source: Caselaw Access Project

author: HARD, J.

license: Public Domain

text:
    PECOS & N. T. RY. CO. v. HUSKEY.
    (No. 592.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 4, 1914.
    Rehearing Denied May 9, 1914.)
    1. Railroads (§ 95) — Crossings—Duty to Maintain.
    The contention that where a railroad crosses a public highway it is not required to keep the approaches in repair if properly constructed, unless the approach constitutes a part of the track or crossing proper, is untenable.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 274-283; Dee. Dig. § 95.]
    2. Damages (§§ 143, 149) — Allegations.
    Under the general allegation of damages in a personal injury action by breaking plaintiff’s arm, etc., plaintiff could recover for both mental and. physical suffering.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433; Dec. Dig. §§ 143, 149.]
    3. Damages (§ 143) — Personal Injuries— Allegations.
    The petition alleged that while riding on horseback along a public highway, and while crossing defendant’s railroad track at its intersection with the public road, and while upon defendant’s right of way, plaintiff’s horse stumbled over a hole in an iron culvert or metal pipe, which defendant had placed in and on said public road as a drain pipe, by reason whereof plaintiff was thrown to the ground, injuring his nose, shoulder, and arm, etc., and that defendant was negligent in placing said culvert across the road in the manner in which it was placed there, and in not keeping; and maintaining the same, and in permitting it to become uncovered and allowing a hole to be and remain therein so as to become dangerous to travelers. Held, that the petition was not objectionable as failing to state of what the damages consisted.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433; Dee. Dig. § 143.]
    4. Railroads (§ 344) — Crossing Accidents— Allegations op Petition — Cause op Injury.
    The petition was not objectionable as failing to state in what way plaintiff had sustained the damage alleged.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1107-1112; Dec. Dig. § 344.]
    Appeal from District Court, Floyd County; R. C. Joiner, Special Judge.
    Action by Dallas Huskey against the Pecos & Northern Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Madden, Trulove & Kimbrough, of Amarillo, for appellant. T. F. Houghton, of Floy-dada, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARD, J.

Appellee filed this suit by next friend, in the district court of Floyd county, to recover damages on account of personal injuries. He alleged that while riding on horseback along the public highway near Floydada, and while crossing defendant’s track at its intersection with the public road, and while still upon defendant’s right of way, his horse stepped in and stumbled over a hole in an iron culvert or metal pipe, which defendant had placed in and on said public road as a drain pipe; that by reason thereof plaintiff was thrown to the, ground, injuring and bruising his nose, shoulder, spraining his left wrist, and breaking his left arm; that the defendant was negligent in placing said culvert- across said road in the manner in which it was placed there, and in not keeping and maintaining the same, and in permitting it to become uncovered and allowing a hole to be and remain therein so as to become dangerous to travelers. There is a general allegation of damages in the sum of $1,500. The record shows that the public road had been established and used many years prior to the building of the line of railway across the same, and that the culvert was part of the approach to the railway track, and constituted part of the crossing at that point. There was a trial before a jury, resulting in a verdict and judgment in favor of appellee, in the sum of $400 and costs of suit.

The appellant requested a peremptory instruction, in its favor, which, being refused by the court, is made the basis of the first assignment of error. The first proposition urged under this assignment is that where a railway crosses a public highway, it is required to keep in repair the crossing proper, but is not required to so keep the approaches to such crossing if properly constructed in the beginning, unless the approach constitutes a part of the track or crossing proper. In this sort of a case this question has been decided adversely to appellant’s contention several times. In St. L. & S. W. Ry. Co. of Texas v. Smith, 49 Tex. Civ. App. 1, 107 S. W. 638, it is said that under R. S. 1911, art. 6485 (4426), requiring a railroad company building its road across an established highway to restore the highway to its former state, or to such state as not to unnecessarily impair its usefulness, and to keep the crossing in repair, the duty of the company to keep the crossing in repair is absolute; and Talbot, Justice, said: A “crossing within the meaning of the statute * * * is not confined to that portion of the * * * roadbed upon which” the rails and cross-ties “are laid but * * * includes the approaches of public roads thereto on its right of way.” I. & G. N. R. R. Co. v. Butcher, 81 S. W. 819; G., C. & S. F. Ry. Co. v. Sandifer, 29 Tex. Civ. App. 356, 69 S. W. 463.

Appellant asked the following special charge: “If you should find in favor of the plaintiff in this case, in estimating the damages which you will allow him, you will take into consderation only the physical pain suffered by the plaintiff, Dallas Huskey, by reason of the injuries received by him at the time and place alleged in plaintiff’s petition” —and the refusal of the court to give this charge is the basis for appellant’s second assignment of error. The court did not err in refusing this charge, because under his general allegation of damages, appellee was entitled to recover for both mental and physical suffering. T. & N. O. Ry. Co. v. Bingle, 9 Tex. Civ. App. 322, 29 S. W. 674; T. & P. Ry. Co. v. Curry, 64 Tex. 85. Paragraph 5 of the general charge properly submitted this issue to the jury.

It is contended under the third assignment that the railway company, in maintaining a culvert on its right of way across a highway, is bound to use only ordinary care when the culvert is disconnected with its track across its property. What we have said in disposing of the first assignment also disposes of this contention.

The following special exception wasurged to plaintiff’s petition: “Said petition alleges in the ninth paragraph thereof that the plaintiff, Dallas Huskey, has been damaged in the sum of $1,500, but fails to state of what said damages consist, and in what way plaintiff has sustained such damages, wherefore defendant prays judgment,” etc. Plaintiff’s petition specifically alleges the condition of the culvert and the manner in which the accident occurred, and contains a detailed statement of the nature and extent of his injuries. We think the allegations are sufficient.

The fourth assignment of error questions the sufficiency of the evidence to sustain the verdict and judgment. This assignment is without merit. There is sufficient evidence in the record, not only to sustain the finding of the jury, but to authorize a verdict for the amount rendered. The fourth and fifth assignments are therefore overruled.

Because there is no reversible error, the judgment is affirmed.


author: FLX, C. J.

text:
    DRAUGHON’S PRACTICAL BUSINESS COLLEGE v. DORSETT.
    (No. 5275.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 6, 1914.)
    1. Appeal and Error. (§ 231)—Bile op Exceptions—Evidence.
    Error in admitting a letter in evidence will not be reviewed, where the bill of exceptions shows that no reason was given for objection to the introduction of the letter.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1299-1352; Dec. Dig. § 231.]
    2. Contracts (§ 280)—Performance.
    Plaintiff, who was contesting for a prize offered for the greatest amount of money paid in for scholarships in defendant’s business college, was entitled to credit for certain tables which defendant accepted as part payment for a scholarship procured by plaintiff.
    TEd. Note.—For other eases, see Contracts, Cent. Dig. §§ 1249-1280; Dec. Dig. § 280.]
    3. Contracts (§ 305)—Performance.
    Where defendant, who offered a prize to the person procuring the greatest amount paid in on scholarships in its business college, did not provide in its circular offer that all of the money for the scholarship should be collected after the contest began, and accepted the money paid in by a contestant knowing that a small part of it had been collected before the contest began, defendant cannot complain, as against such contestant, that the collection was made before the contest.
    [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1398-1400, 1463, 1464, 1467-1475; Dee. Dig. § 305.]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by Duleie Dorsett against Draug-hon’s Practical Business College. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    L. R. Patton, of Galveston, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLX, C. J.

Appellee sued appellant to recover the sum of $281.14, which she alleged was due her by reason of the fact that she had gained the first prize, a diamond ring of the value of $279, offered by appellant for the greatest amount of money paid in on scholarships obtained by her up to April 5, 1913, and a certain commission of $2.14. The cause was tried by a jury and resulted in a verdict for $150 in favor of appellee.

The evidence shows that appellant offered to give to any student or ex-student of its school, who obtained the most money for scholarships and books and stationery, a diamond ring; that appellee paid in the largest sum, and was entitled to a diamond ring of the value of $150, but appellant failed and refused to deliver it to her.

The first assignment of error complains of the introduction in evidence of a certain letter written by appellant’s manager to appellee. The bill of exception shows that no reason was given for objection to the introduction of the letter in evidence. Such a bill of exceptions will not form a basis for an assignment of error. This has been the uniform rule in Texas since Cheatham v. Riddle, 8 Tex. 162, was decided in 1852. No reference to the admission of the evidence was made in the motion for new trial.

It was uncontroverted that appellee took in payment on a scholarship certain tables desired by appellant, and that appellant accepted the tables and credited them on the scholarship account of the maker of the tables. The facts show that the tables were accepted at an agreed price from ap-pellee, and the court did not err in instructing the jury that their price should be credited as cash. Appellant got the benefit of the tables, and could not deprive appellee of a credit- for them. Appellee swore that appellant agreed to accept the tables as cash, which was denied by appellant, but it accepted the tables and gave the maker of them a credit of $18 on his scholarship.

There was no provision in the* circular that all the money for the scholarships should have been collected after the contest began, and appellant did not so construe it, for it accepted the money knowing that a small part of it had been collected by appellee just before the contest began. It may have been unjust to other contestants, but appellant has no cause of complaint.

The complaints of the charge, in the third, fourth, and fifth assignments of error, are not meritorious and are overruled.

• The sixth and seventh assignments are overruled.

