correct, and this assignment is overruled.

The third, fourth, and fifth assignments of error will be grouped as a whole, and are as follows: (a) The court erred to the prejudice of defendants in refusing to give in charge to the jury the peremptory charge requested by defendants as to the 160-acre tract of land, as shown by their bill of exceptions No. 4. '(b) The court erred in submitting question No. 1 to the jury, over the 'objections of defendants thereto, that the evidence is undisputed that S. K. Stanfield had no possession of any kind of the entire 160-acre tract, and that the only possession he had was of a small tract wholly unde-scribed by any evidence, and therefore no judgment could be entered by the court upon the answer, as shown by their bill of exceptions No. 8. (c) The court erred to the prejudice of defendants in submitting question No. 2 to the jury, over the objections of defendants, that the evidence is undisputed that S. K. Stanfield had no possession of any kind of the entire 160-acre tract, and that the only possession he had was of a small tract wholly undescribed by any evidence, therefore no judgment could properly be entered by the court upon the answer, as shown by their bill of exceptions No. 8.

The 160-acre tract is part of a tract of land of 9,008 acres out of the Romayor survey. The record title to this tract, as has been heretofore stated, was in R. McDonald on January 2, 1907, and is now in appellant, Mary E. McDonald. Stanfield moved on the land at some time prior to July 1, 1898, and built a house, and inclosed about 30 acres. On June 5, 1902, he attempted to purchase the 160-acre tract of which he had a part inclosed, as above stated, from W. S. Coleman. This deed was never duly registered because neither acknowledged nor proved for record. It was agreed that appellees do not claim any possession prior to July 1, 1898. Less than 10 years after that date R. McDonald, the owner of the record title of the large tract, upon which Stanfield’s small inclosure was situated, went into actual possession, through his tenants, the Miller & Vidor Sawmill Company, of a part of the large tract, which possession continued until after Stan-field’s death.

The law, as we understand it, is that when the true owner enters upon a tract of land the trespasser is thereafter confined to the actual land inclosed, or the land upon which the trespasser has actual pedal possession; and a trespasser, under such circumstances, can acquire title only to the land actually occupied by him. To illustrate, as to the time of the occupancy of 10 years, the date of the deed from Coleman to Stanfield was June 5, 1902, but R. McDonald having died in January, 1910, the 10 years would not be completed until June 5, 1913, and, in the meantime, S. K. Stanfield died in August, 1912, which prevented the further running of the statute of limitation until after the filing of this suit. The deed accepted by Stanfield from Coleman is a general warranty deed in the usual form. Therefore, it follows, there being no administration during the 12 months’ period following the death of either Stanfield or McDonald, and these periods being deducted from the 10 years’ time, as above set out, the court was in error in submitting both questions Nos. 1 and 2, and was in error in failing and refusing to give in charge to the jury the peremptory charge requested by defendants, as to the 160-acre tract of land, for the reason that it was shown by computation as a matter of fact, from the admitted facts that the period, as required by law, has not elapsed. These assignments are therefore sustained.

The sixth, seventh, and eighth assignments of error are as follows: (a) The court erred to the prejudice of defendants in refusing to give in charge to the jury the peremptory charge requested by the defendants as to the 104-acre tract of land, as shown by their bill of exceptions No. 5. (b) The court erred to the prejudice of defendants in submitting question No. 3 to the jury, over the objections of defendants, that the undisputed evidence shows that after deducting the periods of time during which limitation was suspended by the deaths of S. K. iStanfield and It. McDonald, iS. K. Stanfield had less than five years’ possession of the tract of land mentioned in said question, as shown by their bill of exceptions No. 8. (e) The court erred to the prejudice of defendants in submitting question No. 4 to the jury, over the objections of defendants, that the undisputed evidence shows that after deducting the periods of time during which limitation was suspended by the deaths of S. IC Stanfield and R. McDonald, S. K. Stanfield had less than five years’ possession of the land mentioned in said question, as shown by their bill of exceptions No. 8.

The testimony shows that, at some time prior to 1906, a man named Crow lived on the land, but he had no part of it inclosed; that on 'May 23, 1906, Stanfield took a deed to it from Crow, and took possession of it some time in 1906, there still Being no fence on the property. On April, 1907, D. K. Stan-field testified his father fenced in 104 acres. On January 2, 1907, R. McDonald, the owner of the record title to the large tract, of which 104 acres is a part, went into actual possession, through his tenants, the Miller & Vidor Sawmill Company, of a large part of the tract. S. K. Stanfield died on August 12, 1912, and there was no administration of his estate. Less than a year after his death this suit was filed. The length of time from April, 1907, the time the first fence was built, to August 13, 1912, the date of Stan-field’s death, is five years and four months. R. McDonald died on January 21, 1910. Thereupon the statute of limitation was suspended for one year. Deducting this one year from the five years and four months’ possession, which is all that is claimed by the testimony of appellees, leaves only four years and four months’ possession.

It follows from this statement of the facts that appellant is correct in his contention that the court should have given a peremptory charge to the jury, with reference to the 104-acre tract of land, in favor of appellant, and that the court should not have submitted to the jury questions Nos. 3 and 4. The assignments must be sustained.

There is no testimony that Stanfield had made use of land outside of his inclosure, and that it had beeni exclusive, neither was there testimony as to any extent of said alleged use of said land outside of said inclosure. Marking lines, as contended, is not possession. As said by the court in the case of Whitehead v. Foley, 28 Tex. 268:

“The mere marking of lines and claiming to the boundaries defined by them, without something on which to found a claim of right, will not amount to a disseisin of the owner, nor give a constructive possession which will support a plea of the statute of limitation to lands not in actual possession of the. defendant.”

It might be well, perhaps, to say in this-connection that it would have been necessary to prove that Stanfield had made use of the land outside of his inclosure, and that there had been exclusive possession, and the extent must have been shown. Louisiana & Texas Lbr. Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1111; Zapeda v. Hoffman, 31 Tex. Civ. App. 312, 72 S. W. 444; Louisiana & Texas Lbr. Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S. W. 202; Stevens v. Pedregon, 106 Tex. 576, 173 S. W. 210.

