author: PER CURIAM. HAWKINS, J.

text:
    EL PASO & S. W. CO. v. LA LONDE.
    (No. 9292.)
    (Supreme Court of Texas.
    April 5, 1916.)
    Action by Angela La Londe against tire El Paso & Southwestern Company. A judgment for the plaintiff was affirmed by the Court of Civil Appeals (173 S. W. 890), and the defendant applies for writ of error.
    Application refused, and motion for rehearing overruled.
    Hawkins & Franklin and W. M. Petieolas, all of El Paso, for applicant. Wallace & Gardner, of El Paso, opposed.
   On Motion for Rehearing.

PER CURIAM.

Motion for rehearing overruled.

HAWKINS, J.

(concurring). The course of reasoning by which my conclusions herein have been reached is, in several respects, so different from that shown by the opinion of the Court of Civil Appeals in this cause (173 S. W. 890) that I feel in duty bound to state my individual views herein, although, with some exceptions, the rule in this court has been not to write in granting or in refusing applications for writs of error.

This action for damages for the killing of L«. Londe, on April 21, 1912, in New Mexico, by one of plaintiff in error’s trains, was instituted in a Texas court by his widow as temporary administratrix and personal representative of the estate of the decedent.

Trial before a jury resulted in verdict and judgment in her favor for $13,750, which judgment was affirmed by our Court of Civil Appeals for the Eighth Supreme Judicial District (Civ. App.) 173 S. W. S90. The railway company applied for a writ of error, which this court refused, and now prays for a rehearing.

It is contended by the railway company that the suit cannot be maintained by the Texas temporary administratrix in the absence of allegation and proof of orders of the probate court extending the period of administration. Under such circumstances such orders will be presumed. Williams v. Bank, 91 Tex. 651, 45 S. W. 690. Moreover, the record does not show that the right of the plaintiff to sue in that capacity was challenged by a sworn plea, as provided by R. S. of Texas 1911, art. 1906, subd. 2.

Complaint is made by the railway company of the refusal of the trial court to submit to the jury the provisions of the Constitution and statutes of New Mexico which were admitted in evidence before the court to enable the court to determine whether they or any of them govern or affect the rights of the parties, and to instruct the jury accordingly. In that refusal there was no error. Andrews v. Hoxie, 5 Tex. 171; Willard v. Conduit, 10 Tex. 213.

The temporary administratrix relies upon the act of February 21, 1891 (Laws 1891, c. 49), the act of February 17, 1893 (Laws 1893, c. 28), and section 16 of article 20 of the Constitution of New Mexico, in turn, while the railway company relies upon article 3213 of the Compilation of 1897, and section 4 of article 22 of said Constitution, all as shown below.

Their history, as I glean it, is as follows:

The original act of 1882 (chapter 61) dealt, in section 1, with damages for injuries resulting in death when caused by the wrongful acts of common carriers, their agents, servants, and employés, while engaged in operating locomotives, trains, stagecoaches and other public conveyances, and, in sections 2 and 3, with damages for such injuries when caused by wrongful acts of corporations and persons other than common carriers.

Said section 1 reads thus:

“Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employe, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stagecoach or other public conveyance, while in the charge of the same as driver; and when any passenger shall die from any injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stagecoach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employé, engineer or driver, shall be at the time such injury was committed, or who owns any such .railroad, locomotive, car, stagecoach, or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand ($5,000.00) dollars, which may be sued and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband of wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not of a negligent defect or insufficiency.”

Said section. 1 was carried into tbe Compilation of 1884 as article 2308, and into tbe Compilation of 1897 as article 3213, and appears to be still in force, unless and except as repealed, amended, or rendered inoperative by said act of 1891, said act of 1893, and said section 16 of article 20 of tbe Constitution.

If article 3213 is applicable in tbis case, its unquestionable effects are: (a) Arbitrarily to fix, at $5,000, tbe amount of tbe recovery, sucb fixed amount being in tbe nature of a penalty ratber than in tbe nature of compensatory damages; and (b) to deny to defendant in error tbe right to maintain tbe suit in tbe capacity in wbicb sbe sues herein.

Said sections 2 and 3 of said act of 1882 became sections 2309 and 2310 of the Compilation of 1884, and were amended by “An act to amend sections 2309 and 2310 of tlie Compiled Laws of New Mexico of 1884,” approved February 21, 1891. Said act of 1S91 authorizes, in general terms, recovery of damages for injuries resulting in death; it fixes no limit on the amount to be recovered; it requires that actions thereunder be in the names of personal representatives of the decedent; but that amendment, it seems, does not relate to common, carriers, and does not repeal said article 3213. Hornero v. Railroad, 11 N. M. 684, 72 Pac. 38, in which case th Supreme Court of the territory of New Mexico held said article 3213 applicable, although the injuries of the decedent, who was not an employe, were inflicted in June, 1902.

Said act of February 17, 1893, “an act for the protection and relief of railroad em-ployés and for other purposes,” provides:

“Every corporation operating a railway in this territory shall be liable in a sum sufficient to compensate such employé for all damages sustained by any employe of such corporation, the person injured or damaged being without fault on his or her part, occurring or sustained in consequence of any mismanagement, careless* ness, neglect, default or wrongful act of any agent or employé of such corporation, while in the exercise of their several duties, when such mismanagement, carelessness, neglect, default or wrongful act of such employé or agent could have been avoided by such corporation through the exercise of reasonable care or diligence in the selection of competent employés, or agents, or by not overworking said employés or requiring or allowing them to work an unusual or unreasonable number of hours,” etc.

It also provides:

“Whenever the death of an employé shall be caused under circumstances from which a cause of action would have accrued under the provisions of the two preceding sections, if death had not ensued, an action therefor shall be brought in the manner provided by section 2310 of the Compiled Laws of New Mexico, as amended by chapter XLIX of the Session Laws of 1891 of New Mexico, and any sum recovered therein shall be subject to all of the provisions of said section 2310 as so amended.”

While said act of 1893 relates to common carriers, its operation is restricted to certain designated classes of cases, involving either want of care in the selection of em-ployés or agents, or. overworking them. Neither the pleading nor the evidence brings this case within its purview; consequently, at least for the purposes of this case, it neither controls nor affects said article 3213.

Said section 4 of article 22 of the Constitution is as follows:

“All laws of the territory of New Mexico in force at the time of its admission into the Union as a state, not inconsistent with this Constitution,-shall be and remain in force as the laws of the state until they expire by their own limitation, or are altered or repealed; and all rights, actions, claims, contracts, liabilities and obligations, shall continue and remain unaffected by the change in the form of government.”

I Section 16 of article 20 of the Constitution, I adopted in 1911, provides:

“Every person, receiver or corporation owning or operating a railroad within this state shall be liable in damages for injury to, or the death of, any person in its employ, resulting from the negligence, in whole or in part, of said owner or operator or of any of the officers, agents or em-ployés thereof, or by reason of any defect or insufficiency, due to its negligence, in whole or in part, in its cars, engines, appliances, machinery, track, roadbed, works or other equipment.
“An action _ for negligently causing the death of an employé as above provided shall be maintained by the executor or administratrix for the benefit of the employé’s surviving widow or husband and children; or if none, then his parents ; or if none, then the next of kin dependent upon said deceased. The amount recovered may be distributed as provided by law. Any contract or agreement made in advance of such injury with any employé waiving or limiting any right to recover such damages shall be void.”

It seems that no statute has been enacted to put section 16 into effect, but its provisions, other than those relating to distribution of the amount to be recovered in death cases, appear to be self-operative, authorizing, whenever applicable, recovery of compensatory damages in any reasonable amount; actions in death cases thereunder to be by personal representatives of the decedent in behalf of the designated beneficiaries.

However, the expression “shall be liable in damages for injury to, or death of, any person in its employ,” etc., greatly narrows the field of liability and was intended, I think, to restrict its legal effect to instances in which the injuries are received by such employé in the course of Ms employment m the ra/ilroad service. If it be assumed, for the sake of the argument, or if, upon due consideration of the history and legal effect of said article 3213, it should be held that said article was ever applicable to and controlled eases wherein the material facts were essentially like those of the case at bar, and if my foregoing views as to the self-operative effect of said section 16 are correct, then, inasmuch as section 16 is later than article 3213, it follows, logically, that if at the moment when La Londe received his injuries he was m the employ of the railway company within the meaning of section 16, its provisions, aside from those relating to distribution, are applicable, and either section 16 or the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]) controls this case, and this court did not err in refusing the writ of error; but if La Londe was not then so “in its employ” it is just as clear that neither said section 16 nor said act of Congress has any application to the case at bar, and in that event, article 3213 should control this appeal, the judgment was for an amount in excess of that fixed by law, and the pending motion and also the application for a. writ of error should be granted, unless this court should hold that the courts oí this state will not enforce the provisions of article 3213, because they are of a penal rather than of a merely compensatory nature, or because they are essentially different from provisions of our laws which would be applicable had La Londe’s injuries been inflicted in Texas.