The judgment is affirmed.


author: HIGGINS, J.

text:
    McKENZIE v. IMPERIAL IRR. CO.
    (No. 322.)
    (Court of Civil Appeals of Texas. El Paso.
    April 2, 1914.
    Rehearing Denied May 7, 1914.)
    1. Evidence (§ 341) — Records — Copies, of Articles of Incorporation — Admissibility.
    Articles of incorporation, under Rev. St 1911, art. 5002, may be proved as authorized by article 3707, by a copy certified by the secretary of state, and article 3700, prescribing that, when recorded, instruments may be admitted in evidence without proof, has no application.
    [Ed. Note.—For other cases, see Evidence. Cent. Dig. §§ 1289-1292: Dec. Dig. § 341.] '

      2. Eminent Domain (§ 169) — Irrigation Companies — Pboceedings to Condemn Land.
    The right of an irrigation corporation to condemn land under Rev. St. 1911, art. 5004, for a right of way is not dependent on the filing of a water appropriation under articles 4996, 4998, and in proceedings to condemn it is not error to exclude a certified copy of a water appropriation made by the corporation.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 461; Dec. Dig. § 169.]
    3. Appeal and Eeeob (§ 1050) — Erroneous Admission of Evidence — Haemless Error.
    Error in admitting evidence is not reversible, where it is apparent that it could not have had any effect on any issue in the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    4. Appeal and Eeeoe (§ 215) — Questions Review able — INSTRUCTIONS—1Objections.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, providing that objections to the charge shall be presented to the court before the charge is read to the jury, and all objections not so made shall be waived, any error in a charge is waived, where no objection was presented to the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. § 215.]
    5. Trial (§ 406) — Fundamental Error-Objections — Waiver.
    A fundamental error may be waived, unless it is of such a nature as to render the judgment void.
    " [Ed. Note. — For other cases, see Trial, Cent. Dig. § 968; Dec. Dig. § 406.]
    6. Trial®(§ 192) — Instructions — Assumption of Fact.
    Where, in proceedings by an irrigation corporation to condemn land for a right .of way, the indorsement of the county judge showed that the petition was presented to him on April 18, 1910, and commissioners appointed on that date made a report dated May 5th following, and the parol testimony showed that the petition was presented in the year 1910, the court properly assumed in its charge that the proceedings were instituted April 18, 1910, though the file mark of the clerk showed that the petition was filed April 19, 1909, for, under the evidence, the clerk’s file mark was a clerical error.
    [Ed. Note. — For other casés, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    7. Eminent Domain (§ 196) — Right to Condemn — Failure to Agree with Owner-Evidence.
    The testimony of the agent of a corporation, seeking to condemn land for a right of way, that he had asked the owner what he would settle for, and that the owner asked such a price that it was impossible to agree to it, and that no agreement as to price was made, showed an effort by the company to reach an agreement, entitling it to condemn.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 529-534; Dec. Dig. § 196.]
    Appeal from Pecos County Court; R. D. Wright, Special Judge.
    Proceedings by the Imperial Irrigation Company against T. N. McKenzie to condemn land for a right of way. From a judgment awarding compensation, T. N. McKenzie appeals.
    Affirmed.
    W. A. Hadden, of Ft. Stockton, and J. F. Woodson, of El Paso, for appellant. J. R. Hill and W. C. Jackson, both of Ft. Stockton, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This was a proceeding instituted by the appellee to condemn for right of way purposes certain real estate owned hy the appellant. Commissioners were appointed by the county judge, and from their assessment of damages an appeal was taken to the county court, and from the award of damages there made this appeal is prosecuted.

Appellee is incorporated under the provisions of article 5002, Revised Statutes of 1911, providing for the incorporation of irrigation companies, and upon trial a copy of its articles of incorporation, certified to under the hand and seal of the secretary of state, was admitted in evidence.

Error is assigned to the admission of this copy, upon the grounds that it had not been filed among the papers of the case three days before the commencement of the trial and notice of such filing given to appellee. The original articles of incorporation are on file and of record in the office of the secretary of state, and the articles of incorporation of a corporation incorporated under the provisions of article 5002 may be proven by properly certified copy from that department. Article 3707, R. S. Article 3700 has no application whatever.

Upon the trial, appellee also offered in evidence a certified copy from the office of the county clerk of Pecos county of a water appropriation made by it. Error is also assigned to the admission of this copy, for the •reason that it had not been filed among the papers of the cause and notice of its filing given, as required by article 3700.

Article 5004 grants to corporations formed for the purpose of irrigation, mining, milling, and construction of waterworks the right to acquire a right of way over private lands by condemnation, by causing the damages for any private property so appropriated to be assessed and paid for, as provided in cases of railroads. An irrigation company’s right to condemn is in no wise dependent upon the filing of a water appropriation, under the provisions of articles 4996 and 4998. These two last-mentioned articles relate merely to the appropriation of water. The act of appropriation evidenced by the instrument objected to being entirely foreign to the right of condemnation, the error, if any, in its admission, was wholly harmless.

The erroneous admission of evidence is not ground for reversal, where it is apparent that it could not have had any effect upon any issue involved.

Upon the trial, the court gave the following charge upon the measure of damage: “And in estimating the dámages, if any, to the remainder of plaintiff’s two sections of land, after eliminating the said right of way strip, the measure is the difference, if any, between the actual cash market value thereof immediately before and immediately after the condemnation proceedings; but, if you find from the evidence that the remaining portion had no market value, then the measure would be the difference between the cash intrinsic value for the purpose for which it is adapted immediately before and immediately after the condemnation proceedings.”

No error was assigned in the lower court to this portion of the court’s charge, but it is here contended that it requires a reversal, since it is fundamental in its nature, or at least an error apparent on the face of the record of such a character that this court is authorized to, and should, reverse without an assignment. Under the view which we take of the matter, it is immaterial whether the error was of this nature or not.

The cause was tried on August 22, 1913. Upon that date the provisions of chapter 59, Acts of 1913, Regular Session, p. 113, were effective. Thereby article 1971, Revised Statutes, was amended so as to read as follows: “Art. 1971. The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.”

No objection to the charge upon the measure of damage was presented to the lower court, and, by virtue of amended article 1971, it must be held that the error complained of was waived.

It is an established rule of practice that fundamental error will be considered, though not assigned, in the lower court, but this is a mere rule of appellate practice, in no wise related to the question here considered. A fundamental error may be waived, unless it be of such a nature as to render the judgment absolutely void; for example, an error respecting jurisdiction over the subject-matter.

Error is next and last assigned to the action of the court in peremptorily instructing the jury that the condemnation proceedings were instituted on April 18, 1910. Article 6506 provides that, if the parties cannot agree upon the damages, the company shall file its petition for condemnation with the county judge, who, upon the filing thereof, shall appoint commissioners to assess the damages. The petition in this case bears the following indorsement: “Filed April 19th, 1909, Frank Rooney, Co. Clk. Pecos Co., Texas, by Geo. C. Haseltine, Deputy.”

The indorsement of the county judge shows that the petition was presented to him on April 18, 1910, and commissioners appointed upon that date. The report of the commissioners is dated May 5,1910. The testimony of Judge W. C. Jackson, the attorney for ap-pellees, discloses that he presented the petition to the county judge in the year 1910. Haseltine testified that he had no independent recollection of the filing by him of the petition. Judge Williams testified to an effort made by him, as the representative of the company, to reach an agreement with McKenzie respecting his damages in March, 1910. Appellant, McKenzie, in effect, testified that the condemnation proceedings were instituted after the filing of an injunction suit by him against appellee in the district court of Pecos county on March 4, 1910. Appellant urges that the file mark raises an issue as to whether condemnation proceedings were instituted in 1909 or 1910, and, since a prior failure to reach an agreement with reference to damage is essential to the right to condemn, the trial court erred in assuming and peremptorily instructing that the proceedings were instituted on April 18,1910. The law seems to contemplate that all of the papers in the original proceedings before the commissioners should be filed direct with the county judge, rather than in the office of county clerk, making same a record of the. judge’s office, rather than of the county clerk. Articles 6506, 6507, 6508, 6522, and 6527. So it may be doubted whether the file mark had any probative force whatever, but, conceding to it the probative force ordinarily accorded an official certificate, still the evidence noted shows beyond question that the indorsement of the year 1909, instead of 1910, was a mere clerical error. No two reasonable minds could differ upon this subject; especially so in view of the fact that there is no evidence in this record, other than the certificate, in any wise tending to show that the proceedings were originally instituted in 1909, instead of Í910. In this state of the record, the trial court committed no error in assuming, as a fact, that the proceedings were instituted April 18, 1910, by presenting the petition to the county judge.

As to the suggestion of appellant that an effort to reach an agreement respecting the damages is a prerequisite to the right to condemn, and that the evidénee fails to show such an effort to have been made,- it is necessary only to call attention to the testimony of Judge Williams, the agent of the company: “That in March, 1910, he asked appellant what he was willing to settle the matter for, and McKenzie asked such a price that it was impossible for him to agree to same; that it was impossible to do so; that they never came to any agreement.”' This testimony of Williams was undisputed, and establishes that an effort to settle was made in March, 1910.

Associate Justice MeKENZIE was disqualified, and did not sit in this case.