It also might be said that, under the ten years statute of limitation, possession does not extend to the land of a deed not duly recorded. Doom v. Taylor, 35 Tex. Civ. App. 251, 79 S. W. 1087. In the case of Holland v. Nance, 102 Tex. 177, 114 S. W. 347, which has been discussed by this court and obtained its sanction, it was held that obtaining and even recording a deed, without enlarging an inclosure, does not enlarge possession. The cases are too numerous to mention holding that possession by the owner of the record title of the larger tract restricts the possession of the trespasser to the land actually inclosed by him.

We have carefully examined the entire record in this case. There is but one difficulty, in our judgment, and that is that the record does not show the metes and bounds, nor does it contain the field notes of the 30 acres, which the testimony shows was actually inclosed, and was in the pedal possession of Stanfield and his heirs. It will therefore be necessary, in accordance with the views expressed above, that this cause be reversed, and that it be rendered for the appellants, save and except the 30 acres actually inclosed and occupied- by appellees, and tbat when the boundaries of same have been correctly ascertained, that said appellees have judgment for said number of acres, apparently about 30, which were actually occupied and claimed by appellees; but, in so far as the remainder of said land sued for in this cause is concerned, the judgment of the trial court is reversed and rendered in favor of appellants.
      <g=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KET, C. J.

text:
    JANKS v. HERRICK HARDWARE CO. et al.
    (No. 5895.)
    (Court of Civil Appeals of Texas. Austin.
    June 13, 1917.
    Rehearing Denied Oct. 17, 1917.)
    1. Ini-ants @=^114^-Judgment — Disability-Pleading.
    The enforcement of a judgment will not be temporarily enjoined on the ground that at the time it was rendered the debtor was a minor under 21, did not appear in the case, and was not represented by a guardian appointed by any court, where the petition does not allege that at the time judgment was rendered the minor’s •disability had not been removed by a district judge, as authorized by statute.
    2, Infants <&wkey;114 — Judgment—Injunction Against — Pleading.
    The enforcement of a judgment will not be temporarily enjoined on the ground that at the time it was rendered the debtor was a minor under 21, did not appear in the case, and was not represented -by a guardian appointed by any court, where the petition does not show that the plaintiff now or ever owned any property, and therefore fails to show that any injury or damage will result to him by issuance of process upon the judgment before the trial of the injunction suit.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Action by Lewis Janks against Herrick Hardware Company and, another. Prom on order refusing a temporary injunction, plaintiff appeals.
    Affirmed.
    Jno-. L. Poulter, of Pt. Worth, for appellant. C. I-I. Machen and W. E. Lessing, both of Waco, for appellees.
   KET, C. J.

Appellant, by his father acting as next friend, brought this suit seeking to set aside a judgment formerly rendered against him and in favor of appellees. He alleged that the judgment referred to was void and not binding upon him for the reason that at the time it was rendered he was a minor under the age of 21 years, and did not appear and answer in the ease, and was not presented by a guardian appointed by any court.

In his petition appellant sought to have issued a temporary writ of injunction restraining appellees from having process issued to enforce the judgment referred to until trial of the case. The county judge to whom the petition was presented made an order refusing to grant a temporary writ of injunction, and it is from that order that this appeal is prosecuted.

We hold that the trial judge ruled correctly on account of two fatal defects in the plaintiff’s petition.

It alleged that the plaintiff was a minor under the age of 21 years, but it did not allege that his disability of. minority had not been removed by a district judge, as authorized by statute. It alleged that, unless restraint from doing so, the defendant Herrick Hardware Company would cause the other defendant Baker, as clerk of the court below, to issue an order of sale, execution, or some other writ for the purpose of enforcing the former judgment, and that if any such writs were issued and enforced against the plaintiff he would suffer great and irreparable injury and damage.

In order to show that the judgment complained of was not binding upon appellant, it was necessary for him to allege and prove facts which would show that at the time the judgment was rendered he was laboring under the disability of minority. He may have been, as alleged in his petition, under the age of 21 years, and yet his disability as a minor may have been removed by a district court proceeding, and as the petition, did not allege that no such removal had taken place, it failed to show that the judgment was not valid and binding upon him.

Also the petition failed to show that unless the temporary restraining order was issued, any property right of the plaintiff would be affected. It did not allege that the plaintiff owned any property which could be seized and sold under an execution or order of sale issued upon the judgment referred to-, and therefore it did not allege facts showing a necessity for a preliminary restraining order.

It is true the petition shows that the judgment complained of attempted to foreclose a chattel mortgage on certain personal property, but if that property belonged to appellant at the time the judgment was rendered against him, since that time he may have soldi it and parted with all the title he had in it, and if so, the sale of it under process issued upon the judgment will result in, no injury to him'. In fact, the petition in this case does not allege that appellant owns now, or ever owned, that or any other property, and therefore it fails to show that any injury or damage will result to him by the issuance of process upon the judgment before the trial of the injunction suit. Hence, and for the reasons stated, we decline to disturb the order appealed from and enter judgment of affirmance.

Affirmed.
      cgc^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. DAVIDSON, P. J. [DAVIDSON, P. J.

text:
    ZUCARRO v. STATE.
    (No. 4344.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.
    Rehearing Denied April 18, 1917.
    Dissenting Opinion Oct. 22, 1917.)
    1. Statutes <&wkey;194r-CoNSTRUCTioN — “Such Other Amusements.”
    General words in a statute, such as “such other amusements,” will not be rejected as too general, nor interpreted to include all kinds of amusements, but refers to amusements of the same nature as those named.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Such; Other.]
    2. Sunday <&wkey;6(l) — Moving Picture Shows —Statutes.
    That moving picture shows were invented subsequent to Pen. Code 1911, art. 302, prohibiting certain amusements on Sunday, would not preclude the statute prohibiting it if it came within the classification defined therein.
    3. Sunday &wkey;s6(l) — “Drama”—“Theatrical Performance’ ’ — “Circus”—“Variety Theater” — Motion Pictures.
    A drama is a story put in action, and a theatrical performance is a dramatic performance, and the essential elements of a circus and variety theater are the performances or acts of those taking part, and the motion picture produces drama without the spoken word.
    [Ed. Note. — For other definitions, see Words and Phrases, Theatrical Performance; First and’ Second Series, Drama; Circus.]
    4. Sunday <&wkey;6(l) — “Statutes”—“Such Other Amusements.”
    The words “such other amusements,” in Pen. Code 1911, art. 302, prohibiting certain amusements, includes moving picture shows where they reproduce dramatic or theatrical performances or acrobatic or other displays, such as pertain to the circus, or dancing, gymnastics, or amusements similar to those shown in variety theaters.
    5. Sunday <&wkey;2— Shows — Statutes.
    Pen. Code 1911, art. 302, prohibiting certain amusements on Sunday, is not affected by article 1480, making theaters public houses of amusements, to be regulated by law and ordinance.
    6. Municipal Corporations «=3592(4) — Ordinances — State Laws — Conflict.
    An ordinance allowing a moving picture show to remain open on Sunday cannot suspend Pen. Code 1911, art. 302, prohibiting them to run on Sunday with certain films.
    Davidson, P. J., dissenting.
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    A. Zucarro was convicted of crime, and lie appeals.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, and Chas. L. Black, of Austin, for appellant. Marshall Spoonts, Co. Atty., Turner, Cummings & Doyle, and D. W. Odell, all of Ft. Worth, Thomas, Milam & Touchstone, of Dallas, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was prosecuted

