author: PRENDERGAST, J. DAVIDSON, P. J.

text:
    Ex parte HOGG.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. Hawkers and Peddlebs (§ 3) — Who is a “Hawker” ok “Peddler.”
    A “peddler” or “hawker” is a small retail dealer, who carries his merchandise with him, traveling from place to place, or from house to house, exposing his or his principal’s goods for sale; it being immaterial whether the goods are bartered or sold, or whether the sale is conditional or on the installment plan. The business of peddling is distinct from that of a manufacturer selling his own products, and those who raise or produce what they sell, such as farmers and butchers, are not peddlers.
    [Ed. Note. — For other cases, see Hawkers and Peddlers, Cent. Dig. §§ 3-6; Dec. Dig. § 3.

    For other definitions, see Words and Phrases, vol. 4, pp. 3220-3223; vol. 6, pp. 5260-5267; vol. 8, p. 7750.]
    2. Hawkers and Peddlers (§ 1) — Municipal Regulations — 'Validity.
    Under Rev. Civ. St. 1911, art. 817, giving city councils the power to pass ordinances and police regulations for good government, trade, etc., articie 854, giving them exclusive control over streets, highways, and public grounds of the city, article 866, authorizing it to regulate and inspect market places, and article 871, authorizing it to regulate hawkers, peddlers, etc., a city was authorized to prohibit peddling of any kind of merchandise on its public square or any street within its limits.
    [Ed. Note. — For other eases, see Hawkers and Peddlers, Cent. Dig. § 1; Dec. Eig. § 1.]
    3. Constitutional Daw (§ 88) — Personal Rights — Liberty to Follow Business.
    A municipal ordinance prohibiting the peddling of any merchandise in a public square or in any city street, but not prohibiting any one from following the business of peddling, was not invalid as an invasion of the personal right to follow a business or avocation.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 164, 165; Dee. Dig. § 88.]
    4.Constitutional Law (§ 208) — Hawkers and Peddlers (§ 2) — Class Legislation— Regulation oe Peddlers.
    A municipal ordinance prohibiting the peddling of any merchandise in a city’s public square or in any of its public streets, treating all pursuing the same business alike, was not invalid as class legislation.
    [Ed. Note. — For other cases,, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. § 208 ; Hawkers and Peddlers, Cent. Dig. § 2; Dec. Dig. § 2.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Parker County; F. O. McKinsey, Judge.
    Habeas corpus by J. W. Hogg. From an order of the district court remanding him to custody, relator appeals.
    Affirmed, and relator again remanded to the custody of the marshal.
    Moseley & Barcus, of Weatherford, 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

   PRENDERGAST, J.

On November 7, 1912, the city of Weatherford, in Parker county, duly passed and then put into force an ordinance to this effect;

Section 1: That “it shall hereafter be unlawful for any person to peddle any kind of merchandise, patent medicine or nostrum on the public square or any street within the corporate limits of the city of Weatherford, Texas.”

Section 2 prescribes as a penalty for the violation of said ordinance a fine of not less than $1 nor more than $25.

On January 30, 1913, relator, Hogg, did sell and peddle on First avenue, one of the public streets of said city within the corporate limits thereof, bananas and apples, which were not raised by him, but were bought to be resold at a profit. Said First avenue was one of the residence streets of said city and about eight blocks from the business portion thereof. In selling and peddling the same he did not interfere with or obstruct the use of the streets by the traveling public. He was a peddler, and had been engaged in that business in Weather-ford for several years, and lived therein. Weatherford had about 6,000 inhabitants, and it was incorporated under the general laws of this state regulating the incorporation of cities of over 1,000 inhabitants. The public square in Weatherford was 500 feet square. In the center of this square the courthouse of Parker • county was erected, and the courthouse and lawn surrounding it occupied a space of 150 feet square, leaving a space of about 150 feet wide around the courthouse, which had always been used by the citizens of Parker county generally on which farm products, such as hay, oats, melons, vegetables, poultry, etc., have always been peddled and sold to the inhabitants of the city, and said part of said public square and the streets, prior to the passage of said act, had always theretofore been used for peddling and selling said various kinds of merchandise to any one wishing to purchase; that in the sale of such merchandise theretofore the public travel and use of the streets by the inhabitants was never interfered with or molested. Parker county, of which Weath-erford is the county seat, is largely a farming county, and most of the farmers thereof, before the- passage of said - ordinances, brought their farm products to Weatherford, peddled and sold them out in various quantities to any one who would and did purchase them, and used the public square and streets of Weatherford to exhibit and sell their products; that prior to the passage of said ordinance the people, during the winter months, bought wood, and in the spring, and summer bought farm-products and garden truck, and persons so selling it exhibited in their wagons and sold it therefrom on the said public square and streets in any quantity the purchaser might want. The fruits and vegetables so sold were sold partly by people who raised said things and partly by people who made it their business to purchase from parties who raised them, and then peddled them. The city of Weatherford embraced the territory for about three miles square, with the courthouse in the center.

Under a proper complaint charging appellant, as aforesaid, the proper warrant was issued, under which the marshal of Weath-erford arrested and held relator in custody thereunder. He thereupon sued out a writ of habeas corpus before the district judge of said district, who properly heard the same on the state of facts above shown. The district judge held that said ordinance was legal, and he was arrested and detained under the proper proceedings and writ, and thereupon remanded to the custody of the marshal, to which action of the district judge he excepted and appealed to this court.

Under the statute of this state the city of Weatherford and the city council thereof has and had “power to pass, publish, amend or repeal all ordinances, rules, and police regulations, not contrary to the Constitution of this state, for the good government, peace and order of the city and the trade and commerce thereof that may be necessary or proper to carry into effect the powers vested • * * in the city government, or any department or officer thereof.” R. S. art. 817. Said municipality also had and has the “exclusive control and power over the streets, alleys, and public grounds and highways of the city, and to abate and remove encroachments or obstructions thereon.” R. S. art. 854. Also “to control and regulate market places and privileges, inspect and determine the mode' of inspecting meat, fish, vegetables and all produce and every article and thing therein brought for sale.” R. S. art. 866. Also “to license, tax, and regulate, or suppress .and prevent hawkers, peddlers, pawn brok-es, and keepers of theaters or other exhibitions, shows and amusements.” R. S. art. 871.

A peddler or hawker is a small retail dealer, who carries his merchandise with him, traveling from place to place, or from house to house, exposing his or his principal’s goods for sale and selling them. It is immaterial that the goods are bartered instead of sold, that the sale is a conditional one, or that it is on the installment plan. Persons who raise or produce what they sell, such as farmers and butchers, are correctly held not to be peddlers, although there is some authority to the contrary. These definitions and principles are laid down by 21 Oye. pp. 367 to 373, and are sustained by the citation of many cases from many of the states of this Union. So many of the states and cities having such statutes and ordinances prohibiting peddlers from following the business of peddling in the streets of a city except from their operation the manufacturer, mechanic, nurseryman, farmer, butcher, or fish or milk dealer, who sells, either by himself or an employé, his own manufactured articles, wares, or products, and such ordinances and statutes are held to be valid (21 Cyc. 373), and many cases of various courts so hold. In other words, the business of peddling is held to be a separate and distinct thing from where the manufacturer or producer himself sells his own articles and products. Peddling can be prohibited where the others may not be. The distinction is clear and reasonable. See, also, the case of Ex parte Bradshaw, from Hill county, 158 S. W. -, this day decided, and the authorities therein cited.

We think it clear that under the power and authority given the city of Weatherford by the statutes of this state it had the power and authority to prohibit peddlers from using the streets of Weatherford in the conduct of their business. The question of whether or not the city would prohibit peddling in all of its streets, alleys, and public square, or only in certain portions of them, was a question of policy to be decided and determined by the municipality, and by it alone.

Relator, by his able attorneys, in a forceful brief and oral argument, contended that this ordinance was void and contrary to our Constitution for various reasons, among them because it is an arbitrary exercise of power, is discriminatory and in derogation of the common rights given to all men under our Constitution; also because peddling is a business recognized by the state as legitimate, and is conceded by the public as a useful and remunerative occupation and one not per se immoral nor against public policy; also that it violates the constitutional guaranties that every man has the right to follow any avocation for the support of his family which is honorable and not in conflict with the laws of the land; and various other like reasons contended for by him.

We think all these questions and contentions of appellant have been settled against him by the decisions of the courts of this state. We refer particularly to Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668, and Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874. Appellant cites many authorities to sustain his various propositions. We deem it unnecessary to take up and discuss them. We regard them as inapplicable to the question in this case. This ordinance does not prohibit the relator or any other person from following the business of peddling. It simply denies him the right to follow his business or occupation in the public streets and on the public square of the city. It does not discriminate against him, and is not class legislation. It classes him, as the law has always classed him, in a separate class from other merchants, and from farmers, manufacturers, etc., who produce or manufacture, etc., and sell their own products, which is perfectly proper and legitimate. There is no general or other law of this state that authorizes peddlers to make marts of the public streets for the sale of his merchandise. It does not deprive him, as it does not any other person, of the right to sell his products produced, manufactured, or raised by him. It treats ah in his class exactly alike. The ordinance, in our opinion, is in no way void, the relator was properly remanded to the custody of the marshal, and the judgment of the district judge so determining is affirmed, and he is again remanded to the custody of the marshal.