Affirmed.


author: HARPER, C. J.

text:
    CONSOLIDATED KANSAS CITY SMELTING & REFINING CO. et al. v. LOPEZ.
    (No. 327.)
    (Court of Civil Appeals of Texas. El Paso.
    April 16, 1914.
    On Rehearing, May 7, 1914.)
    1. Master and Servant (§ 198) — Liability por Injuries — Negligence op Eellow Servants.
    An employs of a smelting and refining company, engaged in sweeping pieces of ore off a car track, and the motorman in charge of small ore cars used to haul ores from the roaster to the reverberatory, who had nothing to do with the other men, and was charged with no duties making him a vice principal, were fellow servants.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. § 198.]
    2. Master and Servant (§ 180) — Liability por Injuries — Negligence op Pellow Servants.
    An employs of a smelting and refining company operating ore' cars to haul ores from the roaster to the reverberatory, engaged in sweeping pieces of ore from the car track, was not a railway employe; and hence the common-law rule as to nonliability for the negligence of a fellow servant applied.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § ISO.]
    Appeal from El Paso County Court; J. M. Deaver, Special Judge.
    Action by Pascual Lopez against the Consolidated Kansas City Smelting & Refining Company and another. Prom a judgment for plaintiff, defendants appeal.
    Reversed and remanded on rehearing.
    Davis & Goggin, of El Paso, for appellants. C. L. Vowell, of El Paso, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

Appellee brought this suit in the county court of El Paso county, Tex., against appellants to recover for personal injuries, which he alleges he received by reason of being struck by one of the defendants’ motor cars without warning, no signal of the approach of said car having been given by the motorman in charge thereof.

Appellants answered by general denial, and specially: “That, if appellee was hurt, it was through no fault, wrong or negligence of these defendants or of any one, for whose acts they might be held liable.”

There are several assignments of error, but, since the record shows conclusively that the question raised by the second is decisive of appellee’s right to recover in this action, it becomes unnecessary to pass upon the others, so this opinion will be confined to the error therein assigned. Said assignment charges that: “The court erred in entering judgment for plaintiff, for the reason that the jury found that plaintiff was injured through the negligence of the motorman. Appellants say that said motorman was a fellow servant with the plaintiff, and that therefore defendants would not be liable to plaintiff on account of the injuries sustained through the negligence of said motorman in failing to keep a proper lookout, and to notify plaintiff of the approach of said train.”

A. G. Gramly testified: “I was the motorman running the larry engine at the time the plaintiff was injured. My only duties were to operate the cars and motor, and I had nothing to do with the men. The cars that I was operating were small ore ears and.motor, used to haul ores from the roaster up to the reverberatories. I had a helper, but he was not on the motor at the time. I had nothing to do with the other men.”

W. H. Pierson testified: “I was the foreman over the plaintiff at the time of the accident. I sent him up on the trestle wih Guerrera to sweep off the track. In taking up the ores from the roaster to the reverbera-tory, small pieces would fall off on the track, and it was to brush these off that I sent Lopez up for. I did not see the accident, and know nothing about it. Lopez was working under me at the time. I had full authority and control over hiin; had the right to hire and discharge him.”

Plaintiff testified: “On the 22d day of January, 1913, I was employed and worked for the El Paso Smelting AVorks, or the defendants in this suit. Mr. W. H. Pierson was my foreman. I had been working at another place doing other things, but on that morning he sent me up there to work, to sweep off the tramway track.”

All the testimony in the record is to the effect that the motorman in charge of the car was a fellow servant of plaintiff, and was charged with none of the duties which would constitute him a vice principal of the appellants, for whose acts and knowledge they would, in law, be held liable. Williams v. Kirby Lumber Company, 136 S. W. 1182; Id., 159 S. W. 310; Quinn v. Glenn Lumber Co., 118 S. W. 733.

The appellee was not a railway employe; so the common law, and not the statute of fellow servants, would apply. Oil Co. v. Jonte, 36 Tex. Civ. App. 18, 80 S. W. 847.

For the reason that the pleadings and evidence show no liability upon the part of appellants for the injuries complained of, the cause is reversed and here rendered.

Reversed and rendered.

On Rehearing.

Upon the authority of Ft. Worth & Denver City Ry. Co. v. Copeland, 164 S. W. 857, cited by appellees in motion for rehearing, the motion for rehearing is granted to the extent that the cause is remanded for another trial, with instructions that, if, upon another trial, the pleadings and evidence are the same as they were upon the last trial, the court will instruct a verdict for the defendant.


author: JENKINS, J.

text:
    BURLINGTON STATE BANK et al. v. MARLIN NAT. BANK et al.
    (No. 5313.)
    (Court of Civil Appeals of Texas. Austin.
    April 1, 1914.
    Rehearing Denied April 29, 1914.)
    1. Chattel Mortgages (§ 87) — Record — Place — “Shall Then be Situated.”
    Under Rev. St. 1911, art. 5655, providing that every chattel mortgage not accompanied by an immediate delivery and an actual change of possession shall be void as against creditors of the mortgagor and subsequent purchasers, mortgagees, or lienholders in good faith, unless the mortgage or a copy thereof is forthwith filed in the office of the county clerk of the county where the property shall then be situated, or, if the mortgagor resides in this state, then of the county in which he then' resides, the term where the property “shall then be situated,” means where the property is situated when the mortgage is executed, and not when it is recorded.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 162-165; Dec. Dig. § 87.]
    2. Chattel Mortgages (§ 150) — Record — Time —“Forthwith.”
    Under such statute a filing of the mortgage seven days after its execution, when it might have been filed immediately without inconvenience, was not a filing “forthwith,” which means immediately, at once, without inexcusable delay, and hence was void as to mortgages subsequent to its filing.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 246-252; Dec. Dig. § 150.

    For other definitions, see Words and Phrases, vol. 3, pp. 2916-2925; vol. 8, p. 7665.]
    3. Chattel Mortgages (§ 153) — Record — Effect — “Good Faith.”
    Under such statute, the expression “good faith” is synonymous with conscience, and embraces those obligations which are imposed on one dealing with property by the circumstances surrounding it at the time, and a mortgage in “good faith” means a mortgage for a valuable consideration without notice, and not lacking in that caution or diligence which a man of ordinary prudence is accustomed to exercise in making purchases — quoting Words and Phrases, vol. 4. pp. 3117, 3121; vol. 8, p. 7672.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 255-262, 267, 268; Dec. Dig. § 153.]
    4. Chattel Mortgages (§ 48) — Description oe Property — Certainty.
    A chattel mortgage of cotton described as 10 bales of cotton crop of 1910 then being picked, and to be ginned in F. county, owned by the mortgagor free from all liens, was not void for uncertainty, since it could be identified by showing what cotton the mortgagor was having picked when it was executed.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 93-95;. Dec. Dig. § 48.]
    5. Chattel Mortgages (§ 117) — Construction — Property Conveyed.
    A chattel mortgage of 10 bales of cotton of the crop of 1910 then being picked and to be ginned in a certain county would not convey any specific bales, but in equity would be sufficient to convey an interest in the cotton described in the proportion of 10 bales to the entire amount then being picked by the mortgagor.
    [Ed. Note. — For other cases, see Chattel Mortr gages, Cent. Dig. § 202; Dec. Dig. § 117.]
    6. Chattel Mortgages (§ 138) — Priority-Evidence.
    Where a tenant on October 7th mortgaged 10 bales of cotton of the crop of 1910 then being picked in a certain county, a showing by the landlord that he purchased 12 bales of the tenant after October 13th did not support a judgment in favor of the mortgagee against the landlord for the excess over the landlord’s lien, since all of the 10 bales mortgaged may have been picked before the landlord’s purchase.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. § 138.]
    7. Appeal and Error (§ 901) — Review-Burden oe Proof.
    A party appealing from the judgment has the burden of showing that it is erroneous.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1771, 3670; Dec. Dig. § 901.]
    8. Chattel Mortgages (§ 49) — Form and Contents — Description—Certainty.
    A chattel mortgage mentioning seven horses and mules, but not describing them except by color, age, and height, and not stating that the mortgagor was the owner of the property,, or where it was situated, was void for uncertainty as to two of the mortgagor’s mules which had been covered by a previous mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 90-92; Dee. Dig. § 49.]
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    Action between Batte & Baskin, Ben Johnson, Burlington State Bank, Tarver-Henslee Company, Marlin National Bank, and others. Judgment for Bates & Baskin against the Burlington State Bank and for Marlin National Bank against the Tarver-Henslee Company, and Burlington State Bank, Marlin National Bank, and Tarver-Henslee Company appeal.
    Affirmed as to other parties not appealing, and as to the remainder reversed and remanded.
    W. A. Morrison, of Cameron, for appellants. Tom Connally, of Marlin, and Chambers & Baskin, of Cameron, for appellees.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Findings of Fact.

JENKINS, J.

Ben Johnson was a tenant farmer, and prior to December, 1908, had lived in Milam county. Batte & Baskin were dealers in horses and mules, and lived in Cameron, Milam county. They were acquainted with Johnson, and had sold him mules prior to October 15, 1909, for which he had paid them. In December, 1908, Johnson moved to the farm of Tarver-Henslee Company in Falls county, and continued to reside there to the time of the trial of this case. On October 15, 1909, Johnson purchased two mules from Batte & Baskin in the town of Cameron, and executed a mortgage thereon to secure the purchase money in the sum of $250. He immediately took the mules to his home in Falls county, where they remained to the time of the trial hereof, July 19, 1913. Batte & Baskin- recorded their mortgage in Milam county October 22, 1909. They did not know that Johnson- lived in Falls county at that time. On November 1, 1909, Johnson gave a mortgage on these same mules and other personal property to the Burlington State Bank. On January 3, 1910, Johnson gave a mortgage on these mules and other property to the Planters’ National Bank, which prior to the trial hereof was transferred to the Burlington State Bank. On October 7, 1910, Johnson gave a mortgage to the Marlin National Bank upon cotton described as follows: “Ten bales of cotton crop of 1910 now being picked and to be ginned at High Banks in Falls County. * * * Said property is owned by me in good faith and a perfect title, free from all liens whatsoever, and I agree to hold same in Falls county, Texas, where it is now located, free of all liens other than the one hereby granted, until the indebtedness hereinafter mentioned is paid in full.” This mortgage was recorded in Falls county, October 13, 1910. The mortgage to the Burlington State Bank and also the mortgage to the Planters’ National Bank each recited that the property therein described was free from all mortgages and other liens. Neither the Burlington State Bank nor the Planters’ National Bank had any ’ actual knowledge of the mortgage executed to Batte & Baskin at the time their mortgages were taken. By agreement of all parties hereto, the property mortgaged by Johnson was taken possession of and sold by the Burlington State Bank, and the proceeds held subject to disposition by final judgment herein. The trial court held that the mortgage of Batte & Baskin was superior to the mortgages given to the Burlington State Bank and to the Planters’ National Bank, and consequently gave judgment against the Burlington State Bank for the amount of Batte & Baskin’s debt, the evidence showing that the mules had been sold for more than enough to pay said debt.

