author: HARPER, J. DAVIDSON, P. J.

text:
    BALLARD v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    Rehearing Denied Oct 22, 1913.)
    1. Criminal Law (§ 1173)—Instructions— Issues—Circumstantial Evidence—Harmless Error.
    Where the court in its instructions affirmatively presented every defensive theory of accused and charged that the jury must find accused guilty beyond a reasonable doubt, tbe .failure to charge on circumstantial evidence, though the evidence called for such a charge, was not reversible error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3164 — 3168; Dec. Dig. § 1173.]
    2. Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    Where on a trial for cattle theft witnesses testified that accused and a third person were seen to take a yearling calf from a designated pasture and drive it away, and that shortly thereafter accused and the third person were found in possession of a fresh beef and a hide, that the hide corresponded to the animal driven away, and that prosecutor’s brand had been cut out of it, a failure to charge on circumstantial evidence was not erroneous.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dee. Dig. § 784.]
    Davidson, P. J., dissenting in part.
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    J. N.. Ballard was convicted of cattle theft, and he appeals.
    Affirmed.
    Dalton & Russell, of Plainview, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

      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 theft of cattle, and prosecutes this appeal.

On the trial his defense was an alibi, and that issue was submitted to the jury in a way that appellant does not complain. The only contention he makes on appeal is that the court erred in failing to charge on circumstantial evidence. On the trial of the case he asked no charge on circumstantial evidence, but did request three other special charges, his' first complaint of the failure of the court to so charge the jury being made in his motion for new trial, and that is the sole ground in the motion. However, under the law at the time of this trial, appellant had a right to complain in the motion for new trial of any omission in the charge or failure to charge all the law applicable to the case, -and, if the error was such as was calculated to injure the rights of the defendant, we should reverse the case, but, in the absence of any requested charge, if the omission in the charge was such as that it was only not calculated to injure his rights, but ip fact no injury could occur by. reason thereof, then, under the plain letter of the law, we would have no right to reverse. Article 743, Code Cr. Proc. 1911. So, if by any construction of the testimony it should be held that a charge on circumstantial evidence should have been given, yet, under the charge of the court as given, such omission would not present reversible error. In addition to relying on this plea of not guilty, appellant made a definite, specific defense— an alibi. That was presented to the jury in a manner frequently approved by this court, and the correctness of such charge is not questioned by appellant. They were required to find such defense untrue beyond a reasonable doubt, or they were instructed to acquit him. And were instructed that, before they would be authorized to convict, they must find beyond a reasonable .doubt that appellant fraudulently took from the possession of J. M. Jackson one head of cattle, with the intent to deprive the owner of the value thereof, and with the intent to appropriate same to his own use and benefit before they would be authorized to convict him.

Again, appellant testified that John Law had some cattle running in an adjoining pasture, and, while no testimony was offered that any of Law’s cattle had ever gotten in the Matador pasture (the pasture out of which the calf was taken), yet the court instructed the jury: “If you find and believe from the evidence that the one head of cattle alleged to have been stolen in the indictment in this case was the property of John Law, or if you have a reasonable doubt as to this, you will find the defendant not guilty.”

So we would hold, as before stated, if by any construction of the testimony it could be held that a charge on circumstantial evidence would have been appropriate, yet the failure to so charge would not present reversible error, for every defensive theory was affirmatively presented, and the jury instructed that they must find that he took Jackson’s cattle, beyond a reasonable doubt, or he would not be guilty.

But we do not think a charge on circumstantial evidence was called for under the evidence; however, as our Presiding Judge is of the contrary opinion, and while it may make this opinion rather lengthy, yet we have decided to state a brief synopsis of the testimony. John Southworth testified the Matador Cattle Company sent him to the pasture to keep a watch for cattle thieves; that in this pasture was a hill, and on Saturday evening, March 16th, he staked his horse under the hill, and climbed to the top of the hill, which gave him a view of the surrounding country; that he had a pair of field glasses, and late Saturday evening he saw appellant and John Law ride up, pull the staples out of the fence, and enter the pasture of the Matador Cattle Company; that they separated a yearling calf from the remainder of a bunch of cattle, roped it, and drove it out of the Matador pasture and into appellant’s pasture; that they drove it to a certain point in a canyon, where they seemed to again rope it. He then left the hill, notified the employés of the Matador Company, instructing them where to meet him and the sheriff, and then went after the sheriff, returned, and carried the sheriff to the point where he claimed he saw appellant and Law rope the calf in the Matador pasture. Tucker, Shaw, and Uair joined them at this point, and they traced the calf’s tracks and horse tracks to the point in the fence where the horses and calf had gone from the Matador pasture into the Ballard pasture, and he says appellant and Law were coming up out of the canyon where he had seen them drive the calf the evening before; that appellant was riding a horse and Law was driving a hack. The testimony shows this hack belonged to appellant. He says appellant and Law, as they came out of the canyon, separated, and he and the sheriff went after them, while the others went to the place where he had seen them drive the yearling calf the evening before. Those who went to this point say they “found the head and ponch. This beef was not quite a year old. We found the hide. It corresponded all right with the animal” Southworth says he “had seen them driving the day before. We found a hide and head and five feet there. The fifth foot was older than the other feet. Pour of the feet corresponded all right with the hide. The head corresponded all right. The right flank and the right hind leg of the hide was cut off, and part of the right neck was cut off, and the tail was cut off. The Matador Land & Cattle Company’s cattle have a brand on the thigh and on the neck. It is ‘V’ right low down on the thigh. There is a tally mark on the neck. It would have been T’ on that calf. The right hind leg was cut off. That is the part that the ‘V’ was on. The right side of the neck was cut off; that is, the part of the neck that had the brand on it. We never found those two parts, though we searched for them. It was fresh, ponch, feet, head, and hide, not more than 12 or 15 hours since it was killed. It was still warm. The blood on the ground was just beginning to cake a little. * * * There were no ears on there; they had cut the ears off; we searched for the ears and found one, the right ear. The mark of» the Matador Land & Cattle Company is crop the right. The ear we found showed crop the right. It was cut in two pieces. We never found the other ear.”

It is shown by the record that at the point where Southworth says he saw them drive a yearling out of the Matador pasture, they found one butchered; that the hide corresponded with the hide of the one appellant and Law drove out of the Matador pasture; that the ears were cut off, but they found an ear near by that fitted the hide; this ear was in the Matador mark; that the points on the hide where the Matador brands were had been cut out of the hide, and the hide cut at no other point. All these facts are shown by the testimony of Tucker, Shaw, Lair, in addition to Southworth’s testimony. The sheriff says when he overtook Ballard he told him he had a beef ponch down there and wanted some explanation of it, when Ballard replied, “If you have it, you had better stay with it.” The sheriff says he then told appellant he would just take him, when appellant reached for his Winchester rifle. He then offered no other or further explanation. When Law was overtaken in appellant’s hack, he had a fresh beef in the hack covered with tow sacks. Many other incriminating facts are shown by the testimony in the record, but we do not deem it necessary to go further into detail. A taking is shown by positive testimony; it is shown by positive testimony that an animal was driven from the Matador pasture to a point in the canyon; it is shown by positive testimony that an animal was butchered at this point; it is shown by positive testimony that the hide of this animal corresponded with the animal taken by appellant and Law out of the Matador pasture; it is shown by positive testimony that this animal was marked in the Matador mark, the brand (if branded) having been cut out; it is shown by positive testimony that appellant and Law were seen to come from this point of the canyon with a beef in their hack. It is also shown by several witnesses that a calf of a Matador cow was missing on Monday morning; the cow ranging at the point where appellant and Law were seen to rope and drive this yearling out of the Matador pasture.

We do not think that under any construction of law this case can be said to be one depending wholly upon circumstantial evidence, especially in the light of this record where there is no testimony that appellant or Law ever had a head of cattle in the Matador pasture, or right to take one out of the Matador pasture. We have read the brief filed by the able counsel for appellant and the cases therein cited, but by reading them it will be seen that the facts in those cases are not similar to the facts in this and the Law Case. With the rules of law as announced in those cases we concur, but the facts in this case do not bring the case within those rules. For a long citation of authorities so holding, see Branch’s Crim. Law, § 203, and especially the last paragraph in this section.

The judgment is affirmed.

PRENDERGAST, J., concurs.

DAVIDSON, P. J.

(dissenting). Appellant was charged with stealing an animal the property of J. M. Jackson.

This is a companion case to the case of Law v. State, 160 S. W. 98, as to the taking of the animal and the attendant circumstances testified by the witness Southworth. and the facts are in substance the same. My Brethren affirm both cases. I cannot concur with their conclusion.

