author: BROWN, C. J. HAWKINS, J.

text:
    THOMAS v. FIN & FEATHER CLUB.
    (No. 2323.)
    (Supreme Court of Texas.
    Dec. 16, 1914.)
    1. Wateks and Water Courses (§ 156)— Written Agreement — Easement Appurtenant.
    Where an -owner of land on which was á small lake allowed a fishing club to construct a dam, the effect of which was to overflow a slough, and a subsequent owner, by written agreement, gave to the club the exclusive fishing rights in the slough, reserving a fishing right to himself, the club had an “easement appurtenant” to the land, to which the title of the last owner’s grantee was subject.
    LEd. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 17-L-183; Dec. Dig. § 156.]
    2. Waters and Water Courses (§ 156)— Lakes and Dams — Injury to Property-Liability.
    Where a fishing club, with the consent of the owner of the land on which it was located, had dammed the water of a small lake so that it overflowed a slough, and the owner of the land under the slough, having a reserved fish ing right, had used it and made improvements for fishing, the club, owning the dam, had no right to change the conditions by cutting it and drawing the water from the lake, so as to cause damage to the property and rights of such owner.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 174^-183; Dec. Dig. § 156.]
    3. Waters and Water Courses (§ 158%)— Injury to Property — Measure oe Damages.
    In such case the owner could no.t recover for the cost of improvements to enable him to sell fishing rights in the slough to others, or for the fish which had left its waters or were prevented from entering them, but could only recover the difference in market value of his land before and after the dam was cut.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. § 189; Dee; Dig. § 158%.]
    4. Waters and Water Courses (§ 156)— Agreement — Termination.
    A written agreement between an owner of a slough, covered with water by building a dám and a club granting to the club exclusive fishing rights in the waters of the slough, except those reserved to himself terminable by either, was terminated by the club’s action in cutting the dam.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 174-183; Dec. Dig. § 156.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by W. L. Thomas against the Pin & Feather Club. Judgment for plaintiff was reversed by the Court of Civil Appeals (138 5. W. 150), and plaintiff brings error.
    Reversed and remanded.
    Leake & Henry, of Dallas, for plaintiff in error. Carden, Starling, Carden, Hemphill & Wallace, Word & Charlton, and Walter Seay, all of Dallas, for defendant in error.

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

   BROWN, C. J.

The parties plaintiff and defendant have failed to inform the court whether the dam of the club was constructed across a creek or slough or embraced a depression in the land and constructed so as to cause the water to cover that depression. It does not appear whether the land owned by Thomas bordered on the lake at any point other than the slough on which he claims to have had a lake which existed prior to the construction of the dam. We must therefore dispose of this case with reference to the effect upon Thomas’s rights and interests connected with the slough and the lake of the club only so far as it affected that right. In the year 1894 J. H.1 Gaston owned a tract of land in Dallas county, which embraced the land owned by the plaintiff in error, Thomas, on which a small lake existed. In that year, the Pin & Feather Club, with the consent or acquiescence of Gaston, constructed a dam, the effect of which was to raise the water so as to affect the existing lake, and also to overflow and embrace the slough in which Thomas claimed a right to fish. In fact, Gas-ton’s right embraced all of the land about which there is controversy in this suit. In 1904 Gaston sold and conveyed to Bateman the land, including all that is here in controversy. At that time the dam had been erected, and the water of the lake covered the same ground that it did when Thomas bought the land from Bateman. By oral agreement Bateman had the right of fishing in the lake. On the 20th day of April, 1904, Bateman and wife entered into a written agreement with the fishing club by which the right of Bateman in the waters of the lake were expressed as follows:

“State of Texas, County of Dallas.

“This agreement this day entered into by and between Fin & Feather Club and Marvin K. Bateman and his wife Luci Belle Bateman, and W. H. Steele, witnesseth:

“1. The said Marvin K. Bateman and his wife, Luci Belle Bateman, and W. H. Steele, have and do, hereby grant and convey unto the Fin & Feather Club for the benefit of the members thereof, and upon consideration hereinafter stated, the exclusive rights and privileges of fishing and hunting in the slough or branch known as Gaston slough, which runs into the open lake of the Fin & Feather Club, from a point where said slough or branch enters the grounds and waters of said club, up and along said slough or branch to the spring on our premises acquired from John H. Gas-ton et al., April 9, 1904, Thos. Freeman survey, covering a distance of about a half mile. The members of said Fin & Feather Club under this grant shall severally enjoy the rights and privileges herein granted to said club, and said privileges shall be exclusively enjoyed by the membership of said club, and no one else shall be permitted to exercise such rights and privileges: Provided, however, that said Bate-man and Steele shall reserve the rights for themselves and guests to fish and hunt in and on said slough on their premises at pleasure and without paying to the club any fee or charge on account of such guests. Such guests must be accompanied by either Mr. Steele or Mr. Bateman.
"2. In consideration of the grant of the rights and privileges made by said Bateman and his wife and said Steele the Fin & Feather Club hereby grants to said Marvin K. Bateman and W. H. Steele all the rights and privileges of membership in the Fin & Feather Club, free of cost to them save and except the right of being a stockholder or director in said club, and participating in the corporate action and proceedings of said club. That is to say, the said Bateman and Steele shall enjoy the fishing and hunting privileges of the club and the privileges of the clubhouse and grounds the same as any other member, and for the exercise of such privileges the said Bateman and Steele shall pay no dues, and are required to hold no stock. Such privileges, however, are to be exercised under the rules and regulations of the club, as applicable to general membership.
“3. It is agreed on the part of the said Marvin K. Bateman and his said wife and W.' H. Steele, and on the part of the Fin & Feather Club that the grant of privileges on the part of each to the other herein made shall be determinable by either party at pleasure upon giving thirty days’ written notice to the other party. And the said Bateman and Steele agree that they will diligently endeavor to prevent poachers from fishing and hunting in and on said slough, and that said club shall also have the right to prevent poaching and that all parties thereto shall co-operate to this end.
“In witness whereof the parties hereto have signed their respective names hereunto, the said Fin & Feather Club acting by and through its duly authorized president, C. F. Carter, this 20th day of April, 1904.
“[Signed] Fin & Feather dub.
“By C. F. Carter, President.
“M. K. Bateman.
“Luci Belle Bateman.
•“W. H. Steele.”

Duly acknowledged on the 20th day of April, 1904 before J. H. Jackson, a notary public, Dallas, Texas, and also J. L. Ross, notary public Dallas, Texas, and duly recorded in volume 323, page 528, Deed Records, Dallas County, Texas.

The agreement was acknowledged according to law by Bateman and wife and recorded. The evidence discloses no disagreement between the club and Gaston or Bateman. On the 8th day of September, 1908, Bateman sold the land to Thomas, at which time the club’s dam was in existence as it was originally constructed, and the water of the lake occupied the same position as it did when the dam was cut so as to drain the lake as hereinafter stated. Thomas made some improvements about the lake, making arrangements for fishing and sold fishing rights in the waters of the bayou. 1-Ie made arrangements to use it as a source of profit to him, and was engaged in so doing over the objection of the club when a cut in the dam was made, which reduced the water below its former level so that it destroyed the value of the bayou as a fishing point. The effect of the draining of the lake was to take from this bayou and from a part of the land the water which had been supplied by the lake of the club, and left that part of the land, or some of it, in an unprofitable condition, being boggy and unavailable for any practical use. Thomas brought this action to recover from the defendant club the damages occasioned to him from injury to his property by this drainage of the lake. He alleged the destruction of his fishing right out of which he had prepared to derive a revenue, also the value of the fish which he had lost through a device constructed and put into the lake by the club, and other injuries before stated. The judgment of the district court was reversed and judgment entered by the Court of Civil Appeals. This application presents to this court for revision and correction errors of law charged to have been committed at the trial.

The question of prescription is not involved in this case, because it is shown beyond doubt or controversy that there was a positive verbal agreement on the part of the club with Gaston, and a written contract with Bateman. Therefore we will not discuss the question as to whether the prescriptive right, if it had existed in the fishing club, would have given a reciprocal right in Thomas to require the maintenance of the dam.

The fishing club constructed its dam in such manner as to cause the water which it impounded to raise the level of the water in the bayou in which Thomas’s lake was formed and existed, and this condition was maintained by consent of all the parties for a number of years. In fact, it was observed by all until the act of the club by which it drained off the water, thereby lowering the water in Thomas’s lake and bayou, and, as he claims, causing great injury and damage to his property.

We regard it as a well-settled proposition that when by consent or otherwise, water is thus impounded by artificial means as by a dam, in such way as to affect adjoining lands, and after the parties owning adjacent lands have adjusted their improvements and uses of their lands to the condition caused by the lake, as in this instance, the owners of the dam have no right to change the conditions by drawing the water from the lake in such a manner as to cause damage to the property of the adjacent landowner. Belknap v. Trimble et al., 3 Paige (N. Y.) 577; Matthewson v. Hoffman, 77 Mich. 420, 43 N. W. 879, 6 L. R. A. 349; Village of Pewaukee v. F. X. Savoy, 103 Wis. 271, 79 N. W. 430, 50 L. R. A. 836, 74 Am. St. Rep. 859; Kray v. Muggli, 84 Minn. 90, 86 N. W. 882, 54 L. R. A. 473, 87 Am. St. Rep. 332, and note. Many cases could be added.