The charge given to the jury was, practically, to the effect, that if at the moment of his injuries La Londe was “waiting to be called,” he was in the employ of the railway company within the meaning of said section 16, which was thus made to control this case, and that view was upheld by the Court of Civil Appeals, and has prevailed in this court. But is section 10 applicable? I think not, as La Londo’s injuries were not received in the course of his employment, and were not fairly related to that employment. Whether he was or was not then so “in its employ,” becomes, in reality, in this case, purely a question of law, in view of the evidence bearing thereon, because in that evidence there is no conflict whatever. It was to this effect: La Londe had been employed as a locomotive engineer by the railway company. He was paid on a mileage basis, and drew his pay monthly. That contract had not been terminated; but, at the time of his injuries, he was not engaged in the operation of a locomotive, and was not actively in the performance of any duty to his employer. He was “off duty,” but was “subject to call.” He had come in at 5 or 6 o’clock in the previous evening from his run of that day, his lawful hours of rest had expired, and he was “waiting to be called” whenever he might be needed to take out some train. While so waiting, and shortly after noon, which was about an hour and a half before the usual time for him to take a train out, he left his home and went to the post office, and thence to the railroad yard to see a friend who was engineer on an out-going train, to whom he desired to hand money to pay off a note in another town. As his friend walked around his engine La Londe walked and chatted with him, and, while so occupied, stepped back in front of an incoming train, which struck him, inflicting injuries from which he died. La Londe was there as a mere loiterer or bystander, and there is no evidence which even suggests that he was in the yards for any purpose which was in any wise related to the call for which he was waiting, or to any duty which he owed to the company by virtue of his said employment. '

Under such circumstances, and in the absence of any decision of the courts of New Mexico construing said section 16, I cannot believe that La Londe was at that moment in the employ of the railway company within the meaning of said provision of the Constitution of New Mexico. The clause “injury to, or death of, any person in its' employ” seems to me to have been intended to restrict the operation of section 16 to cases in which the injured party is not merely on the pay rolls of the company and engaged from time to time, during the general period of his employment, in some service for his employer, but in which, in addition, the injuries in question are related, directly, fairly, and reasonably, to such employment and service. Under any other theory of construction the provisions of section 16 become purely arbitrary. In this very case, as a matter of either natural justice or public policy, how can it be said that the railway company owed to La Londe, in that moment, and under those circumstances, any higher duty, or that its liability for injuries negligently inflicted upon him should be more certain, than if he were any other bystander who was in no sense in its employ? That it was not the purpose of section 16 to impose such higher duty or more certain liability seems plain enough when it is considered by itself alone, and it is doubly plain, it seems to me, when section 16 is considered in the light of said previous legislation of New Mexico.

In support of my views as to the legal effect of the words “in its employ,” as used in section 16, and without undertaking a thorough discussion of the subject, I emphasize the uncontroverted fact that, although La Londe was “subject to call,” no duty to the railway company called or detained him upon its yards, or justified his presence there at the moment of his injuries; and, in that connection, cite Railway v. Scott, 71 Tex. 703, 10 S. W. 298,10 Am. St. Rep. 804; Railway v. Welch, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839; Railway v. Ryan, 82 Tex. 505, 18 S. W. 219; Railway v. Anderson, 102 Tex. 402,118 S. W. 127; Freeman v. Brewing Co., 38 Tex. Civ. App. 396, 85 S. W. 1165 (writ of error refused); Railway v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745 (writ of error refused). See, also, Doyle v. Railway, 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335; McNulty v. Railway, 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721.

In Railway v. Scott, this court, through Stayton, C. J., said:

“It is true that the employer is only liable as master to the servant when the latter is actually in his service, and that at times, during the period of an engagement, the employe may sustain to the employer no other relation than that of stranger. It does not follow from this, however, that the employé is to be deemed in the employer’s service only when he is actually engaged in labor. He is to be deemed in the master’s service whenever present to perform his duty under the contract creating the relation of master and servant and subject to orders, although at a given moment he may not be engaged in the actual performance of any labor. We are of the opinion that the evidence shows a state of facts which require the appellee, as the servant of appellant, to be with the train at the time he was injured. The fact that he may not have been actually engaged in the performance of labor at the time he was injured, if he was with the train in discharge of a duty the engineer had power to impose upon him by virtue of his em-ploj’ment, and subject to further orders, would not for the time destroy the relation of master and servant, and make him a stranger to appellant.”

In Railway v. Welch, and also in Railway v. Ryan, the decision rested upon two facts:

(a) The injured employé was asleep in a car belonging to the company, provided by it for that purpose, upon its side track; and

(b) he was liable at any moment to be called out on duty with his gang. In neither of those cases does the conclusion or finding that the injured man was a fellow servant (or employé) at the time of the injuries, rest, as in this case, solely upon the fact that he was then “subject to call.” The reasoning which controlled all the cited eases supports my views herein, as to the meaning of section 16.

Under the act of Congress known as the Employers’ Liability Act of 1908, relating to interstate commerce, the liability thereby created is expressly limited to “damages to any person suffering injury while he is employed by such carrier in such commerce.” In chapter Y of his work on “Liability of Railroads to Interstate Employés,” Mr. Doherty says:

“The title of the Employers’ Liability Act is 'An act relating to the liability of common carriers, or railroads, to tbeir employés in certain cases.’ Erom this title, as well as from the context of the act, it is apparent that the remedy provided is one which arises only when the em-ployé is killed or injured from a cause which is incidental to or arising out of railroad employment. If any injury arises from a cause in no manner connected with or arising out of such employment, no recovery is possible under the act” — citing Armitage v. Railway, 4 Minton-Senhouse’s Workmen’s Compensation Cases, 5; O’Brien v. Star Line Limited, 1 Butterworth’s Workmen’s Compensation Cases, 177; Jackson v. Railway, 178 Fed. 432 (102 C. C. A. 159) which cites numerous cases.

The rule, as enunciated in the O’Brien Case, is to the effect that there must be “some causal relation between the employment and the accident.” And the same author, in the same chapter, also says:

“Not every employé who is engaged in work auxiliary to interstate commerce is included in the act. The work of the employé, to bring him within the terms of the act, must be directly connected with and in aid of the traffic itself, or in maintenance of instrumentalities which are generally used in such interstate traffic” — citing Milner v. Railway, 2 Minton-Senhouse’s Workmen’s Compensation Cases, 51, Railway v. Commissioners, 6 Q. B. D. 586, and Railway v. Tucker, 35 App. D. C. 123, which discusses Packett Co. v. McCue, 17 Wall. 508, 21 L. Ed. 705, Ewald v. Railway, 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. Rep. 178, Boldt v. Railway, 18 N. Y. 432, and Fletcher v. Railway, 188 U. S. 135, 18 Sup.Ct. 35, 42 L. Ed. 411.

In Railway v. Tucker the court said:

“The better rule, the one founded in reason and supported by authority, is that the relation of master and servant, in so far as the obligation of the master to protect his servant is concerned, commences when the servant, in pursuance of his contract with the master, is rightfully and necessarily upon the premises of the master. The servant in such a situation is not a mere trespasser nor a mere licensee. He is there because of his employment.”

The rule under that statute is stated thus by Roberts, in section 14 of his recent treatise on “Injuries to Interstate Employés on Railroads”:

“The carrier is not liable for every act of negligence causing injury to one employé by another. The negligent act causing injury or death must have been committed while the employé at fault was in the prosecution of the carrier’s business. When the negligent act which causes an injury to or the death of an employé had no relation whatever to the employment the carrier is not liable for the employé at fault must have been, when committing the act, within the scope of his employment” — citing Hobbs v. Railway, 80 Wash. 678, 142 Pac. 20, L. R. A. 1915D, 503, 6 N. C. C. A. 84n, 90n; Rief v. Railway, 126 Minn. 430, 148 N. W. 309; Railway v. West, 38 Okl. 581, 134 Pac. 655; Railway v. Wilson, 161 Ky. 640, 171 S. W. 430; Reeve v. Railway, 82 Wash. 268, 144 Pac. 63, L. R. A. 1915C, 37; Martin v. Railway, 93 Kan. 681, 145 Pac. 849; Moyse v. Railway, 41 Mont. 272, 108 Pac. 1062. “And if an employé is injured or killed at a time and place and from a cause disconnected with his employment for the carrier, the carrier is not liable, for the statute requires the servant injured to have been at the time employed in interstate commerce” — citing Padgett v. Railway (S. C.) 83 S. E. 283; Sanders v. Railway, 97 S. C. 50, 81 S. E. 283, 6 N. C. C. A. 20On; Ewald v. Railway, 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. Rep. 178; Hurst v. Railway, 49 Iowa, 76; Dickinson v. Railway, 177 Mass. 365, 59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284.