DAVIDSON, P. J.

Believing my Brethren are in error, I enter my dissent. The Henson Case, 49 Tex. Or. R. is not in point, and is not applicable to the question decided in this ease, in my opinion. Neither is the case of Wade v. Nunnelly, cited by the prevailing opinion. -


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    NUNEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.
    On Motion for Rehearing, May 14, 1913.)
    1.Criminal Law (§ 1092) — Record on Appeal — Bill op Exceptions — Appbovai
    AND SIGNATURE OP JUDGE.
    A bill of exceptions without the approval of the trial judge, Verified by his signature cannot be considered on appeal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2S34-2861 2919; Dec. Dig. § 1092.]
    2.Criminal Law (§ 637) — Conduct op Teial — Defendant’s Arrest During Trial.
    The fact that defendant was arrested in another case pending against him during the time he was on trial was not ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1484; Dec. Dig. § 637.]
    3. United States (§ 2) — Territorial Extent op Jurisdiction — Boundary op River-Treaty.
    Under the treaty of Guadalupe Hidalgo, proclaimed July 4, 1848, between the United States of America and the Republic of Mexico (Treaty with Mexico Feb. 2, 1848, 9 Stat. 922), art. 5, the boundary line between the two republics commences in the Gulf of Mexico, three leagues from land opposite the mouth of the Rio Grande, or the mouth of its deepest branch, and extends thence up the middle of the river, following the deepest channel where it has more than one to the point where it strikes the southern boundary of New Mexico, and the Gadsden Treaty proclaimed June 30, 1854 (Treaty with Mexico Dee. 30, 1853, 10 Stat. 1031), did not change such boundary as the line between Mexico and Texas.
    [Ed. Note. — For other cases, see United States, Cent. Dig. § 2; Dec. Dig. § 2.]
    4. Criminal Law (§ 814) — Trial—Requested Instructions — Applicability to Evidence.
    In a prosecution for kidnapping, where the jurisdiction of the offense 'was in issue, and where there was no proof that the channel of the . Rio Grande had suddenly changed, there was no error in refusing defendant’s requested charge assuming that the river had suddenly changed its course into a new channel.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dee. Dig. § 814.]
    On Motion for Rehearing.
    5. Criminal Law (§ 598) — Continuance-Diligence.
    Where defendant was arrested on May 19th and no process was issued for any witness until October 26th, the cause being set for trial October 31st, there was an inexcusable lack of diligence, warranting the overruling of an application for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    6. Kidnapping (§ 5) — Admissibility of Evidence-Delivery to Another.
    In a prosecution for kidnapping, evidence that defendant delivered the person arrested to soldiers, who placed him in jail, was admissible.
    [Ed. Note. — For other cases, see Kidnapping, Cent. Dig. § 11; Dec. Dig. § 5.]
    7. Criminal Law (§ 423) — Evidence—Acts and Conduct op Conspirators.
    Where the facts in a prosecution for kidnapping showed a conspiracy, the acts, wo-rds, and conduct of each and all of the conspirators in furtherance of the common design, until the termination of the conspiracy, were admissible, whether defendant was actually present or not.
    [Ed. Note. — For other eases, see Criminal Law,] Cent. Dig. §§ 989-1001; Dec. Dig. § 423.]
    8. Kidnapping (§ 5) — Admissibility op Evidence.
    In a prosecution for kidnapping, testimony that a witness saw defendant, when they had the person arrested in charge, taking him across the river, was admissible, though the witness did not see the actual capture.
    [Ed. Note. — For other cases, see Kidnapping, Cent. Dig. § 11; Dec. Dig. § 5.]
    9. Criminal Law (§ 346) — Evidence —- Place op Offense.
    In a prosecution for kidnapping, where the place of jurisdiction of the offense was in issue, testimony of a witness, who was at the place eight days thereafter, detailing facts tending to show that the place of the offense was in fact in this state, was admissible, especially where it was not suggested that conditions had changed during that time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 786; Dec. Dig. § 346.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Ramon Nunez was convicted of kidnapping, and he appeals.
    Affirmed.
    Chas. Owen and Paul Boykin, both of El Paso, 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

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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of kidnapping, and his punishment assessed at four years’ confinement in the penitentiary.

There are six bills of exception in the record, but none of them show that they were ever presented to or approved by the judge trying the case. A bill of exceptions prepared and filed by appellant’s counsel without the knowledge, consent, or approval of the trial judge cannot be considered by this court. A bill must be approved by the judge, and his approval verified by his signature. Consequently the questions sought to be raised by these bills cannot be considered, and we will not discuss them.

The fact that defendant was arrested on a capias in another case pending against him during the time he was on trial in this case would present no error.

The court instructed the jury as to the boundary line between Mexico and the United States in the following language: “You are instructed that under the Treaty of Guadalupe Hidalgo, proclaimed July 4, 1848, between the United States of America and the Republic of Mexico, a portion of article 5 provides as follows: “The boundary line between the two republics shall commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande, otherwise called Rio Bravo Del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of the river, following the deepest channel where it has more than one, to the point where it strikes the southern boundary of New Mexico.’ You are further instructed that under the Gadsden Treaty, proclaimed June 30, 1854, the boundary between the United States and Mexico was not changed in so far as the boundary between Mexico and that part of the United States, embraced in Texas, is concerned.”

Appellant claims that these treaties have been amended by the treaty of 1884, and requested the court to charge the jury as follows : “You are hereby instructed that the treaty between the United States of America and'the Republic of Mexico makes the boundary line between the two countries the normal channel of the Rio Grande river notwithstanding any alteration between the banks or in the course of the river, provided that such alteration be effected by natural causes, through the slow and gradual erosion and deposit of alluvium and not by the abandonment of an existing river bed and the opening of a new one. If, therefore, you believe from the evidence that the Rio Grande river ran in a channel between Tornillo and the present channel of the river and northerly of the place where Lawrence F. Converse was arrested, should you find that he was arrested, and that said river changed its course suddenly into a new channel, or the present channel, and did not change by gradual erosion and deposit of alluvium, then you will find that said Lawrence F. Converse was not arrested or restrained of his liberty within the county of El Paso ‘ and state of Texas, and you will therefore acquit the defendant.”

As there is no proof in the record that the bed of the river was suddenly changed, there was no error in refusing the special charge, nor in the court giving the charge complained of in the motion for new trial and herein copied.

The other matters complained of relate to the admissibility and rejection of testimony, and, as the bills of exception are not verified by the trial judge’s signature, we cannot consider them. But if we should consider them, we think the evidence would raise the issue of a conspiracy, and under such circumstances the statements of all parties connected with and during the continuance of the conspiracy would be admissible in evidence.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term this case was affirmed; the bills of exception not bearing the signature of the trial judge were not considered. Since that time the clerk certifies that the bills on file were in fact approved by the judge, and it was an error on his part in copying them in the transcript.

The first bill complains of the action of the court in overruling his application for a continuance. The record discloses that appellant was arrested on May 19th, and no process was issued for any witness until October 26th; the case being set for trial October 31st. Such lack of diligence is inexcusable, and the court did not err in overruling the application.

According to the state’s evidence, Lawrence Converse and another were in El Paso county about four or five miles southeast of Tornillo, and in about 640 feet of the Rio Grande river, when appellant and three other men arrested them and carried them across the river and delivered them to a company of Mexican soldiers. Mr. Converse testified: “They took us to the bank of the river on the Mexican side where there were some Mexican soldiers and delivered us to the soldiers, who tied our hands behind our backs and placed a rope around our necks. The defendant was present at the time. The rope was then tied to the pommel of a saddle, which was on a horse ridden by a Mexican Federal soldier in uniform.” Appellant being the person who arrested Mr. Converse and carried him across the river, the fact that he delivered him to soldiers who placed him in jail became admissible, and the court did not err in so holding.

The facts in this case show a well-developed conspiracy to kidnap these two men. The soldiers* came to the river bank, and appellant and two or three others in citizens’ clothes approached Converse and his friend, forcibly took charge of them, and carried them to the soldiers, and under such circumstances the acts, words, and conduct of each and all the conspirators in furtherance of the common design become admissible until the termination of the conspiracy, whether the person on trial was actually present at all times or not. Baker v. State, 7 Tex. App. 613; Avery v. State, 10 Tex. App. 212; Hatcher v. State, 43 Tex. Cr. R. 240, 65 S. W. 97. And it does not alter the rule that a portion of the acts, such as placing Converse in jail, was done in Mexico.