The agreement between Bateman and wife and the fishing club with regard to the use of the lake was appurtenant to the land, and vested in the club an easement to which Thomas’s title was subject as it waá in the hands of Bateman. Neither party had exercised the power reserved in the contract to annul the privilege of fishing in the lake and membership of the club, which were secured by the said contract. Therefore we must consider this case as if the action were brought by Bateman and wife, since Thomas took the estate with all its incumbrances and limitations.

It is difficult for us to understand up■on what ground the damages were recovered. But we are of the opinion that the Court of Civil Appeals erred in holding that Thomas had no right to require the club to maintain its dam at its proper stage. It is therefore necessary for this court to reverse the judgment of the Court of Civil Appeals in that respect, for we have no doubt that landowners, under the circumstances of this case, have the right in law to have the conditions creáted by the construction of the dam maintained in so -far as it was necessary to the preservation or protection of rights which accrued by the erection of the dam, and the continuance of which depends upon the maintenance o£ the dam. Thomas had the right to recover from the fishing club the damage occasioned to him through the drawing, off of the water from the lake. The damages must be confined to the proximate result of the action of the club in lowering the level of the water.

In this we do not have reference to any claims for vindictive damages, if the facts should justify any such claim, nor to any claim for damages which Thomas may have against the club because of their depriving him, if they did so', of any fish that would have naturally remained in the waters of his lake.

We do not find any evidence of damage done to Thomas by the drawing off of the water from the lake, except in general terms he says it reduced the market value of his property, and some other general expressions of that kind. But it does not appear in what manner that wás done, except that he alleges that the lake was a valuable part of his property right, and the act of the club complained of affected its salable value.

The question which lies at the bottom of this matter is, What was the effect of the agreement between Bateman and the club? It did not give the club the right to destroy the lake of Bateman, by discharging the water from its own lake and thereby changing existing conditions. But that contract did give to the club the exclusive right of fishing in that water and the right to exclude from the water, for the purpose of fishing or other amusement, any persons except those named in the contract. The contract gave to Bate-man and Steele the privilege of membership of the club without the payment of dues, and with the right to fish and hunt in any part of the club’s ground. It also gave to the club the exclusive right to control that part of the lake which was formed by elevating its water level so as to raise the water in the bayou in question. Bateman, and Thomas through Bateman, ha'd the right to fish in that portion of the water or in any part of the lake of the club, and they had the right to invite their friends and persons visiting them to join them in such sport. But they were expressly excluded from selling any fishing or hunting rights in said water. Therefore Thomas is not entitled to recover any damages he may have sustained in making improvements to enable him to sell to others rights to fish and hunt in any part of the lake. Having no such right, he could not lawfully have made the profit he claims. Therefore that it not an element of damage for which he can recover. The agreement between Bateman and the club had not been revoked or set aside by either party to this action, but was annulled by the action of the club in draining the lake. And we must determine this case as if there was no question, and there is none, of the binding force of that agreement upon the parties.

This court is unable to determine the basis upon which the damages were assessed, but under the agreement between Bateman and the club, the latter had full control and ownership of all the fish in the lake, and we are of - the opinion that the facts do not show that Thomas is entitled to recover anything for fish which may have been induced to leave Ms waters or prevented from entering, if such, was the case.

We are of opinion that the Court of Civil Appeals erred in rendering judgment against the plaintiff, Th.omas, and we reverse that portion of the judgment of said court and remand the case to the district court for trial under the following instructions as to the measure of damages in ease Thomas shall recover:

The plaintiff is entitled to recover the difference in the value of his land as it existed before the dam was cut and its value as it is since the cutting of the dam. ■ In determining that issue, the jury may consider any decrease in the market price of the land, also the value to Thomas of the right to take fish from that portion of the lake which covered his land, as well as the right to use that part of the lake for profit or for pleasure. But he is not entitled to compensation for any supposed number of fish which may have been prevented from entering his part- of the lake. At the time that act is charged to have been done, the club had the right to control that portion of the lake and to take fish from it.. Either party had the right to terminate the contract between Bate-man and the club, and the cutting of the dam by the club operated to put an end to that agreement.

Judgment of the Court of Civil Appeals is reversed, and cause is remanded.

HAWKINS, J.

(concurring).

The report of the decision of the Court of Civil Appeals for the Fifth Supreme Judicial District in this, case may be found in 138 S. W. 150. It contains a fuller statement of the pleadings, physical conditions, issues, etc.

The question of the right of plaintiff to recover was submitted to the jury upon the single issue of a “prescriptive right” in the club to maintain the lake on plaintiff’s land, though the charge injected into that issue an element of estoppel, based on evidence to the effect that such maintenance of the lake had caused sediment to fill the channel of an ancient slough therein, said charge being predicated upon the theory that, as such maintenance unquestionably began as a trespass and continued for 10 years, it gave the club such prescriptive right, unless the Gas-ton agreement and the Bateman contract with the club each rendered such maintenance not “adverse” to the landowner, thereby, together ¡preventing such maintenance from ripening into said prescriptive right; and, further, that if the club h^.d acquired such prescriptive right, Thomas, as owner of the land formerly owned in turn by Gaston and Bateman, had a reciprocal right to require, the club to maintain such lake on his land.

This issue as to the existence of such prescriptive right divided the Court of Civil Appeals, the majority holding against plaintiff thereon, reversing the judgment of the district court in his favor, and rendering judgment against him. Under these circumstances I desire to state my views upon that issue somewhat more fully than they are reflected in the terse, yet comprehensive, treatment given it in the foregoing opinion by Chief Justice BROWN.

Could the club, prior to the cutting of its dam and the draining of plaintiff’s portion of said lake, have successfully asserted, as against Thomas, a prescriptive right to-maintain said lake on a portion of his land? That depends upon whether the club’s maintenance thereof was or was not, for 10 years, “adverse” to the owners of said Thomas tract. Railway Co. v. Wilson, 83 Tex. 155, 18 S. W. 325. Gaston bought that tract in 1894. While he owned it the club built upon its own la'nd a dam which backed water up, filling Gaston’s part of the slough, spreading the waters, and creating on his land a lake of four or five acres. There is no controversy but that, in originally flowing Gaston’s land, the club acted without authority or permissio'n from Gaston, or that maintenance by the club of said lake on the Thomas tract for more than 10 years continued to be “adverse” to the owners of that tract, unless the Gaston agreement and the Bateman contract, in turn, a'nd the course of conduct by and between the club and the landowners, thereunder, . respectively, rendered such maintenance not “adverse” to said ow'ners. Said agreement and said contract were substantially alike in so far as they severally bear upon the issue of a “prescriptive right” in the club. Gaston, while owning said land, and after said lake had been formed thereon, orally agreed with the club that it might use his portion of said lake for hunting and fishing, so he would 'not be annoyed by anybody coming through, but that he might use his part of the lake, for himself, for fishing and hunting, and, accordingly turned over to the club control of the lake on his land. Gaston sold said land to Bateman in April, 1904, and Bate-man sold it, i'n September, 1908, to Thomas. Plaintiff’s portion of the lake was drained early in 1909. The Bateman contract gave to the club, for its members, “exclusive rights and privileges of fishing and hunting in the slough, or branch, known as Gaston slough, wMch runs into the open lake of the Mn & Feather Club,” but provided that “Bateman and Steele shall reserve the rights for themselves and guests to fish and hunt in and on said slough oh their premises at pleasure, without paying to the club any fee or charge on account of such guests,” and stipulated that “said Bateman and Steele shall enjoy the fishing and hunting privileges of the club and the privileges of the clubhouse a'nd grounds,” without being required to hold stock or pay dues. Neither the Gaston agreement nor the Bateman contract, in express terms, specifically authorized or permitted the club to so flood any portion of the Thomas land, or to maintain a lake thereon, and the provision in said contract “that the grant of privileges each to the other herein made shall be determinable by either party at pleasure upon giving thirty days’ written notice to the other party” strongly suggests that said contract was not intended to extend or secure to the club such authority or permission; nevertheless, as the lake had then been formed upon said land, the effect of said agreement and of said contract, as a matter of law, was to place Gaston and Bateman, in turn, in the attitude of acquiescing in and consenting to the maintenance of said lake, over said slough, and as said lake then stood on said land, at least to such extent as to prevent such maintenance thereof from being “adverse” to the owners of said land, while such agreement and such. contract, respectively, were in force. I!n other words, the Bateman contract primarily was merely a fishing and hunting privilege contract, with semireciprocal features, and that may have been, and, it seems to me, probably was, the ultimate intention and purpose of the parties thereto in making it; nevertheless, as a matter of law, its necessary and further effects were to create and continue an acquiescence and consent upon Bateman’s part to the maintenance of the lake oh his land, substantially as it then stood, and also to operate as a clear recognition by the club of Bateman’s right, as owner of the land, to use such portion of the lake for the designated purpose of fishing and hunting by himself and Steele and their guests, all so long as such contract might remain in force. The Gaston agreement evidenced a like acquiescence, consent, and recognition of rights upon the part of each party to it. Consequently the legal effect of the Gaston agreement and of said Bateman contract was to stop the running of time in the matter of “adverse” maintenance of the lake, thus rendering' such further maintenance thereof not “adverse” to the owners of the land, the agreement or the contract remaining operative, thereby removing the basis for such prescriptive right, and putting that issue definitely out of this case. And with it, of course, goes the issue as to the reciprocal right of Thomas to require the club to maintain his portion of said lake. To' this extent I concur in the views of the majority of the Court of Civil Appeals, and, in so doing, am in accord with the foregoing opinion of our Chief Justice upon that point.