by information and convicted of violating article 302 of the Penal Code, which is as follows:

“Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, or the ’proprietor of any place of public amusement, or the agent ’ or employé of any such person, who shall sell, barter, or permit his place of business or place of public amusement to be open for the purpose of trafile or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term, place of public amusement, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives and places of like character, with or without fees for admission.”

The information contains the following:

“That A. Zucarro. * * * the proprietor of what is commonly known as a picture show, * * * did * * * unlawfully and willfully open and permit said place of public amusement to be open for public amusement, and did then and there on said Sunday permit a performance to be given and exhibited in said place of public amusement, to wit, a display of motion pictures, for public amusement, and for admission to which a fee was then and there charged.”

The case was tried before a jury, and the proof shows that on Sunday, the 9th of July, 1916, the appellant was proprietor of the Queen moving picture show in Ft. Worth, Tarrant county; that the picture show was open, and that he was giving an exhibition of moving pictures, charging a fee therefor; that the pictures were projected on a screen by means of a moving picture machine and electricity . throwing a magnifying light through the film which reflects on the screen something like a magic lantern — purely a mechanical device. There was no orchestra, no stage, no curtain or scenery. It was purely a first-class moving picture show. The question is raised by exception to the information and by motion for a new trial that the facts charged and proved do not constitute an offense under the article mentioned. Substantially the same question was before this court on an application for a writ of habeas corpus in the ease of Ex parte Lingenfelter, 64 Tex. Cr. R. 31, 142 S. W. 555, Ann. Cas. 19140, 765.

The leading questions involved are: (1) What is the legal effect and meaning of the following words in the statute, viz.: “The term, place of public amusement, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged;” and (2) whether or not the moving picture shows, exhibited and for which an admission fee is charged, are included in the language quoted.

That in the construction of statutes of this kind, the general words, such as “such other amusements,” will not be rejected as toó general, nor interpreted to include all kinds of amusements, is well settled by authority. From the thirty-sixth volume of Oye. p. 1119, we quote the following:

“By the rule of construction known as ‘ejus-dem generis’ where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.” “The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus.” “The words ‘others’ or ‘any other’ following an enumeration of particular classes are therefore to be read as ‘other such like’ and to indude only others of like kind or character.”

Many decisions are cited under the text supporting the rule. Cyc. vol. 36, p. 1120. This rule appears to be accepted by all courts, and has been specifically adhered, to by this court, notably in the case of Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131, wherein Judge Ramsey, writing the opinion, uses the following language:

“It is a familiar rule that, where general words follow particular and specific words, the former must be confined to things of the same kind. It has been held also that this rule is especially applicable in the interpretation of statutes defining crimes and regulating their punishment [citing cases]. The doctrine itself is thus well expressed in Lewis’ Sutherland Statutory Construction: * * ■ * ‘It is a principle of statutory construction eyerywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the. broad sense which they might bear, if standing alone, but as related to the words of more definite and particular meaning with which they- are associated.’ The rule is supported by numerous cases.”

These are cited in the opinion.

This court, in the case of Ex parte Roquemore, 60 Tex. Cr. R. 282, 131 S. W. 1101, 32 L. R. A. (N. S.) 1186, discussed the particular statute which is involved in this prosecution, and held that it did not make it unlawful for the proprietor of a baseball park to permit a game to be played therein on Sunday, or to cause a game to be played on Sunday therein, and to charge an admission fee therefor; the distinction made by the court in that case being that baseball, an outdoor game, was not like or similar to the amusements named in the statute. The court said:

“What are we to understand by the general term ‘and such other amusements as are exhibited and for which an admission fee is charged’? Clearly, we think amusements of a like or similar character. This seems to have been the construction given to a similar statute by many courts.”

By this decision the terms, “such other amusements as are exhibited and for which an admission fee is charged,” are interpreted to mean such other public amusements of a like or similar character, as circuses, theaters, an’d variety theaters, as are exhibited and for which an admission fee is charged; and the majority opinion of this court in the case of Ex parte Lingenfelter held that a moving picture show might be of a like or similar character of amusement, as a theater, and that whether or not it was such character of amusement depended upon the facts of the particular case. Further illustrating the views of the courts of this state with reference to the construction of general words in a statute, we call attention the case of Thompson v. State, 17 Tex. App. 253, where a statute was upheld which prohibited the sale of the Illustrated Police Gazette and other illustrated publications of like character. In the ease of Randolph v. State, 9 Tex. 521, the point is explained in the syllabus as follows:

“The rule which requires criminal statutes to be construed strictly applies to those only of a highly penal character: not to mere misdemeanors. Statutes should not, in. any cases, be so strictly construed as to defeat the obvious intention of the Legislature. The words of the statute against gaming, ‘or any other banking, game,’ etc., must have their intended effect; and consequently an indictment will lie for betting at any banking game, naming it, although it be not enumerated in the statute.”

Appellant insists that inasmuch as the act was passed before moving pictures came into vogue, they could not be held to have been within the legislative intent. In a similar question before this court in the case of Christopher v. State, 41 Tex. Cr. R. 235, 53 S. W. 852, he was charged with “keeping and exhibiting a bank or gaming device for the purpose of gaming.” .The statute under which he was prosecuted (article 382 of the Penal Code) enumerated a number of gaming devices, but did not enumerate a “slot machine,” and the proof showed that the device he kept was a slot machine; one of the assignments being as follows:

“The evidence fails to show that the ‘device’ in question was such as either expressly or by implication is embraced within the inhibition of the law. It was not capable of being either ‘kept,’ ‘dealt’ or ‘exhibited’ for the purpose of gaming, being an automatic machine requiring neither keeper, dealer nor exhibitor; [and] was not in contemplation of the Legislature, because it had not been invented or conceived when the law was enacted.”