That author’s discussion of Hobbs v. Railway embraces the following:

“Decedent was killed while riding upon the pilot of an engine. He was a hostler’s helper and his last work was placing sand in the engine. In doing this work the deceased was not required to ride on a pilot. No one knew why he stepped upon the pilot. The engine in moving collided with the footboard of another switch engine, which was not visible because of escaping steam, and this caused decedent’s death. There was a rule of the railroad company forbidding employés to ride on engine pilots and the decedent in addition had been specifically told not to ride on pilots. The court, in denying that the railroad company was liable, said: ‘The rule of liability against a railway company engaged in interstate commerce is predicated upon the duty of the company to furnish its servant a reasonably safe place in which to perform the work it requires of him, or while he has to be in those places which are incident to his work, and this duty is incident to all places where the employé must necessarily be in connection with his employment. But that duty is not incident to his place where a servant is not required to be nor expected to be in the performance of his work. Nor does it cover the servant when he is not within the scope of his employment or doing some act which is not incidental to his employment. This rule is sustained by all authorities and the federal act in no wise attempts to change it. Unless the evidence in this case shows that the deceased was upon the pilot of his engine in discharge of some duty required by the railroad company, then the railroad company owed him no duty except to avoid injuring him after it discovered his perilous position. Such is so clearly the law that it will not be doubted, and no authorities need be cited to sustain it.’ ”

If, at the moment in which his injuries were inflicted, La Londe was “in the employ” of the railway company within contemplation of section 16, he wa's then, it would seem, undeniably, engaged in interstate commerce; the uncontradicted evidence being to the effect that any train which he might be called to take out would be an interstate train, just as were all that he had taken out in the course of his said employment, and therefore in that event, he was, at that moment, within the provisions of said Employers’ liability Act of 1908. But to hold that he was then so engaged in interstate commerce would be to extend the operation of that federal statute to individuals under circumstances far beyond the broad extent in which it has been construed and applied by the Supreme Court and by circuit courts of the United States. Pedersen v. Railway, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, and cases cited. See, also, Employers’ Liability Cases, 207 U. S. 497, 28 Sup. Ct. 141, 52 L. Ed. 297. To that I cannot agree.

The only logical escape from the conclusion that said act of Congress, alone (Southern Ry. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 35 Sup. Ct. 304, 59 L. Ed. 661), controls this case lies in holding that, under the undisputed facts, and within the meaning of said federal statute, La Londe was not injured “while * * * employed” by, or while “in the employ” of, the railway company. The analogy between our own fellow servant statute and said Employers’ Liability Act, on the one hand, and said section 16 on the other hand, is obvious. The argument by analogy might, with profit, be extended to embrace other statutes, did time and space pmnit.

To me it seems clear that neither said act of Congress nor said section 16 should be construed so broadly as to bring the ease at bar within its legal effect. Then, if that be the correct view, is this case governed by article 3213? That statute was adopted, it seems, to preserve certain causes of action after the death of the party entitled thereto in the first instance, and not to abrogate the common-law rule that the servant assumes all ordinary risks of the service in which he is engaged, including risks arising from negligence of other servants of the same master in the same employment. Accordingly, it has been held that the words, “any person,” as used in article 3213, do not include servants of the same master injured through negligence of a fellow servant while acting in the common employment. To that effect is Railway v. Farrow, 6 Colo. 498, which reviews the Missouri decisions construing a similar statute of that state, from which, it appears, the Colorado statute, in the same words as said article 3213, was taken. Proctor v. Railway, 64 Mo. 112. See, also, Dale v. Railway, 57 Kan. 601, 47 Pac. 521.

Consequently, it appears that even if this case should proceed upon the theory that La Londe was a fellow servant of the engineer of the train which inflicted the injuries in question, article 3213 would not be applicable, anywhere, even though said section 16 should be held to be not self-executing. Said New Mexico statute not being operative, proprio vigore, in this,state, there exists no principle of comity which requires or authorizes, here, an interpretation or application thereof which would render liability thereunder more extensive in this jurisdiction than in the courts of New Mexico. However, if La Londe was not such fellow servant, article 3213 would, it seems, have been applicable to the' facts had this suit been in New Mexico.

But, even if article 3213 should be held to be applicable to cases like this in New Mexico courts, its provisions are not applicable and should not be enforced in the courts of Texas, because: (a) Its provisions are so essentially different from those of our own laws on the subject, the former being, it seems, strictly penal, while the latter are compensatory, the amount of liability, if any, under article 3213 being in a fixed amount, but not so under our laws. Yernon’s Sayles’ Texas Civil 'Statutes, art. 4694 et seq.; Railway v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804; Dale v. Railway, 57 Kan. 601, 47 Pac. 521, in which said article 3213 was considered, (b) Said article 3213 is a penal statute. Railway v. McCormick, supra; Dale v. Railway, supra; Bank v. Price, 33 Md. 487, 3 Am. Rep. 204; Derrickson v. Smith, 27 N. J. Law, 166; Halsey v. McLean, 12 Allen (Mass.) 438, 90 Am. Dec. 157; Ogden v. Folliot, 3 Term R. 733; Scoville v. Canfield, 14 Johns. (N. Y.) 338, 7 Am. Dec. 467; State v. John, 5 Ham. O. 217; Lindsay v. Hill, 66 Me. 212, 22 Am. Rep. 564; Story’s Conf. of Laws, §§ 620, 621.

Upon the whole, each of said New Mexico statutes and section 16 of article 20 of the Constitution of that state being thus, in turn, eliminated from consideration, and no other provision of the Constitution or statutes of that "state having been pleaded, the laws of Texas should control this transitory action; and, no reversible error thereunder being shown, I concur in the order of this court overruling the motion of plaintiff in. error for a rehearing. I regret that press of other work has prevented me from giving this case more careful consideration and briefer and more satisfactory treatment.


source: Caselaw Access Project

author: YANTIS, J.

license: Public Domain

text:
    PIERCE et al. v. GIBSON et al.
    (No. 2454.)
    (Supreme Court of Texas.
    April 5, 1916.)
    1. Homestead <&wkey;56 — Poweb to Transfer— JoindeR or Wife.
    A husband, acting in good faith, may choose and select the homestead, or abandon one selected and acquire a new one, independently of the wishes of the wife, so, after her insanity, he may abandon the homestead.
    [Ed. Note. — For other cases, see Homestead,. Cent. Dig. §§ 81, 82; Dec. Dig. &wkey;>56.]

      2. Husband and Wife <&wkey;2T3(9) — Community PROPERTY — Insanity oe Wife — Conveyance by Husband — Validity.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. ■3594, declares that where the wife dies or becomes insane, the husband shall have the exclusive management, control, and disposition of the community property in the same manner as during- her lifetime and sanity, and it shall not he necessary that the wife join in conveyances thereof, subject, however, to the provisions of the chapter. The chapter of which the article is a part relates to the administration of community property, and its other articles provide that on death or insanity of the wife, the husband may give bond, and as survivor administer the community property. Meld, that the husband, as surviving member of the marital partnership, may, to pay community debts, sell community property without giving any bond.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. § 1020; Dec. Dig. &wkey;>273
    Error to Court of Civil Appeals of Eighth ■Supreme Judicial District.
    Action hy G. T. Gibson and others against P. P. Pierce and another. A judgment for defendant Pierce was reversed on error to the Court of Civil Appeals (146 S. W. 983), and defendant brings error.
    Reversed, and .judgment of district court affirmed.
    J. R. Stubblefield, of Eastland, for plaintiff in error. D. G. Hunt, of Eastland, and W. P. Sebastian, of Austin, for defendants in error.
   YANTIS, J.