It follows that plaintiff’s right to recover damages must rest solely upon the ground stated in said foregoing opinion, resulting from the status which had grown up between the club and the owners of the Thomas tract, in which, I think, should be included and specifically here mentioned the fact that the club’s maintenance of the lake on the Thomas tract had caused the ancient slough therein to become filled with sediment, thereby destroying the valuable fishing preserve which existed upon that tract before the club erected its dam which caused the formation of said lake thereon.

That portion of said opinion which refers to the adjustment by Thomas of improvements upon his land adjacent to his lake, and to adjustment by him of the uses of his land to conditions created by the formation and maintenance of the lake, states the rule correctly, as an abstract proposition, but, inasmuch as the only adjustment by Thomas of his improvements or uses, so far as the evidence discloses, seems to have been made with a view to sale by him of fishing and hunting privileges in his portion of said lake — the very thing which 'the Bateman contract inhibited — I do not think such adaptation and improvements come within the rule so announced, and am consequently unable to see that said rule applies to the facts of this case, except as related to the filling of the slough with sediment. Plaintiff testified: “I don’t know that there is any damage outside of this five acres covered by the water.” Clearly the effect of the Bateman contract was to prevent him, while it was in force, from selling privileges to fish in or hunt on his part of the slough, which, by fair implication, meant his part of the lake; and, since said contract was appurtenant to' the land, and seems to have been of record when Thomas bought it, Thomas was likewise bou'nd and restricted by its terms, and so cannot recover damages from loss of sales of such privileges. Moreover, this record shows that at the close of the evidence, plaintiff, by his attorneys, in open court, abandoned his claim for all such damages. For both reasons it was error for the trial court to submit to the jury that element of damages. Several witnesses, other than the plaintiff, testified specifically to the amount of damage done to plaintiff’s tract of land by draining off his portion of the lake.

I find in the Bateman contract nothing relating to “amusement,” other than fishing and hunting, nothing giving the club “the exclusive right to control” plaintiff’s portion of the lake, or “full control and ownership of all the fish in the lake,” and nothing giving to Bateman or Steele “the right to invite their friends and persons visiting them to join them” in fishing or hunting on the premises owned by the club.

I concur in the order made.


source: Caselaw Access Project

author: BROWN, O. J. HAWKINS, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. GRIFFIN.
    (No. 2585.)
    (Supreme Court of Texas.
    Dec. 16, 1914.)
    1. Constitutional Law (§ 48) — Constitutionality of Statute — ^Resumptions.
    A law will be recognized as valid, if, by reasonably fair construction, it appears that the Legislature was empowered to enact it.
    [Ed. Note. — For otter cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.]
    2. Master and Servant (§ 20) — Relation.
    Where a contract of employment is for an indefinite time, either party may end it at will without cause or notice.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 19; Dec. Dig. § 20.]
    3. Constitutional Law (§ 89) — “Liberty oe Contract.”
    The impairment of a corporation’s right to discharge employés at will without cause by the Blacklisting Law (Rev. St. 1911, art. 594) is violative of its constitutional right of liberty of contract, which right includes the corresponding right to accept a contract proposed.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 157; Dec. Dig. § 89.

    For other definitions, see Words and Phrases, Second Series, Liberty of Contract.]
    4. Constitutional Law (§ 238) — Equal Protection oe Laws.
    The impairment of a corporation’s right to discharge employés without cause by the Blacklisting Law is a denial of the equal protection of the laws secured by Const. U. S. Amend. 14.
    [Ed. Note. — For other cases, see Constitutional Law, Cent, Dig. §§ 688-690, 695, 706-708; Dec. Dig. § 238.]
    5. Constitutional Law (§ 90) — “Liberty oe Speech.”
    The “liberty to speak” or write secured by Const, art. 1, § 8, includes the corresponding right to be silent, and this right is infringed by the provisions of the Blacklisting Law for compelling a corporation to give a discharged em-ployé a statement of the cause of discharge.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 172; Dec. Dig. § 90.

    For other definitions, see Words and Phrases, First and Second Series, Liberty of Speech and the Press.]
    6. Master and Servant (§ 11) — Relation-Statutory Regulations — Police Power.
    The impairment of a corporation’s right to discharge employés by the Blacklisting Law cannot be sustained as an exercise of the police power to deal with the real needs of the people in their health, safety, comfort, or convenience.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 11.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Thomas A. Griffin against the St. Louis Southwestern Railway Company of Texas. Judgment (154 S. W. 583) for plaintiff, and defendant brings error.
    Reversed.
    E. B. Perkins and Daniel Upthegrove, both of Dallas, for plaintiff in error. W. H. Clark and W. T. Strange, both of Dallas, for defendant in error.

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

   BROWN, O. J.

We copy from the opinion of Justice Moursund the following statement of the facts found by the Court of Civil Appeals of the Fourth District (154 S. W. 5S3):

“Thomas A. Griffin, appellee, sued the St. Louis Southwestern Railway Company of Texas, appellant, to recover damages for its alleged failure and refusal to issue to him a true statement of the reasons why he was discharged by appellant, he having made demand for such statement under chapter 89, p. 160, General Laws of Texas of 1909, commonly known as the ‘Blacklisting Law.’ On May 9, 1910, appellee was employed as a section foreman by appellant, and on July 18, 1910, was discharged, whereupon he made his demand for a statement in writing as to the cause of his discharge. Appellant issued a service letter, as follows: ‘This is to certify that Thomas A. Griffin has been employed in the capacity of section foreman at Renner on the St. Louis Southwestern Railway Company of Texas from May 9, 1910, to July 18, 1910. Discharged for not distributing work properly and inability to surface and line track. Previous record. March 25, 1910, to April 1, 1910_, assistant extra gang foreman. Resigned. Service satisfactory.’
“Appellee alleged that this statement was false and malicious; that he previously had several years’ experience on section work and as section foreman, performing and directing said work, was capable, experienced, and skilled therein; that he could and did distribute his work properly, and could and did surface and line track; that the real cause of his discharge was on account of a personal difference which he had on July 10, 1910, with appellant’s general roadmaster, J. J. Hughes.
“Appellant attacked the constitutionality of the Blacklisting Law, both by demurrer and plea, and alleged that it in good faith attempted to comply with said statute, and that the reasons stated in said service letter were the true reasons for appellee’s discharge; that its assistant roadmaster, in making the-report on Which said letter was based, acted in good faith in an effort to perform his duty to appellant, and it would not be liable for a mistake in judgment made by its roadmaster. Appellant further alleged that it did not make such letter public, but furnished it to appellee in compliance with said statute, at his request,- and without any malice, ill will, or evil intent towards appellee; that it had the right to exercise and act upon its own judgment as to the competency of those employed as section foremen, and if a mistake should be made in the discharge of such employé it would not be liable to him; that it was required by law to keep its track in proper condition for the operation of its trains; that it was necessary to employ careful and competent section foremen to keep the track in proper repair; that other railroad companies had a like interest in keeping their tracks and roadbed in repair; and that such communication was privileged, and, there being no malice, ill will, or evil intent shown, plaintiff could not recover.
“Defendant’s exceptions were overruled, and upon trial the jury found that the statement furnished was false, and awarded plaintiff $500 damages. Judgment was entered for said amount, from which defendants appealed.”

There is no conflict in the evidence to the fact of the employment and discharge of Griffin. The question presented to this court is the validity of a statute enacted by the Legislature as stated above, from which we copy the following provisions:

“Art. 594. Discrimination. — Either or any of the following acts shall constitute discrimination against persons seeking employment: * * * (3) Where any corporation, or receiver of the same, doing business in this state, or any agent or employé of such corporation or receiver, shall have discharged an employé, and such employé demands a statement in writing of the cause of his discharge, and such corporation, receiver, agent or employé thereof fails to furnish a true statement of the same to such discharged employe, within ten days after such demand, or where any corporation or receiver of the same, or any officer or agent of such corporation or receiver shall fail, within ten days after written demand for the same, to furnish to any em-ployé voluntarily leaving the service of such corporation or receiver, a statement in writing that such employé did .leave such service voluntarily, or where any corporation or receiver of the same, doing business within this state, shall fail to show in any statement under the provision of this title the number of years and months during which such employé was in the service of the said corporation or receiver in each and every separate capacity or position in which he was employed, and whether his services were satisfactory in each such capacity or not, or where any such corporation or receiver shall fail within ten days after written demand for the same to furnish to any such employé a true copy of the statement originally given to such employé for his use in case he shall have lost or is otherwise deprived of the use of the said original statement.” R. S. 1911, vol. 1, art. 594, 13.