While the witness Santiago Perea may not have seen appellant and the others in fact take bodily charge of Converse, yet he saw them when they had him in charge taking him across the river, and the court did not err in permitting him to so state.

-Converse was kidnapped on February 20th. Appellant sought to raise the issue that the place where they took charge of Converse was in fact in Mexico and not in the United States, and under such circumstances there was no error in permitting Mr. Howell to testify that he was at this place just eight days thereafter, and detail facts which tended to show that the point of arrest was in fact in Ell Paso county. Eight days would not be so remote as to render the testimony inadmissible, and it is not suggested even by the testimony that conditions had been altered the least during those few days.

After again thoroughly reviewing this record, we are of the opinion that the testimony shows beyond question that the place where appellant took charge of Converse is in El Paso county, and he was carried by appellant across the border, and delivered to the Mexican soldiers, and the motion for rehearing should be overruled.


text:
    PULLEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. Criminal Law (§ 784) — 'Trial—Instruction ON CIRCUMSTANTIAL EVIDENCE.
    It is only when the testimony relied on for a conviction is wholly circumstantial that the court is required to charge on circumstantial evidence; and, where there was positive testimony that defendant was the man who committed the burglary, the weight of which was somewhat weakened by cross-examination, no charge on circumstantial evidence was necessary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ '1883-1888, 1922, 1960; Dec. Dig. § 784.]
    2. 'Criminal Law (§ 721) — Trial—Conduct or Prosecuting- Attorney — Reference to Defendant’s Failure to Testify.
    In a prosecution for burglary, where it appeared that a watchman had fired three times at the alleged burglar, and that defendant when arrested had been shot through the arm, and defendant did not explain how he received the wound, although he contended that it would have been impossible for the watchman to have shot him, the district attorney’s language, to the effect that if defendant was not wounded in the store the jury might like to know where he was wounded, was no more than an indirect reference to defendant’s failure to testify, and not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    3. Witnesses (§ 379) — Impeachment — Inconsistent Statements.
    The exclusion of statements as to what impeaching,witnesses had said to a state’s witness, in connection with inconsistent statements of the latter, offered to contradict the state’s witness, was not error, where there was no necessity of explaining the statements of the state’s witness.
    [Ed. Note. — For other cases, see Witnesses, .Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    4. Witnesses (§ 379) — Impeachment — Inconsistent Statements.
    What witnesses might have said to a state’s witness, not admissible as original evidence, would not tend to impeach him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    5. Criminal Law (§ 473) — Expert Testimony — Physical Condition.
    Where physicians were qualified and testified to an examination of a wound in defendant’s arm and described the wound and its condition, their testimony as to the length of time it had been inflicted when examined was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1060; Dee. Dig. § 473.]
    6. Criminal Law (§ 1168) — Harmless Error-Admission of Evidence — Relevancy.
    In a prosecution for burglary, the fact that a witness, who said he had seen defendant at a certain place and time on the night of the burglary, knew the time because he had been so informed by another person, was immaterial; and hence a refusal to exclude it was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3124, 3125, 3129-3136, 3144; Dec. Dig. § 1168.]
    7. Criminal Law (§ 1168) — Review—Harmless Error — Fact Otherwise Shown.
    Error, if any, in refusing to strike immaterial evidence as to the time when witness saw defendant, was not ground for reversal, where defendant himself proved that he was at that place at that time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3124, 3125, 3129-3136, 3144; Dec. Dig. § 1168.]

      8. Ckiminal Law (§ 1099) — Appeal—Record — Time por Filing Testimony.
    Evidence taken on the question whether the jury discussed defendant’s failure to testify before arriving at their verdict, not filed until after term time, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    9. Affidavits (§ 5) — 'Who May Take — Attorney in Case.
    Where the affidavits raising the issue whether the jury discussed defendant’s failure to testify before arriving at their verdict were sworn to before one of the attorneys in the ease, .they were properly stricken from the record.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.]
    10. Criminal Law (§ 956) — New Trial-Conduct of Jury — Sufficiency of Evidence.
    Evidence on the issue whether the jury, before agreeing upon their verdict, had referred to defendant’s failure to testify, contrary to the instructions of the court, held to show that a juror’s reference to such failure was made after the jury had agreed upon defendant’s guilt, though before the fixing of the time of punishment.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2373-2391; Dec. Dig. § 956. ]
    11. Criminal Law (§ 1174) — Review — Harmless Error — Conduct of Jury.
    Error, if any, in a juror’s reference to defendant’s failure to testify, made after agreement on defendant’s guilt, but before fixing the time of punishment, contrary to the court’s direction, held not reversible error in view of the fact that the jury assessed the lowest penalty authorized by law.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Lewis Pullen was convicted of burglary, and he appeals.
    Affirmed.
    Spearman & Peak, of Greenville, for appellant. -C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of burglary, and his punishment assessed at two years’ confinement in the state penitentiary.

As J. W. Cornett on the trial swears positively to the identity of the defendant as the man who entered the store, it was not necessary to give a charge on circumstantial evidence. It is true on cross-examination and by proof of statements made at other times' and places the appellant to some extent weakens the force of this identifying testimony, but this goes only to the weight to be given; it by the jury, and did not render a charge on circumstantial evidence necessary. It is only when the testimony relied on for a conviction is wholly circumstantial that the court is required to so charge. Tooney v. State, 8 Tex. App. 462; Buntain v. State, 15 Tex. App. 520; Hunnicutt v. State, 18 Tex. App. 522, 51 Am. Rep. 330; Hayes v. State, 30 Tex. App. 407, 17 S. W. 940; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955; and cases cited in section 203, Branch’s Texas Crim. Law.

Complaint is made of the remarks of the district attorney. It appears from the evidence that the watchman fired at the alleged burglar three times; that defendant when arrested had been shot through the arm. The defendant did not testify, nor was there any evidence offered explaining, how he received this wound, although appellant, during the trial, placed His arm in evidence, showing that the bullet entered the back of the arm and came out in front; the contention being that it would have been impossible for Cornett to have made this wound at the time he fired at the burglar, inasmuch as the bullet did not go in the body. Cornett had testified that when he first fired the arms of the man were hanging by his side. There might be force in this contention if only one shot had been fired, but as Cornett says the burglar turned and ran, when ho fired twice more, and there being no positive testimony which shot inflicted the wound, the contention is without much strength. However, this shows the contention of defendant, and the bill recites that the district attorney said: “If the defendant did not receive that wound in Orr Little’s store, as shown by the testimony of the state, wouldn’t you like to know where the defendant did receive said wound? If he received the wound at the hands of a highwayman, would you not like to have heard the man who inflicted the wound, or some witness-who saw the wound inflicted, testify in this case?” It is contended that is a reference to-defendant’s failure to testify. He had offered this wounded arm in evidence, but did. not say how or when he received the wound. We think under the circumstances the district attorney was justified in using the language quoted, and it cannot be said to-be more than an indirect reference to his failure to testify if that much can be said, and it is not every incidental reference to-such fact that will be cause for reversal, and especially is this true when it is only by a strained construction the language can be said to refer to defendant’s failure to testify. Wooten v. State, 50 Tex. Cr. R. 151, 94 S. W. 1060; Combs v. State, 55 Tex. Cr. R. 334, 116 S. W. 584; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Green v. State, 31 S. W. 386; and cases cited in 5 Enc. of Law & Prac. 389.

Those bills in the record which show that, when attempting to prove up contradictory statements of the witness Cornett, the-defendant also desired to prove what the witnesses had said to Cornett at that time. In refusing to permit such statements to be introduced in evidence the court did not err, as it was not necessary to render plain the statement of Cornett. What these witnesses may have said to Mr. Cornett would not be admissible as original evidence, and would not tend to impeach him.

Several physicians testified in the case, and after qualifying and testifying to an examination of the wound in the arm, there was no error in permitting them to state as to the length of time the wound had been inflicted at the time of the examination. In their testimony they gave as a reason the condition of the wound, describing it, flow of blood, etc., and such facts and circumstances as enabled them, with their medical knowledge, to testify in regard to such matters.

A witness testified that he saw appellant in Greenville on the night of the burglary at 10 or 15 minutes to 12 o’clock. On cross-examination by appellant it was shown this witness knew the time by reason of the fact that he had been so informed by another person when appellant moved to exclude the testimony. The time this witness saw the appellant was not a material issue in the case, but only the fact that he had seen him in Greenville that night; consequently the court did not err in the matter.

But if this should be held to be error, it would be no ground for reversal, because the appellant proved the same facts by defendant’s father and mother and other witnesses, so that the fact that appellant was in Greenville on the night of the burglary ceased to be a contested issue.

There are a number of bills in the record relating to a question of whether or not the jury discussed the failure of defendant to testify on the trial of the case before they arrived at their verdict.