This suit was instituted in the district court of Stephens county, Tex., by the defendants in error, who were plaintiffs below, against P. P. Pierce and R. Glass-cock, to recover 730 acres of land situated partially in Palo Pinto county and partially in Stephens county, Tex. In the district court Glasscock filed a disclaimer, and the trial proceeded .against Pierce. The case was submitted to the jury on special issues. The trial resulted in a judgment in the district court in favor of Pierce, who is plaintiff in error here, and against the plaintiffs in said suit in the district court. By them the case was appealed to the honorable Court of Civil Appeals for the Second District. The appeal was transferred to the honorable Court of Civil Appeals for the Eighth District, in which court the case was reversed and remanded as to Jane P. Pettit, wife of C. I. Pettit, the court holding that she was entitled to recover one-half of the land sued for. As to the other plaintiffs in the district court, and as to the remaining one-half interest in the land, the judgment of the district court was affirmed. A writ of error was granted by this court on the petition of P. P. Pierce, the plaintiff in error, on the .ground of a conflict between the opinion by the Court of Civil Appeals for the Eighth District in this case and the opinion of the Court of Civil Appeals for the Fifth District in the case of Shields v. Aultman, Miller & Co., 20 Tex. Civ. App. 345, 50 S. W. 219, in which ease a writ of error was denied by this court.

By the findings of the jury in answer to special issues the following facts were established : That C. I. Pettit was of sound mind when he executed the deed to Pierce and Glasscock in May, 1907, and at the time he executed the mortgage in February, 1907; that no part of the property in controversy constituted the homestead of C. I. Pettit at said time, or at thei time he executed the mortgage thereon in February, 1907, to secure a loan of §1,200; that C. I. Pettit acted in good faith at the time he executed the deed to Pierce and Glasscock in May, 1907, and at the time he executed the mortgage in February, 1907, and was not guilty of any fraudulent attempt to deprive his wife of the benefit of a homestead exemption in the property involved; that when C. I. Pettit abandoned his home in Stephens county, and acquired a new home in another county prior to May, 1907, he acted in good faith in so doing; that at the time Pierce and Glass-cock purchased the property from O. I. Pet-tit in May, 1907, there was a valid .and subsisting mortgage against such property in the amount of $1,200; that at the time Pierce and Glasscock purchased the property from Pettit in May, 1907, there were no other liens against the property; that the consideration paid by Pierce and Glasscock to O. I. Pettit for the land in controversy was the reasonable cash market value of such land at the time and place it was sold; that Pierce and Glasscock acted in good faith towards C. I. Pettit when they bought the land in controversy, and did not practice any fraud upon him.

The evidence shows that when C. I. Pettit sold the property in controversy in May, 1907, he paid out of its proceeds the $1,200 which he owed thereon, and which was a community debt.

The findings of fact by the Court of Civil Appeals is to the effect that the evidence was sufficient to sustain all the foregoing findings of fact by the jury, in answer to special issues.

It is contended by the defendants in error that the husband of an insane wife cannot convey by his deed alone the homestead, unless the proof should show that the insanity of the wife was incurable. The findings of the jury in this case were to the effect that none of the property in question was the homestead of Pettit at the time he conveyed the property to Pierce and Glass-cock. This finding of fact removes from the ease the proposition of law contended for, and renders it unnecessary for us to consider the question of law as to th'e effect of a husband’s deed of conveyance of the homestead while the wife is insane, since in this case there was no homestead at the time of sale. The property in question was the homestead of O. I. Pettit and Ms wife, Jane, for many years. In January, 1901, the wife was adjudged insane, and was sent to a lunatic asylum, where she remained until during the trial of this case, when she appears to have been released, and to have attended the trial, though she did not testify as a witness, and there is ho evidence showing either that she had or had not been restored to a sane condition. O. I. Pettit and Ms cMldren continued to occupy the land as a homestead for about four years subsequent to the insaMty of his wife. Having contracted tuberculosis, he moved to San Antonio, where he acquired another home, which he occupied for about one year. Later, in 1906, he acquired another home, and occupied it as such, in Guadalupe county, for about one year. He mortgaged the property in controversy in February, 1907, for $1,200. On May 16, 1907, he conveyed it to P. P. Pierce and R. Glasscock for a cash consideration of $4,357.50. Later Glasscock conveyed Ms interest in the land to Pierce. The homestead in Stephens county ceased to be such when it was abandoned by O. I. Pettit with the intention of making his home in south Texas, in th'e interest of his health. His abandonment of the homestead being in good faith, as found by the jury, it was his right and privilege in law to so abandon it and establish another home. The husband has a legal right, while acting in good faith, to abandon the homestead and acquire a new one without the consent of Ms wife. The fact that she was insane and unable to give her consent would not defeat this right on his part, since her consent to the abandonment of a homestead, and th'e acquiring of a new one, is not necessary. The fact that she became insane, and could not give her consent, would in no way alter the situation, or destroy his rights in this respect. Shields v. Aultman, Miller & Co., 20 Tex. Civ. App. 345, 50 S. W. 219.

The honorable Court of Civil Appeals rested its holding in reversing the case as to one-half th'e property, on the proposition that C. I. Pettit’s deed to Pierce and Glasscock, in so far as it attempted to convey the wife’s one-half interest in said commuMty property, was void, for the reason that he could not convey her one-half interest in the community property without qualifying, which he had not done, as survivor, and making a sur-vivorship bond, under article 3594, ch. 29, tit. 52, Vernon’s Sayles’ Texas Civil Statutes, which is as follows:

“Where the wife dies or becomes insane, leaving a surviving husband and child, or children, the husband shall have the exclusive management, control and disposition of the community property in the same manner as during her lifetime, or sanity; and it shall not be necessary that the insane wife shall join in conveyances of such property, or her privy examination and acknowledgment be taken to such conveyances, subject, however, to the provisions of this chapter.”

We do not think this article of the statutes-in any way abridged the right of the husband to sell the property for the purpose of liquidating community debts, though the-other provisions in said chapter make provision for community administration and survivorship bond. It was all community property, and was charged with the payment of the community debts- It has been held by this court, in a long and unbroken line of decisions, that the husband upon the death of Ms wife may, without administration upon her estate, sell the community property to pay community debts. Ashe v. Yungst, 65 Tex. 631; Sanger Bros. v. Heirs of Moody, 60 Tex. 96; Fagan v. McWhirter, 71 Tex. 567, 9 S. W. 677; Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56 L. R. A. 585.

We hold that the rule should be the same where the wife is not dead but insane. It has never been doubted that, during the life of the wife, the husband could sell any community property except the homestead, for the purpose of liquidating commuMty debts. They are a charge upon the partnership property of a husband and wife as much as are the debts of any other partnership a charge upon the partnership property. The survivor of the partnership is charged with the duty of paying the partnership debts, and it is his right to dispose of partnership property for such purpose. So it has been held unnecessary, when the wife dies leaving commuMty property, and commuMty debts, for the surviving husband to cause administration to be had, or to qualify as survivor by giving the bond provided for in article 3598, eh. 29, tit. 52, Vernon’s Sayles’ Civil Statutes, in order to dispose of the community property for the purpose of settling the commuMty debts. We think that C. I. Pettit was not deprived of this right because of the insaMty of Ms wife. It is true, as held by the Court of Civil Appeals in its opinion in this case, that when the case of Shields v. Aultman, Miller & Co., 20 Tex. Civ. App. 345, 50 S. W. 219, was decided, article 3594, Vernon’s Sayles’ Civil Statutes, did not contain any provision for a surviving husband, when the wife became insane, to qualify as a survivor under said chapter. At that time, the chapter in question authorized com-muMty administration as it does now, but it only provided for instances where the wife-had died, leaving a surviving husband and child. The change in the chapter was made-by amendment in 1893 so as to allow the husband, when the wife became insane, to qualify by giving bond as a survivor on the same-basis that said chapter had previously permitted survivorship administration in favor of the husband where the wife had died. But we tMnk the rule is the same.

Prior to this amendment it had been held by tMs court in many cases that the statute authorizing survivorship administration in case of the death of the wife was not an abridgement Of the right of the surviving Husband to sell community property for the purpose of paying community debts without malting the bond and complying with the survivorship statute. This statute, authorizing survivorship administration in case of death of the wife, with the omission of the insanity clause, had existed since 1856, but notwithstanding its existence in full force, this court repeatedly construed it as not being restrictive of the rights of the survivor, but merely to be an enlargement of his privileges existing at the time of its passage; and it was held that it was not mandatory upon the survivor to qualify under chapter 29, tit. 52, Vernon's Sayles’ Statutes, as survivor in order to • authorize the survivor to sell community property with which to pay the community debts. In passing upon this question this court, speaking through Mr. Justice Ireland, in the case of Dawson v. Holt, 44 Tex. 178, said:

“It is contended that the latter clause of the law as quoted is to be construed literally and strictly, and that the authority of the husband to sell did not attach until after the probate court had ‘recorded’ the inventory and appraisement. It must be borne in mind that the surviving husband had the right td sell the community property to pay debts against the community, after the death of the wife, without the aid of this statute. Jones v. Jones, 15 Tex. 147. It was clearly not the intention of the Legislature to throw restrictions around the survivor in such cases, but to enlarge their powers.”