The act.gives no right of action to the em-ployé for failure to furnish the “true state-'rnent,” but provides that the state may sue for and recover a penalty of $1,000 for each failure to comply with the law.

Eor the purpose of testing the correctness of the judgment of the Court of Civil Appeals in holding the act of the Legislature valid, we must assume that the evidence was sufficient to sustain the claim that the statement of discharge furnished did not state a cause which was true in fact; but this does not concede that the statement of discharge furnished did not state truly the cause which operated upon the mind of the officer who discharged Griffin. We will first consider the validity of the statute relied upon by defendant in error, and if, by reasonably. fair construction, its appears that the Legislature was empowered to enact the law, this court will recognize it as valid; that •is, a serious doubt of the power must be resolved in favor of the validity of the law. Lewis’ Sutherland on Statutory Construction, § 82, states the rule thus:

“Every presumption is in favor of the validity of an act of the Legislature, and all doubts are resolved in support of the act. ‘In determining the constitutionality of an act of the Legislature, courts always presume in the first place that the act is constitutional. They also presume that the Legislature acted with integrity, and with an honest purpose to keep within the restrictions and limitations laid down by the Constitution. The Legislature is a co-ordinate department of the government, invested with high and responsible duties, and it must be presumed that it has considered and discussed the constitutionality of all measures passed by it.’ The unconstitutionality must be clear or the act will be sustained.”

It is true that all legislative power is by the Constitution vested in the Legislature, and the judicial department cannot frame laws, nor change, nor mold them by construction. It is likewise true that the judicial power of the state is vested in the courts which are charged with the duty of enforcing the laws and with the duty to annul any law enacted by the Legislature which is clearly in violation of the constitutional rights of any person, natural or corporate, and with the same purpose with which the courts refrain from trespassing upon the privileges of the legislative power, they will, when necessary, exercise their power to prevent the destruction or impairment of rights vested in citizens or corporate bodies, by the unauthorized action of the Legislature.

The citizen has the liberty of contract as a natural right which is beyond the power of the government to take from Mm. The liberty to make contracts includes the corresponding right to refuse to accept a contract or to assume such liability as may he proposed. When Griffin entered the service of the railroad company for an indefinite time, the law reserved to him the right to quit the service at any time without cause or notice to the employer. The railroad company had the corresponding right to discharge him at any time without cause or notice. The rights of the parties were mutual. E. L. & R. R. Ry. Co. v. Scott, 72 Tex. 75, 10 S. W. 102, 13 Am. St. Rep. 758. In the ease cited, the court said;

“It is very generally if not uniformly held, when the term of service is left to the discretion of either party, or the term left indefinite or determinable by either party, that either may put an end to it at will, and so without cause. Harper v. Hassard, 113 Mass. 187; Coffin v. Landis, 46 Pa. 431; Wood’s Master and Servant, §§ 133, 136, and citations.”

If the servant could quit without notice and the master could discharge him at will without notice, the effect of the statute in question would be to preserve the servant’s unqualified right to leave the service without cause or notice, but to deny to the corporation the corresponding right to discharge without cause or notice.

The requirement that the corporation give to the discharged employé, on his demand, a statement of the “true cause” for his discharge, necessarily implies that there must have been a cause £o justify the dismissal, else, how could the “true cause” he given? The value of the contract to each party consisted largely in the mutual right to dissolve the relation of master and servant at will. The destruction of that right in the corporation was a violation of its liberty of contract and a denial of the equal protection of the law, in violation of this provision of the fourteenth amendment to the constitution of the United States:

“Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

But the statute did not stop at the destruction of the corporation’s right to discharge the employé without cause, but provided that in case the statement of cause should be refused, or if the cause stated was not the “true cause,” the state might recover from the corporation a penalty of $1,000.

But the juegislature did not stop with that provision, for under the construction placed on the law by the Court of Civil Appeals the ■discharged employs could recover damages by proving that the cause stated was not true. The proof in this case was that the person who discharged Griffin acted upon the report of another who has oversight of Griffin’s work, and there was no controversy that he acted upon that report, but Griffin was permitted to prove that he was capable and did good work, which denied to the employer the right to determine the efficiency of the servant.

In St. L. S. W. Ry. Co. of Texas v. Hixon, 104 Tex. 267, 137 S. W. 343, this court held that the law required a true statement of the fact which operated upon the mind of the officer or agent who discharged the employe, but did not require that the fact stated, must have been true. Under this most favorable construction, the law is no less in violation of the constitutional right of equal protection -of the law as secured by the fourteenth amendment to the Constitution of the United States.

The eighth section of article 1 of the Constitution of this state is in this comprehensive and clear language:

“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege ; and no law shall ever be passed curtailing the liberty of speech or of the press. .In prosecutions for the publication of papers investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”

The liberty to write or speak includes the corresponding right to be silent, and also the liberty to decline to write. Railway Co. v. Brown, 80 Kan. 312, 102 Pac. 459, 23 L. R. A. (N. S.) 247, 133 Am. St. Rep. 213, 18 Ann. Cas. 346; Wallace v. Railway Co., 94 Ga. 732, 22 S. E. 579. To say that one can be compelled at the instance of another party to do what he has the constitutional liberty to do or not is a contradiction that is not susceptible of reconciliation. In Wallace v. Railway Co., cited above, the Georgia court tersely and clearly covers the entire ground thus:

“A statute which undertakes to make it the ■duty of incorporated railroad, express, and telegraph companies to engage in correspondence of this sort with their discharged agents and employés, and which subject them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is vio-lative of the general private right of silence enjoyed in this state by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the Constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred.”

We find no authority to the contrary, and argument could not add force to the reasoning of those courts. The cases cited are sufficient to require this court to declare the law in question void, but we believe that we should point out other grounds which demand the judgment of this court in support of our conclusion.

The act of the Legislature under consideration violates that provision of the Constitution by many harsh requirements. We will point out some of them. This statute declares the corporation to be guilty of discrimination against the employs in the following instances; but we do not exhaust the harsh features of the law:

First. It confers upon the employs a right to recover damages if the corporation, upon his demand, should fail to give to him a statement of the “true cause” of his discharge, “or why his relationship to such company ceased.” The corporation has the constitutional right to discharge without cause, and the Legislature cannot destroy this right of contract.

Second. Where the employing corporation by any means, directly or indirectly, shall communicate to any other person or corporation any information in regard to the said employs who may seek employment of such person or corporation, and upon demand of such employs, shall fail within 10 days thereafter to deliver to him a complete copy of such communication, if any written, and if not a true statement of it, whether it was done by sign or other means, if not in writing., and shall also give the names and addresses of all persons or corporations to whom such communication shall have been made. This is not a part of any proceeding at law, not even the act of an officer.

Third. When any such corporation shall have discharged an employe and such employs demands a statement in writing of the cause of his discharge, the corporation or its officers are required within 10 days after the demand, to give a' true statement of the cause for so discharging the employs. If the employs voluntarily leaves the service of the corporation, he may demand in writing from such corporation a statement that he did voluntarily leave such employment. The corporation is required in making, a statement of the departure of his employs, whether voluntary or otherwise, to give the number of years and months during which the employs was in the service of the corporation, and state every capacity or position in which he was employed and whether his services were satisfactory in each capacity or not. And if the employs should lose or destroy his statement, then he has the right to demand of the corporation to make a true copy of the original statement ,and furnish it to him. We have found no precedent for this palpable disregard of the rights of corporations under the Constitution of the state.

Fourth. I£ any corporation or receiver doing business in this state, etc., shall have received any request, notice, or communication, if in writing or otherwise, from any person, etc., preventing or calculated to prevent the employment of such person seeking employment, and if such corporation or agent shall fail to furnish such person seeking employment a true statement of such request, notice, or communication, etc., if otherwise than in writing make a true statement thereof, and a true interpretation of its meaning, the names and addresses of all such persons or corporations making such inquiry.

Fifth. When any corporation doing business in this state shall have discharged any employs and has failed to give such employs a true statement of the causes of his discharge, within 10 days after demand is made therefor, and shall thereafter furnish any other person or corporation, etc., unless it be at the request of the latter, the corporation is charged with discrimination.

Sixth. • Wherein a corporation, etc., doing business in this state, shall discriminate against any person seeking employment on account of his having participated in a strike.

The effect of the foregoing section of the statute is to deny to a corporation the right to refuse employment to a man who had participated in a strike on a railroad. This is a clear invasion of the constitutional right of an individual or corporation to determine for himself, or itself, the matter of employing or discharging any person already employed, and the Legislature has no power to prescribe terms by which such employer shall be governed, either in employing or discharging a servant.

The soundness or justice of the reason which prompts refusal or discharge of an employ® does not affect the question of the constitutional right to exercise that authority. It may be that the party is acting upon what is a mere “whim,” i. e., without any foundation in fact or right; but nevertheless his consitutional right to deny or terminate employment exists, and the Legislature cannot, for any reason, make such action a crime on the part of the person or corporation exercising that constitutional power. Gillespie v. State of Illinois, 188 Ill. 176, 58 N. E. 1007, 52 L. R. A. 288, 80 Am. St. Rep. 176; Penn. Ry. Co. v. Rogers, 52 W. Va. 450, 44 S. E. 300, 62 L. R. A. 178.