Tarver-Henslee Company, subsequent to October 13, 1910, purchased from Johnson 12 bales of cotton of the value of $60 each. Johnson was a tenant on the farm of Tarver-Henslee Company during the year 1910, and they advanced him money to enable him to pick his cotton, and the court allowed this amount by virtue of their landlord’s lien, and gave judgment in favor of the Marlin National Bank against Tarver-Henslee Company for the balance, $370.15. From this judgment the Marlin National Bank and Tar-ver-Henslee Company have appealed.

Opinion.

The judgment in favor of Batte & Bas-kin involves the construction of article 5655, R. S. 1911, which; so far as applicable to this case, reads as follows: “Every chattel mortgage, deed of trust, or other instrument of writing, intended to operate as a mortgage of or lien upon personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the property mortgaged or pledged by such instrument, shall be absolutely void as against the creditors of the mortgagor or person making same, and as against subsequent purchasers and mortgagees or lienholders in good faith, unless such instrument, or a true copy thereof, shall be forthwith deposited with and filed in the office of the county clerk of the county where the property shall then be situated, or if the mortgagor or person making the same be a resident of this state, then, of the county of which he shall at that time be a resident.”

It is the contention of appellees Batte & Baskin that the words “filed in the office of the county clerk of the county where the property was then situated,” means where the property is situated at the time the mortgage is executed. Appellant Burlington Bank contends that it means where the property is situated at the time the mortgage is recorded. We agree with appellees Batte & Baskin as to this matter. It will be observed that with reference to recording a mortgage in the county where the mortgagor resides, the language is “of which he shall at that time be a resident.” We think this aidg in tie construction of the statute; that the language, “shall at that time be a resident,” evidently means at the time of the execution of the mortgage, and that likewise the time referred to with reference to the situation of the property means the time when the mortgage is executed. Such being the case, had Batte & Baskin complied with the statute, there can be no question but that they would have a prior lien as against the mortgages subsequently executed. But they did not comply with the statute. The statute required that such mortgage should be “forthwith deposited with and filed in the office of the county clerk,” etc. The mortgage was not filed until seven days after its execution. The pffice of Batte & Baskin was in sight of the courthouse of Milam county, and no reason is shown why they might not, without inconvenience, have filed the mortgage immediately after its execution. “Forthwith,” means immediately, at once, without inexcusable delay. They did not file the mortgage forthwith. Hackney v. Schow, 21 Tex. Civ. App. 613, 53 S. W. 713.

The statute declares that the failure to record the mortgage “forthwith” shall render the same “absolutely void” as against certain parties mentioned. This language leaves no room for construction; as to such parties the mortgage must be held to be void, and therefore of no force whatever. If an instrument is void, it is as if it had never existed. In fact, a void instrument. never bad any legal existence. Such being the case, it remains to he considered whether or not the Burlington State Bank, and the Planters’ National Bank come within the definition of the parties mentioned in the statute, as to whom such mortgage is void. The parties mentioned are “subsequent purchasers and mortgagees or lienholders in good faith.” Both of the banks mentioned were “subsequent mortgagees and lienholders.” If they were such “in good faith” within the meaning of that term as used in the statute, then the Batte & Baskin mortgage must be held to be absolutely void as to them. It has been held that a mortgage not recorded forthwith is good against a subsequent mortgagee when the same was taken after the record of the first mortgage in the proper county. These decisions can be upheld only upon the ground that the subsequent mortgagee was not a mortgagee in good faith.

“Good faith consists in an honest intention to abstain from taking an uneonscien-tious advantage of another, even through the forms or technicalities of law, together' with an absence of all information or belief of facts which would render the transaction un-conseientious.”
“Good faith, in general, means without notice, as well as for a valuable consideration.”
“A want of that caution and diligence which an ordinary man of ordinary prudence is accustomed to exercise in making purchases is, in judgment of law, a want of good faith.”

Words and Phrases, p. 3117.

“A mortgage in good faith means the same thing as a mortgage for a valuable consideration without notice.”
“No one can become a purchaser or a bona fide incumbrancer of property in good faith if he have notice of a pre-existing mortgage, although such mortgage may not be verified or recorded in accordance with the statute.”
“The expression ‘good faith,’ as used in the statute providing that a chattel mortgage shall cease to be valid against the creditors of the person making the same or mortgagees in good faith after the expiration of one year from following the same unless an affidavit of renewal is filed, is synonymous with ‘conscience.’ It embraces those obligations which are imposed upon one in dealing with property by the circumstances surrounding it at the time.”

Words and Phrases, p. 3119.

It may well be held that where a mortgage is recorded in the proper county, though it be not recorded “forthwith,” a subsequent mortgagee is under obligation to examine the record. If he does so, he will discover the existence of the mortgage, and therefore cannot be a mortgagee in good faith. If it is his duty to do so under the circumstances of the case in common fairness to others who may have taken a prior mortgage, and he fails to make such examination, this might well be held to show an absence of good faith. Such we take it is the effect of the decisions in this state, holding that a mortgage which is not forthwith recorded is nevertheless superior to a mortgage taken after the record of the prior mortgage. The Batte & Baskin mortgage was not of record in Palls county, where Johnson lived and where the property was situated, at the time of the execution of the subsequent mortgages. But this alone is not necessarily sufficient to show a want of good faith in the subsequent mortgagees. Johnson lived very near the line of Palls and Milam counties; he had previously lived in Milam county. It does not appear from the record what, if any, inquiry the subsequent mortgagees made as to when and where Johnson obtained the mules. The trial court held that the Batte & Baskin mortgage was superior to the subsequent mortgages, by reason of the fact that it was recorded in Milam county before the execution of the second mortgage. This record not having been made “forthwith,” such holding was error, for which this case must be reversed. As to whether the subsequent mortgages are superior to the Batte & Baskin mortgage will be made to depend in another trial upon whether or not the subsequent mortgagees were mortgagees in good faith. They were mortgagees for a valuable consideration and without actual notice, and therefore must be held to have been mortgagees in good faith, unless it is shown that the circumstances were such as required them to investigate the records of Milam county as to prior mortgages by Johnson.

It is the contention of appellants Tarver-Henslee Company that the mortgage taken by the Marlin Bank on the cotton mentioned therein was void for uncertainty. With this we do not agree. The mortgage stated in what county the cotton was situated, and described it as cotton then being picked, and as being the property of Johnson. We think this language imports being picked by Johnson. It appears from the evidence that Johnson lived on the Tarver-Henslee farm, west of the Brazos river, and had so resided for the years 1909 and 1910, and that he did not raise cotton on any other farm in that county, and did not own any other cotton. The cotton could be identified by showing what cotton he was having picked at the time the mortgage was executed; and we think the recitations were sufficient to-have put Tarver-Henslee Company upon notice, in view of the fact that they knew what cotton he had raised that year.

However, we do not think that this is sufficient to sustain the judgment against Tarver-Henslee Company. The evidence-shows that they purchased 12 bales of cotton from Johnson after October 13, 1910; Johnson mortgaged only 10 bales, which were being picked on October 7th. Por aught that appears, all of these 10 bales may have been picked before October 13tb. Again, it appears that Johnson, in the year 1910 raised about 30 bales of cotton. The mortgage would not have conveyed any specific bales of cotton, but in equity would be sufficient to convey an interest in the cotton described in the proportion of 10 bales to the entire amount then being picked by him. The evidence does not show what this would be, for which reason the judgment against Tarver-Henslee Company must be reversed.

There is another feature of this case to which no reference has been made in the briefs, but we think it material. Batte & Baskin obtained a judgment against appellant Burlington Bank. The burden is on this appellant to show that this judgment is erroneous. It attempts to do so in part by showing that Johnson mortgaged the mules to the Planters’ National Bank, which mortgage was transferred to appellant. This mortgage mentions seven horses and mules, but does »ot describe the same except by color, age, and heighth. It does not state that Johnson was the owner of this property, nor where the same was situated. We think this mortgage as to such animals is void for uncertainty.

The judgment of the trial court disposed of a number of parties other than those mentioned herein, from which no appeal has been taken, as to whom the judgment is affirmed.

For the reasons mentioned, the judgment' herein, in so far as it is in favor of Batte & Baskin against appellant Burlington State Bank, and in so far as it is in favor of the Marlin National Bank against Tarver-Hens-lee Company, will be reversed and the cause remanded.