Again this court, speaking through Mr. Justice •Stayton, in the case of Sanger Bros. v. Heirs of Moody, 60 Tex. 98, says:

“It is claimed that, as community indebtedness was shown to exist at the time the land was sold by Louis Moody to Birge, the sale should he held valid. Under the repeated decisions of this court, it must be held as conclusively settled that the survivor of the marital relation, without administration upon the estate of the •deceased member in any of the modes expressly provided by statute, has power as survivor to sell the community property for the purpose of paying debts which are a charge upon it, and by law such property is charged with the payment of debts contracted during the marriage. Pasch. Dig. 4646. It has been properly held that the act of 1856 did not withdraw such power from the survivor, but that the act was intended to enlarge the powers of the survivor. Wenar v. Stenzel, 48 Tex. 489; Dawson v. Holt, 44 Tex. 178; Lumpkin v. Murrell, 46 Tex. 58.”

There are many other decisions to the same effect, and holding that the survivor-ship statute did not deprive the surviving husband of the power to sell community property and with the proceeds to discharge community debts. Jones v. Jones, 15 Tex. 147; Dawson v. Holt, 44 Tex. 174; Lumpkin v. Murrell, 46 Tex. 51.

We think the rule is the same since the amendment of the statute authorizing the husband, in case of his wife’s insanity, to qualify as survivor. The statute as so amended must be held to be an enlargement of the rights of the survivor of an insane spouse, and not an abridgment thereof. Prior to this amendment it was the undoubted right of the husband of an insane wife to sell community property for the purpose of paying community debts, and we think he still has such right, and that he need not qualify under the survivorship statute in order to exercise it. The rule as to selling community property, with the proceeds of which to pay community debts, should be the same now, where the wife becomes insane, as it was prior to this amendment, in cases where the wife had died. We think the Court of Civil Appeals was in error in holding that Pettit’s deed was void because he had not qualified as survivor under chapter 28, tit. 52, Vernon’s Sayles’ Civil Statutes. We think the deed was valid, and conveyed all the land in controversy to Pierce and Glasscock.

We have examined the other questions presented by the defendants in error, and do not think any of them presents error.

It follows that the judgment of the Court of Civil Appeals should be reversed and the judgment of the district court should, in all things, be affirmed: and it is so ordered.
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author: HARPER, J.

text:
    HOWARD v. STATE.
    (No. 3985.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.)
    1. Cbiminal Law &wkey;>1144(6) — Appeal — Scope op Review — Presumptions—Change op Venue.
    In the absence of record showing to the contrary, it must be presumed that evidence introduced on application for change of venue, tending to show prejudice against the defendant, was wholly insufficient where the court overruled the motion, and the order cannot be reviewed by the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2740, 2757, 2901, 3021; Dec. Dig. &wkey;>1144(6).]
    2. Criminal Law <&wkey;134(2) — Change op Venue — Affidavits—Supfioiency.
    Where on hearing on the first application for change of venue the evidence disclosed that one of the two compurgators was wholly incredible under oath, it could not be said that overruling the second application for change on affidavits of the same persons was error, since Code Cr. Proc. 1911, art. 628, requires the application to be supported by the affidavit of the defendant and at least two credible persons.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 243, 251; Dec. Dig. <&wkey;>134 (2).]
    3. Criminal Law &wkey;>137 — Change op Venue —H e arin g — Denial.
    While the court must have before it the evidence to show that a compurgator making affidavit for change of venue was wholly incredible, it is sufficient if that evidence was adduced on a former hearing for a change of venue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 253; Dec. Dig. @=»137.]
    4. Criminal Law <&wkey;122 — Change op Venue —Second Application — Propriety.
    One seeking a change of venue should present, where possible, all of Ms grounds therefor in one application, although a second application cannot be denied where the evidence adduced on tie hearing of the first showed probable grounds for the second.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 254; Dec. Dig. &wkey;?122.]
    5. Ceiminal Law 622(1) — Triai^Severance —Duty of Court.
    Under Code Or. Proc. 1911, art. 727, where two defendants accused of the same crime each filed motions that the other be first tried, it is the duty of the court to order the trial of one to precede the other.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1380, 1382; Dec. Dig. &wkey;> 622(1).]
    6. Criminal Law &wkey;>364(6) — Evidence—Admissibility — Res Gestee.
    A statement made by one accused of burglary while imprisoned more than a month after the offense charged is not a part of the res gestee. „
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808, 817; Dec. Dig. <&wkey;> 364(6).]
    7. Criminal Law &wkey;>426 — Evidence—Admissibility.
    While the accused may show that another committed the offense charged, he cannot produce statements of a codefondant made to other persons showing that he was innocent, since Code Cr. Proc. 1911, art. 791, specifically declares that persons charged as principals cannot be introduced as witnesses one for another.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1011; Dec. Dig. &wkey;>426.]
    8.- Criminal Law <®=^721(3) — Conduct of Trial — Remarks of Attorneys — Comment on Failure of Accused to Testify.
    A remark of the prosecuting attorney, in a prosecution for burglary, that the accused on liis arrest failed to explain his possession of stolen goods, is not a comment on his failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. &wkey;721(3).]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Fletcher Howard was convicted of burglary, and he appeals.
    Affirmed.
    McCutcheon & Church, of Dallas, for appellant C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

This is the second appeal of this case, the opinion on the former appeal being reported in 178 S. W. 508.

Appellant again contends that as the indictment was returned into the criminal district court No. 1 of Dallas county, the criminal district court No. 2 had no authority or jurisdiction to try the cause. The order transferring the cause is contained in the transcript, and, as this question was ruled on in the former opinion, we do not deem it necessary to discuss it again.

He again presents the motion to quash the indictment on the same grounds as those relied on in the former opinion. We have not changed our views of the law, and the court did not err in overruling the motion.

When the case was called for trial, appellant requested time to prepare and file a motion for change of venue. The court granted from 9 a. m. until 2 p. m. When the court convened in the afternoon, appellant presented an application for a change of venue on the ground:

“That there exists against him so great a-prejudice he cannot obtain a fair and impartial trial in Dallas county.”

This application was contested by the-state by sworn plea, and the court heard evidence on the application. After all the evidence was heard, the court overruled the application. The evidence heard on this application is not contained.in the bill, nor in-the record. Therefore we must conclude that the -evidence wholly failed to sustain the application. We cannot review the action of the court in the absence of the testimony heard.

As soon as the court overruled this application for a change of venue, appellant’s counsel stated he desired to present a second application, on the ground:

“That there was a dangerous combination against him instigated by influential persons by reason of which he could not obtain a fair trial.”

When this second application for a change of venue was presented, the court upon learning that it had been prepared at the same time as the first application, and signed by the same witnesses, and not presented at that time, but held out until the evidence on the first application had been heard and ruled on, refused to entertain the second application, alleging as reasons for refusing to do so:

“First, that after hearing the evidence on the first application he found that there did not exist in Dallas county such prejudice against the defendant as would prohibit him from obtaining a fair and impartial trial; second, that one of the compurgators, a negro by the name of Bert Morrow, was not a credible person and was totally unworthy of belief under oath.”

If the evidence on hearing the first application for a change of venue had shown the court that one of the compurgators, Bert Morrow, who signed both applications, was not a credible person and wholly unworthy of belief, we cannot say he erred in hot entertaining the second application. The statute requires (article 628) that the application must be supported by the affidavit of the defendant, and at least two credible persons, and it has been frequently held by this court that the application, which is supported by the affidavit of one credible person, is insufficient to present an issue for trial. O’Neal v. State, 14 Tex. App. 582;. Macklin v. State, 53 Tex. Cr. R. 197, 109 S. W. 145; Gibson v. State, 53 Tex. Cr. R. 349,. 110 S. W. 41.

In the O’Neal Case, supra, this court said:

“There was no error in the action of the court in striking out and refusing to consider the defendant’s application for a change of venue, tecause the application did not conform to the requirements of the statute. It was supported by the affidavit of but one other person than the defendant, whereas the statute requires the supporting affidavits of ‘at least two credible persons, residents of the county where the prosecution is instituted.’ * * * Where the statute is not fully complied with in an application for a change of venue, the application is fatally defective, and the court is under no obligation to consider it. Mitchell v. State, 43 Tex. 512.”