Seventh. Where any corporation or receiver doing business in this state shall give any information or communication in regard to any person who is making application for employment to the ^ffect that such person had participated in a strike.

A failure to comply with any one of the demands above is characterized as a discrimination and is by law made a criminal offense, for which the state may recover $1,-000, and under the decision of the Court of Civil Appeals the employ® may also recover damages limited only by the capacity of the jury to calculate the amount.

The second, third, fourth, and fifth grounds of liability under the statute, each is in violation of the natural right to speak or be silent, or the liberty of contract secured by the Constitution of this state and of the United States. Of the great number of cases which have settled these questions adversely to the provisions of the act of the Texas Legislature, we have cited sufficiently, because there is no conflict on the question.

The second and fourth grounds, as above stated, are most remarkable, for they invest the discharged employ® with inquisitorial authority as has not been intrusted to any officer, and would not be enforced if granted to any officer, except it be in a legal proceeding.

There being no suit pending in court, a private person in his own interest is empowered to demand, of a corporation which has discharged him, to disclose to him .that corporation’s private correspondence, even the conversation which may have occurred between its agents or officers and other people. Originality in devising these provisions surely must be accorded to the Legislature of Texas. We have found nothing like them elsewhere. In the conflict between labor and capital, the Legislature has the limitation of its authority in the Constitution of the United States and the state, and the courts have no authority, save to keep both parties within the limits of their constitutional rights.

Beyond controversy, the act of the Legislature .is void, unless it can be¡sustained as an exercise of the police power. To test the validity of the law as an exercise of that power, we will first ascertain the scope of the power as exercised by state Legislatures. We find no more thorough treatment than is embodied in Railway Co. v. Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850. In that case the city of Dallas sought to compel the railroad company to reconstruct its crossings upon streets so as to conform to the ordinances of the city. In support of a judgment in accordance with the claim of the city, the police power was invoked, and Judge Williams, for the court, in his usual logical and forcible style, said:

“The power of the Legislature to regulate the use of property and the carrying on of business so as to protect the health, safety, and comfort of citizens is recognized by all of the authorities, and its use is not to be defeated by the mere fact that loss or expense may be imposed upon the owners of the property or business. Fertilizing Co. v. Hyde Park, 97 U. S. 659 [24 L. Ed. 1036]. The numerous cases on the subject of nuisances in this court and elsewhere are but instances of the use of this power. So the decisive question, as we have said before, is whether or not the action of the city is sustained by the existence of facts affecting ,the public welfare sufficient to justify such an application of the police power, and the answer to this question determines the one made by respondent as to whether or not the action of the city constitutes due process of law.

“The power is not an arbitrary one, but has its limitations. It is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience, as consistently as may be with private property rights. As those needs are extensive, various, and indefinite, the power to deal with them is likewise broad, indefinite, and impracticable of precise definition or limitation. But, as the citizen cannot be deprived of his property without due process of law, and as a deprivation by force of the police power fulfills this requirement only when the power is exercised for the purpose of accomplishing and in a manner appropriate to the accomplishment of the purpose for which it exists, it may often become necessary for courts, having proper regard to the constitutional safeguard referred to in .favor of the citizen, to inquire as to the existence of the facts upon which a given exercise of a power rests, and into the manner of its exercise; and if there has been an invasion of property rights, under the guise of this power, without justifying occasion, or in any unreasonable, arbitrary, and oppressive way, to give to the injured party that protection which the Constitution secures.

“It is therefore not true, as urged by plaintiff, that the judgment of the legislative body concludes all inquiry as to the existence of facts essential to support the assertion of such a power as that now in question. If this were true, it would always be within legislative power to disregard the constitutional provisions giving protection to the individual. The authorities are practically in accord upon the subject. A few quotations will indicate the scope of the inquiry as far as it can be abstractly defined. In Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 20 [49 L. Ed. 169], the law is thus stated by the Supreme Court of the United States: ‘It.may be admitted that every intendment is to be made in favor of the lawfulness of the exercise of municipal power, making regulations to promote the public health and safety, and that it is not the province of courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people in the community. But notwithstanding this general rule of the law, it is now thoroughly well settled by decisions of this court that municipal bylaws and ordinances, and even legislative enactments undertaking to regulate useful business enterprises, are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or to use and enjoy property.’

“In Lawton v. Steele, 152 U. S. 133-137, 14 Sup. Ct. 499, 38 L. Ed. 385-388, Mr. Justice Brown, speaking for the court, said upon this subject: ‘To justify the state in thus interposing its authority in behalf of the public, it must appear: First, that the interest of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon.lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court.’ ”

We have quoted thus freely, because by so doing the question is fully presented by' Judge Williams in his usual forcible manner, and by the'Supreme Court of the United States. There cato be no pretense that the act under examination deals with “the real needs of the people in their health, safety, comfort, or convenience.”

To add cases as authority would be useless, for this is a fundamental principle of free government and gains no force by the repetition of it by different courts. The subject of legislation in this statute and its various provisions, as stated above, are purely personal as between' the employs and the corporation, and do not directly affect the public, in health, safety, comfort, convenience, or otherwise.

The act is in violation of the Constitution of this state and of the United States, and is void.

It is ordered that the judgment of the district court and of the Court of Civil Appeals be, and the same are, reversed; and it is ordered that judgment be entered for the plaintiff in error.

HAWKINS, J.

From such careful study and consideration as I have been able to give to the constitutional questions which are here involved I am not now prepared to express an opinion in this case, but, later on, will prepare and file same.


author: PHILLIPS, J.

text:
    POST v. STATE.
    (No. 2725.)
    (Supreme Court of Texas.
    Dec. 16, 1914.)
    1. Public Lands (§ 175) — Resurvet— Con - CLUSIVENESS.
    A resurvey of public lands under Rev. St. 1911, arts. 5347-5349, is not conclusive against the state as to the location of a prior state grant.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    2. Appeal and Ebror (§ 987) — Disposition op Case on Appeal — Jurisdiction op Court op Civil Appeals.
    Where the trial judge rested its judgment for plaintiff on the ground that the state was conclusively bound by a resurvey, and found on proper evidence that a part of the land in controversy, but not defining the amount, was within the original field notes of the surveys relied on by plaintiff, the Court of Civil Appeals, deciding that the resurvey was not conclusive, could only set aside the judgment and remand the case for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3893-3896; Dee. Dig. § 987.]
    3. Appeal and Error (§ 987) — Disposition op Case on Appeal — Jurisdiction op Court op Appeals.
    Where the evidence is without conflict, the Court of Civil Appeals may render the proper judgment; but where there is any conflict on a material issue, it may not substitute its findings for those of the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3893-3896; Dec. Dig. § 987.]
    Action by C. W. Post against the State of Texas. There was a judgment of the Supreme Court (169 S. W. 407) rendered in response to questions certified by the Court of Civil Appeals, and plaintiff petitions for writ of error. Judgments of tbe district court and the Court of Civil Appeals (169 S. W. 401)
    reversed, and cause remanded.
    Gregory, Batts & Brooks, of Austin, for plaintiff in error. B. F. Rooney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for the State.

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

   PHILLIPS, J.

The suit was a controversy between the state and the plaintiff in error, Post, over certain lands held by the latter, claimed by the state to be vacant and sought by it to be recovered. The trial resulted in a judgment .in Post’s favor. On the appeal the honorable Court of Civil Appeals affirmed this judgment on the original hearing; but on motion for rehearing reversed it, and rendered judgment for the state for all of the land. 169 S. W. 401. With the state contending that the land was not included in the several surveys owned by Post as determined by their original field notes, a principal question in .the case was whether a resurvey of Post’s lands by the state- surveyor under the act of 1887 (articles 5347, 5348, and 5349, R. S. 1911) which, according to its corrected field notes, placed the land in dispute within the lines of the original patents, was binding upon the state. After the Court of Civil Appeals’ decision on rehearing, it certified that question to this court, to which answer was made that the resurvey was not effectual to give Post any land which the original surveys did not, according to their field notes, include. 169 S. W. 407. The case is now here on Post’s petition for writ of error, to which the state has filed an answer.

Adhering to our ruling on the certified question, the Court of Civil Appeals correctly decided that the resurvey was not binding upon the state; but it was without authority to render the judgment.

While the trial court rested its judgment upon a holding that the state was concluded by the resurvey, it found, as a fact, that a part .of the land in suit — not defining the amount — is embraced within the original field notes of the surveys. If it is, the state is not entitled to recover that part of the land. The Court of Civil Appeals found differently from the trial court upon this question, and upon such finding rendered the judgment.

The province of determining questions of fact is in the trial court. The Court of Civil Appeals has the power to set aside its finding and remand the cause for a new trial. Where the evidence is without conflict, it may render judgment. But where there is any conflict in the evidence upon a material issue, it has no authority to substitute its findings of fact for those of the trial court. Choate v. Railway Co., 91 Tex. 406, 44 S. W. 69.