Affirmed in part and in part reversed and remanded.


author: HUFF, C. J.

text:
    FT. WORTH STOCKYARDS CO. v. WITHERSPOON et al.
    (No. 604.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1914.)
    Courts (§ 169) — Jurisdiction — County Court — “Interest.”
    Under Const. art. 5, § 16, declaring that the maximum amount for which suit may be brought in the county court is $1,000, exclusive of interest, the term “interest” means interest of nomine, and not interest allowed as damages in actions of tort; and hence the county court is without jurisdiction of an action for damages for the destruction of a number of cattle, where their value, plus the interest which accrued between the date of the destruction and the filing of the suit, exceeded $1,000.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.

    For other definitions, see Words and Phrases, vol. 4, pp. 3692-3709; vol. 8, p. 7691.]
    Appeal from Childress County Court; Frank W. Freeman, Judge.
    Action by L. Witherspoon against the Ft. Worth Stockyards Company and others. From a judgment for the plaintiff, the named defendant appeals.
    Reversed, and order dismissed as to the appellant; affirmed as to the other defendants.
    Capps, Cantey, Hanger & Short, of Ft. Worth, and W. L. Evans, of Ft. Worth, for appellant. M. J. Hathaway and W. B. Howard, both of Childress, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

This suit was brought in the county court of Childress county on the 7th day of June, 1913, by L. Witherspoon against the Ft Worth Stockyards Company, the Ft. Worth Belt Railway Company, the Chicago, Rock Island & Gulf Railway Company, the Ft. Worth & Denver City Railway Company, R. D. Moore, and Jack Lancaster, for damages occasioned by the burning of 37 head of cattle in the stockyards at Ft. Worth on the 25th day of June, 1911. The allegations are substantially that the cattle were delivered to the Chicago, Rock Island & Gulf Railway Company at Boyd, Tex., by R. D. Moore, to be transported to Childress, Tex., under a contract duly entered into, by the terms of which contract it was stipulated that the cattle were to be unloaded, dipped, and inspected at Ft. Worth, Tex., and that the said Moore should have the privilege of selling said cattle on the Ft. Worth market; that the Chicago, Rock Island & Gulf Railway Company delivered the cattle to the Belt Railway, which latter company delivered them to the Ft. Worth Stockyards Company, appellant herein, and while in its possession the cattle were destroyed by fire. It is alleged, also, that R. D. Moore transferred and assigned his claim for damages on May 31, 1913, to Jack Lancaster, for a consideration of $800, with 10 per cent, interest thereon from date, and that Jack Lancaster, on the 4th day of June, 1913, transferred and assigned the claim to appellee, L. Witherspoon, for a valuable consideration of $800, with 10 per cent, interest from date. The allegations are that “said cattle so destroyed consisted of one Jersey bull, of the reasonable value of $35; 19 Jersey cows, of the reasonable value of $30 each; 10 common cows, of the reasonable value of $25 each; and seven calves, of the reasonable value of $10 each— aggregating the sum of $925. The following is the prayer: “Wherefore . plaintiff prays, the defendants having all appeared and answered herein, that he have judgment for his damages, $925, together with interest thereon from June 25, 1911, at the legal rate of 6 per cent., and in the event he is not entitled to his damages for the destruction and loss of said cattle, that he then have his judgment against the defendants R. D. Moore and Jack Lancaster for the sum of $800 and 10 per cent, interest from May 31,1910, thereon, for costs of suit, and for such other and further relief, special and general, in law and equity, to which he may be entitled under the law and the facts.” •

It will be observed at the time of the filing of the suit that 1 year, 11 months and 12 days had elapsed from the burning of the cattle, and from which time interest is claimed at the rate of 6 per cent, per annum. The value of the cattle, together with the interest claimed as damages, being something like $110 interest, making the amount sued for $1,035, at the time the suit was instituted. Article 5, § 16, of the Constitution of this state declares that the maximum amount for which suit may be brought in the county court is “$1,000.00, exclusive of interest.” It is now the settled rule in this state that interest, as used in the Constitution, means interest eo nomine, and not interest allowed as damages in actions of tort. The county court, therefore, had no jurisdiction of the subject-matter of this suit at the time it was filed as against the appellant in this case. Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; Herrington v. Railway Co., 142 S. W. 983; Railway Co. v. Faulkner, 118 S. W. 747; Railway Co. v. Fromme, 98 Tex. 459, 84 S. W. 1055; Railway Co. v. Hunt, 38 Tex. Civ. App. 460, 85 S. W. 1168; Railway Co. v. Everett, 95 S. W. 1085; Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1032; Grocer Co. v. Railway Co., 142 S. W. 624; Railway Co. v. Rayzor, 125 S. W. 619.

The county court having no jurisdiction, the case should be reversed as to appellant, and the court directed to dismiss the same as to appellant. The judgment as to Lancaster and Moore will be affirmed. Reversed and ordered dismissed in part, and affirmed in part.


author: DAVIDSON, J.

text:
    LANDRETH v. STATE.
    (No. 3095.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§ 915) — Appeal-Presentation Below — Objections to Information.
    An objection that the information was not filed by the clerk could not be first raised in the motion for new trial; it being necessary to raise such objection at trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2152-2158; Dec. Dig. § 915.]
    2. Indictment and Information (§ 42)— Time for Filing.
    While it would be too late to file the information, after announcement of ready • for trial and the parties had gone before the jury, if it had been placed with the papers prior to the calling of the case, and the court’s attention had been called thereto, it would be deemed filed as of the date on which it was placed with the clerk.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 153; Dec. Dig. § 42.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Roy Landreth was convicted of carrying a pistol in violation of law, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

This conviction was for carrying a pistol in violation of the law.

The record is before us without a statement of facts or bills of exception. Among other things, it is urged in the motion foi new trial that the information was never filed by the clerk, and was, therefore, illegal and void and of none effect. This was not urged prior to the trial, but was raised for the first time in the motion for new trial. There is no evidence in the record in regard to the matter, and under the decisions, it would come too late after the conviction. See Branch’s Crim. Law, § 688, for collation of authorities. The evidence, if resorted to, might have shown that the information was filed at the same time and in connection with the complaint. Anyway, it is requisite to raise the question in limine, and it comes too late after conviction.

Of course, if the information was filed after announcement of ready for trial, and the parties had gone before the jury, it would be too late to file it. If it had been placed with the papers, however, prior to calling of the case, and the court’s attention called to it, it would then be filed of the same date at which it was placed with the clerk; but in the condition this record is, it is too late.

The judgment is affirmed.


author: HARPER, J.

text:
    BOLDEN v. STATE.
    (No. 3099.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    Homicide (§ 300*) — Trial-Issues—Submission.
    In a prosecution for homicide, where accused testified that he stabbed deceased in self-defense, not intending to kill' him, and there was evidence that the poeketknife used would not necessarily inflict a fatal wound, a charge on aggravated assault is necessary.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.*]
    Appeal from Criminal District Court, Harris County; G. W. Robinson, Judge.
    Reeves Bolden was convicted of murder, and he appeals.
    Reversed and remanded.
    Baldwin & Baldwin, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment fixed at 20 years’ confinement in the penitentiary.

Appellant assigns many grounds in his motion for a new trial, but we are of the opinion but one of them presents reversible error. Deceased ran a store in the suburbs of Houston. Mail was left there for a number of his customers, and on the night of the homicide appellant went to the store to get his mail, and he then details the difficulty as follows: “X came in and spoke to him; he was in the rear part of the store behind the counter. X asked him for my mail, and he said, ‘By God, won’t you wait?’ and I said, ‘Any mail here for me?’ He said, ‘Tes; I think so.’ I said, ‘I would like to get it from you, sir,’ and he said, ‘By God, can’t you wait?’ I said, ‘Yes; I can wait, but I would not talk to you that way.’ He said, ‘You son of a bitch; you talk back to me; I will knock your brains out.’ I said, ‘You won’t do anything to me,’ and he turned and walked to the counter, and he said, ‘You son of a bitch, I will show you,’ and I said, T am no son of a bitch,’ so I started on out, and got up there even with that counter to turn to go out, and he rushed from the counter from the other end, and got an ax handle, and overtaken me, and ran up on me before I got anywhere out, and struck me aside the head, and when he struck me, of course, I struck him to protect myself and ran. He left a sore on my head where he struck me; there was a big knot behind my ear, but it is well now. I expect it is well. I had done nothing to him to cause him to hit me. I had not hit him, or touched him, prior to that time. When he hit me, I stabbed him with the knife. I had nothing against him. I merely stabbed him to protect myself.” He further testified he had no intent to kill, and that he cut deceased with an ordinary pocketknife.

Dr. Armstrong testified: “I would say that a pocketknife driven into a man’s chest about the location where I found this wound was not necessarily fatal. It' would depend upon whether a blood vessel is cut and infection entering into it. * * * The wound that Mr. Susholtz received was a dangerous wound. It caused his death; but such wounds in that locality are not necessarily fatal, though it caused this man’s death.”