In the first place, it may be said that the testimony heard on this motion was not filed in the court below until February 15, 1913, when the court had adjourned on the 31st day of the preceding November. Being filed after term time, it cannot be considered. Probest v. State, 60 Tex. Cr. R. 608. 133 S. W. 263.

In the next place, it may be said that the affidavits raising this issue were sworn to before one of the attorneys in this case, and on motion of the state were stricken from the record for this reason, and in this the court did not err. Mapies v. State, 60 Tex. Cr. R. 169, 131 S. W. 567.

But should we ignore these matters, and consider the affidavits, evidence, and all proceedings had in this matter, the foreman of the jury testified: “I was the foreman of the jury that tried Lewis Pullen at this term of the court for burglary. When the jury was charged and we went out in the room to deliberate on the case, the first thing done by the jury was to elect a foreman. I was elected foreman. The next thing done, I read the charge to all of them. Then we took a ballot. The result of that ballot was nine ‘guilty’ and three ‘not guilty.’ The first thing that was done after that ballot was taken was Mr. Abernathy was the first one spoke. He was over next to the east door. He said, T was one that voted “not guilty,” but I am better satisfied now, and I am willing to reconsider my ballot and go with the majority.’ Mr. Clark was the next man that spoke, and says, T was another,’ and he says, ‘It was funny’— Before he said that though, he said: T wasn’t satisfied in my own mind which way to vote, but I am willing to go with Mr. Abernathy’- — that is, go with the nine. The next was Mr. Reavis. He stood between Mr. Clark and I, and he said, T am the other man, I reckon.’ He says, T voted “not guilty.” But,’ he says, T didn’t have my mind right well made up and wanted to know how much punishment I wanted it the lowest, but I didn’t know how to get it But if you will give him the lowest punishment I am with the bunch.’ If he didn’t say ‘bunch,’ I am mistaken; but. I think he said ‘bunch.’ At this time Mr. Clark said: T think it is funny he didn’t tell us how he got that shot if he didn’t get it there and had that coat in evidence and his arm too/ I had the charge in my hands and raised it up and says to Mr. Clark, I says, ‘We are instructed not to consider that.’ Another gentleman, I can point him out, but I can’t call his name, but he said: T remember that in the charge.’ (Witness here pointed out Mr. Presley.) I opened the charge and read that part of it over aloud twice so that all might understand it thoroughly. Now Mr. Clark telling about coming up there, several did crowd around to see it read, but I read it aloud twice; made three readings of it; I read it the first time before anything was done. Mr. Clark having said this, and Mr. Reavis having said that, I says: ‘It seems all right except the punishment. If you are ready for the ballot, we will ballot over.’ First we were all one way. We didn’t ballot by writing ballot. I said, ‘A rising ballot will do just as well,’ and they all arose up. I said, ‘Are you all ready for the time?’ but I says, ‘You all ought to write it because I don’t like to see jurors vote like the others do,’ and they all put down on it ‘two years,’ the whole twelve of-us; there was one or two, or maybe three, said, ‘Guilty, two years,’ and I take it it was those that voted ‘not guilty’ before put that, ‘Guilty, two years.’ What I, have stated here was the only reference made in the jury room to the defendant’s failure to tell how he got the wound.” Seven other jurymen also testified, and, taking into consideration the two affidavits filed, would make ten of the jurymen who were heard. The evidence, to our mind, clearly authorized the court to find as he did that the remark was made after the jury had agreed that appellant was guilty, but before the fixing of the number of years of punishment, and as the jury assessed the lowest penalty authorized by law, no reversible error is presented by this ground in the motion for new trial if all defects in presenting the question are waived.

We have carefully considered each bill of exception and ground in the motion for new trial, and no error is presented.

The evidence, we think, conclusively shows the guilt of appellant, and the judgment is affirmed.


author: DAVIDSON, P. J.

text:
    WILLIAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    1. Bubglaby (§ 42) — Pbosecution—Recent Possession of Stolen Goods.
    While the possession of goods taken from a burglarized house is sufficient to justify a conviction for burglary where accused offers no explanation, proof of an actual breaking is essential.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 80, 104r-107; Dec. Dig. § 42.]
    2. Cbiminal Law (§ 552) — Evidence—Cib-CUMSTANTIAL EVIDENCE — SUFFICIENCY.
    Where circumstantial evidence is relied upon, the presumption of innocence must be excluded ; that is, the facts must exclude every other conclusion or hypothesis except that of guilt to warrant a conviction.
    [Ed. Note. — For other cases, see Criminal Law,. Cent. Dig. §§ 1257, 1259-1262; Dec. Dig. § 552.]
    3. Bubglaby (§ 41) — Pbosecution — Evidence — Sufficiency.
    In a prosecution for burglary, evidence held, insufficient to support the conviction.
    [Ed. Noté. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.]
    Appeal from District Court, Morris County ; P. A. Turner, Judge.
    Noah Williams was convicted of burglary, and he appeals.
    Reversed and remanded.
    Rolston & Rolston and Ward & Ward, all of Mt. Pleasant, 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, P. J.

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

The evidence discloses that Wood and another negro named Harris were using a certain house for the purpose of storing cotton which they were gathering. The house consisted of two rooms, a north and south room. Harris controlled one of the rooms and Wood the other. Harris kept his room locked; Wood did not use a lock on his. The evidence in regard to this room discloses that Wood had placed his cotton in it on Thursday and had closed the door and latched it. It was latched by using a nut on the inside of the door, which could be manipulated through a hole in the door from the outside of the room. It seems to be an undisputed fact, from all the evidence in regard to this door, that the nut would easily turn when shaken by the wind or from any cause, and, when it did so the door, to use the expression of the witnesses, “would spring open.” Wood’s testimony goes to the effect, also, that he had been missing cotton, and to detect the thief he had sharpened his knife and cut some paper and scattered it around in his cotton for the purpose evidently of ascertaining who got his cotton if it was taken. There is some intimation in the record, as we understand it, that this was a newspaper. There is some evidence that in some cotton appellant subsequently carried to the gin two or three pieces of paper were found. The witnesses indicate that it was a coarse paper probably without printing on it, and may have been torn instead of cut. This is not very satisfactorily shown. Wood left the house closed Thursday evening and did not return to it until Saturday morning. He testified he did not know whether the house was opened during his absence or not, but that it would come open if shaken by the wind or from any other cause. Harris testified that he and his wife were picking cotton near by and had a three year old child; that they were at the house Friday evening putting away some cotton, Harris himself going in the room controlled by him for the purpose of getting a sack in which to carry corn from his field for the purpose of feeding his hogs; that he got the sack and did carry the corn home for the indicated purpose; that this was late Friday evening. At that time the door of the Wood room was open. Wood testified when he was there Saturday morning the door was open. Appellant, as did his mother, testified that on Friday night appellant was at home the entire night; that appellant’s little brother, one of his mother’s youngest sons, was accustomed to having spasms, and on this particular night he had spasms through the night, and 'appellant stayed at home with his mother for the purpose of assisting her with this child; that when the spasm come on it was a little difficult to control and hold him. They both concur in the testimony, and there is no conflict that he was at home the entire night, in so far as their evidence indicates, and that neither he nor his mother lay down or slept during the night on account of the condition of the younger boy. They also testified, and it seems to be an undisputed fact, that the father of the boy and husband of the mother of appellant was a negro Baptist preacher and was away at the time in his ministration to his brethren at some point in his capacity as preacher. The next morning (Saturday), appellant hauled some cotton to the gin. It is shown by one of the witnesses at the gin that he saw some paper in the cotton hauled by appellant, but we gather from the testimony it may not have been the same character of paper as that testified by Wood; but, be that as it may, he saw one or two pieces of paper in the cotton that went through the suction pipe into the gin. It is also in evidence from the witness Flemming that appellant rented land from him for that year. Flemming testified in regard to this matter, and says: “I don’t remember exactly what rent I got out of the cotton the defendant made on my place. He paid me the rent for it. He paid me $4 and something for it, for the remnant — about 300 or 400 pounds. He carried the remnant home from my place. The first bale he picked he put it in my crib, and I had to have my crib, and told him to bring a wagon up there, that he had a place to put it over there. He just brought the wagon and carried it over home. I am talking about the remnant of cotton. I think he sold it down here somewhere at the gin. He had a bale and a remnant on my place,” etc. Appellant denied going into Wood’s house and getting any cotton out of it, in addition to proving that he was at home; and he further testifies that he made a bale and a remnant of cotton on Charley Flem-ming’s place. He did not remember exactly how much there was in the remnant. He brought it down to Mr. Mose Williams’ gin and sold it to him. He testifies to having also received pay for this particular cotton. He says he told Mr. Wyse the cotton was made on Charley Flemming’s place, and he figured the rent and paid him the balance as a credit on his debt and mortgage. The amount of the cotton was $14.40 or $14.80, and then the rent was figured out at $4.10. The cotton that appellant sold, we gather from the testimony, he contends was the cotton mentioned in regard to the Flemming place, which is the cotton Wood contends was stolen from him. Wood was impeached by showing contradictory statements. Among other things, he is shown to have stated after he denied making the statement ■ that appellant was wrongfully prosecuted, giving the name of the party who had gotten his cotton. This is a sufficient statement, we think, to dispose of the main question urged for reversal, to wit, sufficiency of the evidence.