In this case, however, appellant proved by quite a number of witnesses, among them county officers, that he was in the county seat of tlie county at the time Southworth says the animal was taken and was not present and had no connection with its taking. Under the testimony introduced by the defendant of the officers and other witnesses, including his wife and himself, it was a matter of impossibility that appellant was connected with the taking of the animal about which Southworth testifies. Southworth did not undertake to identify the animal at the time the two men drove it out of the Matador pasture. He simply states he saw them drive a yearling, which the state undertook to show subsequently was the calf of a cow of the Matador Company. If Southworth had testified positively to the identity of the animal taken by these parties, the state’s contention would doubtless be correct; but he did not so testify. I do not care to write further myself in regard to it, inasmuch as Messrs. Dalton & Russell and Hon. W. F. Ramsey have filed an able supplemental argument covering the case, and I think they are correct. The argument shows great research of the law and accuracy of conclusion, and I believe correctly presents the law of the case. I therefore adopt it as my dissenting opinion in the case. Their argument is as follows:

“Among the things that we think may be considered as settled is that, in every case depending solely on circumstantial evidence, the court must give such charge, and a failure so to do will, if the matter is complained of in motion for new trial, be good ground for reversal. That proposition is as settled and as thoroughly established in the law of this state as the position of the north star is fixed in the heavens. Assuming this to be the rule, let us then see whether the court should have charged on circumstantial evidence in the case. The theory and contention of the state is in this wise: Counsel say that appellant was seen driving the yearling in question from the pasture of the Matador Land & Cattle Company, and that the other proof but tended to fix ownership, and therefore the case is not one of circumstantial evidence. The fallacy of this reasoning is that it assumes that there was proof of the identity of the animal in question by the witness Southworth, and that his testimony was to the effect, in substance, that the animal in question was taken from the Matador pasture. Of course, if that were true, we would concede that the ease was not one of circumstantial evidence; but the fact is that the testimony of Southworth went only to the extent that some yearling was driven by appellant and Law from the pasture in question. He was fair enough to state, however, as the court will remember, that the yearling that he saw driven was just like any other yearling raised in that county, with no distinctive marks or nothing to identify it, and there was nothing in his testimony that raises the issue and question as to identity at all or even as to ownership, except the circumstance that a yearling was driven from the Matador Land & Cattle Company pasture. This was, of course, a circumstance of value and importance; but it was only a circumstance, since the witness testified that not infrequently cattle belonging to one person would stray into the pasture of another. So that argument destroys itself. The court must remember that appellant was charged with the theft of a certain head, of cattle,, the property of the person named in the indictment, and therefore, before it can be said that the testimony is positive, there must be positive proof of the identity and ownership of the animal alleged to have been stolen. Since the argument before the bar of this court, we have examined all the cases which counsel for the state alluded to in oral argument, as well as those indorsed on the wrapper. It is our purpose to review these authorities in the light of the record, and also call attention to other eases not referred to in our original brief, some of which, we think, we shall be able to demonstrate, absolutely and conclusively, that we are correct in our position.
“The first case referred to by counsel in oral argument was that of Rodgers v. State [36 Tex. Cr. R. 563] 38 S. W. 184. The syllabus pretty well states what is held in that ease, which is as follows: ‘Where, in a prosecution for cattle theft, the taking is shown by positive testimony, a charge on circumstantial evidence is not necessary.’ In the course of the opinion, Judge Davidson, who wrote for the court, said: ‘The facts adduced on the trial show beyond any controversy that defendant killed the animal in question. This he admitted to the state's witnesses, and this he proved himself by his own witnesses, and there is no question of the fact that he was connected with the killing of the animal.’ The other facts stated in the opinion demonstrate conclusively that this was not a case of circumstantial evidence.
“The next case argued by counsel is that of Nixon v. State, 93 S. W. 555. The third subdivision of the syllabus states the rule in that case as follows: ‘In a prosecution for theft, where the taking is proved by positive testimony, and the intent and other circumstances are proved by circumstantial evidence, the court need not charge on circumstantial evidence.’ And the rule is thus stated more fully by Judge Henderson: ‘Appellant claims that the court committed an error in not charging on circumstantial evidence, insisting that while the taking may have been proven by positive testimony of the want of consent of the owner as well as the intent of appellant was proved by circumstances.’ This sentence is so vague as to be almost unintelligible, but in the second sentence thereafter the true rule is stated, which is as follows: ‘But where the main fact, as in theft, the taking, is proved by positive testimony and the intent and other circumstances of the ease are proved by circumstantial evidence, the court is not required to charge on circumstantial evidence.’ We gather from the somewhat meager and obscure statement in the opinion that, in that case, the theft, that is the taking, of the animal in question, was proven by direct evidence and that the intent was shown by circumstantial evidence. Of course, in such case, it is well settled that the court is not required to charge on circumstantial evidence, and this was distinctly recognized by us in our 'original brief as well as in the argument of the case at the bar of this court.
“The only other case referred to by counsel in argument was that of Taylor v. State [62 Tex. Cr. R. 611] 138 S. W. 619. That is quite a iong case, but it no more sustains the position of the state than the other cases to which we have called attention. The syllabus, we think, fairly states all that is held in that case. In the eleventh paragraph of the headnotes, the rule is thus stated: ‘It was not necessary to instruct on'Circumstantial evidence in a trial for cattle theft, where accused admitted taking the cow from her range and selling her, relying on a claimed purchase from a third person.’ In other words, this states the familiar rule that, where the taking of the animal in question is proven by direct testimony, or is admitted by the defendant and his defense raised the question of taking in good faith or lack of felonious intent, in such case the court is not required to charge on circumstantial evidence.
“The cases cited on the wrapper are those of Hayes v. State, 30 Tex. App. 407 [17 S. W. 940]; Dobbs v. State, 61 Tex. Cr. R. 629, at page 633 [103 S. W. 918]; and Rodgers v. State, 36 Tex. Cr. R. 563, which is the same case reported in 38 S. W. 184, supra.
“Now, let us examine the Hayes Case, supra. The syllabus, subdivision 2, fairly well states the rule in that case, and is thus stated by the reporter, Judge Willson: ‘The stolen animal, while running in its accustomed range, strayed into appellant’s pasture, the fence of which was not cattle proof. Defendant knew the animal and also the brand. After the animal had been in his pasture about three months, it was driven up with other cattle defendant intended to ship and placed in his pen. The next morning one G., who had stayed at defendant’s house the night before, and was a stranger in the community, went to the pen with defendant, sold the cattle to him for $37, executed a bill of sale for same, and changed the marks and brands of same so as to obliterate the old ones. Held, that' the court will not presume that there had been a previous taking by either of the parties, and that the conviction did not depend wholly upon circumstantial evidence, and that the court did not err in refusing to charge the law applicable to such evidence.’ We call attention to the fact that it appears in the opinion of the court [30 Tex. App. page 407, 17 S. W. page 941] that ‘appellant testified to the talcing of the steers at the ven, but relies upon the purchase from. Green to show his innocent connection therewith. Therefore it is apparent that this case comes within the principle of the rule that where the fact of the taking of property where theft is charged is admitted or shown by positive testimony, and the question of intent is shown by circumstantial evidence, that the court is not required to charge the law of circumstantial evidence.’
“The next case is that of Dobbs v. State, 51 Tex. Cr. R., supra. The decision in that case is controlled by the rule of juxtaposition and has no application to the matter here in controversy. Besides, in that case the killing was admitted. In the course of the opinion [51 Tex. Cr. R. page 633, 103 S. W. page 920] Judge Brooks says: ‘The witness walked up the road in company with another witness, and discovered deceased lying on the ground shot, and these facts place appellant in such juxtaposition of the crime of themselves from the state’s standpoint, so as to preclude the issue of circumstantial evidence. Be this as it may, the defense’s testimony shows that appellant and his son participated in the killing. This alone would remove the case from the realm of circumstantial evidence. The only remaining issue, what was motive of appellant in doing the killing. While his wife testifies to a case of self-defense, still it shows the agency of appellant in the killing, and where the act is established, by positive evidence, and the intent with which said act is committed alone is to be ascertained, then the case is removed from the realm of circumstantial evidence, and we accordingly hold that it was not error for the court to refuse a charge on circumstantial evidence.’
“Now, we respectfully submit that it cannot be a matter of substantial controversy or dispute that not one of the decisions discussed by counsel at the bar, or cited by the Assistant Attorney General, are in conflict with our position, but all of them are, when analyzed, in harmony with our position. Now, then, let us see further the decisions of this court.