Appellant prepared and requested a charge presenting the issue of aggravated assault, and excepted to the action of the court in refusing this charge, and to the failure of the court to submit aggravated assault in his main charge. Under the decisions of this state, this evidence called for the submission of that issue to the jury. Branch, in his work on Criminal Law, says: “If there is evidence rendering it doubtful whether defendant intended to 1dll when he assaulted prosecutor, court should charge on aggravated assault. Carter, 28 Tex. App. 355, 13 S. W. 147; Moore, 33 Tex. Cr. R. 306, 26 S. W. 403; Cubine, 44 Tex. Cr. R. 596 [73 S. W. 396]; Prescott, 52 Tex. Cr. R. 35, 105 S. W. 192; Thomas [60 Tex. Cr. R. 84], 131 S. W. 314; Walker, 7 Tex. App. 627; Smith, 36 Tex. Cr. R. 569 [38 S. W. 167]; Mathis, 39 Tex. Cr. R. 549, 47 S. W. 464; Scott [60 Tex. Cr. R. 318] 131 S. W. 1073; Malone [60 Tex. Cr. R. 509] 132 S. W. 769.” Section 520, p. 342. Again he says: “If it is an issue whether the weapon used was a deadly weapon, the court should charge on aggravated assault. Chavana v. State, 51 S. W. 380; Cage v. State, 55 S. W. 63; Martinez v. State, 35 Tex. Cr. R. 386 [33 S. W. 970]; Smith v. State, 36 Tex. Cr. R. 569 [38 S. W. 167]; Armstrong v. State [60 Tex. Cr. R. 316] 131 S. W. 1074.”

The judgment is reversed, and the cause remanded.

DAVIDSON, J., absent at consultation. '


text:
    MODWELL v. STATE.
    (No. 3081.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    On Motion for Rehearing May 6, 1914.)
    Criminal Law (§ 1087) — D i s m i s s a l— Grounds — Notice of Appeal.
    The record must contain a notice of appeal in order to give the Court of Criminal Appeals jurisdiction, and the appeal will be dismissed if it does not contain such notice.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig §§ 2770-2781, 2794; Dec. Dig. § 10&7.]
    Appeal from Hunt County Court; Geo. B. Hall, Judge.
    John Modwell was convicted of an offense, and appeals.
    Appeal dismissed.
    Claud Isbell, of Rockwall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

The record is before us without notice of appeal, for which reason the jurisdiction of this court has not attached. The Assistant Attorney General moves to dismiss the appeal for want of notice of appeal given in the trial court. The motion is well taken, and the appeal is dismissed.

On Motion for Rehearing.

On a previous day of the term the appeal herein was dismissed because notice of appeal was not given in the trial court. Motion for rehearing is filed, but no attempt is made to show that the record was incorrect in failing to embody notice of appeal. There is a letter from the clerk accompanying the record, in which it is stated there was no-statement of facts filed in the trial court, and no motion for new trial made or notice of appeal given; at least no notice appears on the docket of the trial court, and in fact none appears in the record of the trial court. In that condition of the record the jurisdiction of this court cannot attach. Notice of appeal is necessary in order to attach the jurisdiction of this court. Until the jurisdiction of this court attaches no question in the record can be reviewed. The questions suggested therefore for revision in the record cannot be reviewed in the condition in which this record is placed before the court.

The motion therefore will be overruled.


text:
    BAIN v. STATE.
    (No. 3065.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§ 1091)—Appeal—Review or Instructions—Refusal of Requests.
    Where neither the motion for new trial nor the bills of exception give any reasons why charges requested by accused, and refused, were requested, or show how they were applicable to any state of facts, error in refusing the requests cannot be considered.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Criminal Law (§ 1092)—Bills of Exception-Time of Filing.
    Bills of exception containing the evidence on accused’s motion for new trial must be filed during the term.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig §§ 2803, 2829, 2834-2S61, 2919; Dec. Dig. § 1092.]
    3. Witnesses (§ 410)—Impeachment—Sup-port.
    The fact that two 'witnesses contradicted each other in a homicide case, in that one testified that he was in an office at the time of the shooting and called the other witness’ attention to the shooting, which the other wit-, ness denied, would not entitle the witness stating the affirmative to show that he had at other times and plae.es made statements which would corroborate his evidence at trial, though he could show by other evidence that he was at the office at the time testified by him.
    [Ed. Note.—For other eases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. § 410.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    J. H. Bain was convicted of manslaughter, and appeals.
    Affirmed.
    W. J. Townsend, Jr., and Martin M. Feagin, both of Lufkin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

This conviction was for manslaughter; the punishment being assessed at two years’ confinement in the penitentiary.

There were no exceptions reserved to the charge given by the court. Special charges were requested and refused. These are set forth in bills of exception, as well as in the motion for new trial. Neither in the motion for new trial nor in the bills of exception are any reasons given why the charges were asked. They were simply asked, refused by the court, and exceptions taken. No grounds are alleged, or anything stated, either in the bills or motion for new trial, as to their applicability to any state of facts or condition of the record. Under Berg v. State, 142 S. W. 884, and that line of cases, it would seem these matters are not so presented that they can be considered.

There is a' bill of exceptions setting forth the evidence on motion for new trial, but it was filed nearly a month after court had adjourned. Under the decisions of this court this bill cannot be entertained. As to bills of exception reserved to the evidence introduced on matters pertaining to motion for new trial, the rule laid down by this court is that these bills of exception must be filed during term time.

There is another bill of exceptions which sets forth substantially that appellant’s theory of the case was self-defense, and that he shot and killed the deceased, McHenry, in self-defense; that deceased had a pistol drawn, as if to shoot him, when he, appellant, shot and killed McHenry. It is further alleged that Bird and Kimmey testified that at the time the shot was fired by defendant the deceased, McHenry, was- standing at or near the corner of the building with a pistol drawn on appellant as if to shoot him. Defendant himself testified to the same fact. Garrison testified, in substance, that he heard the report of the gun from the direction where deceased and defendant were; that he, immediately upon hearing the shot, looked in that direction and saw deceased coming from the place where the gun fired, with a pistol in one hand and a scabbard in the other. Barbo testified, for the defendant, that he was in the office of the Carter-Kelley'Lumber Company at the time of the shooting. He further stated that Garrison was in the office at the time, but at a different place in the office from where Bar-bo was. Further testifying, Barbo said: “I was in the office that Garrison was in; I was in the front part of it, and they (meaning Garrison and others), were in the back of it. I don’t think his (Garrison’s) attention was called to the shooting until I called his attention to it. I saw the shooting, and told Garrison about it. I looked right straight after I heard the report of the gun. I was standing there looking out at the time. When I looked at the place of the shooting, Mc-Henry was already there. I know that I was looking back in the direction at the very time the gun fired. I was looking right in the direction of the shooting. The first I noticed was, immediately after the shot was fired back there, he, deceased, was right close to the corner of the commissary, right at the south end of same. When I first saw him, deceased, he had the pistol in his hand. He was holding the pistol in his right hand along there. I was the first one who saw him.” All of this testimony was alleged to be material on the theory of self-defense, in that defendant claimed he shot deceased while deceased was standing at the corner of the commissary with his pistol drawn on him as if to shoot, and that he shot to protect his life. It is further recited that after this evidence was admitted Garrison was called by the state and testified that Barbo was not in the office at the time of the shooting referred to, and that in fact his testimony was a recent fabrication, and that said Garrison also testified that Barbo was not in the office with him at the time of the shooting; that Barbo did not call Garrison’s attention to the shooting; that the witness Barbo was not there at the time of the shooting. Appellant then called the witness Havard, who testified that he saw John Barbo at Manning at the time of the difficulty, that just after the difficulty occurred, and before the witness left, he saw Barbo and had a -conversation with him about the shooting, and that Barbo related to him the circumstances of the shooting as he, Barbo, saw them; and to corroborate and to sustain him before the jury, after the contradiction by Garrison, the defendant offered to prove by Havard that Barbo had then and there related to him on the day of the killing, and shortly after-wards, the circumstances of the shooting as he saw it, which would have been substantially the same as Barbo testified before the jury. This was excluded by the court. The statement of Barbo to Havard was offered for the purpose of corroborating Barbo as to his testimony. The court refused it, with this statement: “This bill is qualified as to the statement of facts set out in same, and the statement of facts is referred to, but the witness Havard and others were permitted to testify that they saw Barbo at the office at the time of the shooting; further, the evidence did not show that Barbo testified to anything that took place before the shooting, and there was no impeachment of Barbo, but contradiction by Garrison of him.”

As qualified by the court, we are of opinion there was no error. The court permitted the evidence to sustain Barbo’s statement that he was present at the time and place denied by Garrison. This was simply a contradiction of Barbo’s testimony by Garrison; Barbo testifying one way, and Garrison the other, as to Barbo’s presence and conversation. Corroboration was permitted to go before the jury as to the fact that Barbo was at the office at the time and place about which he testified, and in this way contradicted Garrison as to his presence. We think this was all that he was entitled to prove under this state of facts. We do not understand, because two witnesses contradict each other, that that would be a fabrication of testimony by either witness, or that it would justify him in showing that at other times and places he made statements which would corroborate what he stated on the stand. Had the state introduced contradictory statements of Barbo with reference to. the matter, or there was a charge that he had fabricated his testimony, or that he was testifying under corrupt motives, we would have a different question. The matter here presented was an issue between Garrison and Barbo as to whether Barbo was in the office and called Garrison’s attention to the shooting at the time. Barbo testified he did, and Garrison testified he did not. This raised simply a contradiction as to what occurred between them. It did not suggest that he was testifying under corrupt motives, or was fabricating testimony. The cases cited by appellant, to wit, Williams v. State, 24 Tex. App. 665, 7 S. W. 333, Jones v. State, 38 Tex. Cr. R. 103, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719, Keith v. State, 44 S. W. 849, and Ballow v. State, 42 Tex. Cr. R. 266, 58 S. W. 1023, are not in point. They refer to eases where witnesses testified under corrupt motives or fabricated their testimony. Barbo was not charged with corrupt motives or fabrication of testimony, as we understand it; but it was simjply a question of veracity between Garrison and Barbo as to what occurred at the tíme and place. We are of the opinion that there was no error on the part of the court in this ruling, under the circumstances indicated in the bills of exception.