It has been held by this court that where a breaking has been shown in a burglary case, and the accused is shortly thereafter found in possession of the property taken from the burglarized house, without explanation or testimony explanatory of his possession of the property innocently, it is sufficient to justify the jury in a conviction for burglary. But under that line of decisions it is necessary to show there was a breaking of the alleged burglarized house in some manner violative of the statute. In this ease there is no direct testimony that the house was broken. The inference to be deduced by the state, in order to show a breaking under the facts, can only be justified by reason of Wood’s testimony that he closed the house on Thursday evening, and that it remained closed unless broken on Friday night. If this did not occur, the burglary is not shown, nor is it deducible from the facts otherwise. To meet this evidence the defendant shows by Harris that the house was open on Friday evening, and it was upon Saturday morning 'by the state’s witness and alleged owner Wood. He adduced evidence that the cotton he sold Saturday was raised on Flemming’s place. This being a case of circumstantial evidence, presumption of innocence must be excluded; that is, the facts must exclude every other conclusion or hypothesis except that of the guilt of appellant; that is, that he broke the house Friday night and took the cotton. Appellant may have taken the cotton under the facts and yet not have committed burglary under the testimony of Harris and Wood. There is no real conflict between the fact that the house was closed Thursday night and Harris’ testimony showing that it was open Friday evening, and Wood’s testimony that it was open Saturday morning. Wood’s testimony as to Thursday evening closing could be true, Harris’ evidence true, and Wood’s testimony that it was open Saturday morning true, and yet the testimony has not excluded sufficiently the theory of innocence to justify the jury in saying that innocence is excluded and guilt alone made to appear. The theory of guilt is inference based on other inferences and not facts. Under the theory of circumstantial evidence, we are of the opinion the state has not sufficiently made out a case to justify the incarceration of this negro boy in the penitentiary for burglary.

Without discussing other matters in the case, the judgment is reversed, and the cause is remanded.


text:
    GARCIA v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    On Motion for Rehearing, May 21, 1913.)
    1. Homicide (§ 295) — Trial—-Instructions.
    In a prosecution for homicide, where accused contended that he killed deceased in repelling the joint attack of deceased and another, the charge upon manslaughter should not limit provocation solely to the attack of deceased ; the act of one.,of accused’s assailants being the act of the other.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 293.]
    2. Homicide (§ 295) — Trial—Instructions.
    Nor should the charge limit- the passion under which accused acted to that induced solely by the provocation of deceased’s attack, but it should include passion caused by the joint attack.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 600-609; Dec. Dig. § 295.]
    3. Homicide (§ 295) — Trial—Instructions.
    In a prosecution for homicide, where accused contended that he killed deceased in repelling the joint attack of deceased and another, one of whom stabbed him, the charge upon manslaughter should directly submit the question whether the wound or stab was such provocation as to cause passion, reducing the killing, if not in self-defense, to manslaughter, and a mere general charge is not sufficient.
    [Ed. Note. — Eor other eases, see Homicide, Cent Dig. §§ 606-609; Dec. Dig. § 295.]
    4. Homicide (§ 300) — Trial—Instruction^.
    In a prosecution for homicide, where it appeared that accused was really in danger of his life, an instruction on self-defense should not be confined to apparent danger, but should include real danger.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 300) —Joint Attack —Effect.
    In a prosecution for homicide, where accused contended that he killed deceased in repelling the joint attack of deceased and another, and it appeared that deceased had previously made threats against accused’s life, the charge on self-defense should not limit the consideration of past threats solely to the action of deceased; the third person by acting in conjunction with deceased assuming all of his past threats.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    6. Homicide (§ 189) — Evidence — Admissibility.
    In a prosecution for homicide, where accused claimed that deceased began the difficulty, and that it was to repel the attack of deceased and another that he killed him, evidence of previous insulting remarks made by deceased concerning accused and his brother is admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 398; Dee. Dig. § 189.']
    7. Criminal Law (§ 364) — Evidence—Res Gestas.
    In a prosecution for homicide, evidence of statements made by accused 10 or 15 minutes after the killing, upon his return home, whence he had ridden rapidly after shooting deceased, is admissible as part of the res gestie.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. § 364.]
    8. Homicide (§ 286) — Malice—Implication.
    Malice will not be implied from all killings, viz., manslaughter and negligent homicide; consequently, in a prosecution for homicide where there was evidence tending to reduce the crime to manslaughter, a charge that malice will be implied from an unlawful killing is improper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. § 286.]
    On Motion for Rehearing. .
    9. Witnesses (§ 406) — Impeachment — Admissibility of Evidence.
    In a prosecution for homicide, accused’s witness who with another, had examined a Mexican who was with deceased at the time of the killing, and testified that he understood this Mexican to tell the interpreter that accused was invited to alight from his horse by deceased, cannot be contradicted by the testimony of another witness present at that conversation that the interpreter said the Mexican stated that accused remarked, “Now I’ve got you where I want you,” upon meeting deceased; such evidence being hearsay, and not necessarily impeaching accused’s witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.]
    Appeal from District Court, Victoria County ; John M. Green, Judge.
    Ambrosio Garcia was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Ben W. Fly and T. R. Wood, both of Victoria, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      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 Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, his punishment being assessed at eight years’ confinement in the penitentiary.

The evidence, briefly stated, is that all the parties to the transaction were Mexicans. The killing occurred at night. Appellant had been sent by his father with a sausage mill and Winchester rifle to a friend of his father. This friend wanted a sausage mill to use in making sausage, as he purposed killing hogs. The gun was sent without request, and was accounted for in this way: On the previous year this friend of appellant’s father had considerable trouble in killing a hog which was wild, and this for want of a gun. This matter had been mentioned by the friend to appellant’s father, and, thinking this friend might need the gun, he had instructed his son, appellant, to carry the gun with him on this occasion. En route from his father’s home to his father’s friend he met deceased and another Mexican named Feroba. The state’s view of the case is that upon the meeting appellant said to the deceased, Oabasos, “I have got you where I want you,” or a similar expression. That as Oabasos was ■ alighting from his horse appellant shot him in the shoulder a little in the rear of his side. There had been some trouble between the parties previously. The deceased had used very insulting language, calling appellant and his brother “caba-rons,” which the witnesses say is the most insulting language known to the Mexican tongue. There is also testimony to the effect that deceased had said that there would be trouble whenever he and appellant met. There was some testimony of a similar nature which it is deemed unnecessary to recapitulate. Appellant’s version of the homicide was substantially as follows: That in obedience to the instructions of his father he was carrying the sausage mill and gun to Crecencio Benito, the friend of his father to which allusion is above made. En route he met Feroba and deceased on the road. Fero-ba spoke and said good evening. Appellant answered him and said good evening. Fer-oba then asked, “Where are you going?” Appellant told him he was going to Crecencio Benito to leave a sausage mill that his father was sending. Feroba then told him to get off his horse and talk to them, at which time he grabbed the reins of appellant’s horse. Appellant informed him that he did not have time to converse with him; that his father had told him not to stop on the road, but to keep going. Feroba told him two or three times that he wanted to talk with him, and appellant says he thought they were not going to have any trouble, and he got down from his' horse. Upon getting down Feroba commenced hitting him in the breast, and the ■other mari, deceased, commenced cutting him in the back. He says: “I told them I did not want any trouble with them, and they told me they would have to kill me. They had backed me off some eight or ten yards from my horse, fighting me, and Refugio was going to my horse, and I ran over and snatched him away from him.” When appellant push-Feroba back deceased was coming upon him, whereupon he snatched his Winchester from his horse and shot. During the fight appellant was cut in the shoulder behind. The ■sear was exhibited to the jury, and the physician who attended appellant testified also to the fact that there was a stab in the ■shoulder, which he described as being 1% or 2 inches long, and about 1% or 2 inches deep. The contention of the state in this connection was that appellant cut himself in the shoulder; the idea of the state being that he was manufacturing a defense. There ■seems to be, however, no testimony to sustain this further than the fact that the physician testified that the wound was in such place that appellant might have used the knife and nut himself at that point, as he could have •done on most any other portion of his body. This is a sufficient statement of the facts.