There is evidence in the record, whether correct or not, which supports the trial court’s finding of fact that the original field notes of the surveys include a part of the land in controversy. The case should, therefore, have been only remanded.

The judgments of the district court and the Court of Civil Appeals are reversed, and the case is remanded for the settlement of this issue.

HAWKINS, J., being disqualified, did not participate in the decision.


author: BRENDERGAST, P. J.

text:
    WAITS v. STATE.
    (No. 3342.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1914.)
    Intoxicating- Liquoks (§ 236) — Offenses— Business or Selling Intoxicants.
    In a prosecution for engaging in the business of selling intoxicating liquors in prohibition territory, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Andrew Waits was convicted of unlawfully-engaging in the business or occupation of selling intoxicants in prohibition territory, and he appeals.
    Affirmed.
    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-

   BRENDERGAST, P. J.

Appellant was convicted for unlawfully engaging in the business or occupation of selling intoxicating liquors in prohibition territory.

The sole question in the case is whether or not the evidence is sufficient to sustain the verdict. We have carefully read the evidence. It shows that prohibition had been, some time before the offense is alleged to have been committed, and was at the time, in force in Cherokee county. The uncontra-dicted testimony shows that appellant, within the course of a few months, made three separate and distinct sales of whisky (two of them to one party and one to another); that during the latter part of the period wherein he was charged with the commission of the offense, and before the indictment was filed herein, in the course of 2% months, he received five shipments of whisky through one of the express companies (4 quarts 3 distinct times, 2% at another, and 6 at another). No complaint whatever is made of the court’s charge. The evidence was sufficient under the law and the charge to convince the jury beyond a reasonable doubt that he was guilty, and the court below was also of that opinion, and in our opinion it is sufficient. Hence this court cannot disturb the verdict.

The judgment is affirmed.


author: HARPER, J.

text:
    GOLDSTEIN v. STATE.
    (No. 3350.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.
    Rehearing Denied Dec. 23, 1914.)
    1. Witnesses (§ 35)— Competency — Determination — Time.
    Whether a witness is competent, so as to justify the introduction of his testimony given on a former trial, depends on his status at the time the testimony is offered, and not at the time it was given.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 77, 78; Dec. Dig. § 35.]
    2. Witnesses (§ .48) — Competency — Convicts — Incarceration in Foreign State— “Any Other Jurisdiction.”
    Code Cr. Proc. 1911, art. 788, subd. 3, provides that all persons who have been, or may be, convicted of a felony in Texas or in any other jurisdiction, unless such conviction has been legally set aside, or unless the convict has been legally pardoned for the crime of which he was convicted, are incompetent to testify as witnesses in a civil action. Held, that the words “or in any other jurisdiction” include convictions had in other states of the federal Union.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dee. Dig. § 48.]
    3. Witnesses (§ 78) — Competency— Conviction of Felony — Foreign State — Best Evidence.
    The best evidence of the conviction in a foreign state of one offered as a witness is a copy of the indictment and final judgment of conviction, properly certified to, together with a copy of the laws of that state showing that the acts constitute a felony under the laws of that state.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. § 78.]
    4.Witnesses (§ 78) — Competency—Conviction of Felony in Foreign State.
    Evidence that a witness who had testified against accused in a prior trial was, at the time of the subsequent trial, incarcerated in a penitentiary in a foreign state, without proof of the offense of which he had been convicted, nor whether such offense was a felony,. was insufficient to show that the witness was disqualified so as to prevent the introduction of his testimony given at the former trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. § 78.]
    5.Receiving Stolen Goods (§ 1) — Nature of Offense — Embezzlement.
    The owner of certain personal property went to a bathing beach, and, before going in, deposited the property with the bathhouse keeper. R. in some way obtained possession of the check, presented it to the keeper, and obtained the property, and the next day part of it was found in accused’s possession, concealed in a safety deposit vault. Held, that the evidence showed pure theft on the part of R., and did not raise the issue of embezzlement.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 1-3; Dec. Dig. §
    6.Receiving Stolen Goods (§ 8) — Evidence — Theft.
    In a prosecution for receiving stolen goods, all evidence which would have been admissible on a trial of the thief to show that he was guilty of theft was admissible to show that the goods delivered to accused were stolen goods; the state being_ also required to prove that accused, at the time he received the goods, knew that they were stolen, and, with such knowledge, concealed them.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. § 8.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Dave Goldstein was convicted of receiving and concealing stolen property, and he appeals.
    Affirmed.
    W. W. Nelms, of Dallas, for appellant. G. E. Lane, Asst Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of receiving and concealing stolen property, and his punishment assessed at two years’ confinement in the state penitentiary.

This is the second appeal in this case, the opinion on the former appeal being found reported in 166 S. W. 149. On this trial the witness Claude Rice, who testified on the former trial, and the person whom the state’s evidence would show was guilty of the theft of the property, and was the person from whom appellant received it, was not in attendance on court. It is not insisted by appellant that the evidence does not amply show that the witness is no longer a resident of Texas, but is a resident of the state of California; and, under the holding of this court that the testimony of a witness shown to be beyond the jurisdiction of the court may be reproduced on the trial, the court properly admitted the evidence, unless such evidence is rendered inadmissible by reason of the fact that the letters received from Claude Rice and the testimony of Frank Barrett showing that the witness Rice is now confined in the penitentiary in California under a judgment of conviction in that state renders him incompetent as a witness.

Appellant contends that it is not the status of the witness at the time he gave the testimony, but his status as a citizen at the time the testimony is offered in evidence, which governs in regard to whether or not ■such testimony is admissible in evidence. The question is one of far-reaching effect, and one to which we have given much research and study, and we have arrived at the conclusion that Judge Stayton, in the case of Webster v. Mann, 56 Tex. 124, 42 Am. Rep. 688, correctly states the rule to be:

“The facts and law existing at the time of the trial, and not at the time of the taking of a deposition, must be looked to ordinarily to de- " termine the competency of the evidence.”

Many authorities could be cited in support of this rule, but, as it has never been questioned in this state, so far as we have been able to ascertain, we do not deem it necessary. So, the question to be determined is: Had Claude Rice been in attendance on the trial of this ease, would he, under the record before us, have been a competent or an incompetent witness, and, when that is decided, the question of whether or not the court erred in permitting Iiis testimony to be reproduced will be determined.

Frank Barrett testified that Claude Rice, at the date of this trial, was in the California penitentiary. He does not testify as to the nature of the offense he had been convicted ; in fact, his testimony as a whole shows that he personally had never been in California, and ' that his information was gathered wholly from letters he and others had received from Claude Rice and other sources of information. The witness testified that Rice was convicted at Stockton, Cal., but, as before stated, does not say of what offense he was convicted. The record further discloses that several letters received from Rice, one from Stockton, Cal., and the others from San Quentin, Cal., dated, respectively, June 4th, June 17th, and July 4th, were introduced in evidence; but the record shows the contents of the letters were not admitted. The envelopes in which the letters were received, one of them postmarked, “Stockton, Cal., June 5, 1914,” the others being stamped, “San Quentin, Cal., June 18, 1914,” and “San Quentin, Cal., July 6, 1914,” were also introduced in evidence. So, if we go by the recitals of the record, the only evidence of the fact that Rice is in the penitentiary in California is the evidence of Frank Barrett, who testified that the witness, at the date of the trial was in the penitentiary in California, and that he had been convicted at Stockton, Cal., and we are left in the dark as to what offense he had been convicted, and in the dark as to whether he had been convicted of a felony or misdemeanor; in fact, no information is obtainable from the record of what offense Rice was convicted. But, if we go to the contents of the letters received from Rice, which accompany the record, but the record states, were not admitted in evidence, do we receive any more information? In the letter dated June 4th, at the time he began to .write, he merely says:

“Well, I have crawled up a stump. I am going1 to cop a plea; don’t know for sure what time I will get — not over five, though.”

■Eater in the letter he adds:

“I just went over and got my time. Frank, I got ten'years; that is some time.”

The second letter is dated San Quentin, Cal., June 17th, and in it shows that he had reached the penitentiary and was working in the jute mill, he stating that he would get 3*4 years off for good behavior, and would only have to stay 6 years and 6 months, and would get out December 7, 1920. The letter dated at San Quentin, Cal., July 7th merely shows that he is still in the penitentiary, and in none of those letters, and nowhere else in the record, is it disclosed of what offense he was charged or convicted, but all that is shown is that, upon a plea of guilty to some unnamed offense, he was sentenced to 10 years’ confinement in the penitentiary in the state of California, and was at the time of the trial confined therein, and that he would not be liberated before December 7, 1920. Had Rice been in attendance on court at Dallas on the trial of this case, and such facts only shown, would they have rendered him incompetent as a witness? Under the laws of this state, felonies and misdemeanors have as a dividing line the fact, if the punishment is by imprisonment in the penitentiary it is a felony, if an offense is not punishable by imprisonment in the penitentiary it is a misdemeanor; but this is not true in all jurisdictions.