Of course, the court without evidence and without a contest would not be authorized to hold that a witness was not a ■credible person, but in this case the court had heard evidence on the application presented under the first subdivision of article 628, and, having heard it and ruled on it, he would be authorized to hold, upon presenting the second application, the compurgators being the same, that they or either one of them were not credible persons, if the evidence on the first application had so shown.

We do not wish to be understood as holding that a person cannot file a second application, if the evidence on the first application, based only on one ground of the statute, should disclose probable grounds for believing that grounds existed for filing an application under the second subdivision, or the appellant had learned such facts since filing the first application. The statute authorizes a change of venue upon either of the grounds. But we would say that the proper practice is to present both grounds in one application, if appellant is in possession of information at the time he files the first application that he has reason to believe that both grounds exist, and he should not, if in possession of the information, delay the orderly proceedings of the court by splitting the matter into two applications, one to be filed after the first has been heard and ruled on. However, this is a matter of procedure, and one should be denied no right the statute gives him, if he presents the matter properly to the court, and we only hold in this case that under the findings of the court on the evidence heard by him, which is not presented to us in the record before us, the court committed no error in refusing to hear the second application when it was signed but by one credible witness.

Appellant and one Dave Johnson were both indicted, charged with burglarizing a railroad car. Appellant filed an application ■that Dave Johnson be tried first. Dave Johnson, through his attorney, also filed an application, asking that appellant be first •tried. Article 727 of the Procedure provides for severance, and provides in the event the two defendants make such affidavits and cannot agree as to the order of trial, then the presiding judge shall direct the order in •which they shall be tried. As both defendants filed affidavits asking that the other be first tried, it became the duty of the court to designate the one to be first tried.

Dave Johnson, appellant’s codefendant, did not testify on this trial. By the bills .on file it appears that he has made conflicting affidavits, in one affidavit stating facts which would tend to exonerate appellant and show he was not guilty of the offense charged. Appellant offered to introduce this affidavit in evidence, and prove by Noah Roark what Dave Johnson had told him while confined in jail. This was not res gestse of the offense — the offense having been committed in November, 1914, while the affidavit made by Dave Johnson, which appellant called Mr. Roark to testify in regard to, was made about a month thereafter while Dave Johnson was in jail, charged jointly with appellant with having committed this burglary. While, since the rendition of the opinion in Dubose v. State, 10 Tex. App. 230, it is permissible for the person on trial to show that another committed the .offense with which he is charged by legal and competent testimony, yet this does not give one the right to introduce illegal and inadmissible testimony which might tend to show that fact. Article 791 of the Procedure specifically declares that persons charged as principals, whether in the same or different indictments, cannot be introduced as witnesses for one another, and in passing on this statute Judge White, in Long v. State, 10 Tex. App. 197, holds:

“If he cannot testify in person, how can he state facts to others and thereby enable them to testify to matters wholly derived from him? To permit this would be to abrogate the law. * * * No fact stated by or derived from him can, so long as the disability remains, be detailed as testimony by another or used as evidence.”

See, also, Smith v. State, 41 Tex. 354; Blain v. State, 24 Tex. App. 636, 7 S. W. 239; Wyres v. State, 74 Tex. Cr. R. 28, 166 S. W. 1150, and cases cited.

In another bill of exceptions appellant contends the prosecuting officer in his argument made an indirect reference to appellant’s failure to testify. The bill as approved by the court shows this clearly not to have been the case. Appellant’s counsel referred to instances when persons charged with crime had made explanations. Counsel for the state merely stated, in replying, that appellant when arrested, charged with this offense, made no explanation of the fact that he was helping to move the stolen property when arrested. This would not be a reference to his failure to testify.

This disposes of all the questions presented in the brief on file. While there are other bills in the record, yet they relate to matters which were passed on in the former appeal of this case, and we see no necessity to pass on them again, but merely refer to that opinion, 178 S. W. 508.

The judgment is affirmed.

DAVIDSON, J., absent.
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author: DAVIDSON, J.

text:
    CARROLL v. STATE.
    (No. 3990.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.
    _Rehearing Denied April 5, 1916.)
    1. Cbiminal Law &wkey;>1099(7) — Appeal — Statement oe Facts — Time fob Filins.
    A statement of facts in the county court must be filed within 20 days after the adjournment of court, and must be preceded by an order entered of record for that purpose, and hence a statement filed 26 days or more after adjournment would not be considered, notwithstanding an order entered of record allowing 80 days after adjournment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2876, 2878-2880; Dec. Dig. &wkey;1099(7).]
    2. Indictment and Infokmation <&wkey;110(3)— Language of Statute — Sufficiency.
    An indictment under the statute prohibiting the catching of fish, except by hook and line, etc., and nets under certain circumstances, the meshes of which shall be three inches or more, except as to a trammel net, in which they must be four inches, alleging those matters in the terms of the statute and showing that defendant caught fish in nets prohibited thereby, was sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 291-294; Dec. Dig. &wkey;110(3).]
    3. Fish <&wkey;S — Protection—Jurisdiction of State.
    Under the statute prohibiting the catching of fish, except by hook and line, etc., and prohibiting certain nets, and in the absence of any such limitation in the statute or in any act of Congress, the jurisdiction of the state extended to the catching of fish in the Red river, the boundary line between Texas and Oklahoma.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. § 16; Dec. Dig. <&wkey;8.]
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    J. R. Carroll was convicted of catching fish in violation of the game law, and he appeals.
    Affirmed.
    J. H. Randell, of Denison, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of catching fish in violation of the game law; his punishment being assessed at a fine of 825.

There are no bills of exception or statement of facts contained in the record. There is what purports to be a statement of facts, but it was filed more than 20 days after the adjournment of court. Under quite a number of decisions in Texas a statement of facts in the county court must be filed within 20 days after the adjournment of court, and this must be preceded by an order entered of record for that purpose. There is an order entered in this record allowing 30 days, and the statement of facts was filed 26 or 27 days after court adjourned, but that document should have been filed before the expiration of the 20 days under an unbroken line of authorities. Therefore questions incidental to the statement of facts cannot be considered.

Motion to quash as well as motion in arrest of judgment were urged against the pleading. We are of opinion that the trial court did not err in overruling these matters. The statute under which appellant was indicted prohibits the catching of fish except by hook and line, trot line, etc., and nets under certain circumstances, but the meshes of the nets must be above a specified size, that is, three inches or above, unless it is a trammel net, in which instance it must be four inches. The information and complaint sufficiently allege these matters in the terms of the statute, and show that appellant caught fish in nets prohibited by statute.

There is another question presented, to wit; That, appellant having caught the fish in Red river, it was beyond the jurisdiction of Texas. We do not agree with appellant on this question. Red river is a boundary line between Texas and Oklahoma, and, while it might be under the federal jurisdiction as to some matters, it still is within the jurisdiction of Texas as to a violation of her game laws. We are cited to no authority that would limit Texas to go beyond the edge of the water on the south bank of the river in enforcing its law. There is none in the Texas statute that we have been able to find that would justify that conclusion, nor has any been called to our attention in the acts of Congress. In some respects fresh-water streams which may be navigable can be or may be under the jurisdiction of Congress, but that does not apply to this statute. We think the jurisdiction of Texas fully reached and covered the territory in which this fishing occurred.

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


text:
    PETTIGREW v. STATE.
    (No. 4005.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    1. Okiminal Law <&wkey;1102 — Statement of Facts — Time of Filing.
    Where accused was convicted in county court at a term lasting more than 8 weeks, the statement of facts, which was not filed within 90 days after the motion for new trial was overruled and sentence pronounced, must be stricken, not being filed within time.
    [Ed. Note. — For other cases, see Criminal Law, Dee. Dig. &wkey;>1102.]
    2. Cbiminal Law <&wkey;1092(7) — Appeal — Bills of Exception.
    Where accused was convicted at a term of county court lasting more than 8 weeks, bills of exception not filed within 90 days after overruling motion for new trial and sentence cannot be considered.
    ' [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2850, 2852-2854; Dec. Dig. &wkey;1092(7)J
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Charley Pettigrew was convicted of pursue ing the occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory.

The term of court at which he was tried lasted more than eight weeks, the term covering a period of three months. The motion for a new trial was overruled November 19, 1915, and sentence pronounced on appellant that day. The statement of facts was not filed in the trial court until February 24, 1916, more than ninety days after the motion for a new trial was overruled and sentence pronounced, and therefore not filed within the time authorized by law. The motion of the Assistant Attorney General to strike it from the record is therefore sustained.