The charge on manslaughter is criti-nised as being insufficient, and fatally so. The court gave the statutory definition of passion, and informed the jury that an assault and battery by the deceased causing pain and bloodshed is adequate cause. Then gave a general charge that, although the provocation causing sudden passion must arise at the time of the killing, it was the duty of the jury in determining the adequacy of the provocation to consider all the facts and circumstances in evidence, etc. Applying the law to the case, the court instructed the jury that if they should find beyond a reasonable ■doubt “that the defendant, with a deadly weapon, in a sudden passion arising from an adequate cause, as the same has been herein-before explained, and not in defense of himself against an unlawful attack, real or apparent, producing a reasonable expectation or fear of death or serious bodily injury,” etc., ■“you will find him guilty of manslaughter.” Several grounds of objection are urged to this charge. The court was in error in not ■charging the jury on the law of manslaughter applicable to the combined assault of deceased and Feroba. The court limited the provocation and the right of appellant on the ■charge of manslaughter alone to the acts of the deceased. Appellant’s theory of the case, and his testimony, was to the effect that they both attacked him, and through the demand •or request of Feroba he was induced to alight from his horse, believing there would be no trouble; that there was a combined assault upon him by the two. From appellant’s theory the two parties were acting together. This being true, the act of one is the act of the other, and manslaughter should have been so charged. See Branch’s Criminal Law, § 512. Mr. Branch thus aptly states the proposition: “The charge must not confine adequate cause to the acts of deceased if there is evidence that another is acting with deceased,” citing Byrd v. State, 39 Tex. Cr. R. 609, 47 S. W. 721; Stacy v. State, 48 Tex. Cr. R. 97, 86 S. W. 327; Brown v. State, 54 Tex. Cr. R. 127, 112 S. W. 80.

It is also contended that the court erred in limiting the. provocation, as was done in the charge, to one person, and nowhere in the charge correcting it. That part of the charge is as follows: “The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed.” The contention is this is inapplicable to the facts, and not the law of this case. This contention is correct. While the usual rule is that the provocation of some other person than the deceased cannot be used in manslaughter, yet that does not mean a provocation of more than one party when the parties are acting together. Where two or more are acting together it is not legally the provocation of some other person, nor is it in fact. It is the provocation of either and both of the parties who are so acting. Under such state of case both parties are giving the provocation, and without some such explanation of the law to the jury they would believe, and doubtless did believe, that under the charge given the provocation by Feroba could not be considered by them, or the fact that he was acting with deceased could not be considered by them under the charge of manslaughter. Appellant had the legal right to have the law of manslaughter charged from the standpoint of an attack from both Feroba and deceased. This was a case made by the defendant’s evidence. In fact, it was a ease on this state of facts.

We would say, upon another trial with reference to manslaughter, the court should submit directly and pertinently that, if the wound or stab created pain or bloodshed, and it did both, the jury should have been told in pertinent language that this would be adequate cause, and under that state of case they could only find the defendant guilty of manslaughter, provided the passion was concurring. This was not given by the court, but he gave a general charge that, if from all the facts and circumstances in the case-they should find him guilty of manslaughter, to convict of that offense. Here the statutory adequate cause was relied upon, as directly shown by the testimony. While the court did tell the jury that an assault causing pain or. bloodshed would be adequate cause, yet when applying the law to the case he submitted it generally, limiting it to a combination of facts and circumstances, either or both, that would produce sudden passion. That did not meet the facts of thi's case.

It is contended the charge on self-defense is too restrictive. An inspection of the charge shows that it is submitted more from the standpoint of apparent than from real danger. While the court might submit the question of apparent danger, still the question of real danger was in the case, and should have been pertinently and appropriately submitted. If that theory was submitted at all, it was done in such a way that it would hardly be called a submission of real danger.

The court’s charge is also attached because- of the failure to properly submit the issue of threats in connection with the assault. There was no evidence in the case that Feroba had threatened appellant. There is evidence to the effect that deceased did. The court limited, in its charge on threats, to the words and acts of the deceased, mentioning him by name. Upon another trial the court will properly instruct the jury with reference to this matter. If the deceased made threats to take the life of appellant, or to do him serious bodily injury, and Feroba was in the conspiracy with him to execute those threats, they would be the threats of Feroba, or if he assisted as a principal the deceased in making an attack upon appellant, and was acting in conjunction with him, he would then be assuming all the acts and conduct of the deceased, and would be responsible for all of the acts of the deceased in assisting him in his attack upon appellant. If Feroba knew of the threats, and knew of the feeling of the deceased and acted with him, he would be equally responsible from every standpoint, as much so as would be the deceased. While Feroba did not threaten the life of appellant so far as the facts affirmatively show, yet he was acting as a principal with the deceased, and was responsible with the deceased in whatever illegality there was on the part of deceased in his attack upon appellant, and this whether they were doing this in pursuance of a conspiracy, or whether he was assisting deceased as a principal at the time of the homicide. These matters can be used as well defensively as offensively, where the facts or circumstances call for such charge.

There are several bills of exception reserved to the action of the court refusing to permit the defendant to show statements, made by the deceased in the absence of ap■pellant, showing his ill will and determination to bring about trouble with appellant upon his meeting him. To illustrate these questions, this occurred: On a certain occasion, at what the witnesses call the “horse races,” the deceased called appellant and his brother “cabarons,” which the witnesses say is one of the most insulting remarks known in the Spanish language. Appellant and his brother, who were in a buggy, drove away, and after they drove out of hearing of the deceased, deceased continued to use such epithets. Appellant proposed to prove this, the state objected, and the court excluded it. This was error. It tended to show the feeling of the deceased toward appellant; it also tended to solve the question, which was very sharply contested by the evidence of Feroba on one side, and appellant on the other, as to who began the difficulty. This testimony therefore was important, and with it all before the jury they may have taken appellant’s view ot it that deceased began the difficulty. There are other bills of exception of this same character. It is unnecessary to go over those bills. They are of the same nature, and the testimony should have been admitted.

There is another contention by appellant. Immediately upon cessation of the difficulty appellant rode rapidly home, occupying about 10 or 15 minutes. Upon reaching home he proposed to prove by his father and mother, as well as by himself, what he said to them at the time in regard to this difficulty. By the mother and father he could prove, as well as by himself, that he was nervous, excited, and suffering from the wound that had been inflicted upon him, and bleeding. His father and mother asked him about the difficulty and how it came about. He told them. The court declined to permit this evidence to go to the jury. His statement, in substance, was about as he testified; that he met the parties and they insisted several times on his getting down from his horse and talking with them, and he did so, and they then made the attack upon him, and he shot one of them. That ceased the difficulty, and he got on his horse and rode home rapidly. We are of the opinion, under a long list of authorities, this testimony was admissible. See Branch’s Oriminal Law, § 342. Mr. Branch thus states the proposition: “If res gestae, it is error to exclude defendant’s statements, made shortly after the difficulty, to the doctor or person dressing his wounds,” citing Craig v. State, 30 Tex. App. 621, 18 S. W. 297; Wakefield v. State, 50 Tex. Cr. R. 124, 94 S. W. 1046. For other cases see the above-cited section in Mr. Branch’s work. Again he states this rule: “Error to exclude statements of defendant made a short time after the difficulty, where they were instinctively made and while under excitement, or not shown to be not spontaneous.” There are a great number of authorities cited under this proposition by Mr. Branch, which we deem unnecessary to collate in the opinion. Again, he states the rule: “Where defendant reached his father’s house, greatly excited, about six minutes after the shooting, running his horse at full speed, and was immediately asked what was the matter, his reply was res gestee,” citing Craven v. State, 49 Tex. Cr. R. 78, 90 S. W. 311, 122 Am. St. Rep. 799; Douglass v. State, 54 Tex. Cr. R. 639, 114 S. W. 808; Craig v. State, 30 Tex. App. 621, 18 S. W. 297. In the Craig Case the time elapsing was 10 or more minutes. Some of the cases may be cited here: Griffin v. State, 40 Tex. Cr. R. 314, 50 S. W. 366, 76 Am. St. Rep. 718; Gray v. State, 47 Tex. Cr. R. 375, 83 S. W. 705; Wakefield v. State, 50 Tex. Cr. R. 124, 94 S. W. 1046; Douglass v. State, 54 Tex. Cr. R. 639, 114 S. W. 808; Clark v. State, 56 Tex. Cr. R. 293, 120 S. W. 179; Rainer v. State, 148 S. W. 735. These remarks will apply to the bills of exception reserved to the ruling of the court with reference to the offered testimony of appellant’s father, mother, and himself upon this issue. The facts set out in the bills of exception proposed to be shown bring it within the rule laid down by these numerous decisions. Appellant had ridden rapidly from the scene of the trouble to his father’s house. He was nervous, excited, wounded, and bleeding. His father and mother, while examining the wound, asked him as to the matter and how it came up. He told them, and offered all these matters before the jury. The court excluded it. We have not deemed it necessary to take up all the bills of exception with reference to these various matters, but enough of them in order to illustrate the errors and to indicate to the trial court how the case should be tried.