Article 383 at that time contained a provision as follows :

“It being intended by the foregoing article to include every species of g-aming device known by the name of table or bank of every kind whatever, this provision shall be construed to include any and all games which in common language are said to be played, dealt, kept or exhibited, * * * but the enumeration of these games specially shall not exclude any other properly within the meaning of the two preceding articles.”

The court says:

“Our statutes on this subject were evidently framed not only to cover every gambling device then known, but all others that might be invented or become known.” ,

The conviction was sustained. This case was approved in the cases of Dalton v. State, 74 S. W. 28, and Meyer v. State, 112 Ga. 20, 37 S. E. 96, 51 L. R. A. 496, 81 Am. St. Rep. 17, and in the notes of 20 L. R. A. (N. S.) 240. Other cases which are persuasive on the point are: Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. 606, where an automobile was classed as a carriage in construing a statute passed before the invention of automobiles, and to the same effect are State v. Thurston, 28 R. I. 265, 66 Atl. 580, and Baker v. Fall River, 187 Mass. 53, 72 N. E. 336, and Parker v. Sweet, 60 Tex. Civ. App. 10, 127 S. W. 881.

We must conclude that the fact that a moving picture show was invented subsequent to the passage of the statute would not preclude the statute prohibiting it, provided it comes within the classification define'd in the statute. Whether it does come within this classification is a question upon which decisions of courts of other states are more or less conflicting, and the language of the statutes which they construe is different from the language of the statute under consideration. We are referred to the case of Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219, in which a statute prohibiting the exhibition of obscene and immoral pictures was held not to include theaters, and to the case of Clinton v. Wilson, 257 Ill. 580, 101 N. E. 192, wherein a statute which provided that “whosoever shall on Sunday keep open any billiard room, ball or pin alley, baseball grounds or other places of amusement within said city, or shall suffer or permit persons to assemble therein for the purpose of play or amusement, shall for each offense be subject to a fine,” etc., was held not to prohibit a moving picture show. This decision, we think, comes well within the rule laid down by this court in the Roquemore Case, supra, and that under the rule there applied the enumeration of the places of amusement which were prohibited were of a different species from theaters, circuses, and variety theaters. The Jacko Case, 22 Ala. 73, was upon a statute which prohibited exhibiting feats of sleight of hand, and upon the same principle it was correctly held that a theater was not included. The case of Commonwealth v. Donnelly & Collins, 21 Pa. Dist. R. 21, was one in which the question was whether a moving picture show came within the terms of a statute levying an annual tax upon buildings fitted up and used for theatrical or operatic entertainments or for the exhibition of amusements. The holding of the court that moving picture shows did not come within this statute is distinguishable from the case under consideration in that the statute which we are construing contains general words, which are absent in the Pennsylvania statute, these general words being, “such other amusements as are exhibited and for which an admission fee is charged,” and which are construed in the Roquemore Case, supra, to mean, “such other amusements like or similar to circuses, theaters, and variety theaters.”

The case of King v. Charron, 15 Can. Crim. Cases, 241, cited by appellant, is one where a moving picture show was held not to come within a statute which prohibited the carrying on for gain any business or calling. That case appears to be in direct conflict with the decision of Graham v. State, 134 Tenn. 285, 183 S. W. 983, in which the Supreme Court of Tennessee held that a moving ificture show was prohibited under a statute which provided, “if any merchant, artificer, tradesman, farmer, or other person, shall he guilty of 'doing or exercising any of the common avocations of life,” he shall be punished, etc. Another case cited is Dondon Theater v. Evans, 31 Times Law Rep. 75, in which it. was held that the exhibition of moving pictures or the performance of artists was not violative of an agreement wherein one had obligated himself “not to give or permit to he given any colorable imitation, representation or version of his performance.”

Aside from the cases discussed in Lingenfelter v. State, 64 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 1914C, 765, we find the case of State v. Morris, 1 Boyce (Del.) 330, 76 Atl. 479. The case was tried on an agreed statement. It charged a violation of a statute-providing :

“That no person, or persons, firm, company or corporation, without having first obtained a proper license therefor, as hereinafter provided, shall, within the limits of this state bo engaged ipi prosecute, _ follow or carry on any trade; ■" * that is to say * * * exhibiting circuses. * * * ”

The agreement shows that appellant was—

“in the business of exhibiting moving pictures upon a screen, curtain, or other contrivance by means of a certain apparatus made for that purpose; that such business was conducted in a building known as No. '411 Market street, Wilmington, Del.; that said moving pictures consisted of pictorial representations of scenes, persons and things in motion for the amusement and pleasure of the spectators assembled in said building, for which a price of admission was charged."

The court held that the statute was violated, using the following language:

“The sole question for determination is whether the said described business of the said Hyrup Amusement Company did constitute the exhibiting of a circus within the meaning of said act of assembly. Section 5 of said statute provides that every building, tent, space or area where feats of horsemanship, or acrobatic sports, or theatrical performances are exhibited, shall be deemed a circus within the meaning of this act. * * * ’ Was or was not the said Hyrup Amusement Company engaged in the business of a circus? Ordinarily, in the absence of any statutory declaration or definition, we should not say that said described business did constitute a circus within the usual meaning and definition of the word ‘circus,’ or that the meaning of circus would be included in the term ‘theatrical performances’; but the said statute expressly declares that ‘every building * * * where * * * theatrical performances are exhibited shall be deemed a circus. * * * ’ The question is, therefore, did the business of the said Hyrup Amusement Company, as disclosed by the said agreed statement of facts, come within the meaning of the terms ‘theatrical performances,’ which latter the statute constitutes a circus within the meaning thereof? By the Century Dictionary, ‘theatrical’ means ‘of or pertaining to a theater or scenic representations resembling the manner of dramatic performers’; by Webster, ‘of or pertaining to a theater or •scenic or dramatic representations’; and by the Standard Dictionary, ‘of or pertaining to the theater; of the nature of dramatic or scenic representations; befitting the stage; dramatic.’ ”

The case of Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131, does not decide the point involved here. The facts of that case were that under a statute as follows:

“Whenever a magistrate is informed upon oath that an offense is about to be committed against the person or property of the informant, or of another, or that any person had threatened to commit an offense, it is his duty immediately to issue a warrant for the arrest of the accused, that he may be brought before such magistrate, or before some other named in the warrant”

—relator was arrested on an order issued by a magistrate, upon the filing of an affidavit “that the relator is about to commit, and seriously threatened to commit, an offense against the laws of the state of Texas, in that he had seriously threatened to open and permit to be opened his place of business, a public amusement, on Sunday; and to give therein a theatrical performance for public amusement, to which a fee for admission will be charged.” The court held that the term “offense” in the statute authorizing the arrest was restricted to offenses against the “person” or “property,” and that the exhibition of a prohibited amusement on Sunday was not an offense against the person or property.