“We respectfully submit that the identical question here involved is unequivocal and squarely decided by this court in the ease of Smith v. State (App.) 12 S. W. 869. The opinion in that ease is very short, and we here copy the whole of it: ‘The charge of the court was specially excepted to by the defense upon the ground that it did not submit the law with regard to circumstantial evidence. In explaining the bill of exceptions, the learned judge says: “I did not charge as to circumstantial evidence, because the case did not depend wholly upon that character of evidence.” In this we differ with the learned judge. We concede that there are very strong proximate circumstances going to show that the red roan cow in Spiller’s mark and brand, seen by the witness Bill Wilson when defendant drove and had her put into his field, inside of a week of the time Spiller’s cow was missed, searched for, and the beef and hide found at defendant’s house, was the alleged stolen animal. Still, this witness did not see and identify the hide as of the animal he had seen the defendant drive up and have turned-into his field. The identity of the animal was wholly an inference to be deduced from circumstances. It is unnecessary to discuss other questions, as they will not arise on another trial.’
“Now, let us reason about this case and see if the law as there laid down does not fully sustain our contention. As will be noticed, that case was tried by Judge F. A. Williams, long a member of the Supreme Court of this state. Messrs. Abercrombie & Randolph, among the ablest lawyers who ever lived in Texas, represented Smith. In that ease, it was shown that a certain cow was driven and put into the field of appellant, but it is said: ‘This witness did not see and identify his hide as of the animal he had seen the defendant drive up and have taken into his field. Therefore the court says the identity of the animal was wholly an inference to be deduced from circumstances.’ Of course, the facts are not given at any length, but they sufficiently appear to make the question there decided identical with the case here. Now remember, the charge here was theft of a certain head of cattle, the property of the person named in the particular count on which the case was submitted. In order for this not to be a case of circumstantial evidence, it should have appeared from the testimony of some witness or the admission of the appellant that this particular animal owned by this particular person had been taken. Is there such evidence? We answer, No. Southworth, in terms, declined to identify the animal driven from the pasture as an animal belonging to the Matador Land & Cattle Company. It is just as indispensable to show ownership in a charge of theft as it is to show the pos-, session or taking, and that must be proven by some sort of testimony. How did they seek to establish the fact of the taking of this particular animal? First, by the testimony of Southworth that some yearling was taken from the pasture of the Matador Land Company, and later by circumstances showing mutilation of the hide, and otherwise that the animal in fact taken was an animal belonging to the Matador Land & Cattle Company, and therefore, when learned counsel say to us that there is positive testimony of the taking, we say there is indeed positive testimony some animal was driven from the pasture, but there is no positive testimony that the identical animal belonging to the person named in the indictment was at any time ever so driven, and this can only be established by reference to the facts and circumstances of the case. So that, as we believe, the case of Smith v. State is absolutely in point and thoroughly conclusive of the question in controversy. Of course, on so narrow a point as this, it is difficult to find many authorities directly and precisely in point, and our researches, which have been thorough and exhaustive, can at most supply the court with such analogies as should be helpful. Among the cases-which, as we believe, in principle support our contention, is that of Montgomery v. State, 20 S. W. 926. In that case, the syllabus pretty well states the case, and is as follows: ‘On a prosecution for the theft of hogs, defendant’s presence, about a half mile distant from the scene of the theft, with others who stole them, and his flight with them when discovered in possession of the hogs, are not such positive evidence of a taking by defendant as will justify the court in omitting to instruct the jury 'as to the law of circumstantial evidence; and defendant is entitled to a reversal on appeal, though he failed to object to such failure at the trial.’ In' that case, the following statement of the facts is made: ‘The hogs were taken perhaps half a mile or more from the place at which they were found. Appellant was present with others who stole them, and when discovered in possession of the hogs, ran off with the other persons. If appellant ran because of his guilt, then his flight was a cogent fact against him; but, conceding the flight, it was not positive evidence of the taking. It was as consistent with receiving or guilty connection with the transaction after the theft as with the original taking.’
“We call the attention of the court to the case of Pace v. State [41 Tex. Cr. R. 203] 53 S. W. 689. In that case, it appeared, as the facts are stated by Judge Brooks, that: ‘John Doyle testified for the state that he knew the defendant, and knew F. Burleson, the owner of the yearling alleged to have been stolen; that some" time in the early part of 1897 defendant drove a black and white pied yearling down to where Jim Palmer was living, and sold it to Jim Palmer; that he was present, and heard the trade between them. There is no positive evidence as to the taking of the animal. The animal was found in possession of appellant eight or ten days after the same was missed from the possession of the owner. Appellant claimed to have won the animal in a game of cards with one McBride. Where there is neither a confession by appellant, nor positive proof of the gist of the offense of theft (that is, the fraudulent taking), the case is one resting on circumstantial evidence; and it is fundamental error for the court not to charge upon the same.’
“We also call the attention of the court to the case of Roebuck v. State [40 Tex. Cr. R. 689] 51 S. W. 914. This case is important as being in harmony with the case of Smith v. State, 12 S. W., supra, in that it holds to the doctrine that, unless the identity of the animal alleged to have been stolen is shown by positive evidence a charge on circumstantial evidence must be given. Judge Brooks, speaking for the court, there says: ‘The books are replete with indorsements of charges on circumstantial evidence, and it is not necessary for us here to say how the charge should be worded. We do not think the evidence is sufficient on the question of the identity of the hog as being the hog of the prosecuting witness. Because the court failed to charge on circumstantial evidence, and because of the lack of sufficient proof of identity as above indicated, the judgment is reversed and the cause remanded.’ Now, applying the principle in that case to the case at bar: There was no positive proof in this case of the identity of the animal which Southworth saw appellant drive from the’ pasture, in respect to ownership or otherwise, as takes the case out of the doctrine of circumstantial evidence, and if the court is to follow the Roebuck and Smith Cases, supra, which have not only never been overruled but which are sound in principle, we can see no escape from the proposition that this case must be reversed. It is, too, we may say, a matter of congratulation that the principle of these cases support thoroughly the reasoning of our original brief and our contention and argument at the bar of this court
“We also call attention and invite the court to read the comparatively recent case of Goode v. State [56 Tex. Cr. R. 418] 120 S. W. 199.
“The case of Felts v. State [53 Tex. Cr. R. 48] 108 S. W. 654, is also authority for the proposition that, if the question of identity of the property stolen is shown by circumstantial evidence, an instruction on such testimony must be given although in other respects the case is one of positive testimony. In that case, Judge Davidson, speaking for the court, says: ‘A charge was also asked with reference to the identity of the bills; that is, before they could convict appellant of the theft of the money, the evidence should show that it was the money taken from the person of Hoskinson. It was a case of circumstantial evidence pure and simple, and the reliance of the state to identify the bills consisted of evidence to the effect that Hos-kinson had lost several $20 bills, and that appellant or his brother received two $20 bills from Hooten. Of course, if it was the $20 bills taken from the person of Hoskinson, and appellant assisted in taking it as a principal, he would be guilty of theft; but, if not, and he afterwards received it, knowing it to be stolen, he would be guilty as a receiver, and not as a taker.’ Now, while the doctrine of circumstantial evidence, strictly as such, is not discussed in that case, the relevancy of the general principle discussed by Judge Davidson is, we think, by analogy, important.
“There will be found in the books a great many cases where the court has passed on the question as to whether or not a charge on circumstantial evidence should have been given. There can be no difference, of course, among lawyers as to the general rule, and we assume that there .can be no difference in this court in respect to the general rule; that is, that where a case is solely one of circumstantial evidence, a charge on that character of testimony must be given. On the contrary, it is held universally that where there is positive evidence, either by a witness, in the shape of a confession, by an accomplice, or by admission of defendant in the course of his testimony of the facts constituting the offense, that no charge on circumstantial evidence need be given, although the testimony raised the issue of the lack of fraudulent intent or other defensive matter. Those eases, of course, do not help us much here. It- is equally well settled that, where the case is one merely of circumstantial evidence, an instruction such as. we complain of the court not giving in this case must be given. Of course, the difficulty lies in determining whether or not this is a case wholly of circumstantial evidence. We believe, on reason, that, if the court will carefully think the matter over, there can be little doubt that this is a case of circumstantial evidence, and we think beyond the peradventure of a doubt that we are abundantly sustained in this contention by the cases of Smith and Roebuck, supra, that, applying the principle of these cases to the case at bar, it must necessarily result in the court sustaining our contention here. We have examined almost every case in our reports of recent years on the subject in hand. We have not cited all of them, but we have found none, when carefully analyzed, in conflict with the views here expressed.
“The case of Childers v. State, 37 Tex. Cr. R. 392, 35 S. W. 654, is squarely in point and fully sustains our contention. Also, see Lindley v. State, 8 Tex. App. 445; Eckert v. State, 9 Tex. App. 105; and Veasly v. State, 85 S. W. 274. The last case is especially valuable.”