The question of whether a conviction for a felony in another state will render a person incompetent as a witness in this state is governed by statute. If we had no statute on the question, such a conviction would not render one incompetent as a witness. As said in the case of Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 30 L. Ed. 429:

“At common law, and on general principles of jurisprudence, when not controlled by express statute giving effect within the state which enacts it to a conviction and sentence in another state, such conviction and sentence can have no effect, by way of penalty, or of personal disability or disqualification, beyond the limits of the state in which the judgment is rendered. Wisconsin v. Pelican Ins. Co., 127 U. S. 265 [8 Sup. Ct. 1370], 32 L. Ed. 239; Com. v. Green, 17 Mass. 515; Sims v. Sims, 75 N. Y. 466; National Trust Co. v. Gleason, 77 N. Y. 400 [33 Am. Rep. 632]; Story, Confl. L. § 92; 1 Greenl. Ev. § 376. It follows that the conviction of Martin in North Carolina did not make him incompetent to testify on the trial of this case.”

See, also, Huntington v. Attrill, 146 U. S. 673, 13 Sup. Ct. 224, 36 L. Ed. 1130; United States v. Insley, 54 Fed. 223, 4 C. C. A. 296.

This is held to be the rule in our state in civil cases. In Missouri Ry. v. De Bord, 21 Tex. Civ. App. 702, 53 S. W. 593, the court says;

“The contention of that defendant that the court erred in allowing the depositions of John W. Lackey to be read in evidence, because he had been convicted of theft of cattle and sentenced to the penitentiary by a court of competent jurisdiction in the Indian Territory, and in refusing to allow the authenticated copy of the indictment, conviction, and sentence to be read in evidence for the purpose of discrediting his testimony, cannot be sustained; this being a civil action” — citing authorities.

But our Code of Criminal Procedure, in subdivision 3 of article 788, provides that:

“All persons who have been or may be convicted of a felony in this state, or in any other jurisdiction, unless such conviction has been legally set aside, or unless the convict has been legally pardoned for the crime of which he was convicted” are incompetent to testify as a witness in a criminal action.

This provision of the Code, in so far as we have been able to ascertain, first came before this court for construction in the case of Pitner v. State, 23 Tex. App. 366, 5 S. W. 210. At that time our present senior justice, Judge Davidson, was representing the state as its Assistant Attorney General before this court, and he filed an able and exhaustive brief, contending that the words “or in any other jurisdiction” had no reference to convictions had in other states, and that the common-law rule was in force in this state in criminal as well as civil cases; he showing such rule to be:

“A judgment of criminal conviction had in one state cannot be used to show or prove a witness incompetent in another state, where the witness has been convicted of an infamous crime in the former” — citing, among other authorities, Commonwealth v. Green, 17 Mass. 515; Campbell v. State, 23 Ala. 44; Sims v. Sims, 75 N. Y. 466; National Trust Co. v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632; 1 Greenl. Ev. (13th Ed.) § 376, note 2, and section 506; 1 Bishop, Crim. Law, § 109; also section 976, and note; Wharton, Crim. Ev. § 363, note, and section 489.

The court, in overruling this contention, says:

“Leaving out of view any statutory provision upon the subject, the position of the Assistant Attorney General is sustained by very high, if not the great, weight of authority,” and “we would incline to the view contended for by the Assistant Attorney General, were we called upon to decide the question without being controlled by statutory enactment.”

They then hold that the words “or in any other jurisdiction” in the Code, embraces within its terms judgments of convictions had in other states in the Union. However, they also discuss at some length what is necessary to be shown to render a judgment of conviction in another state sufficient to render a person incompetent as a witness in the courts of this state, and these rules have been adhered to in this court since the rendition of that opinion, and we do not deem it necessary to discuss the question at length again, but merely to restate the rule as therein announced. A judgment of conviction for a felony in a foreign state will render a person an incompetent witness in a criminal action in this state when the following facts are shown: That the person has been finally convicted of an offense in a foreign state; that the offense of which he was convicted was a felony under the laws of the state in which he was convicted, and such an offense would be a felony under the laws of this state if committed within its bounds.

The best evidence of such a state of case would be a copy of the indictment and final judgment of copviction properly certified to, together with a copy of the laws of that state showing that such acts constitute a felony under the laws of such state. Having before us a copy of the indictment, we would judicially know whether or not such an- offense was a felony under the laws of this state. In saying this would be the best evidence, we would not be understood as saying that other legitimate evidence could not be adduced to prove such facts, or that they could not be proven by secondary evidence, if no objection was made.

However, in this ease the evidence does not show nor tend to show, of what offense appellant was convicted in California, nor whether or not the offense of which he was convicted was a felony under the laws of that state, and certainly, without any evidence of what the offense consisted, we cannot know whether or not such an offense is a felony under the laws of this state. This being the state of the record, the court did not err in permitting the evidence of Claude Rice at the former trial to be reproduced as it is manifest by the record that he is permanently beyond the jurisdiction of the court.

The evidence, and all the evidence, would show that Claude Rice obtained the possession of the property under circumstances that would constitute theft, and not embezzlement, and those bills which complain of the introduction of the evidence of Rice and Barrett, because their evidence would show that Rice was guilty of embezzlement, present no error. There must have been a trust relation existing between Rice and the person from whom he obtained the goods before the evidence would suggest a ease of embezzlement. The person in possession, nor the owner of the goods, did not know Rice, and he obtained possession of the goods without their knowledge or consent. The owner had gone in bathing and deposited his valuables with the bathhouse keeper, and Rice, in some way not disclosed, had obtained possession of the check given for the goods to the owner. He took this check and presented it to the bathhouse keeper, and obtained the watch, diamonds, rings, and at once proceeded to appropriate them to his own use. The next day the jewelry was delivered into the possession of appellant, who concealed it in his safety deposit vault. Such evidence does not raise the issue of embezzlement by Rice, but theft pure and simple.

All evidence which would have been admissible on the trial of Rice to show that he was guilty of theft was admissible on this trial to show that the goods delivered to appellant were stolen goods, and the court did not err in so holding. Of course, the evidence would have to go further, and show that appellant, at the time he received the goods, knew they were stolen goods, and, with this knowledge, concealed them. This it did apparently to the satisfaction of the jury.

There was no objection made to the charge at the time it was submitted to appellant’s counsel for inspection. No special charges were requested, and, the court having very fairly and fully submitted the issues made by the testimony, and in a way not complained of by appellant, the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    Ex parte KELLETT.
    (No. 3349.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1914.)
    Bail (§ 43) — Right to Admission to Bail.
    Where it appeared with, reasonable certainty that accused killed deceased, and that the evidence would raise no question of self-defense or of the lesser degrees of homicide, it was proper to refuse accused admission, to bail.
    [Ed. Note. — Por other cases, see Bail, Cent. Dig. §§ 153-164; • Dec. Dig-. § 43.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Ex parte application by Jack Kellett for a writ of habeas corpus to procure his admission to bail. Prom an order denying bail, he appeals.
    Affirmed.
    Kahn & Williams, of Houston, 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

   PRENDERGAST, P. J.

Relator has appealed from the order of the district judge denying him bail on a habeas corpus hearing. He has been indicted for murder. One ground of his application is based on his claim that confinement will endanger his life. The evidence is insufficient to show this. In fact, the relator’s attorneys practically, if not actually, conceded this when the case was submitted. We have carefully read and studied the evidence. We think it shows with reasonable certainty that appellant killed the deceased, and that no other did; that if he did, the offense is murder. We think no question of self-defense or any less grade of offense than murder is raised. We therefore, cannot disturb the judgment of the lower court refusing bail. We will not discuss the evidence. What little we have said about our conclusions from the evidence must not be used on any trial against appellant, and is not intended for such use or purpose.

The judgment denying bail is affirmed.


author: DAVIDSON, J.

text:
    RENTERIA v. STATE.
    (No. 3344.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    Obimiitai, Law (§§ 1092, 1099*) — Appeal— Bills of Exception.
    Where bills of exception and the statement of fact were filed after the 20 days authorized by the statute in a county court case, they were too late and the matters therein will not be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2S34-2S61, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.*]
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Tiburcio Renteria was convicted of violating the local option law, and he appeals.
    Affirmed.
    Barber & Johnson, of San Marcos, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law.

The record shows appellant was granted 30 days, which time was extended, in which to file bills of- exception and statement of facts. All these matters were filed far beyond the 20 days authorized by the statute, and under the decisions of this court construing the statute with reference to time of filing statement of facts and bills of exception in county court cases, this comes too late. Therefore, these matters will not be revised. These eliminated, there is nothing requiring revision or investigation, and in the attitude of the record the judgment will be affirmed.


author: I-IARPER, J.

text:
    MARTIN v. STATE.
    (No. 3341.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1914.)
    Gaming (§ 62) — “Raffle”—What Constitutes.
    Por the owner of a buggy to sell cigars for a dollar apiece, at the same time allowing purchasers to draw numbers, one of which would entitle the holder to the vehicle, constitutes the offense of raffling, for a “raffle” is a game of perfect chance in which every participant is equal with every other in the proportion of his risk and prospect of gain.
    [Ed. Note. — Por other cases, see Gaming, Cent. Dig. § 119; Dec. Dig. § 62.