We take from the Century Dictionary definitions of “circus,” “variety show,” “theatrical,” and “drama,” as follows:

Circus: “A place of amusement where feats of horsemanship and acrobatic .displays form the principal entertainment; the company of performers in such a place, with their equipage; the entertainment given.”
Variety Show: “An entertainment consisting of dances, songs, negro minstrelsy, gymnastics or specialties of any kind.”
- Theatrical: “Of or pertaining to a theater or scenic representations; resembling the manner of dramatic performers; all that pertains to dramatic performances; also, a dramatic performance.”
Drama: “A story put into action, or a story of human life told by actual representation of persons by persons, with imitation of language, voice, gesture, dress and accessories or surrounding- conditions, the whole produced with reference to truth or probability, and with or without the aid of music, dancing, paintings and decorations; a play.”

Variety Theater is defined as a place where a variety show is exhibited.

A similar question was before the Supreme Court of the United States in the case of Kalem Co. v. Harper Bros., 222 U. S. 55, 33 Sup. Ct. 20, 56 L. Ed. 95, Ann. Cas. 1913A, 1285, wherein it was held that a copyright had been violated by exhibiting moving pictures of Ben Hur. From, this case we quote the following from 58 D. Ed. 95:

“The subdivision of the question that has the most general importance is whether the public exhibition of these moving pictures infringed any rights under the copyright law. * * * Authors have the exclusive right to dramatize any of their works. So, if the exhibition was or was founded on a dramatizing of Ben Hur, this copyright was infringed. We are of opinion that Ben Hur was dramatized by what was done. Whether we consider the purpose of this clause of the statute, or the etymological history and present usages of language, drama may be achieved by action as well as by speech. Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of a word. It would be impossible to deny the title of drama to pantomime as played by masters of the art. Daly v. Palmer, 6 Blatchf. 256, 264, Fed. Cas. No. 3,552. But if a pantomime of Ben Hur, * * * it would be none the less so that it was exhibited to the audience by reflection from a glass, and not by direct vision of tEe figures — as sometimes has been done in order to produce ghostly or inexplicable effects. The essence of the matter in the case last supposed is not the mechanism employed, but that we see the event or story lived. The moving pictures are only less vivid than reflections from a mirror. With the former as with the latter our visual impression — what we see — is caused by the real pantomime of real men through the medium of natural forces, although the machinery is different and more complex.”

The opinion last referred to we regard as pertinent to the questions involved in this case. The reasoning of Justice Plolmes seems to us to be quite the last word on the subject. It is true the case involved a question of the infringement of a copyright, but it will be noted that the solution of that question depended upon whether or not a moving picture representation of the well-known romance Ben Hur was the dramatization of the romance; in other words, whether the exhibition of moving pictures of Ben Hur was the exhibition of a drama, was of the nature of a dramatic or theatrical performance. This question was answered in the affirmative in an argument by Justice Holmes, most cogent and to our minds quite convincing, demonstrating that the drama miay be produced without the use of words, and that direct vision of the actors in the play is not essential. Through moving pictures, the drama as interpreted by actors is exhibited; the acts of men and women, their emotions, every phase of human life, every variety of scene, all that the drama is except the words; and, as stated by Justice Holmes, the “drama may be achieved by action as well as by speech.” The drama is a story put in action, and a theatrical performance is a dramatic performance. The essential elements of a circus and variety theater are the performances or acts of those taking part.

In the light of the authorities and definitions to which reference has been made, we are unable to accept the view that a moving picture show is not of the same species or genus similar in character to the circus, the theater, and the variety show. To the contrary, our opinion is that the words of the statute, “such other amusements as are exhibited and for which an admission fee is charged” include moving picture exhibitions where they reproduce and exhibit dramatic or theatrical performances or acrobatic or other feats or displays such as pertain, to the circus, or dancing, gymnastics, or other entertainments of the character exhibited in variety theaters, or other exhibitions, like or similar to any of these, where an admission fee is charged. They are places of public amusement within the terms of article 302, P. C., and appellant’s moving picture show being of this kind, its exhibition on Sunday was prohibited.

The contention is made, however, that since the adoption of article 1480 of the Penal Code, article 302, under which this prosecution is had, is no longer in force. Article 1480 is as follows:

“All buildings constructed, fitted and equipped for the purpose of theaters, commonly called theaters, opera houses, play-houses, or by whatever name designated, which are and shall hereafter be used for public performances, the production and exhibition of plays, dramas, operas and other shows of whatever nature, to which admission fees are charged, be, and the same are hereby declared to be ‘public houses of amusement,’ and the same shall be subject to regulation by the public will as expressed by ordinance, statute, or otherTaw: Provided, that owners and lessees shall have the right to assign seats to patrons thereof, and to refuse admission to objectionable characters.”

"The caption of that act, which is at page 21 of the ¡Laws of 1907, is as follows:

“An act declaring theaters, play-houses, opera houses and other show buildings by whatever name known, to be public places of amusement; to prevent the owners, lessees, managers and agents thereof from discriminating against persons, stock companies, corporations or others applying to lease or rent such public places of amusement, for produetiofts and renditions of dramas, operas and other shows by whatever name known; to provide for the keeping and exhibiting of bookings of all leasings and lettings of such houses; to require certain stipulations in all subsequent leases and renewáls for a term; providing penalties for violation of the provisions of this act, and declaring an emergency.”