The judgment ought to be reversed and the cause remanded.


source: Caselaw Access Project

author: HABPEB, J.

license: Public Domain

text:
    LAW v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Criminal Law (§ 784) — Circumstantial Evidence — Instructions.
    Where the proof of guilt depends alone on circumstantial evidence, the court must submit that issue in its instructions.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]

      2. Criminal Law (§ 784) —Circumstantial Evidence — Instructions.
    Where, on a trial for cattle theft, witnesses testified that accused and another person drove an animal from the M. pasture, and that near where it was seen driven an animal was slaughtered, and that accused had in his possession the following morning a slaughtered beef with the places, where an M. brand would have been, cut out, and no explanation was offered why accused and the other person went into the M. pasture, except that sometimes cattle from adjoining pastures got into the M. pasture, a charge on circumstantial evidence was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    3. Criminal Law (§ 823) — Instructions— Harmless Error.
    The error, if any, in failing to charge on circumstantial evidence, in view of the facts, was not reversible, where the court charged the jury that if they believed the animal alleged to have been stolen was the property of accused, or had a reasonable doubt of that fact, they should acquit him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    Davidson, P. X, dissenting.
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    J. L. Law was convicted of cattle theft, and he appeals.
    Affirmed.
    L. W. Dalton and Dalton & Bussell, all of Plainview, and W. F. Bamsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HABPEB, J.

Appellant was indicted by the grand jury of Dickens county charged with the theft of cattle; the venue was changed to Motley county, appellant convicted, and his punishment assessed at two years’ confinement in the penitentiary.

There are no bills of exception in the record, and but one question presented in the motion for new trial, and that is the court erred in failing to charge on circumstantial evidence. John Southworth testified that on March 16th, the date alleged in the indictment, he was stationed on a hill in the Matador Land & Cattle Company ranch on the watch; that he had a pair-of field glasses, and late in the evening he saw appellant and Ballard come from Ballard’s inclosure (adjoining the Matador ranch) into the Matador ranch, and saw them cut out a yearling, rope it, and drive it from the Matador ranch through the fence into Ballard’s pasture, and drive it to a certain point, near where the next day it was seen a beef had been butchered, finding the feet, etc., on the ground, and the hide near by; the Matador cattle were branded in two places; the hide when found had cuts in it where the Matador brands should have been if the beef was a Matador animal. It is thus seen this is positive testimony that appellant and Ballard were seen to go inside of the Matador pasture, rope and drive an animal therefrom, but Southworth at the point where he was situated could not see the marks and brands on the animal. Appellant introduced testimony that on several occasions animals from adjoining pastures had gotten into the Matador pasture, and he insists that, although there is positive testimony that appellant and Ballard drove an animal from the Matador pasture, yet the proof that this animal so driven belonged to the Matador Land & Cattle Company is purely circumstantial, and therefore.the court erred in not charging on circumstantial evidence. We thoroughly agree with the rule of law as announced in Hunt v. State, 7 Tex. App. 213, and Barr v. State, 10 Tex. App. 510, cited by appellant, wherein it is held that, where the proof of guilt depends alone on circumstantial evidence, the court should submit that issue in his charge to the jury.

But is this a case depending wholly on circumstantial evidence? Two parties are seen to go into another’s pasture, rope a yearling, and drive it out into the pasture of one of them, and, near where it was seen driven to, an animal is slaughtered. Both men are recognized at the time they are seen to rope and drive the animal off the premises of the Matador Company. No explanation is offered by the record of why they went into the pasture and drove this animal out, if they did do so; all the testimony offered in this connection was that cattle from adjoining pastures sometimes got in this pasture; no testimony that the animal they took on this occasion belonged to either appellant or Ballard. Appellant was seen in possession next morning of a slaughtered yearling beef, and in the wagon was a hide branded bar N, which is appellant’s brand. There is testimony that was a fresh hide, and testimony that it was not a fresh hide, but bore evidence that the animal from which it had been taken had been killed. a number of days. It is this testimony that appellant apparently thinks raises the issue that it was not an animal belonging to the Matador Company taken the day before, yet there is no testimony that any cattle belonging to appellant were then or had ever been in the pasture of the Matador Company. To illustrate, if a dozen persons have watches in a house, a man is seen to go in the house and come out bringing a watch in his hand, and a certain one of the watches is shown to be missing; would not these facts place appellant in such position that it would be unnecessary to charge on circumstantial evidence? The only missing animal this record discloses is a calf of a cow shown positively to belong to the Matador Company. We do not think the facts and circumstances in this case called for and demanded a charge on circumstantial evidence; but, if so, as the court instructed the jury that if they believed the animal driven out of the Matador pasture (alleged to have been stolen) was the property of appellant, or they had a reasonable doubt of that fact, to acquit him, the error was not such as to call for a reversal of the case. Branch, Crim. Law, § 203. Por a fuller statement of the facts, see Ballard v. State, 160 S. W. 92, this day decided.

The judgment is affirmed.

DAVIDSON, P. J., dissenting.


author: HARPER, J.

text:
    BONDS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    1. Criminal Law (§• 957) — Triai>-Miscon-dijct oe Jury — Investisation by Court— Procedure.
    Where some of the jurors in a murder case had filed affidavits to the effect that other jurors had commented on and considered the failure to testify of accused and his relatives, and all of the jurors were in court when the affidavits were considered, it was error to refuse accused’s request to examine the jurors orally undenioath as to the truth of the charges of misconduct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 2392-2395; Dec. Dig. § 957.]
    2. Criminal Law (§ 1172) — Appeal—Harmless Error — Instruction.
    The use twice in instructions in a homicide . case of the word “defendant” when “deceased” was intended to be used was a mere clerical error, and not reversible, where the whole instruction showed that it was not misleading.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3151-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    3. Homicide (§ 300)— Self-Defense — Issues.
    Where, in a homicide case, there was evidence that decedent had the reputation of being a violent and dangerous man, and had killed one man, and assaulted another with intent to kill, and was convicted of both offenses, and that he habitually carried a pistol, all of which accused knew, the court should have instructed that the jury might consider accused’s knowledge of decedent’s character in passing on the issue of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Alma J. Bonds was convicted of second degree murder, and appeals.
    Reversed and remanded.
    H. S. Morehead, J. L. Goodman, and Perry & Woods, all of Franklin, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted for and convicted of murder in the second degree, and his punishment assessed at seven years’ confinement in the penitentiary.

The most serious question in this case is presented in regard to the alleged misconduct of the jury.

R. E. Griffin, a member of the jury, in an affidavit attached to the motion for a new trial, among other things, says: “That Juror A. J. Smith said to him, ‘If there had been anything like the defendant’s wife testified to, why did they not bring the defendant himself on the stand to testify to same?’ or words to that effect; that said juror, A. J.. Smith, also said that there was Wesley Bonds, the brother of defendant, and they also failed to have him testify, and that he knew the reason why they did not let him testify, and that it was because he was such a liar, like the defendant’s wife, that they would not believe anything he said about it. Affiant further says that at several other times he heard certain of the jurors discuss the defendant’s failure to testify, but that he was not close enough to them to tell just which of the jurors made such remarks, as several of them were talking at the time, and could not tell which ones made such remarks.”

Lee Brantner, a member of the jury, in an affidavit, also says: “A. J. Smith, when the testimony of the defendant’s wife wfis being discussed by the jury, remarked that the testimony of the defendant’s wife was false, and, commenting further upon the testimony of the defendant’s wife the said juror A. J. Smith remarked that, if the testimony of the defendant’s wife had been true, the defendant himself would have been placed upon the stand to tell the same facts which his wife had testified to; that thereupon affiant, who was also a member of the jury, called the juror Smith’s attention to the fact that the judge in his charge had directed that the jury should not consider the failure of the defendant to testify in his own behalf, and that same should not be referred to by any of the jurors in their deliberations; that some juror then remarked that the defendant’s brother, Wesley Bonds, was also there at the time of the shooting, and that, had it been as testified to by the defendant’s wife, he, the said Wesley Bonds, would also have been placed on the stand, and same juror then added, ‘But old.Wesley is such a liar that nobody would have believed him, and that’s why they did not put him up,’ or words of similiar import.”