Finding no reversible error in the record, the judgment is affirmed.


text:
    HOLMAN v. STATE.
    (No. 3100.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    Criminal Law (§ 1022) — Appeal—Convictions in. Recorder’s County Courts.
    Under the statutes, one having been convicted in the recorder’s court of violating an ordinance, and on appeal to the county court again convicted, and fined $20 cannot appeal to the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig §§ 2581, 2582; Dec. Dig. § 1022.]
    Appeal from Lamar County Court; Rube S. Wells, Judge.
    H. L. A. Holman was convicted in the county court, on appeal from the recorder’s court, and again appeals.
    Dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Complaint was filed in the recorder’s court of the city of Paris, and appellant was there convicted of violating a city ordinance. He appealed to the county court, and was again tried and convicted, and his punishment assessed at a fine of $20.

Under the statutes of this state, no appeal lies under such circumstances, and the appeal is therefore dismissed from the docket.

DAVIDSON, J., absent at consultation.


text:
    HAVARD v. STATE.
    (No. 3078.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    1. Criminal Law (§ 598) — Continuance-Absence of Witnesses — Diligence.
    There is no error in refusing a continuance for absence of witnesses; the case having been long pending, it not appearing process had issued for them, and the court finding that diligence had not been used to secure their attendance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 1166%) — Appeal-Harmless Eeeoe — Challenge to Juror.
    Prejudice from the serving of any juror not being shown, the overruling of a challenge for cause to a juror, who was subsequently peremptorily challenged and did not serve, presents no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-312.3; Dec. Dig. § 1166%.]
    3. Jury (§ 103) — Qualification—Opinion.
    Notwithstanding an opinion, one is a qualified juror; he stating his opinion was formed from hearsay, and not from discussion with any witness, and that he could and ,would entirely disregard it, and try the case as fairly and impartially as if he had heard nothing about it.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461-479, 497; Dee. Dig. § 103.]
    4. Criminal Law (§ 1124) — Appeal—Record — Review.
    The refusal of a motion for new trial on the ground of misqonduct of the jury cannot be reviewed; the evidence heard on the motion not being included in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-294S; Dec. Dig. § 11¿4.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Steve Havard was convicted of manslaughter, and appeals.
    Affirmed.
    Mantooth & Collins and E. B. Robb, all of Lufkin, for appellant. Beeman Strong, of Nacogdoches, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary. This is the second appeal in this case, the opinion on the former appeal being reported in 55 Tex. Cr. R. 213, 115 S. W. 1185, and we do not deem it necessary to again make a statement of the evidence.

In the first bill appellant complains of the action of the court in overruling his application for a continuance. In approving the bill the court states: “This bill of exception was presented to me on February 24, 1914, for my approval, and after being examined by me is approved with the following qualification: The indictment in this case was returned in the year 1907, and since the returning of the indictment the case has been tried four times, including this trial, and has been continued by agreement a number of times; and the state having contested the diligence as to the witnesses named in this bill of exception, I found upon examination of the record that the defendant had not used the “diligence required by law to secure the attendance of those witnesses.” The appellant accepts the bill as thus qualified. No process is attached to the motion for a continuance, and none included in the bill, and under such circumstances, the court finding that diligence had not been used to secure the attendance of the witnesses, the court did not err in overruling the application.

In the next bill it is contended that the court erred in not sustaining appellant’s challenge for cause as to Mr. Baird, who was on the jury panel. Appellant peremptorily challenged this juror, and he did not serve on the jury, and no sufiicient reason is stated why any man who served on the jury was prejudicial to appellant, and this bill for this reason presents no error. In addition, in approving the bill the court states: “This bill of exception was presented to me on the 24th day of February, 1914, for my approval, and after having been examined by me it is approved, with the following qualification: The juror T. B. Baird, in answer to questions propounded, stated that the opinion he had was formed from hearsay, and not from discussing the case with any witness or witnesses in the ease, and he stated that he could, and if taken upon the jury would, entirely disregard said opinion and try the case under the law and evidence, and that he felt no hesitancy in stating that he could try the case as fairly and impartially to both the state and the defendant as if he had heard nothing whatever about the case.” As thus qualified, Mr. Baird, under the Code, was a qualified juror.

In another bill it is shown that appellant contends that the court erred in not granting a new trial, on account of the misconduct of the jury. The court, in approving the bill, shows that he heard evidence on the motion for a new trial and overruled it. This evidence is not included in the bill, nor is it included in the record in any manner, shape, or form. Without the evidence it is impossible for us to tell whether or not the court erred in the premises. Patterson v. State, 63 Tex. Cr. R. 297, 140 S. W. 1128; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Vick v. State, 159 S. W. 56; Sharp v. State, 160 S. W. 369; Matthews v. State, 160 S. W. 1185, and cases cited. In addition to no evidence being included in the bill, we are inclined to the opinion that, in the ease of Arnwine v. State, 54 Tex. Cr. R. 213, 114 S. W. 796, had the evidence been included in the record, and it left questionable whether or not the affidavits attached to the motion presented the matter correctly, the law has been decided adversely to appellant’s contention, as he received the lowest penalty for manslaughter. Anyway, as the evidence is not included in the record, we cannot review the matter.

No objection was made to the charge, as given during the trial of the case, and none is made in the motion for new trial, other than that the court erred in failing to give some special charges requested by appellant. In so far as these charges are the law, the court’s charge fully covered same, and the judgment is affirmed.

DAVIDSON, J., absent at consultation.


text:
    TAFOLLA v. STATE.
    (No. 2,846.)
    (Court of Criminal Appeals of Texas.
    May 6, 1914.)
    Costs (§ 317) — In Criminal Prosecution-On Appeal.
    On affirmance of a conviction defendant’s sureties were liable on the recognizance on appeal for costs.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§' 1192-1195; Dec. Dig. § 317.]
    Appeal from Bexar County Court.
    Pete Tafolla was convicted of carrying a pistol, and he appeals. Affirmed. 161 S. W. 1091. Motion to withdraw and recall execution for costs.
    Motion denied.
    Ed Haltom, of San Antonio, for appellant.

      For other cases see samé topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Upon a final disposition of the appeal in this case execution was issued by the clerk of this court to collect the cost incidental to the appeal. The mandate and execution were forwarded to the county from which the case was appealed, Bexar county. Appellant files a motion to withdraw and recall the execution for reasons stated in the motion; the general proposition being that his sureties are not responsible on the recognizance on appeal for costs. We deem it unnecessary to enter into any elaborate discussion of the question, as it has been several times heretofore decided, especially in the Arbuthnot Case, 38 Tex. Cr. R. 509, 34 S. W. 269, 43 S. W. 1024. See, also, Bonn v. State, 12 Tex. App. 100; Prater v. State, 54 Tex. Cr. R. 18, 111 S. W. 735. These cases decide the question adversely to appellant’s contention.

On the authority of these cases the motion to recall the execution will be denied, and it is accordingly so ordered.


author: PRENDERGAST, P. J.

text:
    BROWN v. STATE.
    (No. 2944.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.)
    1. Highways (§ 164) — Obstructions and Injuries — Criminal Prosecutions — Sufficiency of Evidence.
    On a trial for willfully obstructing and injuring a public road, and causing it to be done, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 447-455; Dec. Dig. § 164.]
    2. Highways (§■ 163) — Obstructions and Injuries — Criminal Offenses.
    Where accused, against the protests and objection of the properly constituted county authorities, undertook to determine for himself that a road properly constructed by such authorities was not properly constructed, and attempted to take the matter and the law into his own hands and construct it differently to suit his own desires, he was guilty of violating Penal Code 1911, art. 812, as amended by Acts 33d Deg. c. 128, making it a criminal offense to willfully obstruct,or injure, or cause to be obstructed or injured, any public road or highway.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 444-446; Dec. Dig. § 163.]
    3. Highways (§ 164) — Obstructions and Injuries — Criminal Prosecutions — Punishment.
    Under Penal Code 1911, art. 812, ,as amended by Acts 33d Leg. c. 128, providing that any person willfully obstructing or injuring any public road shall be fined not exceeding $500, where accused, against the protests and objection of the properly constituted county authorities, cut a solid smooth gravel road, and put in a wooden culvert, thereby injuring and obstructing the road, and later commenced cutting the road at another point, a fine of $50 was proper.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§' 447-455; Dec. Dig. § 164.]
    4.. Criminal Law (§'1090) — Reservation of Grounds of Review.
    Under Old Code Crim. Proc. 1895, art. 717, authorizing either party to present instructions which the court shall either give or refuse with or without modification, article 719, providing that in misdemeanor cases the court need not charge the jury except at the request of counsel, but when so requested shall give or refuse such charges, with or without modification, as are asked in writing, and article 723, providing that a judgment shall not be reversed for violations of the eight preceding articles, unless the error was calculated to injure defendant’s rights and was excepted to at the time of the trial, or on a motion for a new trial, in a misdemeanor case the giving and refusal of instructions cannot be considered, unless bills of exceptions are taken at the time in which the specific reasons why the court erred are given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 829) — Trial—Instructions Covered by Those Given.
    It was not error to refuse special charges which, so far as necessary and proper, were embraced in the main charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    6. Highways (§ 164) — Obstructions and Injuries — Criminal Prosecutions — Evidence.
    On a trial for willfully obstructing or injuring a public road, in violation of Penal Code 1911, art. 812, as amended by Acts 33d Leg. c. 128, where accused claimed that he acted solely to protect his premises from backwater caused by the road, evidence that when a county commissioner sent word to accused declining to take any action, and stating that the road was not the cause of the water backing up, accused said: “It seems we have no commissioner, and no commissioners’ court; just let’s take the matter in our own hands and attend to it,” and that when warned by a constable that he and those aiding him would be prosecuted, he replied, “Let’s go ahead and cut it in five or six places anyhow, and just let them prosecute” — was relevant on the question of willfullness.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 447-455; Dec. Dig. § 164.]
    Appeal from Victoria County Court; J. P. Pool, Judge.
    J. W. Brown was convicted of an offense, and he appeals.
    Affirmed.
    J. L. Dupree and C. F. & C. C. Carsner, all of Victoria, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For oilier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   PRENDERGAST, P. J.