There is one other question. While it is not brought forward for reversal, it may be well enough to caution the trial judge so that it may not occur upon another trial. Appellant was convicted of murder in the second degree and allotted eight years. The court charged the jury that “malice will be implied from an unlawful killing.” Then applying the law to this part of the case, he instructed the jury that if appellant unlawfully killed, etc., and not in justification of himself, or rather in self-defense, he would be guilty of murder in the second degree. This charge is wrong. See Roberts v. State, 156 S. W. 651, recently decided by this court, and for a discussion of the matter, see Miles v. State, 18 Tex. App. 156, opinion by Judge Hurt. Malice will not be implied from an unlawful killing necessarily. There are several unlawful killings out of which malice may not grow, or from which it cannot be implied, that is legally implied. Manslaughter and negligent homicide are unlawful and under some circumstances accidental homicide might be unlawful. We mention this so that upon another trial this matter will not occur.

The judgment is reversed, and the cause is remanded.

On Motion for Rehearing.

Appellant files a motion for rehearing, ashing that the court pass upon his eighth bill of exceptions in view of another trial. The bill recites that while Mr. Weisiger was testifying for the state he stated that Kyle, Sylvan, and Saens accompanied him to the scene of the homicide in an automobile the dáy after the homicide, and there met and talked with state’s witness Feroba, through Saens as interpreter. State’s counsel then asked this question: “What was interpreted to you by Henry Saens as to Feroba’s statement of how this meeting occurred?” Several objections were urged to the question, which were overruled, and witness was permitted to testify that Saens said that Feroba said that when they met the defendant the latter remarked, “Now I have got you where I want you,” or “Here is where I want you.” Various objections were again urged to the introduction of this testimony. In the manner presented by this bill this testimony should not have been permitted to go to the jury. This was not impeaching the testimony of Saens, but it wasp Weisiger’s recollection of what Saens had said to him, interpreting what the Mexican witness Feroba had said. The court admitted this, it seems, upon the theory that Weisiger was contradicting Kyle as to what occurred. Kyle testified that he and Weisiger understood some of the Mexican language, and that he, Kyle, understood Feroba to say to Saens that the defendant was invited from his horse by the deceased. To meet this, under the qualification of the bill, the court permitted Weisiger to testify what Saens told him, Weisiger. Weisiger was not testifying what he understood Fero-ba to say, but only as to what Saens told him that Feroba said. Kyle had testified what he understood Feroba to say, and not what Saens had told him. As this matter came up, it was not admissible in the connection in which it was offered. If the matter is presented in the same way upon another trial the testimony should be rejected. The impeachment of Saens might be a different proposition. We, therefore, hold that as the matter is presented the statement of Saens would not be admissible, unless it became a matter of impeachment of Saens. The statement of Saens would not be original testimony. ' At the request of appellant we review this question. We hold that, as the bill is presented, the testimony of Weisiger as to what Saens stated was not original testimony; it might or might not be impeaching, owing to the circumstances. Inasmuch as the case is reversed on other questions, we call attention to this so it majl not occur in this manner again.


text:
    SCHNEIDER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.
    Rehearing Denied May 21, 1913.)
    1. Criminal Law (§ 1090)—Necessity of Bill of Exceptions.
    A ground alleged in a motion for new trial, not verified by a bill of exceptions or evidence, cannot be considered.
    . [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789. 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Larceny (§ 60)—Ownership—Evidence.
    In a prosecution for larceny of ice from a railroad company, evidence 7teM sufficient to show that the general foreman of the mechanical department of the railroad company had a sufficient special ownership in the property stolen.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 156-158; Dec. Dig. § 60.]
    3. Criminal Law ■(§ 922) — Exceptions — Time.
    An exception to the refusal to charge on circumstantial evidence in a misdemeanor case comes too late when made for the first time on a motion for new trial. '
    [Ed. Note.'—For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    Appeal from McLennan County Court; Tom L. McCullough, Judge.
    Harry Schneider was convicted of larceny, and he appeals.
    Affirmed.
    J. P. Alexander and Williams & Williams, all of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

This is a misdemeanor theft. Appellant was given one day in the county jail.

Appellant in his motion for.new trial insists that the verdict is contrary to the law, in that it was rendered by a jury composed of only five men, and was not signed by each juror, but was signed by only one. It is unnecessary to notice this question other than to state that this is not verified by a bill of exceptions or evidence, but is simply alleged as a ground of the motion.

The second ground alleges the insufficiency of the evidence, in that it fails to show that the property alleged to have been stolen was in the possession of the alleged owner, Miller. We are of opinion that the evidence on this question is sufficient to show the special ownership in Miller. His testimony is to the effect that he was the general foreman of the mechanical department of the railroad company, and in such office he had charge of the property of the company. He recalled the incident of the arrest of appellant for the theft of ice from the Union Depot; that he had possession of what belonged to the International & Great Northern, had charge of the property of the Cotton Belt International & Great Northern and Santa Fé that comes into Waco, and “makes arrangements for icing the trains.” The evidence further shows that the ice was brought by one of the employés of the ice company every morning for the train and placed at said point, and on the particular morning in question appellant sent a negro to get the ice, and was putting it in an ice box, evidently for the purpose of keeping cool some soda water bottles. Mr. Miller’s testimony is that he was the special owner of the property; at least, until it had been taken on board the train and passed into the possession of the management of the train. At the time appellant got it, it had not been carried into the train. Appellant, who was a newsboy or train “butch,” sent a negro out, got the ice, and took if for his own purposes. There seems to be no evidence to the contrary, so far as ownership is concerned.

It is insisted the court erred in not charging on circumstantial evidence. This is a misdemeanor. No special charge was asked by appellant, and the only exception taken was in the motion for new trial. This, under the rulings with reference to misdemeanors is not sufficient, and cannot be considered.

Appellant gave an explanation or made a statement in regard to the matter which would show that he had bought the property the evening before to be delivered the morning he sent the negro to get it. This was controverted toy the state, and the circumstances were sufficiently strong to sustain the jury’s verdict in finding his statement was not true. In other words, on this question it was a fact case, and the jury solved the question adversely to appellant. We do not feel justified under the evidence in reversing the judgment on the ground it does not support the verdict.

The judgment is affirmed.


author: MOURSUND, J.

text:
    PEACOCK v. COLTRANE.
    (Court of Civil Appeals of Texas. San Antonio.
    April 16, 1913.
    On Motion for Rehearing, May 14, 1913.)
    1. Judgment (§ 949) — Pleading—Res Judi-cata — Questions Concluded.
    Where plaintiff, suing on a contract, pleaded that the contract was separate and distinct from the contract litigated in a prior suit, the plea of res judicata, on the ground that the face of the pleadings showed that the matters in controversy had been or should have been litigated in the prior cause, must be overruled.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1794, 1795-1803; Dec. Dig. § 949.]
    2. Trial (§ 420)— Refusal to Direct Verdict — Waiver.
    Defendant, who introduced his evidence after the overruling of his motion for a directed verdict, thereby waived the right to complain of the ruling.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig.-§ 420.]
    3. Trial (§ 261) — Requests of Charge.
    A requested charge to find for defendant for certain amounts is properly denied, where the amounts specified include items for which defendant is not entitled to recover.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. § 261.]
    4. Appeal and Error (§ 732) — Assignments of Error — Specification.
    An assignment of error that the court erred in refusing a new trial because the verdict was excessive under the undisputed evidence was too general to justify consideration on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.]
    5. New Trial (§ 128) — Specification of Error — Excessive Damages — Motion for New Trial.
    A motion for new trial on the ground that the verdict is excessive under the undisputed evidence must specify wherein the verdict is excessive.,
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. § 128.]
    On Motion for Rehearing.
    6. Judgment (§ 590) — Res Judicata — Issues Concluded.
    A judgment in an action on a contract, rendered after the court had excluded the parts of the petition which stated another cause of action, is not a bar to an action on the latter cause of action.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1035, 1063, 1064, 1102-1106; Dec. Dig. § 590.]
    Appeal from Bexar County Court; Geo. W. Huntress, Judge.
    Action by J. W. Coltrane against Wesley Peacock. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Carlos Bee and C. C. Todd, both of San Antonio, for appellant. C. A. Davies, of San Antonio, for appellee.

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

   MOURSUND, J.

This is the second appeal of this case; the opinion of this court upon the former appeal being reported in 116 S. W. 389, to which reference is made for a statement of the nature of the suit. After the reversal of the ease appellee filed his third supplemental petition, alleging that the plea of res adjudieata filed by defendant should not be sustained, because the contract made by himself with the Peacock Military College for his salary as head master of the school and the contract in reference to the primary department were two separate and distinct contracts, made at separate times and depending upon separate and distinct conditions, wherefore it was not necessary for him to litigate the said issues in the Fifty-Seventh district court; further, that if required to litigate in the district court, his failure to do so was caused by the wrongful action of the defendant in having the court sustain his plea as to the misjoinder of parties in said court, and that plaintiff is not, by reason thereof, estopped from asserting his said claim, because defendant cannot take advantage of his own wrong merely because his interests have changed. A verdict was returned in favor of appellee for $818 and against appellant on his cross-action, and, judgment being rendered accordingly, this appeal was taken.