The bills of exception were not filed until one day later, or February 25, 1916, and the motion to strike them from the record must also be sustained.

The contention is again made that the indictment is insufficient because it does not negative the exceptions contained in the statutes. This question was thoroughly diseussed in Slack v. State, 61 Tex. Cr. R. 373, 136 S. W. 1073, Ann. Cas. 1913B, 112, and we do not deem it necessary to again review the authorities. There was no error in overruling the motion to quash the indictment.

While the bills of exception have been stricken out on the motion of the Assistant Attorney General, yet we have read each of them, and they, nor either of them, would present error had they been filed within the time fixed by law.

The judgment is affirmed.
      &wkey;oFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PRENDElRGAST, P. J.

text:
    MILLS v. STATE.
    (No. 4014.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    Rape <&wkey;59(l) — Instructions — Reasonabi.e . Doubt.
    On a charge of rape upon a girl under 15 years of age, where there was testimony that she was more'than 15 years of age, though the court required the jury to believe beyond a reasonable doubt the necessary facts to find defendant guilty, and that the girl was under 15 years of age, the failure to charge conversely that, if the jury believed she was more than 15 years of age, or had a reasonable doubt of it, they should acquit was reversible error.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 88; Dec. Dig. &wkey;59(l).]
    Appeal from District Court, Kerr County; R. H. Rumey, Judge.
    Jake Mills was convicted of rape, and appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDElRGAST, P. J.

Appellant was convicted of rape. The indictment was in two counts — one that the act was committed by force, etc.; the other that the girl was under 15 years of age. The court submitted both counts for a finding. The jury convicted him under the count charging that the girl was under 15 years of age.

We will not discuss the testimony, except to say that it was in direct conflict, the girl testifying to the act, and the appellant as positively denying it In addition, the appellant introduced much testimony in direct contradiction of the girl as to her testimony in other respects. Several questions are raised, but we deem it unnecessary to pass upon but one. Some or all of the others, doubtless, will not arise on another trial.

The court, in submitting the ease to the jury for a finding on the count on which appellant was convicted, affirmatively required the jury to believe beyond a reasonable doubt the necessary facts from the evidence in order to find him guilty, and that the girl was under 15 years of age at the time. The appellant contested the age of the girl, and there was testimony tending to show that she was more than 15 years of age at the time of the act, if there was an act, of sexual intercourse. The appellant objected to this part of the court’s charge, in effect, among other things, because it did not affirmatively submit in his behalf the converse of the court’s charge; that is, it did not tell the jury that if they believed she was more than 15 years of age at the time, or if they had a reasonable doubt of it, to acquit him.

Under the circumstances of this case we believe that the court should have so charged in appellant’s favor, and that his failure to do so presents reversible error, and for this error the judgment is reversed, and the cause ■remanded.


author: PRENDERGAST, P. J.

text:
    WELLS v. STATE.
    (No. 4008.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    Cbiminal Daw <&wkey;1090(l) — Statement op Facts and Bill op Exceptions — Necessity.
    In the absence of statement of facts or bill of exceptions, no question is raised for review on appeal in a criminal case.
    [Ed. Note. — For other oases, see Criminal Law, Cent. Dig. §§ 2653, 2805-2807, 2825-2827, 3204; Dec. Dig. &wkey;1090(l).]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Robert Wells was convicted of robbery, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction of robbery, without a statement of facts or a bill of exceptions. In the absence of these, no question is raised, which can be reviewed.

The judgment is affirmed.
      <®ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CURRY v. STATE.
    (No. 4009.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    Criminal Raw <&wkey;1090(16) — Appeai>-Neces-sity of Statement of Pacts and Bill of Exceptions.
    Questions raised in a motion for a new trial cannot be reviewed where the record contains no statement of facts or bills of exceptions.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2322, 2948, 3204; Dec. Dig. &wkey;1090(16).]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    John Curry was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

No statement of facts accompanies the record; neither does it contain any bills of exception. Under such circumstances there is no question raised in the motion for a new trial we can review.

The judgment is affirmed.


text:
    BARNES v. STATE.
    (No. 4017.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.)
    Intoxicating Liquors <&wkey;205(2) — Indictment — Charge of Pelony.
    An indictment for selling intoxicating liquors, merely charging that the local option law. had been adopted prior to the presentment of the indictment, giving' no date, and alleging a sale subsequent to the enactment of the felony statute of 1911 (Pen. Code 1911, art. 597), providing that, if the local option election was held prior to the passage of the act, an illegal sale of liquors shall be a misdemeanor, but that, if the election was held after the passage of the act, the offense shall be a felony, presented on its face a felony charge.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. &wkey;> 205(2).]
    Appeal from Young County Court; W. P. Stinson, Judge.
    C'leve Barnes was convicted of selling intoxicating liquors, and he appeals.
    Judgment reversed, and cause remanded.
    See, also, 184 S. W. 510.
    Brooks & Worsham, of Dallas, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an indictment charging him with on or. about the 30th day of December, 1913, selling to Gran Glenn intoxicating liquors, and his punishment assessed at imprisonment in the county jail for 60 days and a fine of $100.

Appellant moved to quash the indictment because the date was not alleged in the indictment when the local option election was held, on the ground that under the allegations contained in the indictment the county court had no jurisdiction of the offense. The indictment alleged the sale to have been made on December 30, 1913, and nowhere alleges when the election was held in Young county. By an act of the Legislature passed in 1911 (Pen. Code 1911, art. 597) it is provided that, if the election was held prior to the passage of that act, the offense would be a misdemeanor; if the election was held after the passage of that act, the offense would be a felony. We had this question before this court in Head v. State, 64 Tex. Cr. R. 112, 141 S. W. 536, Hamilton v. State, 65 Tex. Cr. R. 508, 145 S. W. 348, and other cases, in which it was held that an indictment merely alleging that the local option law had been adopted prior to the presentment of the indictment, giving no date and alleging a sale subsequent to the enactment of the felony statute, presented on its face a felony charge.

The judgment is reversed, and the cause remanded.

DAVIDSON, J., absent


text:
    BARNES v. STATE.
    (No. 4016.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.)
    Appeal from Young County Court; W. P. Stinson, Judge.
    Cleve Barnes was convicted of selling intoxicating liquors, and he apppeals.
    Judgment reversed, and cause remanded.
    Brooks & Worsham, of Dallas, for appellant. C. C. McDonald, Asst'. Atty. Gen., for the State.
   HARPER, J.

This is a companion case to cause No. 4017, Clove Barnes v. State, infra, this day decided. It is unnecessary to discuss the questions in this ease.

On the authority of the opinion in the above-styled cause, this judgment is reversed, and the cause remanded.

DAVIDSON, J., absent.


text:
    DAVIS v. STATE.
    (No. 4027.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    1. Disorderly House &wkey;>16 — Admissibility of Evidence — Refutation.
    In a prosecution for aiding the keeping of a house of prostitution, testimony of a witness that the house had had a reputation as such for a long time before and after defendant began working there is admissible, though the witness could not limit his knowledge as to the reputation to the time after the defendant began working there.
    [Ed. Note. — For other eases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. <§= 16.]
    2.Disorderly House <©=317 — Sufficiency of Evidence.
    In a prosecution for aiding in keeping a house of prostitution, evidence held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 26-29; Dec. Dig. <©=17.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    E. C. Davis was convicted of aiding the keeping of a house of prostitution, and he appeals.
    Affirmed.
    Ralph P. Mathis and W. Lindsay Bibb, both of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an information charging him with aiding, assisting, and abetting the keeping of a house of prostitution and a house where prostitutes were permitted to resort and reside.

Appellant objected to Ed Carnes being permitted to testify that the house with which he was charged with aiding and abetting the keeping had the reputation of being a disorderly house at the time he was acting as night clerk of the Royal hotel, and had that reputation before appellant began working there. The objection was directed at that portion of the testimony in which he said:

“I could not limit my knowledge of the reputation of this house as just since the defendant began working. It has been disorderly for a long time.”

As the testimony shows the reputation of the house was disorderly when appellant began working there, and so continued all the time he was connected with it, the bill presents no reversible error. •

The court did not err in refusing to give peremptory instructions to acquit, as we think the testimony would justify a conviction. The reputation of the house was shown to be a house where prostitutes resorted and resided. Harrold Buster testified that the reputation of the three women he saw at this hotel was bad; that they were common prostitutes; that he had seen at least one of them in the reservation at Lillian Hall’s. Lewis Scott testified he was porter at the Royal Hotel, and that appellant told him, “if I found any one that wanted a woman up there, to send them to him.” Ed Carnes testified that he secured a room at this hotel, and said to the porter, Lewis Scott, that he was going down to the reservation to see the girls, when the porter replied, “Boss,,we have got any kind of girls you want at the hotel.” The porter took him to his room, and in tfbout 20 minutes a girl opened the door and came in.