    Por other definitions, see Words and Phrases, Pirst and Second Series, Raffle.]
    Appeal from Pranklin County Court; J. J. Walker, Judge.
    W. R. Martin was convicted of raffling, and he appeals.
    Affirmed.
    R. T. Wilkinson, of Mount Vernon, for appellant. C. E. lLane, Asst. Atty. Gen., for the State.

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

   I-IARPER, J.

Appellant was convicted of raffling, from which conviction he prosecutes this appeal, contending that the evidence does not show him guilty of that offense. The evidence shows that appellant was a druggist and owned a buggy he desired to dispose of. The defendant himself testified:

“I owned a buggy that I wanted to dispose of, and I disposed of it in the following manner: I wrote down the numbers from one to seventy, inclusively and consecutively on a card, each card was placed in an envelope, separately and sealed up. When I did this I selected a number between one and seventy, I have forgotten now what number it was, and sealed it up in an envelope. This envelope X placed on a cardboard and sealed a piece of paper over it. I took some cigars and sold a cigar to a party, and when he paid me a dollar I gave him a cigar and one of these envelopes containing a number. When I placed the number on the cardboard I gave it to Mr. Ross Smith, who took it to his drug store and kept it until he broke the seal. AVhen I gave a person an envelope with a number in it, they would break open the envelope and find out the number, and I would then write their name down on a book and the number opposite their name on the book. After all the tickets were sold Ross Smith broke the seal on the cardboard and discovered the number under it, and the person holding the corresponding- number was to get the buggy.”

Not only was this appellant’s testimony, but all the testimony shows these facts to be true, and appellant contends that they do not show lie was guilty pi raffling. In the case of Stearnes v. State, 21 Tex. 699, the Supreme Court, speaking through Judge Roberts, held:

“The raffle * * * is a game of perfect chance; in which every participant is _ equal with every other, in the proportion of his risk and prospect of gain. The prize is a common fund, or that which is purchased by a common fund. Each is an equal actor in developing the chances, in proportion to his risk, whether they be developed with dice, or some other instrument, is not material. The successful party takes the whole prize, and all the rest lose.”

This court, in the case of Risein v. State, 44 Tex. Cr. R. 413, 71 S. W. 974, approves the rule stated in the Stearnes Case, and under both those decisions appellant’s own testimony renders him guilty of raffling, and the judgment is affirmed.


text:
    WADE v. STATE.
    (No. 3346.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    1. Witnesses (§ 26S) — Examination—Cross-Examination — Scope.
    Where the state’s witness in a prosecution for unlawfully selling intoxicants in prohibition territory fixed the time of sale as about the time another purchased a parcel of land, the purchaser, having testified that the deed was made at a time within the period of limitations, may be cross-examined as to whether the actual purchase was not consummated some months before, at a time when prosecution for unlawful liquor sales would be barred by limitations.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    2. Criminal Daw (§ 346) — Evidence—Relevancy.
    Where another’s purchase of a tract of land was fixed as the date of an unlawful sale of intoxicants, evidence that the actual sale occurred some months before the deed was made is admissible, where the prosecution would be barred by limitations if the sale was made at the time of the actual purchase.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 786; Dee. Dig. § 346.]
    3. Witnesses (§ 379) — Cross-examination-Scope.
    Where the state’s witness testified that an unlawful sale of intoxicants was made at one time, he may be cross-examined as to contradictory statements of the time of sale made out of court; such statements tending to shake his credibility and lay a foundation for impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    4. Witnesses (§ 372) — Cross-Examination— Bias.
    The state’s witness in a prosecution for the unlawful sale of intoxicants may be cross-examined as to whether a relative of his who was an enemy of accused had not induced him to make the complaint; such evidence tending to show bias.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.]
    Appeal from Nacogdoches County. Court; B. B. Dewis, Judge.
    Jonah Wade was convicted of unlawfully selling intoxicants in prohibition territory, and he appeals.
    Reversed and remanded.
    King & Seale, of Nacogdoches, for appellant.
    O. E. Dane, 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, P. J.

Appellant was convicted for unlawfully making a sale of intoxicating liquors in prohibition territory' — ■ a misdemeanor — and the lowest punishment assessed against him.

A proper complaint and information were filed against appellant January 19,1914, alleging the sale of whisky on or about January 8, 1913. The only witness who testified to the sale could not definitely fix the date thereof, but stated that it was just after Mr. Russell had bought the place from Mr. Sparks on which he (the witness) was living; that he made a crop on that place that year for Mr. Sparks. He could not remember what year Russell bought that place from Sparks. The state introduced Russell, who swore that the deed from Sparks to him and his brother was executed on January 1, 1912. Appellant in 'cross-examination sought to show by Mr. Russell, and his testimony would have tended to show, so the bill states,, that while the deed was dated January 1, 1912, the trade and bargain for the place was during the summer of 1911, and would tend to show that the sale occurred in 1911, and not in 1913. In other words, the testimony would have tended to show that the offense was clearly barred by the statute of limitation. In our opinion the court erred in refusing to permit this cross-examination of this witness.

Appellant also sought to prove by said Sparks that he made the trade with Russell to sell him the said place in the summer of 1911, although the deed was dated January 1, 1912. The court refused to permit this testimony. We think this testimony was also ad-' missible, and the court erred in excluding it.

Appellant also asked said state’s witness if he had not, the day before, told appellant’s attorney and two other persons that the date of the purchase of said whisky by him from appellant was in the fall after Mr. Russell and his brother had purchased the Sparks place and before Christmas of that fall. This question was asked for the purpose of crossing the witness as to the time of the actual purchase by him of the whisky and was admissible therefor. If the witness had denied making such statement, it would have laid the predicate for impeaching him which appellant also sought to do. The court should have permitted this ques-. tion to have been asked and answered by the witness.

. On cross-examination appellant asked said state’s witness if Harvey Wade had not approached him and persuaded him to file the complaint in this case. Upon the state's objecting to the question, appellant’s attorney explained to the court that he expected to show that this witness would so testify, and then follow it up with testimony showing that said Harvey Wade was appellant’s enemy; that he was related to and friendly to said state’s witness; and that he had induced the state’s witness to go before the grand jury and testify falsely against him. This question should have been permitted and the witness required to answer. It is always permissible to show the bias, prejudice, hostility, etc., of a witness against an appellant. Section 861, Branch’s Grim. Raw.

Some other questions are' raised, unnecessary to pass upon because, we take it, they will not occur upon another trial.

Appellant contends that the evidence is insufficient to sustain the verdict, because it would show that the offense was barred; that the sale was made more than two years before the filing of the complaint and information. ' We do not pass upon that question. The evidence as introduced, without that which was excluded, would sustain the verdict on this point.

For the errors above noted, the judgment is reversed, and the cause remanded.


text:
    GOODE v. STATE.
    (No. 3347.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    1. Criminal Daw (§ 769) — Misdemeanor Cases — Instructions.
    In a misdemeanor case, the court need not charge the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1803-1806; Dec. Dig. § 769.]
    2. Criminal Law (§ 804) — Trial—Charge.
    While in misdemeanor cases the court need not charge the jury, yet, if he does so, the charge should be submitted to counsel for inspection.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1948-1957; Dec. Dig. § 804.]
    3. Criminal Law (§ 1163) — 1Triaj>—Instruc-tions — Errors.
    In a misdemeanor case, where the court charged the jury but did not submit the charge to counsel, errors assigned by counsel when he did see the charge will be considered on appeal, but a mere assignment of- error complaining of the court’s failure to submit the charge before it was given cannot be considered where no error therein was pointed out.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3090-3099; Dec. Dig. § 1163.]
    4. Criminal Law (§ 829) — Trial—Instructions.
    The refusal of requested charges covered by those given is not error.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from Franklin County Court; J, J. Walker, Judge.
    Claude Goode was convicted of unlawfully carrying a pistol, and lie appeals.
    Affirmed.
    L. W. Davidson, of Mt. Vernon, 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

   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

There were no exceptions reserved to the evidence adduced on the trial of the case, and none to the charge of the court as given. Appellant on the motion for new trial raises the issue that the charge was not submitted to his counsel for inspection prior to the time it was read to the jury, and introduced evidence to prove that fact, and the evidence shows it to be a fact; but it further shows that appellant had it while the case was being argued, and -during the time he was presenting his argument to the jury. In a misdemeanor case the court is not required to charge the jury; but, if he does do so, wa think it would be the better practice to submit the charge to counsel for inspection, and in this case he should have done so. And as he did not do so, if, when appellant did see the charge, and had an opportunity to point out any error therein, if error there be, counsel for appellant had pointed out any error to the court, we would consider such assignments of error. But when the charge was given to appellant’s counsel, he pointed out no error therein, nor in the motion for new trial does he point out any error, nor complain that the charge is erroneous in any respect, but only claims that the court erred in failing to submit-the charge to him before reading it. Under such circumstances, as appellant did not even in the motion for new trial attempt to point out any error in the charge, the matter does not present reversible error.

Appellant does complain of the failure of the court to give the special charges requested. The first two are fully covered by the charge of the court, while the third is a request for peremptory instructions. This, the court did not err in refusing, for Miss Sanders swears positively she saw appellant with a pistol on the occasion alleged in the information.

The judgment is affirmed.