Appellant contends the court should have sustained his plea of res adjudieata on the ground that it is shown by the face of the pleadings that all matters in this controversy have been, or should have been, litigated between the parties in cause No. 16,887 in the Fifty-Seventh district court of Bexar county, Tex. As plaintiff pleaded the contract sued upon was a separate and distinct contract from the one litigated in the former suit, it cannot be held that the pleadings disclosed that the matter should have been litigated in such suit. Appellant also contends that after the evidence was in his plea of res adjudieata should have been sustained, on the ground that the undisputed evidence shows but one contract was entered into by and between plaintiff and defendant, and all matters involved in said contract were, or should have been, litigated in said cause No. 16,887. At appellant’s request, two special charges were submitted to the jury, one directing a finding for defendant if they believed the contract sued on to be a part of the one sued on in cause No. 16,887, and the other instructing them to find for defendant if the two agreements were entered into at the same time and were one and the same contract. These issues w'ere determined against appellant, and upon a careful examination of the entire testimony we conclude there is evidence sufficient to support such findings, and conclude that the court did not err in refusing to hold as a matter of law that the plea of res adjudieata was sustained by the evidence.

The next assignment complains of the overruling of defendant’s motion to instruct a verdict, the contention being that the evidence is insufficient to show a separate contract, regarding the primary school, from the one litigated in the other case. The motion itself contains several grounds upon which an instructed verdict is asked, but the assignment of error presents only the one above mentioned. If the motion was filed and passed upon before defendant introduced his evidence, as we infer it was from the phraseology of the assignment, all rights to complain of the failure to grant the same were waived by electing to introduce further evidence. M. K. & T. Co. v. Saunders, 103 S. W. 459; Goggan v. Goggan, 146 S. W. 972; Knights of Tabor v. Smith Johnson, 156 S. W. 532, decided by this court, but not yet officially reported. However, the assignment presents the same question as the preceding one, and would have to be overruled, because, as stated in discussing said assignment, we conclude the evidence was sufficient to sustain a finding that there were two contracts.

The sixth assignment complains of the giving of a special charge which is identical with one given upon the former trial, and the giving of which was held by this court not to constitute error.

Complaint is also .made because of the refusal to give special charge No. 10, as follows: “If you believe from the evidence that defendant is liable to plaintiff in any sum, and you further believe that plaintiff had been overpaid up to January 19, 1905, in any or all of the following amounts:

Overdraft from Hugh Cunningham.... $ 10 00
Overdraft from Roy Jackson. 145 00
Overdraft on R. & P. Simmons. 18 40
Overdraft on Howard Barbisch. 125 0Ó

—you will return a verdict in favor of defendant for any or all of said amounts.” The statement under this assignment is insufficient to show error, nor do we find that the testimony is clear on this matter. How, ever, as we understand the issue, it is whether the defendant could recover all the money paid Coltrane by pupils in excess of what was due on January 19, 1905, the date of the alleged breach of the contract. Even if appellant could recover anything by reason of such payments, it is apparent that he could not recover the tuition and prospective profits which appellee would have derived from Jackson and Barbisch.' In other words, if they had not paid for the term, appellee would have sued for the amount of their tuition and the profit on their board, but such items were included in the sums of money sought to be recovered by appellant by reason of the payments made by these two boys. The special charge was therefore erroneous in authorizing a recovery of such items, and was correctly refused.

The last assignment is that the court erred in refusing to grant defendant a new trial because the verdict is excessive, under the undisputed evidence in the case. The rule is well established that such an assignment is too general to justify consideration by appellate courts. In addition the charge of excess in the verdict is not properly presented in the motion for new trial, as the same fails to specify wherein the verdict was subject to such objection. Railway v. Scarborough, 104 S. W. 414; Degener v. O’Leary, 85 Tex. 171, 19 S. W. 1004; Ry. v. McVey, 81 S. W. 991; City v. Devlin, 84 Tex. 319, 19 S. W. 395; Ry. v. Matlock, 141 S. W. 1067; Ry. v. Fesmire, 150 S. W. 201; Ry. v. Suitor, 153 S. W. 185; Traction Co. v. Emerson, 152 S. W. 468; Ry. v. Young, 155 S. W. 672, decided by this court, but not yet reported.

The judgment is affirmed.

On Motion for Rehearing.

Appellant insists that, -even though the cause of action asserted in this case be admitted to be founded upon a different contract from the one made by him with appellee whereby the latter became head master, still it was litigated in case No. 16,887, because the court in sustaining the exceptions thereto did not sustain the same any further than as to the misjoinder of parties. It is true the judgment reads that the court was of the opinion that: “The law was with the defendant upon his first, second, and fourth exception as to the misjoinder of parties, which are therefore by the court sustained.” The meaning of this language is not clear. However, the parties have agreed in the statement of facts that the trial court marked upon the pleading the portion excluded by him upon demurrers, and have stated exactly what was excluded by him. An examination of the portion excluded by him reveals the fact that he excluded, or struck out, the entire cause of action now sued upon. The three exceptions sustained by the court are lengthy, and we shall not copy them in this opinion. The first asserts a misjoinder of causes of action and prays that the suit be dismissed. The second says that if the alleged rights of action of May Coltrane can be sued for in such suit, then she should be made a party plaintiff, and asks that the case be dismissed because of her nonjoinder. It appears she must have been joined as a party plaintiff in answer to this exception, because the judgment of the court shows that a plea of abatement as to the joining of her as a party plaintiff was sustained. The fourth exception alleges that the petition is defective in so far as attempt is made to sue upon the alleged cause of action of May Coltrane, because no facts are alleged showing any right on the part of plaintiff to prosecute such suit on her behalf or on his own behalf, and because it did not “state the facts upon which plaintiff claims the right and authority by which the pretended contract was made.” When these exceptions are considered in connection with the pleading stricken out, the judgment of the court must, in our opinion, be construed as a holding that plaintiff could not litigate the matter of the contract relating to the primary department with that relating to his contract as head master. The matter relating to the one contract was tried; the matter relating to the other was stricken from the petition. The judgment so rendered is not res ad judicata as to the cause of action stricken from the petition.

The motion is overruled.


author: REESE, J.

text:
    ELDER, DEMPSTER & CO. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
    (Court of Civil Appeals of Texas. Galveston.
    May 5, 1913.)
    Appeal from Galveston County Court; Geo. E. Mann, Judge.
    Action by Elder, Dempster & Co. against the St. Louis Southwestern Railway Company of Texas and another. From a judgment of dismissal, plaintiffs appeal.
    Reversed and remanded, in conformity to the opinion of the Supreme Court (154 S. W. 975) on answer to certified question.
    Edward F. Harris and Harris & Harris, all of Galveston, for appellants. E. B. Perkins, of Dallas, and John M. King and Wilson, Dabney & Meaehum, all of Houston, for appellees.
   REESE, J.

Elder, Dempster & Co. instituted this action in the county court of Galveston county against the St. Louis Southwestern Railway Company of Texas and the International & Great Northern Railroad Company to recover $550, alleged to be the value of certain bales of cotton delivered to defendant by Gussoni & Co. at Gates-ville, Tex., consignor, to shippers’ order, destination Galveston, tinder proper bill! of lading; the cotton being delivered to the carrier and bill of lading executed November 20, 1906. The cotton was not delivered. The original petition was filed February 23, 1910, alleging the facts, and that the said bill of lading and all rights thereunder had been assigned to plaintiffs. The defendants filed a special exception to the petition, on the ground that it appeared by the allegations therein that plaintiffs’ cause of action was barred by the statute of limitations of two years. The exception was sustained by the trial court, plaintiffs declined to amend, and the cause was dismissed. From the judgment, plaintiffs prosecute this appeal.

The single question presented by the appeal is whether the two or four years statute ' of limitations applies to the action. Upon submission of the cause, this question was certified to the Supreme Court, with a full statement of the case. The question has been answered by the Supreme Court, holding that the two years statute does not apply, but that the cause of action comes under the four years statute. The opinion of the Supreme Court was delivered on March 19, 1913, 154 S. W. 975. Reference is here made to the decision in that case, not yet officially published, for a full statement, which renders any further statement here unnecessary. In accordance with the opinion of the Supreme Court, holding that the trial court erred in sustaining the special exception to the petition, the judgment is reversed, and the cause remanded. It is proper to add that our own view of the law was in accordance with the opinion of the Supreme Court, as shown by the statement accompanying the certificate; but we considered that such holding would be in conflict with the decision of the Court of Civil Appeals of the Fourth District in Railway Co. v. Clemons, 19 Tex. Civ. App. 452, 47 S. W. 731, to which view we adhere.

Reversed and remanded.