Appellant was convicted for unlawfully and willfully obstructing and injuring, and causing this to be done, one of the certain public roads in said county, and fined $50.

The record, practically without contradiction, except as hereinafter mentioned, shows this state of fact:

About a year before September, 1913, Victoria county, by and through its properly constituted authorities, had graded and graveled said public road, making it a solid, smooth graveled road. The country thereabouts was flat, smooth country, except that at one point near a small town or village the road crossed a depression or drain. The county authorities put, at this place, a galvanized iron drain, about two feet in diameter, which was deemed sufficient. A day or two before September 18th a somewhat heavy rain fell in that country, and the water on both sides of this road was backed up considerably by a railroad embankment near, but below, this road culvert. The county commissioner, who for the county and by its authority had had said road constructed and was supervising it, was at said town, and, his attention being called thereto, he examined the situation, and found that the road was not backing up the water, but the backing up and lack of drainage was caused by said railroad embankment. The appellant’s residence was several hundred yards above this road, and he, also nearer thereto than his residence, owned a tenant house, and he found that the water was backed up somewhat around his residence, and more so about his tenant house. He learned that said county commissioner was in the town ■on that occasion, and he had one of his neighbors to tell the commissioner that he and others wanted to see him about said backwater and ask him to fix some time after dinner to meet them. This friend interviewed the commissioner, as requested by appellant, and sought to make this engagement, but the commissioner told him .that he had already examined the situation and found that the culvert under the road was amply sufficient to convey the water off, and was not the cause of the water being backed up about appellant’s property, but was caused by said railroad, and that if they would get the railroad embankment removed, and the culvert that he had was not sufficient, that he had another iron culvert on the ground, and he would put that in, or whatever was sufficient to properly convey the water away. As the commissioner could not wait to meet the appointment appellant sought, he left the town. After dinner the appellant, with others, met where he had sought the commissioner to meet them, and his friend reported his interview with the commissioner and the result thereof and what was told him by the commissioner. This angered appellant, and he thereupon said: “I do not consider that we have got any commissioner or any commissioners’ court; they are not going to do anything; we will just take the matter in our own hands and cut it ourselves anyhow.” Appellant testified he did not remember making any such statement. The others thereafter examined the ground, and substantiated what the commissioner had said as to the cause of the backwater and the claimed insufficiency of the culverts under the road. The commissioner also sent word at the time by appellant’s friend, telling him and the others not to cut that road. Notwithstanding this, a day or two later, appellant bought, and with the assistance of others under his direction, on Saturday did cut the road and put a wooden culvert therein. The uncontradicted testimony shows, in effect, that the road thereby was injured and was obstructed. Some of the witnesses testified that the road, after it was thus cut by appellant and this wooden culvert put in, was not in good condition, describing how and why it wás not, and stating that it was nothing like in as good condition after, as before. The appellant himself testified that at the ends where he put in the wooden culvert the road got boggy on each side, and he aft-erwards fixed it, saying: “Before I put in this culvert this was a solid gravel road. The road is not as smooth now as it was before I put in the culvert.”

Just after appellant cut the road and put in this wooden culvert another heavy rain fell there. The railroad embankment likewise caused the water to back up substantially as it had a few days before in the first rain. On Tuesday or Wednesday after appellant had cut the road and put in this wooden culvert on the previous Saturday, the constable of the precinct saw appellant and others at another point on this same road about 100 yards from where he had previously cut it, prepared to again cut the road at that place. He thereupon went to where they were, inquired what they were going to do, and they told him they, were going to put in a wooden culvert. He in effect forbade them to do so, and told them if they did he would arrest them. The constable thereupon went back to his place of business and at once communicated with the county judge and commissioners’ court and the said same commissioner who had this road in charge, and told them what appellant was in' the act of doing again. They thereupon told the constable to inform appellant that he must not cut that road, and that if he did, all of them who participated would be prosecuted. The constable went back and delivered the message. The parties had just begun operations to cut the road again. Upon the delivery of the message appellant said to his associates: “Let’s go ahead and cut it in 5 or 6 places anyhow, and just let them prosecute.” Appellant denied saying all this, but said he did say at the time, “Let’s go ahead and put in a culvert.” Another one of his associates who was present at the time testified that appellant did say on this occasion, “Let’s cut it anyhow.”

We think the evidence is amply sufficient to sustain the verdict. The evidence tends to show, and we think with reasonable certainty does show, that the said road had been properly constructed by the regularly constituted and proper authorities of the county; that the appellant concluded it had not been, and he, against the positive protests and objection of the properly constituted authorities, undertook to determine for himself that the road was not properly constructed, and that he would take the matter and the law in his own hands and construct it differently to suit his own desires; that he knowingly, willfully, and intentionally violated the law, and that his acts, shown by his conduct and all the facts, were unjustified, and the punishment meted out to him was proper.

He requested two special charges which the court; refused. In his motion for a new trial he also had some complaints to the court’s charge, but none of these matters are presented in such a way as to authorize this court to review them. As said by this court in Giles v. State, 148 S. W. 320: “It is the well-established law of this state that in misdemeanor eases the only way this court is authorized to consider complaints of the •charge of the court and the refusal of special charges requested is by bill of exceptions taken at the time to the charge of the court in the matters attempted to be complained of, and to the refusal of the court to give the special charges requested, giving in the bill therefor the specific reasons why the court erred in giving the charge complained of, or, as the case may be, in refusing the requested charge. Articles 717, 719, 723, C. C. P. 1895 (Old); Hobbs v. State, 7 Tex. App. 118; Campbell v. State, 3 Tex. App. 33; Goode v. State, 2 Tex. App. 520; Dunbar v. State, 34 Tex. Cr. R. 596, 31 S. W. 401; Downey v. State, 33 Tex. Cr. R. 380, 26 S. W. 627; Loyd v. State, 19 Tex. App. 322; Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Martin v. State, 32 Tex. Cr. R. 442, 24 S. W. 512; Wright v. State, 60 Tex. Cr. R. 386, 131 S. W. 1070; Jenkins v. State, 60 Tex. Cr. R. 467, 132 S. W. 133; Basquez v. State, 56 Tex. Cr. R. 330, 119 S. W. 861. It is unnecessary to cite other cases.”

However, wherever necessary and proper to be given, the court in his main charge embraced all that was asked by appellant in his special charges and none of appellant’s complaints of the court’s charge present any reversible error, even if we could consider his complaints.

He has two bills of exceptions to the introduction of evidence. One is to that part of the testimony of his friend whom he had to interview the commissioner, substantially recited above, that he himself replied: “It seems we have no commissioner and no commissioners’ court; just let’s take the matter in our own hands and attend to it.” The other bill is to that part of the testimony of the constable of what he swore appellant said when he delivered the commissioners’ court’s message to the effect that he in reply thereto, said, “Let’s go ahead and cut it in five or six places anyhow, and just let them prosecute.” His objection to the first of these matters was that the testimony was irrelevant, immaterial, and not admissible for any purpose. And his objection to the other was because the same was irrelevant and immaterial, and not in any way connected with the act for which he was on trial, and did not show the commission of any offense and was inadmissible for any purpose. The law under which this prosecution was had (article 812, OP. C., amended by Act of April 3, 1913, p. 258) requires that the state shall prove that the accused willfully obstructed of injured the road. Appellant claimed that he did not willfully obstruct or injure the road, but that his purpose and intention was innocent, and that if he obstructed and injured the road, he did so solely to protect his premises from backwater caused by said road. His intention, whether willful or innocent, was therefore a material question. This testimony which he objected to tended to show that what he did was willful and not innocent. Judge White, in section 1070 of his Annotated Code of Criminal Procedure, p. 676, among other things, says: “Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis ; a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable. Whatever is a condition, either of the existence or of the nonexistence of a relevant hypothesis, may be shown. * * * Evidence, though not bearing directly on the issue, nor sufficient per se to support a conviction, is admissible if it tends to prove the issue or constitutes a link in proof of it”—■ citing cases from this court in support of his propositions. Again, in section 1072, he says: “However remote from the main issue in point of time, place, or other circumstances a fact may be, if relevant and tending to explain the main issue, the safer practice is to admit evidence thereof, leaving the question of the weight to the jury. * * * Pacts tending to show a motive (intent) though remote, are admissible in evidence,” also citing cases from this court supporting his propositions. Again he says, in section 1231 of his Annotated Penal Code: “It is competent to prove acts, conduct, or declarations of the accused which tend to establish his knowledge or intent, though they, in themselves, constitute, in law, distinct crimes, and are apparently collateral and foreign to the main issue, and may have occurred either prior or subsequent to the act for which the accused is being tried” — citing again cases from this court supporting his propositions.

In our opinion the evidence objected to by said bills was admissible in this ease.

The judgment will be affirmed.

DAVIDSON, J., absent at consultation.