The judgment is affirmed.
      ÉrojFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    KROWER v. MARTIN.
    (No. 5676.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 8, 1916.
    Rehearing Denied March 29, 1916.)
    1. Fraudulent Conveyances <©=47 — Bulk Sales Law — “Usual Course of Trade.”
    A sale by one formerly in the jewelry business who at the time of the sale had withdrawn therefrom, and who had mortgaged the goods sold and segregated them from his stock and trade, was not a sale in the “usual course of trade.”
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. <©=47.]
    2. Chattel Mortgages <©=186 — Stocks in Trade — Validity.
    Vernon’s Say les’ Ann. Civ. St. 1914, art. 3970, making void mortgages on stocks of goods exposed to daily sale where possession is retained by the mortgagor, docs not apply where the goods mortgaged are segregated from the' stock and possession delivered to the mortgagees, since a mortgage on such a stock was not void at common law.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 368; Dec. Dig. <©=186.]
    3. FRAirbuLENT Conveyances <©=47 — Bulk Sales Law — When Applicable.
    Where goods, having been segregated from, the main stock, are mortgaged and possession delivered to the mortgagees, the Bulk Sales Law (Acts 31st Leg. c. 27; Arernon’s Sayles’ Ann. Civ. St. 1Ó14, art. 3971), does not apply.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. <&un47.]
    4. Fraudulent Conveyances <©=47 — Bulk Sales Law — 'When Applicable.
    The Bulk Sales Law does not apply to a sale of goods segregated from a stock in trade by the owner who was formerly a merchant, but who at the time of a sale was a farmer.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. <©= 47.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Leonard Krower against S. J. Martin for au injunction. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Hertzberg, Barrett & Kercheville, of San Antonio, for appellant. Solon Stewart, of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   CARL, J.

Appellant on December 4, 1915, made application for a writ of garnishment against appellee, which set forth, among other things, that on November 6, 1915, the plaintiff had filed suit against A. Levytansky for debt in the sum of $2,500, and interest, which debt was evidenced by a note dated September 25, 1914, and in answer to the writ of garnishment served on him appellee denied that he owed Levytansky anything, or that he had any effects in his hands belonging to him, and prayed that he be discharged, with his attorney’s fees, etc. Thereupon appellant applied to the court, on December 8, 1915, for an injunction, and, as a basis for such injunction, alleged that appellee had in his possession goods, wares, and merchandise that he had purchased from said Levytansky in bulk, especially a lot of jewelry and money, that appellee purchased about $11,000 worth of jewelry from Levytansky, which he still had, and that the “Bulk Sales Law” had not been complied with. It was alleged that Levytansky was a merchant and came within the provisions of the Bulk Sales Law, and did not give ten days’ notice before making said sale. It was alleged that such sale was in fraud of Levytansky’s creditors, and that Levytansky was insolvent, and it was also alleged that appellee was insolvent, and that appellant was without an adequate remedy at law. An injunction was prayed for restraining Martin from disposing of the merchandise, etc.

Appellee answered, admitting that he purchased a lot of jewelry from Levytansky about September 11, 1915, for which he paid Levytansky $11,500, the fair market value of the same, but denied that he purchased same in bulk, or that the same was a bulk sale. It was denied that Levytansky was a merchant; that it was not necessary to give any notice of the sale, because he was not then a merchant. It was also denied that appellee was insolvent.

The court heard evidence and denied the injunction on the ground that the merchandise bought by appellee had been segregated from the stock of merchandise by Levytan-sky, and had been mortgaged to various banks and individuals by the said Levytan-sky ; that thereafter, while the stock was in the possession of the banks and individuals, Levytansky negotiated the sale to Martin, and with the money received Levytansky acquired possession of the stock and delivered it to appellee. The court found that the mortgaging of said stock and delivering possession to the mortgagees caused it no longer to be a part of the original stock of merchandise, and did not come within the provisions of the Bulk Sales Law, and that therefore the title to said goods had passed to appel-lee. From the refusal of that injunction this appeal is prosecuted.

The' agreed statement of facts shows that prior to March, 1915, A. Levytansky was a jewelry merchant in San Antonio, but in March, 1915, he closed his place of business and took the stock of goods which hé had left and sold it to one T. L. Griffith, except certain parts of the stock, including diamonds which he had previously mortgaged or pledged to the Citizens’ Bank & Trust Company, Dwight Potter, a party in New Orleans, Gus Kray, S. J. Martin, and others, to secure the payment of borrowed money; the amounts so borrowed aggregating about $10,-000. The possession of the goods mortgaged was delivered to these mortgagees at the times the various loans were obtained, and these goods never again became a part of the stock of goods from which they wore taken and were never exposed to sale. They remained with the mortgagees until appellee received them. On September 11, 1915, Martin bought all of the jewelry so pledged from Levytansky, and paid him therefor the. sum of $11,500. Martin paid the wholesale price for this jewelry; the tags showing the retail price aggregated about $45,000. Martin paid Levytansky in checks, and out of the money received Levytansky paid off the mortgages against the property, and the possession of the goods was delivered to Martin, who since has sold about 60 per cent, of it for $8,500. These sales were made by Levytansky, and after Martin receives his $11,500 back his agreement is that Levytansky is to have one-half of all over that sum for his services in selling the goods. Martin has never been in the jewelry business, and has no expert knowledge of diamonds, and is engaged in farming and real estate business.

The sale by Levytansky to Martin was not in the usual course of trade, for at the time Levytansky was not engaged as a merchant in the jewelry business or any other kind of mercantile business, he having gone out of business in March, 1915, and Martin did not demand and receive a list of Levytansky’s creditors, showing their addresses and the amounts due each, etc., as required by the Bulk Sales Law, and ten days’ notice was not given them. All of his creditors did not share in the proceeds of this sale to Martin. Levytansky was financially insolvent at the time, and Martin was at the time one of his creditors, and at the time this suit was filed Levytansky was insolvent.

Levytansky’s store was closed on Commerce street in 1914, and later he opened a store on Alamo Plaza for a few months, and after closing that he opened an office in the State Bank & Trust Company building, where he offered for sale the remaining portions of stock until March, 1915, when he finally sold or disposed of the remainder of the stock to others than Martin, and went to farming, and was not in the mercantile business when Martin bought. Between March and September, 1915, Levytansky made efforts to sell the jewelry which was up as collateral for these loans, but did not go into the jewelry business after March, 1915.

Under article 3970, Yernon’s Sayles’ Civil Statutes, a mortgage on a stock of merchandise exposed to daily sale, and where the mortgagor retains possession, is deemed fraudulent and is made void. This dates back to Acts 1879, p. 60, and it has been held that this statute applies to a part of a stock as well as to the whole. B. F. Avery Sons v. Waples, 19 Tex. Civ. App. 672, 49 S. W. 153. A mortgage on the stock, however, was not void at common law, but was only made so by virtue of the statute which says that such sale shall be void where the mortgagor retains possession and the goods remain exposed to daily sale. So it would not apply to a case like this, where the goods were segregated and possession delivered to the mortgagees.

These goods, having been segregated from the main stock and pledged to the several mortgagees, and the validity of those mortgages not being attacked or questioned, -were not a part of a stock of merchandise at the time Martin acquired them. Levytansky’s right to sever these goods and pledge them to secure his debts by delivering possession is not attacked, hut it is contended that the Bulk Sales Law would apply. If he had the right to mortgage the goods, he had the right to make that mortgage valid and binding by delivering possession of the goods, which he did. If the mortgagees had foreclosed those mortgages, the purchasers would undoubtedly have obtained a good title. In order to prevent such a foreclosure the mortgagor sells the goods at wholesale price and pays off the mortgagees.

Not only this, at the time Martin bought the goods Levytansky was not a merchant and had not been for several months. The Bulk Sales Law does not apply to this case, because it has reference to sales made out of a stock of merchandise exposed to sale. These goods were placed to secure debts, in such manner that it was not obnoxious to the statute as to void sales or mortgages, and then they ceased to be a part of the stock of merchandise, because they were segregated. And they never did resume their place as a part of a stock of merchandise exposed to sale. For this reason the Bulk Sales Law does not apply. Levytansky was not a merchant at all, but was a farmer at the time of the sale to Martin.

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