And the emergency clause is as follows:

“The fact that owners, and lessees of such public houses of amusement are, by reason of the power and influence of the theater trust, prevented from leasing and letting such houses to any person, company or concern not owned, booked or controlled by said trust, creates _ an emergency and an imperative public necessity, requiring the suspension of the constitutional rule that bills be read on three several days, and the same is hereby suspended, and that this act take effect and be in force from and after its passage, and it is so enacted.”

In our judgment, this article 1480 is not in conflict with article 302 of the Penal Code. The purpose of its passage was entirely at variance with the idea that it was intended to or had the effect of repealing article 302. It is in no sense inconsistent with it by its terms. It deals with buildings constructed, fitted, and equipped for certain purposes named therein, declares them to be public houses of amusement subject to regulation by “ordinance, statute or other law.” Article 302 deals with the business conducted, and not with the structure in which the business is situated. If, however, article 1480 is construed to apply to the exhibitions as well as the houses in which they occur, its effect is to declare a moving picture show a public house of amusemeut, subject to regulation by statute.

It is urged also that an ordinance of the city of Ft. Worth, which was as follows: “No place of amusement shall be open, or operated between the hours of 12 p. m. and 8 a. m. on weekdays nor between the hours of 12 p. m. Saturday and 2 p. m. on Sunday following. That all other hours of the day or night it shall be lawful to open and operate such places, provided they comply with the terms of this ordinance” — made it lawful for the appellant to conduct his business within the hours permitted on Sunday, and that it appearing from the evidence that the offense charged was within the permitted hours. Said ordinance was in conflict with the state law. The state law (article 302, P. C.) prohibiting the conduct of the business for which appellant is prosecuted, the ordinance of the city of Ft. Worth could not have the effect of suspending the operation of the state law. This was held by the Court of Civil Appeals at Austin in an opinion by Judge Key in the case of Burton v. Dupree, 19 Tex. Civ. App. 275, 46 S. W. 272, and by the Supreme Court in an opinion by Chief Justice Brown in Brown Cracker Co. v. Dallas, 104 Tex. 294, 137 S. W. 343, Ann. Cas. 1914B, 504, from which we quote as follows:

“By this language bawdyhouses are prohibited in every part of the city of Dallas except the territory designated ‘within which district in accordance with article 362a of the Penal Code of the state of Texas, they shall hereafter be confined.’ This language compels such houses and their inmates to be and remain in that district, if they be in Dallas. The fourth section provides for regulating their conduct and guarding the inmates from disease, presumably to protect male visitors. An argument to demonstrate that the ordinance permits such houses to exist in that district would be inexcusable, the language is too plain to require explanation or application. The ordinance is plainly in conflict with article 361, copied above, which denounces the penalty of extermination against all such places and houses and practices, and, upon conviction, inflicts a penalty of $200 and 20 days’ imprisonment upon all persons for each day they may be concerned in operating them. The antagonism between the ordinance and the law is as emphatic as that between life and death. It follows logically that both laws cannot be in force in that territory at the same time, and it devolves upon this court to determine which is to be maintained. As before stated, the law of the state, if in force, must prevail, and the inquiry now reaches that point, upon which the decision of this case must depend. In Davis v. State, 2 Tex. App. 425, it was held, in effect, that a provision in the charter of the city of Waco similar to that under consideration had the effect to suspend the state law on the same subject. In that case the court cites State v. Clarke, 54 Mo. 17 [14 Am. Rep. 471], which sustains that view of the question, but no reference is made to anything in their Constitution that would affect the question. Our Constitution at the time the Davis Case was decided was materially different from ar-tide 1, section 2S, of the present Constitution, ■which roads: ‘No power of suspending laws in this state shall be exercised except by the Legislature.’ The present Constitution omits at the end of this section the words, ‘or by its authority,’ which words were in that section of all former Constitutions. Under the former Constitutions it might have been, and probably should have been, held that the provision in the charter authorizing the city ‘to regulate and segregate,’ etc., such houses, gave authority to such city to suspend the state law on the same subject, and that the enactment of such an ordinance would have that effect.
“In Burton v. Dupree, 19 Tex. Civ. App. 275 [46 S. W. 272], Judge Key in his usual succinct and forcible style points out the difference between the former and present provisions of our Constitution, and states clearly the. effect such change must have upon this question. Quoting the present section 28 of article 1 of the Constitution, that learned judge says: ‘This section restricts the power to suspend laws to the Legislature, and expressly prohibits the exercise of such power by any other body. In view of this provision of the Cqnstitution, it must be held (whatever may have been the power of the Legislature under former Constitutions) that that body cannot now delegate to a municipal corporation, or to any one else, authority to suspend a statute law of the state. We therefore hold that the provisions of the Penal Code referred to were and are in force within the entire limits of the city of Waco, as well as elsewhere in the state, and that the lease contract in question, being knowingly made for the purpose of assisting in the violation of a penal law, is contrary to public policy, and not enforceable in the courts.’ Since the amendment of the Constitution the Court of Criminal Appeals has held in accordance with Judge Key’s opinion. If it be admitted that the Legislature intended to confer upon the city of Dallas authority to suspend article 361 within the district laid 'Out, that provision of the charter would be void, because in conflict with section 28 of article 1 of our present Constitution. The Legislature had no authority to delegate that power to the city.”

Other authorities in point are: Arroyo v. State, 69 S. W. 504; Ex parte Ogden, 43 Tex. Cr. R. 532, 66 S. W. 1100; Denton v. McDonald, 104 Tex. 206, 135 S. W. 1148, 34 L. R. A. (N. S.) 453; Fay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603.

The judgment of the lower court is affirmed.

DAVIDSON, P. J.

I cannot concur in the disposition of this case. I believe it ought to be reversed and the prosecution dismissed. I will, if time affords, later write some of the views for my nonconcurrenee.

[DAVIDSON, P. J.