These affidavits were attached to the motion for a new trial. The state contested the motion, and filed the affidavit of A. J. Smith, who states that no such things occurred, and he made no such statements. The affidavits of the other nine jurymen are also filed, in which they state they heard no such statements or conversations, and, if this was all, we would conclude that this presented no ground for reversal of the ease. But the record before us discloses the following proceedings had on the hearing of the motion:

“Be it remembered that in the above-entitled and numbered cause, when the defendant’s amended motion for a new trial came on to be beard and considered on the 26th day of February, A. D. 1913, that, in obedience to an order of the court previously made and entered, in the matter of the consideration of said motion for a new trial, all jurors who sat in the trial of said case appeared before the court, and, with the defendant present in open court, the consideration of said motion was taken up, and the ground of said motion for a new trial, which alleged misconduct of the jury in receiving additional and unsworn testimony after they had retired to deliberate on their verdict, and, in commenting upon and considering, as a circumstance against defendant, his failure to testify as a witness in his own behalf, the following .proceedings were had: The defendant in support of his motion on these grounds produced and read in open court the ex parte affidavits of the jurors R. E. Griffin, Dee Brantner, and A. J. Smith; that, while the same were being read and presented to the court, the juror R. E. Griffin came forward, and stated that he desired to make certain corrections in his affidavit, and that said affidavit as a whole was not true; that the same was untrue in certain particulars only, but true in others; that thereupon the court demanded of said juror to make such corrections of his said affidavit as he desired and thought necessary; that in this connection the juror Lee Brantner also desired to make certain corrections in his affidavit which were demanded by the court, and the same were made; that the said juror Smith, when his affidavit was read, demanded the privilege of making corrections to the same, which request was granted by the court, and affidavit corrected in the presence of this court; that in this connection, while the affidavit of the juror K. E. Griffin was being read, the trial judge became aroused, and in an angry and threatening manner, in the presence of the jury, demanded that said juror be ‘brought into court,’ and that his affidavit be read to said juror, and in said juror’s presence, stating that he ‘wanted to get at the bottom of this thing,’ and that fearful charges had been made; that he ‘did not know who to stigmatize in the matter, but that some one or the other would suffer.’ This language and conduct of the court could have had no effect other than to frighten and intimidate said jurors.
“In this connection, with this bill of exceptions, defendant shows that on the morning of the 26th of February, A. D. 1913, before the district attorney had taken the affidavits of any of the jurors, the defendant’s counsel stated to the district attorney that defendant would be willing to withdraw all the affidavits he had, if the district attorney would take no affidavits, and that the jurors be taken one by one and placed on the stand, sworn by the court, and examined and cross-examined in the presence of the court, on the question of their misconduct. This request was refused by the district attorney, and on the morning of the 27th of February, while said motion was still under consideration, defendant made the same request of the court in the presence of the district attorney, stating that, so far as known to him, the practice of the court in the past had been in all criminal cases, where the question of misconduct of the jury was raised, to bring the jurors before the court, and then, in the presence of the court and the defendant, to examine and cross-examine said jurors as to the alleged acts of misconduct, and that, so believing and knowing the practice of the court in the past, the defendant relied upon his doing the same in this case, for the reason, and for the further reason, that the court on the evening before, when the court was adjourned, stated that on the following morning testimony of jurors and other witnesses would be heard upon the issue. So believing and relying upon this statement of the court, defendant did not take or attempt to get or take counter affidavits from any of the 10 jurors who made affidavits to the district attorney in support and furtherance of this part of this bill of exception. . .
“Be it also remembered that defendant stated to the court that the juror Moss was then present, and that said juror on the evening before, to wit, February 26, 1913, after court had adjourned, and after he had signed an affidavit prepared by the district attorney, had stated that said attorney had only shown in his affidavit the points that were favorable to the state, that the defendant’s failure to testify was in fact mentioned, and that, if placed upon the stand, he would tell what he knew about it, and defendant then requested' the court to place said juror on the stand, and allow him to tell matters as they actually occurred. Be it also remembered that defendant requested the court on this issue to allow him to cross-examine the jurors who had made affidavits to the district attorney, for the further reason that, if so allowed, he could and would lay predicates to impeach certain of said jurors, and would impeach them by contradictory statements by said jurors made to different persons, and especially to W. G. Perry, W. D. Hardy, and E. E. Brazelle, all of which last-named persons were then and there tendered as witnesses on this issue, which said request was refused by the court.
“Be it further remembered in this connection that it is agreed by the court and the district attorney that defendant requested the privilege of having one member of his counsel present when said jurors were examined by the district attorney, which was refused by said attorney; and, further, that defendant requested the said district attorney and the court to place each juror on the stand, and allow them to testify on the issue raised in the motion for a new trial, which said request was refused by the court.
“Be it further remembered that defendant requested the court that, in order that the jurors Brantner and Griffin be not discredited before the court, that they and also each other member of the jury be placed on the stand as witnesses, in order that on cross-examination said jurors can be made to corroborate the jurors Brantner and Griffin. The act of the court in using the language that he did, in refusing to allow defendant the privilege of cross-examining said jurors, and in refusing to compel the district attorney to allow one member of defendant’s counsel to be present when their said respective affidavits were taken, could have but resulted in only grave and serious injuries to defendant. Perry & Woods.
“J. L. Goodman.
“H. S. Morehead.
“Attorneys for Defendant.
“The above bill of exceptions is qualified by this statement of the court: That on this the 27th day of February, A. D. 1913, on which said motion is still being considered by the court, the court stated to defendant’s counsel that he would hear from the jurors Griffin and Brantner, verbally or by such additional affidavits, and that he would hear by the jurors or by any other witnesses, that defendant’s counsel wished to introduce by affidavits or supplemental affidavits.”

We have set this bill out in full, and, it is seen by its recitals that the court refused to permit the jurors to be orally examined on their oaths. Why he did not do so, we cannot understand. The record shows they were all in attendance on court, and Mr. Griffin and Mr. Smith were permitted to file corrected affidavits; but Mr. Griffin reiterates that the above statements were made to him by Mr. A. J. Smith, correcting the first affidavit only in some other minor matters. Other .affidavits are incorporated in the record showing a most earnest and solicitous effort on the part of defendant’s counsel to introduce each and every juryman and examine them in open court; but they were denied this privilege. It is also stated that Juryman Moss, one of the jurymen from whom the ftate secured an affidavit, stated “that the district attorney had only shown in his affidavit the points that were favorable to the state, that the defendant’s failure to testify was in fact mentioned, and, if placed on the stand, he would tell all about it”; and defendant requested the privilege of placing this juror on the stand, but was denied the privilege, and in an affidavit it is stated that Jurors Griffin, Brantner, and Moss offered to take the stand and testify, and challenged the state to place all the jury on the stand, that the truth or falsity of their statement might be established.

With the record in this condition, we think the court should have permitted an oral examination of each and all the jurors. If the court had done so, and found as a fact that no such proceeding had taken place, we would have given great weight to his finding; but it appears he neither heard the evidence, nor permitted it to be adduced, that it might be incorporated in the record. The affidavits of the jurors Griffin and Brantner" raised a serious question, and when the defendant proposed, if he was permitted to place the jurors on the witness stand, if they adhered to the statements in the affidavits filed by the district attorney, he could and would impeach them by showing contradictory statements made by such jurors to different persons, naming Perry, Hardy, and Brazelle, he ought at least have been permitted to adduce such testimony on whether or not the jury discussed the failure of defendant to testify.

As to the testimony of Whit Welch about having been charged with theft when he was a boy 12 years old, this testimony ought not to have been admitted, as it was remote in time, and especially is this true as to him having been charged with another offense, when no complaint had ever been filed. But these questions are not properly presented, and we only refer to them so that these errors may not occur on another trial.

The using of the word “defendant” twice in the charge where the court evidently means “deceased,” we think, was a mere clerical error, and, taking the charge as a whole, evidently would not mislead the jury. Of course, as contended by appellant, it was error to use the word “defendant” where the word “deceased” should have occurred, and the court, we are sure, will be more careful In writing his charge on another trial; but this would not be such error, in the connection in which the words are used, that we would feel authorized to reverse the case because thereof.

Again, it is contended that, as the record discloses that the reputation of deceased was that of being a -violent and dangerous man, that he had killed one man, and assaulted another with the intent to murder him, and was convicted of both these offenses, that he habitually carried a pistol, and that these facts were known to defendant, the court, in submitting the issue of self-defense, should have instructed the jury, in viewing the circumstances as they reasonably appeared to defendant, that they might consider defendant’s knowledge of the character and disposition of the deceased. In this character of case this appears to be the law of this' state. Branch’s Criminal Law, § 475; Messer v. State, 43 Tex. Cr. R. 109, 63 S. W. 643. Of course, every case must be presented on the facts adduced on the trial, and, when there is no evidence as to the character and reputation of deceased, it is error to give this charge; but, when there is testimony that he is a dangerous and violent man, that he habitually carried arms, had killed other men— which facts were known to defendant — the evidence is introduced for the purpose of aiding the jury in determining how the matter really appeared to defendant at the time, and it is proper to so instruct the jury.

We have referred to these minor matters so they will not occur on another trial, for while we would not feel authorized to reverse the case because of them, yet, as we will reverse the ease on account of the alleged misconduct of the jury in discussing the failure of defendant to testify, and the refusal of the court to hear evidence thereon, we have mentioned them.

The judgment is reversed, and the cause is remanded.


text:
    SHAW v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    On Motion for Rehearing, Nov. 5, 1913.)
    1. Homicide (§ 282) — Manslaughter.
    Under Pen. Code 1911, art. 1137, providing that insulting words alone do not constitute adequate cause to reduce a killing from murder to manslaughter, evidence that deceased, after calling defendant and his son an opprobrious name, advanced on defendant with a heavy club in his hands and in a threatening attitude, when defendant shot and killed him, was insufficient to require the submission of the offense of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 574; Dec. Dig. § 282.]
    On Rehearing.
    2. Homicide (§ 8) — Degrees ojt Murder — Stattjtoby Amendment.
    Acts 33d Leg. c. 116, repealed Pen. Code 1911, arts. 1140-1142, 1144, and inserted in lieu thereof articles 1140 and 1141, providing that every person with sound memory and discretion who, with malice aforethought, shall unlawfully kill any person within the state shall be guilty of murder, that murder is distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide, and that the punishment for murder shall be death, or confinement in the penitentiary for life, or for any term of years not less than five. The act also contained a further clause that the fact that the present law defining murder divides the same into two degrees, and that such definitions of murder or divisions of murder create complications in the trial of those charged with murder, creates an emergency. Held, that it was not the intention of the Legislature to repeal the law constituting what had previously been known as murder in the second degree, without, at the same time, substituting another penalty for that offense; the intention being merely to change the name of murder in the second degree to murder, and fix the punishment for that offense.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 7; Dec. Dig. § 8.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    J. D. Shaw was convicted of murder in the second degree, and he appeals.
    'Affirmed.
    Boyd, Bell & Fryer and R. M. Edwards, all of Teague, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of murder in the second degree, and his punishment assessed at five years in the penitentiary.

Although requested so to do, the court refused to submit the issue of manslaughter, and the main contention is that the court erred in not so doing. If the evidence offered in behalf of appellant raises this issue, although the state’s evidence would make it an aggravated case of murder in the second degree, it would be error to refuse to submit the issue. Appellant testified, and the other witnesses testifying in his behalf would support his contention, that he and deceased had been friends; that, while he was not aware of it at the time, yet, as a fact, two of their sons had had previous trouble; that he and his son started from tne sorghum mill, where he and deceased had both been at work, to go home; that he and his son got in the buggy, and his son set the gun down, when Sam Tilley came running to the buggy, with an elm club in his hands, and said, “Sam Shaw, I am going to knock you out of the buggy, you son of a tiitch,” and Sam Shaw replied, “You stop there.” Appellant says deceased then came up, and said, “Stop, Sam Shaw, you can’t call him [Sam Tilley] a bastard;” that he rolled up his sleeves, and cursed appellant’s son, Sam Shaw, when appellant expressed a desire to stop the matter, and deceased, he says, ran between his buggy wheels, popped his fist in his hands, cursed them both, and said he could whip both of them, calling them both d-n s-n of a b-s; that appellant then secured the gun, stepped out of the buggy, and when deceased advanced, pushing up his sleeves, he requested him to stop; that deceased did not stop, but he and Sam Tilley both advanced on him, Sam having a heavy club in his hands in a threatening attitude, deceased at the time advancing, rolling up his sleeves, when appellant shot him. The court charged on self-defense and his right to kill if those facts were true, telling the jury that, if it reasonably appeared to appellant from the acts and conduct of deceased or Sam Tilley, or either of them, that they or either of them was about to make an attack on him, to acquit him. There is no sort of complaint as to the charge on self-defense, the court having virtually given the charge requested by appellant; but appellant insists that this evidence raises the issue of manslaughter as well as self-defense. Article 1131 of the Penal Code provides that insulting words alone do not constitute adequate cause to reduce an offense to manslaughter, and, in Clore v. State, 26 Tex. App. 624, 10 S. W. 242, it is held that sudden passion, though overpowering the reflective qualities of the mind, will not, unless produced by what is in law adequate cause, reduce a homicide to the grade of manslaughter; it toeing so provided in article 1137. See, also, McKinney v. State, 8 Tex. App. 626; Hill v. State, 11 Tex. App. 456; Neyland v. State, 13 Tex. App. 536; Childers v. State, 33 Tex. Cr. R. 509, 27 S. W. 133; Eggleston v. State, 59 Tex. Cr. R. 542, 128 S. W. 1105.

There being no issue of manslaughter in the case, the complaints of the charge of the court on murder in the second degree present no error; appellant being assessed the lowest penalty for that offense. There are in the record no exceptions to the introduction or rejection of testimony, and no bill to the remarks of the county attorney complained of in the motion for new trial. If the county attorney used such remarks, it would be necessary to verify that part by a bill of exceptions before we would be authorized to review it.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this court this case was affirmed, and appellant has liled his motion for a rehearing, restating many of his former assignments, and in addition thereto insisting that this cause should now be reversed, because the act of the Thirty-Third Legislature made all killings with malice aforethought murder, without making different degrees of murder. He insists that that act repealed murder in the second degree, and that the repealing statute substituted no other penalty for the offense, which was heretofore designated murder in the second degree. This opinion will be confined to a discussion of this last proposition, as all the others were thoroughly reviewed in the original opinion.

Prior to the act of the Thirty-Third Legislature (page 238) relating to murder, the law provided that “every person of sound memory and discretion who, with malice aforethought, shall unlawfully kill any reasonable creature in being in this state shall be guilty of murder,” and following this law were articles which defined murder in the first degree and murder in the second degree, and which were repealed by the act of the Thirty-Third Legislature referred to, and which were substituted for those articles.

The new act above mentioned, passed by the Thirty-Third Legislature, repeals articles 1140, 1141, 1142, 1144, Revised Penal Code of the state of Texas 1911, and inserts in lieu thereof articles 1140 and 1141, which read as follows:

Art. 1140. “Every person with sound memory and discretion who, with malice aforethought shall unlawfully kill any person within this state shall be guilty of murder. Murder is distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide, or manslaughter, or which excuse or justify the homicide.”
Art. 1141. “The punishment for murder shall be death or confinement in the penitentiary for life or for a term of years not less than five.
“All laws and parts of laws in conflict herewith are hereby repealed.
“The fact that the present law defining murder divides the same into two degrees, to wit: first degree murder and second degree murder, and the fact that such definitions pf murder or divisions of murder are creating complications in the trial of those charged with murder, creates an emergency,” etc.