(dissenting). When the opinion herein was handed down I entered my dissent, intending at the time to write some additional views for dissenting that were not given in Ex parte Lingenfelter, 64 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 1914C, 765, but under the pressure of delayed cases and the heavy docket I did not write during the last term of court, nor in vacation. While there are reasons that were not presented by my dissenting opinion, in the Lingen-felter Case why moving picture shows are not brought within the Sunday law, yet at this late date I do not care to write further. I am clearly of opinion that the majority of the court are in error in this ease, as they were in the Lingenfelter Case, supra.
      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    DILLON v. STATE.
    (No. 4343.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    J. J. Dillon was convicted of crime, and he appeals.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. Marshall Spoonts, Co. Atty., W. R. Parker, Asst. Co. Atty., S. J. Cal-laway, Asst. Co. Atty., and Turner, Cummings & Doyle, all of Ft. Worth, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for violating article 302 of the Penal Code, on a charge of exhibiting in a place of amusement on Sunday a moving picture show. The majority of the court holds the law valid and the conviction proper. I do not agree with their conclusions, but in obedience to the views of the majority as presented in the Zucarro Case, 197 S. W. 982, this day decided, this judgment will be affirmed.


text:
    COTTAR v. STATE.
    (No. 4370.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    H. G. Cottar was convicted of exhibiting moving pictures in a place of amusement on Sunday, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for violation of article 302, P. C., wherein appellant was convicted for exhibiting in a place of amusement a moving picture show on Sunday. The majority of the court have held the law constitutional and valid in the Zucarro Case, 197 S. W. 982, this day decided. I cannot concur, and will write later for my nonconcurrenee and file in the Zucarro Case. Under the authority of that case, this judgment will be affirmed.


author: PRENDERGAST, J.

text:
    COHEN v. STATE.
    (No. 4345.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from’Tarrant County Court; Jesse M. Brown, Judge.
    R. Cohen was convicted of crime, and he appeals.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. Marshall Spoonts, Co. Atty., W. R. Parker, Asst. Co. Atty., S. J. Cal-laway, Asst. Co. Atty., and Turner, Cummings & Doyle, all of Ft. Worth, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

From a conviction of violating the Sunday law in exhibiting a moving picture show, this appeal is prosecuted. There is no different question in this case from those in No. 4344, Zucarro v. State, 197 S. W. 982, from Tarrant county, this day decided, in an opinion by Judge Morrow. In accordance with the statute, and with Ex parte Lingenfelter, 64 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 19140, 765, Zucarro v. State, 72 Tex. Cr. R. 214. 162 S. W. 844, Lempke v. State, 76 Tex. Cr. R. 125, 171 S. W. 217, McLeod v. State, 180 S. W. 117 L. R. A. 1916B, 1124, Spooner v. State, 182 S. W. 1121, and said Zucarro Case, 197 5. W. 982, this day decided, the judgment will be affirmed.

DAVIDSON. P. J. This is a companion case to No. 4344, Zuearro v. State, 197 S. W. 9S2, this day decided. Eor the same reasons X cannot concur.


text:
    RIGGLE v. STATE.
    (No. 4371.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    J. H. Riggle was convicted of exhibiting moving pictures in a place of amusement on Sunday, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for violation of article 302, P. C., wherein appellant was convicted for exhibiting in a place of amusement a moving picture show on Sunday. The majority of the court have held the law constitutional and valid in the Zucarro Case, 197 S. W. 982, this day decided. I cannot agree, and will write reasons later for that noncon-currence and file in the Zucarro Case. Under the authority of the Zucarro Case, this judgment will be affirmed.


text:
    PHILLIPS v. STATE.
    (No. 4339.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    J. S. Phillips was convicted under Pen. Code, art. 302, of exhibiting in a place of amusement a moving picture show on Sunday, and he appeals.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. Marshall Spoonts, Co. Atty., W. R. Parker, Asst. Co. Atty., S. J. Cal-laway, Asst. Co. Atty., and Turner, Cummings & Doyle, all of Ft. Worth, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for violation of article 392, P. C., wherein appellant was convicted for exhibiting in a place of amusement a moving picture show on Sunday. The majority of the court have held the law constitutional and valid in the Zucarro Case, 197 S. W. 982, this day decided. I do not believe the decision correctly decides the law, but the majority have held the other way, and in obedience to their finding, this judgment will be affirmed.


text:
    NEEDHAM v. STATE.
    (No. 4552.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.
    On Motion for Rehearing, Oct. 31, 1917.)
    1. Criminal Law @=>366(6)&emdash;Evidence&emdash;Ad-missibility as Res Gesms.
    On the trial for aggravated assault on defendant’s wife, evidence of her statements concerning the assault made within 10 or 15 minutes after the injuries were received, and while she was still bleeding from her wounds and trying to wash the flowing blood from her face, was admissible as res gestae.
    2. Criminal Law @=3730(15) &emdash; Improper Ar gument&emdash;Cure.
    The statement of the county attorney in his argument that it was impossible to find the best class of people as witnesses in criminal cases, because they were not the kind of people who saw or heard such things, and that this was why the state had to bring “him and his kind of cattle,” referring to defendant, his wife, son, and daughter-in-law, was not reversible error where the court promptly sustained an objection, instructed the jury to disregard such argument and not consider it for any purpose, and reprimanded the county attorney, telling him that such argument was improper and not permissible, and should not be indulged in.
    On Motion for Rehearing.
    3. Assault and Battery @=>92&emdash;Sueeicibn-cy oe Evidence&emdash;Aggravated Assault.
    On the trial of a man for assaulting his wife, the physical facts testified to, and the testimony of the wife in connection with her res gestse statements, held amply sufficient to support a conviction.
    Appeal from Williamson County Court; Richard Critz, Judge.
    Oscar Needham was convicted of aggravated assault and he appeals.
    Affirmed.
    Allison & Harty, of Georgetown, and Dan Moody, of Taylor, for appellant. E. B. Hem dricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an aggravated assault on his wife, and a fine of $25 and 30 days in jail assessed as his punishment.

The testimony as a whole clearly shows that on the date alleged appellant’s wife, Etta Needham, was sitting in the front of their restaurant crocheting. At the time, she, her son, Elma, and his wife, Fay Needham, were the only persons in the restaurant. Appellant then came in drunk or drinking. Mrs. Etta Needham swore she and he then “had a little trouble there that day.” The testimony, without question, further shows that, pri- or to this “little trouble” she and appellant had, she had no bruises and cuts on her person, and that her clothes were in no way torn. That after it was over, as sworn to by Mr. Allen, a disinterested witness, who then saw her, “she had a big swollen place on her arm, and her nose was swollen and scratched and bruised, and she had blood on her hands and clothing.” The whole evidence excludes the idea that any other than appellant produced these injuries of her person and clothing.