It is clear from the whole act referred to, and especially from the third section or paragraph thereof, that it was not the intention or purpose of the Legislature to repeal the law constituting what has heretofore been known as second degree murder, without, at the same time, substituting another penalty for that offense. The third section of this act clearly shows what was intended to be done by the Legislature — simply to change the name of murder in the second degree to-murder, and fix the punishment for such an offense. It is true that, if this cause were reversed, and sent back to the lower court for another trial, appellant would have the right to demand to be tried under the penalty fixed by the old law, as the penalty there fixed was a less penalty for the offense committed by him than the one now fixed by the act of the Thirty-Third legislature; but this fact would not entitle him to have his case reversed by this court, nor dismissed by the trial court. See articles 15, 16, 17, 19, Revised Penal Code 1911. Also, Roberts v. State, 17 Tex. App. 148; Gill v. State, 30 Tex. 514; Ezzell v. State, 29 Tex. App. 521, 16 S. W. 782; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595; Simms v. State, 8 Tex. App. 230; Myers v. State, 8 Tex. App. 321.


author: CONNER, C. J.

text:
    ROSEN v. PHELPS.
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 5, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Frauds, Statute of. (§ 110) — Contract for Sale of Land — Sufficiency.
    The written agreement for the sale or exchange of land required by Rev. St. 1911, art. 3965, requiring such contracts to be in writing, must contain the essential terms of a contract, such as its subject-matter, expressed with such certainty that it may be understood, without parol evidence to show the intention of the parties.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 225-236; Dee. Dig. § 110.]
    2. Specific Performance (§ 29) — Sufficiency of Contract — Identification of Subject-Matter.
    A contract agreeing to convey “a certain three thousand acres in B. county, Texas,” without designating the owner or any particular locality or natural objects fixing its location, or referring to any writing doing so, and also certain lots described by merely giving the lot and block number and price, was too indefinite in describing the land to permit specific performance.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 69-82; Dec. Dig. § 29.]
    Appeal from District Court, Bosque County ; O. L. Lockett, Judge.
    Action by Sam Rosen against M. Phelps. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    C. M. Templeton, of Ft. Worth, for appellant. S. C. Padelford, of Cleburne, and Cure-ton & Cureton, of Meridian, for appellee.

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

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

   CONNER, C. J.

Appellant sought a specific performance of the following written contract:

“The State of Texas, County of Tarrant.
“This agreement entered into by and between Sam Rosen of the county of Tarrant, state of Texas, hereinafter known as party of the first part, and M. Phelps, of Bosque county, Texas, hereinafter designated as party of the second part, Witnesseth:
“Party of the second part agrees to convey to party of the first part, clear of all incumbrances a certain three thousand acres in Bosque county, Texas. Said party of the second part is to furnish abstract showing perfect title to said land.
“In consideration of which party of the first part agrees to convey by warranty deed to party of the second part, the following parcels, to wit:
“All of said parcels to be clear of incum-brances.
“It is agreed and understood that the party of thei second part is entitled to 1912 crop and also to the use of the pasture to December 31, 1912.
“It is expressly agreed and understood, that this agreement is subject to the examination of the land by the party of the first part. In the event that said party of the first part is not satisfied with said land, then this agreement shall be null and void and not binding.
“[Signed] Sam Rosen.
“M. Phelps.
“Witness: G. H. Williams.”

When offered in evidence the contract was excluded on the ground that it was in violation of the statute of frauds; “there being no description of the property and land attempted to be described in the plaintiff’s petition.” The statute referred to (Rev. St. 1911, art. 3965) requires contracts for the-sale or exchange of lands to be in writing; and, as said by this court in the case of Cusenbary v. Latimer, 28 Tex. Civ. App. 217, 67 S. W. 187: “No rule seems better settled than that before a court of equity will decree the specific performance of a contract for the sale of land, the written agreement required by the statute must contain the essential terms of a contract expressed with such' certainty that it may be understood without recourse to parol evidence to show the intention of the parties, and that no part of such contract is more essential than that which identifies the subject-matter of the agreement” (citing Jones v. Carver, 59 Tex. 295; Patton v. Rucker, 29 Tex. 402; Mitchell v. Ireland, 54 Tex. 301; Mathews v. Jarrett, 20 W. Va. 415; Hollenbeck v. Prior, 5 Dak. 298, 40 N. W. 349; Strang v. Railway [C. C.] 93 Fed. 72; 2 Dev. on Deeds, § 1010).

It seems manifest that the contract under consideration within itself fails to-give any such description of the lands therein referred to as is sufficient to identify them with reasonable certainty, and thus-enable a court of equity to decree title in the plaintiff to the lands described in his petition, or to any definite or certain tract of land in Bosque county aggregating 3,000 acres, or in turn to vest in the defendant lots and blocks in any specified city or other locality of Tarrant county. The contract is that appellee will convey “a certain three thousand acres in Bosque county, Texas,” without designating the owner, any particular locality, landmark, natural object, or other thing that fixes location, and makes no reference to any other writing by which the land can be identified. It is likewise so-of the lots and blocks appellant was to convey to appellee. Appellant insists, however, that the description in the contract may be aided by the circumstances alleged in his petition. Briefly stated, plaintiff alleged that the lots and blocks referred to in the contract were lots and blocks in the Rosen-Heights addition to the city of North Ft. Worth; that prior to the execution of the-contract plaintiff and defendant went upon the ground and marked and checked off upon the plat of said addition the lots and blocks specified in the contract, and that the lots so marked and checked and described in the contract were the specific ones to be exchanged for defendant’s 3,000 acres of land in Bosque county; that the 3,000 acres of land referred to in the contract were 3,000 acres of land near the town of Morgan in Bosque county owned by the defendant; that after the execution of the contract they had been inspected by the plaintiff and accepted; that at the time of or prior to the execution of the contract the agent of defendant had delivered to the plaintiff a printed circular particularly describing the situation of defendant’s land, its divisions into pastures, the number of houses, barns, lots, windmills, and number of acres in cultivation, etc., and it was alleged that the land so described in said circular was the identical land exhibited to plaintiff by the defendant at the time of the inspection referred to and described in the petition; that said 3,000 acres were the only 3,000 acres owned by the defendant in Bosque county; that both plaintiff and defendant well knew the particular property each contracted to convey to the other; that no other property was in the contemplation of the parties or considered by them.

We are of the opinion, however, that the contract under consideration cannot be so enlarged. In this respect we are unable to distinguish the case from that of Penn v. Texas Yellow Pine Lbr. Co., 35 Tex. Civ. App. 181, 79 S. W. 842, by the Court of Civil Appeals for the First District, in which a writ of error was refused. The contract in that case was to convey “6,100 acres under consideration in Tyler county.” It was alleged that the 6,100 acres under consideration were mutually understood between the parties to be the land particularly described in the petition, the title to which stood in the name of the defendant, and were the only lands ever considered by the parties in the negotiations; that the lands under consideration had been designated upon a map of Tyler county in each instance, stating the original survey; the number of acres owned therein by the defendant which it was desired to sell to the plaintiff, its location in said survey, each tract being pointed out separately and particularly; that prior to the execution of the contract the defendant had furnished the plaintiff a written statement, giving the name of each survey, and the number of acres in each survey, which the defendant desired to sell and the plaintiff wished to purchase, and that in each instance and on every occasion defendant designated to the plaintiff the identical lands described in the petition and none, other; that after the making of the contract the defendant had furnished the plaintiff abstracts of title of the particular lands described in the petition, etc. But the court sustained exceptions to these allegations, stating that: “We think the description of the land contained in the contract is wholly insufficient to identify the land attempted to be described, and the contract furnishes no means by which said land can be identified with reasonable certainty.” This case appears to be decisive of the ease before us, and is easily distinguishable from those cited in behalf of appellant, such as Macmanus v. Orkney, 91 Tex. 27, 40 S. W. 715; Eustis v. City of Henrietta, 90 Tex. 468, 39 S. W. 567; Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Pierson v. Sanger Bros., 93 Tex. 160, 53 S. W. 1012, and other cases. We think it will be found that in these cases the contract itself furnished some means by which the land could be identified, but not so as already stated in the case before us. It is true appellant alleges that a printed circular was exhibited by an agent of appellees, which would be sufficient; but, as will be observed, the contract under consideration makes no reference whatever to such printed circular.

Appellee cites numerous cases that we think fully support the conclusion indicated by us. Among others is the case of O’Donnell v. Leeman, 43 Me. 158, 69 Am. Dec. 54, where it is held that no action can be maintained on a memorandum of an auctioneer of the sale of real estate unless it tells, or by reference to some other paper it contains the whole agreement, and the handbills and newspaper notices published at the time of the sale are not admissible; the contract containing no reference to them. Again in the case of Boydell v. Drummon, 11 East, 142-160, it was held that one could not refer to printed prospectuses which contained the terms of the contract, and which were delivered .at the time of the making of the contract, in order to aid it, when the same was not referred to or in any way made a part of the contract. In brief, the authorities establish the rule that for a contract to be sufficient within the statute of frauds it must describe, or furnish the means of describing, with reasonable certainty the land constituting the subject-matter of the contract, so that it may be identified without resort to matters purely in parol; See Jones v. Carver, 59 Tex. 295; Johnson v. Granger, 51 Tex. 44; Cusenbary v. Latimer, 28 Tex. Civ. App. 217, 67 S. W. 187; Norris v. Hunt, 51 Tex. 615; Zanderson v. Sullivan, 91 Tex. 503, 44 S. W. 484; Johnson v. Fecht, 94 Mo. App. 605, 68 S. W. 620; Price v. Hays, 144 Ky. 535, 139 S. W. 810; Baldwin v. Kerlin, 46 Ind. 426; Miller v. Campbell, 52 Ind. 125; Taney v. Bachtell, 9 Gill (Md.) 205; Taylor v. Allen, 40 Minn. 433, 42 N. W. 292; Ives v. Armstrong, 5 R. I. 567; Hamilton v. Harvey, 121 Ill. 469, 13 N. E. 210, 2 Am. St. Rep. 118; Craig v. Zelin, 137 Cal. 105, 69 Pac. 853; Sherer v. Trowbridge, 135 Mass. 500; Palmer v. Albee, 50 Iowa, 429; King v. Ruckman, 20 N. J. Eq. 316-360; Wortham v. Stith (Ky.) 66 S. W. 390; Mason v. Small, 130 Mo. App. 249, 109 S. W. 822; Regan v. Milby, 21 Tex. Civ. App. 21, 50 S. W. 587.

We conclude that the court properly es-eluded the contract, or at least that its exclusion was harmless; and the judgment is affirmed.


author: DUNKLIN, J.

text:
    GOODWIN v. WESTERN UNION TELEGRAPH CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 14, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Telegraphs and Telephones (§ 66)— Messages — Actions—Sufficiency op Evidence.
    Evidence in an action against a telegraph company for damages for delay in transmitting a telegraphic draft to plaintiff’s mother, at whose home plaintiff’s wife was ill, held to sustain a finding of negligence in delaying transmission, and of the fact that the company knew.of the necessity of plaintiff’s wife having 'money quickly.
    [Ed. Note. — Por other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    2. Telegraphs and Telephones (§ 66)— Messages — Actions—Sufficiency op Evidence.
    Evidence in an action for delay in transmitting a telegraphic draft to the mother of plaintiff’s wife, at whose home his wife was ill, held to sustain a finding that mental suffering would naturally and probably result from her disappointment in failing to receive plaintiff’s remittance.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    3. Telegraphs and Telephones (§ 38)— Damages.
    A telegraph company should have reasonably anticipated mental suffering by plaintiff’s wife from delay in delivering a telegraphic draft to her, where the company was informed when the message was sent that she was ill, and needed the money.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by G. H. Goodwin against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Scarborough & Hickman, R. W. Haynie, and C. G. Whitten, all of Abilene, for appellant. J. M. Wagstaff, of Abilene, for appel-lee.

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

   DUNKLIN, J.

While G. H. Goodwin and wife were residing in Abilene, Tex., Mrs. Goodwin visited her mother, Mrs. M. E. Backus, whose home was in Meridian, Miss. During this visit Mrs. Goodwin became ill, and, being without money, had her mother to wire her husband that she was ill, and requesting him to send her $25 by telegraph at once. This message was received by the plaintiff on September 6, 1911. On September 7th the Farmers’ & Merchants’ National Bank at Abilene, at plaintiff’s instance, wired Mrs. M. E. Backus as follows: “September 7th, 1911. Mrs. M. E. Backus, Meridian, Miss. Will pay your draft thirty dollars.” This message was, on the day of its date, delivered to the agent of the Western Union Telegraph Company at its office in Abilene for transmission, and at the time plaintiff delivered it he told the agent that his wife was dangerously ill in Meridian, and needed the money, and that the money was being sent to Mrs. M. E. Backus for her benefit, also informing the agent that Mrs. Backus was his wife’s mother. This message was not delivered to the addressee until September 14th or 15th; the delay being caused by the fact that by mistake the agent at Abilene filed it among papers pertaining to business already disposed of, and on account of this mistake it was overlooked. Between the dates September 7th and 14th two other messages were sent to the plaintiff by his wife, inquiring why he had not sent her the money as requested. Upon receipt of both of these inquiries, plaintiff went to the telegraph office in Abilene, and was there told that the message had been sent. During the same period repeated inquiries were also made at the telegraph office in Meridian; the response to which inquiries being that no such message had been received there. As soon as the message was received, the money was promptly collected upon a draft drawn by Mrs. Backus upon the sender, and the funds thus realized were turned over to Mrs. Goodwin.

G. H. Goodwin instituted this suit against the telegraph company, alleging the foregoing facts in substance, basing thereon a charge of negligence on the part of the defendant in delaying the transmission and delivery of the message, and alleging, further, that for lack of funds his wife was deprived of proper medical attention and supplies, and suffered additional physical pain by reason thereof, that she also suffered mental worry on account of her failure to receive the money, and that in her delicate condition her mental worry further accentuated her physical pain, for all of which suffering plaintiff claimed damages. The trial was before a jury, who returned a verdict in favor of the defendant in obedience to a peremptory instruction from the court, and, from a judgment rendered in conformity with this verdict, the plaintiff has appealed.

The only assignment presented is to the peremptory instruction given by the court. Clearly the facts recited above were sufficient to support a finding of negligence by the defendant in delaying the transmission and delivery of the telegram, and that defendant was notified of the straitened circumstances of plaintiff’s wife at the time the telegram was sent and of her necessities requiring the money. Notice of those facts was also notice to the defendant of all such suffering which Mrs. Goodwin sustained which were the natural and probable consequences of a negligent failure to transmit and deliver the telegram, and which ought reasonably to have been foreseen as a result of such failure. Mrs. Goodwin testified in part as follows: “The whole time I was sick I worried so from not hearing from my husband at such a time that my fever rose several evenings from worry. I had my sister go by the Western Union every day, and they would always remark that, ‘If her husband had wired your sister any money, she would have gotten it.’ I did not have any money at all the ten days I was in bed. Dr. Anderson gave me two prescriptions to have filled, and on account of not having the money I could not get it.” Mrs. Backus, her mother, also testified that: “She did not have sufficient funds with which to procure proper medical attention. * * * She certainly worried a whole lot — so much that it caused her to have fever.” According to the testimony of the attending physician, her condition was such as to produce nervousness, that she suffered a great deal of pain, and any mental strain would retard her recovery in the condition she was in. We are of the opinion that, with this evidence in the record, the court erred in the instruction given to the jury, and for this error the judgment must be reversed. See Tel. Co. v. Cooper, 71 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; Tel. Co. v. Richards (No. 7692), 158 S. W. 1187, by this court, not yet officially reported, and authorities there cited; the opinion in Tel. Co. v. Mooney (No. 7618), 160 S. W. 318, by this court.

The appellee has cited the case of De Voegler v. West. U. Tel. Co., 10 Tex. Civ. App. 229, 30 S. W. 1107, in which it was held that an inexperenced youth in a strange city could not recover damages for mental worry and disappointment caused by a delay in receiving funds which he had requested of his mother by wire, and which his mother had in fact sent him; such failure to receive the money being caused by a negligent delay of the telegraph company in delivering the message sent by his mother. The facts alleged show that the boy was a guest at a hotel, where he was well cared for. The mental anguish and distress suffered- by the youth consisted in feeling that he was looked upon with suspicion, although there was no allegation in the petition that the proprietor of the hotel was aware' of the fact that he was without money with which to pay his board. In deciding that case in favor of the telegraph company, the Court of Civil Appeals used the following language: “It could not have been within the reasonable contemplation of the parties that appellant was so morbidly sensitive as to suffer great mental anguish and fear of being looked upon with suspicion for the simple reason that he did not receive a remittance of money promptly.”

We do not think it can be said that even the mental suffering of Mrs. Goodwin, which the testimony tended to prove, was the result of morbid sensitiveness on her part. We are of the opinion rather that the-jury would have been warranted in finding that in her physical condition such mental suffering was the natural and probable result of her disappointment in failing to receive the remittance which her husband sent, and that the defendant, who, according to the testimony of the plaintiff, was informed of the fact that she was ill and in need of the remittance, ought reasonably to have anticipated mental suffering of that character as a consequence of its failure to transmit and deliver the message with reasonable-dispatch. Appellee also cited Tel. Co. v. McNairy, 34 Tex. Civ. App. 389, 78 S. W. 969, by this court, Gooch v. W. U. Tel. Co., 90 S. W. 587, by the Court of Appeals of Kentucky, and Tel. Co. v. Linn, 87 Tex. 7, 26 S. W. 491, 47 Am. St. Rep. 58; but we think none of these cases last cited is in point, for it is quite evident that the damages claimed in those suits were too remote, and could not have been within the contemplation . of the telegraph company at the time the respective messages were received for transmission.

Eor the reasons noted, the judgment is reversed, and the cause remanded.