She further swore that when appellant took her crochet away from her she asked her son, Elma, to make him give it back, and Elma told him to hand it over to her, and he did so. “Mr. Needham caught ahold of me while I was still sitting down in the chair.” She said she did not remember how he caught her or whether he then hurt her, and that after it was over&emdash;

“I was scratched on my right hand and on my nose. Yes; there was some bruises just above my wrist; the belt of my dress was torn. The place on my nose bled some. * * * Enough to stain a handkerchief a right smart. * * . * It was almost covered. I had on an apron with a bib on it up over my breast, I think the bib had blood on it.”

Recalled by the state, she testified:

“After Oscar Needham tore my dress I hit him with a knife. I did not hit him until after he tore my dress. Elma did not hit me. After the trouble I' went over to Mrs. Harrison’s * * *”

From her testimony, and that of her son, Elma, and his wife, Fay, it is perfectly apparent they were withholding any evidence which they thought would incriminate appellant. They were doing all they could to shield him.

The said restaurant was on the same side of the street as the residence of Mrs. G. W. Harrison, and these places were only about 30 or 40 feet apart. Mrs. Harrison testified she knew all the parties; that on the day of this trouble between appellant and his wife she first saw Mrs. Needham that day when she was washing the blood off her face at a hydrant in her (Mrs. Harrison’s) yard. There was blood on her arm and on her apron.

“During the time that she was at her house I heard Mr. Needham cursing. He was around the resteurant somewhere. She had just come into the yard when I heard him over there. Yes; she made a statement to me. I asked her what was the matter. She said Oscar was over there tearing up the place. She said he threw a whisky bottle at her. I got her a rag to wash her face. She told me that they were eating dinner, she, Elma, and Pay, when Oscar-came in and took her crochet from her lap. Elma took it back and gave it to her. Oscar grabbed, her and she did not know what he was going to do. She hit him with a knife. She said it was in self-defense. * * * I do not know what else she said; she said so many things about the way he had abused her. She told me that he had threatened her many times, and at this particular time he struck her. * * * She had a bruise on her wrist, and the back of her hand was bruised. There were two places on her nose where something sharp had struck her. Blood was dripping from two places on top of her nose. It seemed to me like something had hit a wall and flew back and hit her. Yes; there was blood on her apron, and her clothing was torn. She said when he grabbed her he tore her dress. She said, T didn’t know whether he was trying to tear my clothes off or kill me.’ ”

Abe Harrison, a son of Mrs. Harrison, testified that be saw said Mrs. Needham over at his mother’s house on said occasion, and heard her make a statement; that his mother and others were present at the time.

“When Mrs. Oscar Needham came over there, there was blood on her clothes and on a rag or handkerchief. She said- Mr. Needham was drunk, and throwing everything he could get his hands on at them, and was trying to throw glasses at her. 'She had been there about 15 minutes when I left. I do not know where Oscar Needham was at that time. Mr. Allen came before I left. Mrs. Oscar Needham was at our house when he came. She said he (Oscar) tried to tear her clothes off of her. I do not remember whether she said he hit her or not. Mrs. Needham came from the restaurant.
* * She said he was trying to tear her clothes off of her, and she hit him with a knife.”

Mr. Allen, an officer, testified that on said occasion he went to Needham’s restaurant. Mrs. Needham was not there when he got there. He saw her over at Mrs. Harrison’s. He swore:

“She had a big swollen place on her arm, and her nose was swollen and scratched and bruised, and she had blood on her hands and clothing. I had a conversation with her over at Mrs. Harrison’s. She said that Mr. Needham-had hit her on the arm with a bottle or a glass. I don’t know which. I don’t know whether she knew or not. She had blood on her dress and her handkerchief was bloody. She showed me her arm. She said she would have to tell it like it was but she hated to. She said he was drunk, and was taking in every thing in the restaurant. She said he liked to have broken her arm. I then went and arrested Oscar Need-ham. When I got him he had a bottle of whis-ky. I made the complaint and got a warrant. I got the bottle the first time I saw him. It had’ blood on the bottle.”

Appellant objected to that part of the testimony of Mrs. Harrison, Abe Harrison, and Mr. Allen as to what Etta Needham told them. The court admitted said testimony as res gestas. He qualified and explained appellant’s bills on the subject all, substantially, in the same way. We quote his explanation and qualification of the first bill on the subject. It is:

“The part of the bill that shows that Mrs. Etta Needham said that the defendant was drunk was by agreement orally withdrawn from the jury, and they were instructed to disregard it. The balance of the bill, which shows the-statements made by Mrs. Etta Needham, was admitted by the court as res gestse, for the reason that the record, taken as a whole, shows, that they were made a very short time after the injuries were received, not over 10 or 15 minutes; that they were made while Mrs. Etta Needham was still bleeding freely from the wounds, and was trying to wash the flowing blood from her face; such statements being, in the opinion of the court, clearly within the rule of res gestm.”

The said testimony of the three witnesses objected to was clearly res gestae, and admissible on the authority of Gillespie v. State, 190 S. W. 146.

Appellant objected to this statement orar gument by the county attdrney to the jury:

“It is impossible for us to find the best class of people as witnesses in criminal cases, because-they are not the kind of people who see and hear such things. And that is why the state has had to bring here ‘him and his kind of cattle’; referring to defendant, and his wife, and, son, and daughter-in-law.”

The court explained and qualified this bill as follows:

“When objection was made to the above argument the court promptly sustained the same, and, by agreement of counsel for the defendant, orally instructed the jury to disregard said argument, and not consider it for any purpose. The court also, in the presence of the jury, reprimanded the county attorney making such argument, and told him that same was improper, and that such argument was not permissible, and should not be indulged in.”

Under the circumstances, this bill presents-no reversible error.

Appellant attempted to take other bills to some other claimed argument by the county attorney, but the explanation of the court thereof, is, in effect, a refusal to approve these bills. Hence they present no. reversible error.

The judgment is affirmed.

On Motion for Rehearing

The only contention of appellant, in his motion for rehearing, is, in substance, that the commission of the alleged offense cannot be established by res gestse evidence alone. The res gestae of any transaction, which is the transaction itself speaking, testified to by witnesses, is regarded by all the authorities as a very high class of testimony. In this case this offense was not proven by res gestae statements alone. The physical facts testified to by some of the witnesses, and the testimony of Mrs. Needham herself, in connection with the res gestae statements proven, were amply sufficient to prove the offense.” The testimony is substantially recited in the original opinion, to which there is no objection by appellant.

The motion is overruled.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes