text:
    BEVERSDORFF v. DIENGER.
    (No. 2406.)
    (Supreme Court of Texas.
    March 17, 1915.)
    Wills <§=367 — Probate—Appeal—Notice.
    Rev. St. 1911, art. 3031, permits a person aggrieved by decision of the county court in probate matters to appeal therefrom on compliance with the provisions of that chapter, while article 3632 merely requires the filing of an appeal bond within 15 days, and does not require notice of appeal. Article 2084, relating generally to appeals, requires notice of appeals from the county or district court. Meld that the special statute controls and notice of appeal from the probate of a will is unnecessary, the giving of the required bond perfecting it.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § S32; Dec. Dig. <®=367J
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Proceedings by Joe Dienger for the probate of the will of John Ulle, deceased, contested by Mary Beversdorff. The Court of Civil Appeals dismissed contestant’s appeal from an order of the District Court dismissing an appeal from the judgment admitting the instrument to probate (141 S. W. 533), and contestant brings error.
    Reversed and remanded with directions.
    Carlos Bee, of San Antonio, for plaintiff in error. Cobbs, Taliaferro & Cunningham, of San Antonio, for defendant in error.
   PHILLIPS, J.

The suit originated in the county court of Kendall county, and was' a contest over the probate of the will of John Ulle, offered for probate by the defendant in error, who was therein named as executor, and contested by the plaintiff in error, a daughter of Ulle. The result in the county court was adverse to the contestant, and the will-was admitted to probate by a judgment rendered June 12, 1909. She duly filed her appeal bond in compliance with article 3632, R. S. 1911, for the appeal of the case to the district court. In that court her appeal was dismissed because she failed to give notice of appeal in the county court. The honorable Court of Civil Appeals approved the judgment of dismissal, holding that notice of appeal in the county court is indispensable to an appeal to the district court in a probate proceeding, notwithstanding the appeal bond prescribed by the statute had been duly filed.

The provisions governing appeals from the county to the district court in probate proceedings constitute a separate chapter in the statutes (chapter 32, Revised Statutes of 1911, arts. 3631-3639, under Title 52, “Estates of Decedents”). Article 3631 declares:

“Any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court shall have the right to appeal therefrom to the district co\}rt of the county, upon complying with the provisions of this chapter.”

The effect of this article is necessarily to exempt such appeals from the regulation of any general provisions of law, and to impose, for their perfection, compliance with the articles of chapter 32 as the sum of procedure necessary to be observed. Aside from those articles which provide that no bond shall be exacted of executors and administrators unless the appeal concerns them personally, and that where the party desiring to appeal is unable to give the bond, the appeal may be prosecuted upon an affidavit of such inability, the only article in the chapter which lays any requirement upon-an appellant is article 3632, which is1 as follows:

“He shall, within fifteen days after such decision, order, judgment or decree shall have been rendered, file with the county clerk a bond with two or more good and sufficient sureties, payable to the county judge, in any amount to be fixed by the. county judge, and to be approved by the clerk, conditioned that the' appellant shall prosecute said appeal to effect and perform the decision, order, decree or judgment which the district court shall make thereon, in case the cause shall be decided against him.”

It is manifest that according to no provision in the chapter is it necessary that notice of appeal be given in the county court, and that if the procedure is determined solely by the articles found in the chapter, as is unmistakably declared in article 3631, the appeal of a party of whom bond is required, is perfected when he files the bond in compliance with article 3632. We have no general statutory provision requiring the giving of notice of appeal, and if there were any such general statute, it would yield in its effect to the procedure prescribed as complete for a particular class of cases.

Article 2084 has no bearing upon the subject since it has reference alone to appeals to the Courts of Civil Appeals.

The procedure defined for the government of probate appeals to the district court, so far as it relates to this question, is not materially different from that provided for appeals from the justice to the county court. In both instances the trial on appeal is de novo. Article 2393 declares that an appeal from the justice to the county court shall be perfected when the bond it prescribes has been filed in compliance with its terms. It is silent as to any requirement that notice of appeal be given in the original court, as are the articles relating to appeals from the county to the district court in probate proceedings. If it be true, as held by the Court of Civil Appeals, that the requirement for notice of appeal in the original court is to be imported as a general rule applicable to all appeals, in virtue of article 2084, unless the particular appeal is excepted in terms from its operation, there could be no reason for holding appeals from the justice to the county court exempt from the rule. Yet in Edwards v. Morton, 92 Tex. 152, 46 S. W. 792, it was distinctly held by this court that such notice is not required in appeals from the justice court to the county court, in the following language:

“The statute does not require that the appellant shall give notice in the justice court of his appeal to the county court, and courts have no .power to prescribe such a rule. No such notice is necessary to perfect an appeal from the justice court to the county court.”

This further statement appears at the close of that opinion:

“No one can be denied the right of appeal because the Legislature lias not provided that he should execute a bond or do any particular act, but each party has the constitutional right to appeal if he complies with such regulations as have been prescribed by the Legislature for the class of cases to which his belongs.”

Edwards v. Morton stands in our decisions as an emphatic declaration that the statutory mode of appeal provided for a particular class of eases is alone to be consulted for the procedure necessary in the appeal of eases of that class, and where it is silent in respect to the giving of notice of appeal courts have no authority to impose such a requirement as a condition of the right. Nothing else could well be the law, and the strength of the proposition, best revealed by its simple statement, demonstrates its correctness. We advert here to the effect of this decision because it necessarily clears whatever confusion is found in our reports upon this question as related to probate appeals to the district court. That there is some apparent confusion, arising not from actual .decisions, but from expressions in opinions, may be conceded.

Battle v. Howard, 13 Tex. 3⅜5, involved an appeal by an administrator from the county to the district court. Notice of appeal was given in the county courts but the appeal was prosecuted without bond. Upon this account it was dismissed in the district court. Statutory provisions were in force then, as now, exempting executors and administrators from the giving of bond in such appeals, and it was accordingly held that the appeal was duly perfected. A ground urged in the case against the administrator’s right to appeal without bond, was the absence in the statute of any provision requiring that notice of the appeal be given in the county court. Answering that objection Judge Wheeler used the following language:

“Such a provision is not necessary to the exercise of the right of appeal. On general principles, he who would appeal from the judgment of any court, must do so in open court at the time when the judgment is procured, and the fact should appear in the proceedings in the case. This is all the notice which, in practice, the law has been held to require in any case. In the present case, the administrator appealed from the judgment of the probate court, and the fact was entered of record. And we are of opinion that nothing further was necessary to give the district court jurisdiction in this case, and that it was error to dismiss the appeal.”

It is evident that the failure of the statute to prescribe the giving of notice could not have tbie effect of requiring the giving of bond. It is equally apparent that the court did not undertake to there decide whether, under the statute, the notice is necessary where the bond is required and duly given. That question was in no wise involved in the case.

In Glenn v. Kimbrough, 70 Tex. 147, 8 S. W. 81 (a case of an appeal in a probate proceeding from the county to the district court by heirs who had duly filed their appeal bond), it was expressly held by the commission of appeals, with this court’s approval, that notice of appeal is not necessary in the appeal of such proceedings to the district court. Upon a review of the present statutory provisions found in chapter 32, the decision was rested squarely upon the omission from them of any such requirement. That part of the opinion by Judge Collard is as follows:

“It is also provided that any person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court (in probate matters) shall have the right to appeal therefrom to the district court of the county upon complying with the provisions of other sections of the law. ' Rey. Stats. 2201. The next article prescribes that he (the appellant) shall, within 15 days after such decision, etc., file with the county clerk a bond with two or more good and sufficient sureties, payable to the county judge, and to be approved by the clerk, conditioned that the appellant shall prosecute his appeal to effect and perform the decision, order, decree, or judgment which the district court shall make thereon in case the cause shall be decided against him. No notice of appeal is required by the law.
“In the case at bar the administrator, R. H. Smith, allowed the account of plaintiff in error for $300, on the 17th day of November, 1882, and on the 20th of the same month the county judge duly approved it and assigned it to the fourth class. On the 5th of December, 1882, H. E. and Mary A. L. Poe, claiming to be heirs at law of decedents, filed in the probate court their bond for appeal from the order of approval to the district court, complying with the terms of the statute, which bond was at once approved by the clerk. If they were such heirs they had the right of appeal from the action of the probate judge, and that without notice of appeal.”

In Smithwiek v. Kelly, 79 Tex. 564, 15 S. W. 486, an opinion by Judge Stayton, a contrary holding is expressed. It is manifest, however, from the statement of the ease that a determination of this exact question was not essential to the decision of the case; and, from what is said in the opinion concerning Glenn v. Kimbrough, it may be doubted whether there was any intention to decide it, though some doubt is cast upon the latter decision. The case concerned an attempted appeal to the district court by executors from a probate order. It is stated in the opinion that “the inference was almost irresistible that they intended to prosecute an appeal to protect what they supposed to be their personal interests,” in which event it would have been necessary for them to duly file the statutory bond. No notice of appeal was given. They filed a bond, but one day too late! If the appeal was attempted to be prosecuted for the personal benefit of the parties named as executors, as seems to have been the conviction of the court, and as appears to have been the case, for the bond was not even executed by them as executors, their failure to file a bond in compliance with the statute was alone sufficient to defeat the appeal, rendering' unnecessary any determination as to the effect of their failure to give the notice. Upon the latter subject, however, this is stated in the opinion:

“The appeal bond was not executed by Carson and Follain as executors, and the inference is almost, irresistible that they intended to prosecute an appeal to protect what they supposed to be their personal interests. If, however, it be held that they attempted to prosecute an appeal as executors for the benefit of the estate the same result would follow. No notice of appeal having been given in open court, the executors could not perfect an appeal on behalf of the estate or themselves. * * * In appeals from justice courts it is necessary that notice of the appeal should be given to the adverse party, and the statute prescribes how this shall be given. Rev. Stats, art. 1639. * *
“Now, as heretofore, the statutes regulating appeals in probate proceedings do not in terms require notice of appeal to be given in open court, but the statutes in force now, in no respect affecting the question before us, differ from the Act of March 20, 1848 (Paschal’s Digest, arts. 1383, 1384), under which, in Battle v. Howard, 13 Tex. 348, it was said: ‘Such a provision is not necessary to the right of appeal. On general principles he who would appeal from the judgment of any court must do so in open court at the time when the judgment is procured, and the fact should appear in the proceedings of the case. This is all the notice which, in practice, the law has been held to require in any case. In the present case the administrator appealed from the judgment of the probate court and the fact was entered of record, and we are of opinion that nothing further was necessary to give the district court jurisdiction.’ It ought to be presumed that in carrying the Act of March 20, 1848, above cited, into the Revised Statutes it was intended it should receive the construction theretofore placed upon it. In the case cited we understand the court to have meant by ‘the time when the judgment was procured’ the term at which the judgment was rendered.
“That notice should be thus given, we have no doubt, in the absence of a law requiring notice to be given in some other manner.”

Immediately following in the opinion is the reference to Glenn v. Kimbrough, as follows:

“In Glenn v. Kimbrough, 70 Tex. 148 [8 S. W. 81], there is a statement that notice of appeal from a decree in probate was not necessary, •but in that case a bond was filed within the time prescribed by law, and it may be that it was intended in such cases that parties adversely interested should take notice of that fact and thus have notice of an appeal; but if so, that could not affect this case, for the bond in question was not filed within 15 days after the decree in probate was rendered, and it cannot be held that appellants or others interested in the estate of the testator were bound to take notice of the filing of a bond after the time had elapsed within which the law permitted a bond to be filed. We are, however, of opinion that the rule, asserted in Battle v. Howard is the correct one, and persons who may not be able thus to give notice of appeal may have a judgment in probate revised in the district court on certiorari upon proper application and notice.”

In the present case the honorable Court of Civil Appeals concluded that Glenn v. Kimbrough was overruled in Smithwiek v. Kelly; but such a purpose is not plainly evidenced by the opinion. If such was the intention of the court, it should be assumed that the eminent judge writing the opinion, noted for the clearness and strength of his judicial utterance, would have expressed it in unequivocal terms. There is indicated, on the contrary, a design to distinguish that decision, and a probable purpose to limit its application to those instances where the bond has been duly given, as is the case here; for, after having previously announced that notice of appeal should be given at the term of the court rendering the judgment appealed from, “in the absence of a law requiring notice to be given in some other manner,” and having observed that in Glenn v. Kimbrough the bond had been duly filed, it is said:

“And it may be that it was intended in such cases that parties adversely interested should take notice of that fact and thus have notice of an appeal.”

This evinces very clearly to our minds an unwillingness to hold that the decision, as applied to the state of case it involved, was wrong, and should therefore he overruled.

It was stated in Smithwick v. Kelly, as persuasive upon the proposition that notice of the appeal is necessary, that such notice was required in appeals from the justice court, citing article 1639, R. S. 1879. If by this it was meant that under the law as it then stood the notice was necessary to perfect the appeal, the statement was inaccurate. Such was the provision in article 1639, R. S. 1879. But at the time that opinion was written, in 1891, that requirement, as an essential for the perfection of the appeal, had been dispensed with. Article 1639 was amended by the Act of 1883 (Laws 1883, p. 91), entirely omitting the clause requiring that notice of the appeal be given in justice court. That act constitutes present article 2393, governing appeals from the justice court. Under its provisions a failure to give notice of the appeal in the county court entails a continuance of the cause at the appearance term where the appellee has not appeared in person or by attorney; and unless it is so given, an appellee is not subject to the rendition of a judgment by default. But it is therein provided that the appeal shall be perfected when the prescribed bond is duly filed. The effect of the amended article is to entirely relieve an appellant of the necessity of giving the notice in the justice court as a prerequisite for the allowance of his appeal, as was held in Edwards v. Morton. The procedure then in force with respect to appeals from the justice court furnished no analogy, therefore, to the proposition announced generally in Smithwick v. Kelly, that notice of an appeal is necessary to perfect the appeal notwithstanding the statute governing the appeal does not so provide.

The amendment of article 1639 by the Act of 1883 (Acts 18th Leg. c. 91) demonstrated an unmistakable purpose on the part of the Legislature to exempt the right of appeal in such cases from the previous statutory requirement of notice. If it was competent for the Legislature to omit such a requirement in the enactment of a statute governing appeals from the justice court, it was equally within its power to omit it from a statute regulating probate appeals from the county to the district court. And if in appeals from the justice to the county court the notice is not necessary to perfect the appeal for the reason that the statute is not so written, as held in Edwards v. Morton, what warrant can there be for applying a different rule to probate appeals from the county to the district court where the statutes enacted for their regulation likewise fail to impose any such requirement?

Smithwick v. Kelly was referred to with approval upon this question in Western Union Telegraph Company v. O’Keefe, 87 Tex. 423, 28 S. W. 945, and it was there construed as an express decision that a failure to give the notice is fatal to the jurisdiction of the appellate court. That feature of the case produced by the omission to duly file a bond in the attempted appeal there considered, and its probable effect upon the decision, were not adverted to. Nor was it noticed that the failure to duly file the bond was alone sufficient to defeat that appeal, if, as the court evidently thought, it was one attempted to be prosecuted by the executors for the protection of their personal interests.

Western Union Telegraph Company v. O’Keefe involved an appeal from the district court to the court of Civil Appeals. In such cases the statute then expressly required, as it does now, that notice of the appeal be given in the district court; and it was accordingly held that such notice was necessary in the appeal there under review. In the opinion this statement appears:

“We have been unable to find in the decisions of this court any intimation that notice of appeal is not necessary to the jurisdiction of the appellate court in all cases which are sought to be brought before it by direct appeal. On the contrary, it has been frequently asserted, in effect, that notice is jurisdictional and that it cannot be waived.”

In addition to Smithwick v. Kelly, the following cases are thereupon cited in the opinion: Manlove v. Kinney, Dallam, Dig. 493; Burr v. Lewis, 6 Tex. 76; Bennett v. Spillars, 7 Tex. 600; Hughes v. State, 33 Tex. 683; Thomas v. Childs, 36 Tex. 148; H’olek v. Varona, 63 Tex. 65; Nickerson v. Nickerson, 5 Tex. Law Rev. 52; and Loftin v. Nalley, 28 Tex. 127. Each of these cases concerned an appeal attempted to be prosecuted to the Supreme Court, under statutes plainly providing for the giving of notice of appeal in the lower court.

It may be doubted whether the foregoing statement in the opinion in Western Union Telegraph Company v. O’Keefe was intended to apply to any other appeals than those in which it is required by statute that the notice shall be given in order to perfect the appeal, since the appeal under consideration was of that character, though the holding in Smithwick v. Kelly is referred to as authoritative.

Because of its not being necessary to the decision of the actual question involved in either Smithwick v. Kelly or Western Union Telegraph Company v. O’Keefe, and the evident hesitation of the court in the former case to overrule Glenn v. Kimbrough, we are disinclined to believe that it was the purpose in those cases to announce, as a.general rule, that to perfect any appeal known to our practice it is necessary to give notice of the appeal, notwithstanding the statutory method prescribed for the particular appeal (which omits any such requirement) is strictly complied with. If any such holding is to be inferred or deduced from the opinion in either case, it is in manifest conflict with the later announcement of the court in Edwards v. Morton, and must yield to that decision. The opinion in the latter case is unequivocal in its declaration that the constitutional right of appeal is not to be denied because of a failure to do anything which the statute governing the particular appeal does not require; but the appeal is to he allowed when its provisions are complied with. It therefore settles this question.

Any other view in its result deprives the practice of all the stability and dependence of the method formulated by the Legislature for the government of the particular appeal, and provided by it as a reliable rule of procedure. A statute should not be suffered “to hold the word of promise to the ear, and then break it to the hope.” Where it' declares that a certain right shall exist when its provisions are observed, it should be taken at its word, and the fulfillment of its requirements should operate to perfect, and not defeat, the right.

An appeal bond was duly filed in the present case as provided by article 3632. This was a compliance with the provisions of chapter 32, and according to article 3631 gave to the plaintiff in error her right of appeal.

The judgments of the Court of Civil Appeals and district court are reversed, and the case is remanded to the district court for trial on the appeal.
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J.

license: Public Domain

text:
    SLAUGHTER v. STATE.
    (No. 3377.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 3, 1915.)
    1. Cbiminal Law <&wkey;598 — Continuance-Absent Witnesses.
    Where accused knew that a desired witness was in' the final stages of consumption and would never be able to appear at trial, the issuing of a subpoena for such witness was not sufficient diligence, and accused is not entitled to a continuance on the ground of his absence, for be should have taken his deposition, as authorized by Code Cr. Proc. art. 818.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. <S&wkey; 598.]
    2. Cbiminal Law <&wkey;1092 — Exceptions — Bill op — Qualifications.
    Where accused accepts a bill of exceptions with a qualification, he assents to the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <&wkey;>l092.]
    3. Seduction <&wkey;46 — Pkosecution—Odaese.
    While Code Cr. Proc. arts. 789, 801, provide that the evidence of a seduced person or an accomplice must be corroborated as to facts tending, to connect accused with the offense .charged, in order to convict, on the testimony of such person or accomplice, one accused of seduction may be convicted upon the testimony of the prosecutrix alone, if there is other evidence corroborative of her testimony, and connecting accused with the offense charged, though there is no specific corroboration, as to- marriage promise.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. &wkey;?46.]
    4. Seduction &wkey;>45 — Evidence—Sufficiency.
    Evidence held to warrant a conviction of seduction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. <&wkey;45.j
    Davidson, J., dissenting.
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Charlie Slaughter was convicted of seduction, and appeals.
    Affirmed.
    Cunningham & Sewell, of Abilene, and Woodward & Baker, of Coleman, for appellant. C. E. Lane, Asst. Átty. Gen., for the State.
   HARPER, J.

The indictment in this case was returned August 30, 1911. Appellant left Abilene, and his whereabouts was not ascertained until in July, 1914, when he was located at Woodward, Okl., arrested, and brought back to Taylor county. This case was called for trial on September 14, 1914, and, on the overruling of his motion for a continuance, he was tried and convicted of seduction, and his punishment assessed at three years’ confinement in the state penitentiary.

The first error relied on is that the court erred in overruling this, his first application for a continuance. After his arrest in July, appellant, on August 18, 1914, had a subpoena issued for Mr. and Mrs. T. G. Cloe to Fisher county, which was served on them on the 20th day of August; the return of the sheriff being worded:. “T. G. Cloe is very sick and not able, to go. Refused to make bond” — which return was filed in the office of the district clerk on' the 22d day of August, 1914, 23 days before the ease was tried. No additional effort was made to secure the testimony of this witness. As the testimony it is alleged the witness would give would be material, the question presented is: Was the diligence used to secure his attendance sufficient in law? If the witness was suffering from only temporary sickness, the diligence, we think, would be sufficient, for the rule of law is, as stated by Mr. Wharton in his work on the Law of Evidence, § 179:

“Thus in an old case, where a witness, on his journey to the place of trial, was taken so ill as to be unable to proceed, we find it recorded that his deposition was allowed to be read; and the same liberty would apply to depositions taken in a prior case between the same parties. At the same time it should appear that the sickness is of a character imposing permanent inability, as otherwise, to adopt a criticism of Lord Ellenborough, there would be very sudden indispositions and recoveries. The rule laid down by Lord Ellenborough, that, where a witness is taken ill, the party requiring his testimony should move to put off the trial, is less open to objection and abuse. It is, of course, in such cases, a conflict of inconveniences; but in criminal trials, where the objection to secondary evidence of this class is peculiarly strong, it has been ruled that the deposition of a woman, who was so near her confinement as to be unable to attend a trial, could not at common law be received. It is otherwise, however, when, from the nature of the illness or other infirmity, no reasonable hope remains that the witness will be able to appear in court on any future occasion.”

Under this test a number of authorities are cited, and were quoted approvingly by this court in Rhea v. State, 148 S. W. 578, and other cases. Thus, where the sickness of the witness is only temporary, a continuance should be granted to secure his testimony; but if the illness is of a permanent nature, and there is no hope of securing the attendance of the witness at a future term of the court, the absence of such a witness furnishes no ground for a continuance, for the party desiring the testimony of the witness should take his depositions, under article 818 of the Code of Criminal Procedure, which provides for the taking of depositions of an aged or infirm witness by the defendant. When this application was presented, the court heard evidence as to the diligence used to secure the testimony of the absent witness, and Mrs. Cloe testified that her husband had tuberculosis and was in the last stages of that disease, and would never be able to attend court; that the defendant had known for two or three months that her husband would not be able to attend court, and would likely never be able to attend court. The evidence further shows that defendant was at the home of the absent witness some seven weeks before the trial, and conversed with the witness and was aware of his condition when he had thei subpoena issued for him. Under such circumstances, the issuance of a subpoena would be no diligence, and, had he then told his attorneys the condition of the witness, we are satisfied they would have had no subpoena issued, but would have told him it would be necessary to take his deposition, as it would be apparent this was the only way the testimony of the witness ever could be secured. Knowledge having been traced home to defendant, it is manifest that he used no diligence to secure this testimony. The court, in overruling the application, entered the following order:

“At this time came on to be heard the defendant’s first application for a continuance, and it appealing to the court that the indictment was filed herein on August 80, 1911, that defendant absented himself from this court and state and kept beyond the reach of the officers of this state, from said date until about the 1st of August, 1914, when he was apprehended, and it further appearing to the court that the subpoena for said T. G. Oloe was returned and filed in this court on August 22, 1914, showing that said witness was sick; and because of the further record taken in this case, made a part hereof, and it further appearing to the court that the defendant has made no effort whatever to take the deposition of said witness, the court is therefore of the opinion that due diligence had not been shown, and that said motion should be overruled. It is therefore ordered, adjudged, and decreed by the court that said motion be and the same is hereby in all things overruled.”

In approving the bill of exceptions to the action of the court in overruling the application for a continuance, the court says:

“The above and foregoing bill of exceptions, being this day presented to me for approval, is approved and ordered filed with the following explanation, to wit: The evidence showed that, in plenty of time to have taken the deposition of the absent witness, the defendant knew that said witness was seriously sick, and would probably be dead before another term of court, and would in any event never likely be able to attend court; furthermore, the evidence on the trial indicated strongly that said witness, if present, would not swear to the things set forth in said application.”

As thus qualified, the bill presents no error, and, having accepted same and filed it, he is bound by such qualification. He is estopped from further complaint. Blain v. State, 84 Tex. Cr. R. 448, 31 S. W. 368.

Appellant testified on the trial of the case and admitted having sexual intercourse with the prosecuting witness, but denied that he was engaged to marry her, or that he had ever promised to do so, and testified that he Was a married man and the prosecutrix knew this fact when the acts of intercourse occurred. Of course, if the defendant was a married man at the time of the alleged seduction, and the prosecutrix knew that fact, he could not be guilty of seduction under our law; but the prosecutrix denied that she knew that fact, and this was an issue to be submitted to the jury. The court on this issue, and the issue of corroboration of ah accomplice, charged the jury:

“You are instructed that the witness Ella Olay is an accomplice. Now you cannot convict the defendant upon her testimony alone, unless you first believe that her testimony is true and shows that the defendant is guilty of the offense charged; and then you cannot convict the defendant upon said testimony, unless you further believe that there is other testimony in the case corroborative of the testimony of said Ella Clay, and tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense charged and of the act of intercourse. If you believe from the evidence that the defendant had carnal knowledge of the witness Ella Clay, if he did so, but that she was not seduced and induced to yield to such carnal intercourse by reason of a promise of marriage made by the defendant to her, but was induced to so yield to such carnal intercourse by her own amorous pass'on, or by some other consideration, then you would find the defendant not guilty. You are further charged that should you believe from the evidence that prior to having the first act of intercourse with the defendant, if she did have such act of intercourse, the said Ella Clay then knew that the defendant was a married man and not divorced from his wife, then, in such case, you would acquit the defendant.”

The only complaint of this charge is that it did not specifically charge the jury that the prosecutrix must be corroborated as to the alleged promise of marriage. Appellant also presented two special charges in which he requested the court to charge the jury:

“That the alleged promise of marriage is an essential part of - this offense, and, unless her testimony has been corroborated by other testimony than her own as to'said alleged promise of marriage, they would acquit, appellant.”

To the refusal of the court to give these two charges, appellant also complains in his bill of exceptions. There is some conflict in our decisions on the question here presented; but, as in recent years the charge as given has been so often approved, we hardly deem it necessary to discuss it, and would not do so but for the earnest insistence of appellant’s counsel. In the case of Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 584, a seduction case, this court, in an opinion by Judge Ramsey, which met the approval of all the judges, seemingly, laid down a form of charge on accomplice testimony in this character of case, and the trial court followed this charge almost literally in this ease. The form as laid down by the court in the Campbell Case is as follows, the court saying:

“We think in a case like this, where, under the law, the witness is an accomplice, that the following form of charge should be given, and same is hereby, in terms, approved as a correct charge: T instruct you that the witness * * * is an accomplice. Now you cannot convict the defendant upon his testimony alone, unless you first believe that his testimony is true and connects the defendant with the offense charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of the accomplice’s testimony tending to connect the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged.’ We have also approved charges on this subject in the recent cases, decided at the present term, of King v. State, from Tom Green county, and Brown v. State, from Kaufman county.”

The King Case will be found reported in 57 Tex. Cr. R. 363, 123 S. W. 135, and the Brown Case in 57 Tex. Cr. R. on page 576, 124 S. W. 101. Many other cases could be cited specifically approving this form of charge. The contention has often been made that the jury must be instructed that the accomplice must be corroborated upon every material issue in the case, but such was not the rule at common law, and no such rule has been prescribed by our Code of Criminal Procedure. The only requirement by the Code is that the evidence of the seduced person or accomplice must be corroborated as to facts, tending to connect the defendant with the offense charged. Articles 789 and 801, Code of Criminal Procedure.

At common law it was held that a conviction might be had upon the uncorroborated testimony of an accomplice. This is evidenced by the decisions in several of the famous state trials. But the rule that more recently prevailed at common law was that, while a conviction might be had upon the uncorroborated testimony of an accomplice, yet it was customary for the trial judges (who were permitted to comment on the evidence) to advise a jury not to convict, unless the testimony of the accomplice was corroborated by other testimony or circumstances in the case; the rule there finally resolving itself as stated by Judge Garrow in Tidd’s Trial (33 How. St. Tr. 1483) in his charge to the jury:

“It may not be unfit to observe to you here that the confirmation to be derived to an accomplice is not a repetition by others of the whole story oP’the accomplice and a confirmation of every part of it; that would be either impossible or unnecessary and absurd; * * * and therefore you are to look to the circumstances to see whether there are such a number of important facts confirmed as to give you reason to be persuaded that the main body of the story is correct. * ⅜ * You are, each of you, to ask yourselves this question: Now that I have heard the accomplice and have heard other circumstances which are said to confirm the story he has told, does he appear, to me to be so confirmed by unimpeachable evidence, as to some of the persons affected by his story, or with respect to some of the facts stated by him, as to afford me good ground to believe that he also speaks the truth with regard to other prisoners or other facts, with regard to which there may be no confirmation? Do I, upon the whole, feel convinced in my conscience that his evidence is true and such as I may safely act upon?”

Under our Code, a judge was prohibited from commenting upon the weight of any testimony given on a trial, and under such conditions it was provided by the Code that a judge in his charge, as a matter of law, should instruct the jury that a conviction could not be had upon the testimony of an accomplice, unless corroborated by other evidence, and to the common law was added that there must be other evidence tending to connect the defendant with the offense committed ; but it was never intended by this provision of the Code that the corroboration must extend to every part of the accomplice’s evidence, because, if such was the rule, there would be no necessity or occasion to offer the accomplice as a witness if his testimony could be completely proven by other evidence.

This court in the case of Myers v. State, 7 Tex. App. 659, held:

“The authorities are not agreed as to the amount and extent of corroboration required in order to warrant a conviction on the testimony of an accomplice who, in the sense of'a witness, is any direct participant in the crime; but with this we need have no concern, for the reason that the statute has -settled it by declaring the extent of the corroboration necessary. It is ‘other evidence tending to connect the defendant with the offense committed.’ We do not understand that this requires the different matters testified to by the accomplice are to be supported, each one, by other testimony to the same isolated facts, but that it must tend to connect the defendant with the offense committed.”

In the case of Nourse v. State, 2 Tex. App. 317, this court held:

“It will be seen that, to justify a conviction on the testimony of an accomplice, there must be some evidence which, of itself and without the testimony of the accomplice, tends in some degree to connect the accused with the commission of the crime. The Supreme Court of California ([People v. Melvane] 39 Cal. 614) say: ‘The corroborative evidence may be slight and entitled to but little consideration; nevertheless, the requirements of the statute are fully fulfilled, if there be corroborative evidence which of itself tends to connect the accused with the commission of the offense.’ This decision was rendered under a statute very similar to ours in regard to corroboration necessary to bq had to the testimony of an accomplice to support a conviction. ⅛ ⅜ ⅜ It is a mistaken idea to suppose that the corroborating evidence must conclusively of itself connect the defendant with the commission of the offense.”

In the case of Jones v. State, 4 Tex. App. 530, it was held:

“As we construe that provision of the statute, the corroborating evidence must, of itself, and without the aid of the testimony of the accomplice, tend, in some degree, to connect the defendant with the commission of the offense. It need not, of course, be sufficient to establish his guilt, for, in that event, the testimony of the accomplice would not be needed.”

According to Hoyle’s Case, 4 Tex. App. 245, if the corroboration tends to connect the defendant with the commission of the offense, then it is sufficient ;■ and it would serve no good purpose or tend to enlighten the jury to tell them that the accomplice must be corroborated in his statements in any material matter.

In the case of Wright v. State, 31 Tex. App. 355, 20 S. W. 757, 37 Am. St. Rep. 822, it was held:

“Corroborative evidence on a trial for seduction need not be direct and positive, or such evidence as is sufficient to convict [the defendant) independent of that of the prosecutrix, but simply such facts or circumstances as tend to support her testimony, and satisfy the jury that she is worthy of credit.”

It has often been contended that to sustain a conviction for seduction, as the law requires that the female must be under 25 years of age, that there must be a promise of marriage and an act of intercourse to constitute seduction, the court must specifically instruct the jury that the accomplice or injured female must be corroborated as to all of these matters.

In the ease of Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120, in which case it was contended that, as the girl was not corroborated in her statement that she was under 25 years of age, the conviction should not be sustained, Judge McCord, for the court, held: .

“It is insisted before this court that, because there was no testimony corroborating her upon this noint, therefore the conviction cannot stand. We do not agree to this contention. All crimes have in them different issues and different elements that are required to be proved in order to sustain a conviction. The statute is general that the accomplice must be corroborated by other testimony tending to connect the defendant with the commission of the offense. The statute does not say in what this corroboration shall consist. If the testimony, other than that of the accomplice, should make out a complete offense, it would not be necessary to use the accomplice’s testimony. Hence the law has wisely provided that the corroboration must tend to connect the defendant with the commission of the offense; and to require that every constituent element of the offense as sworn to by the accomplice must be corroborated would be r-equiring of the state an impossibility. We therefore hold that this contention of appellant is without merit.”

See, also, Nash v. State, 61 Tex. Cr. R. 259, 134 S. W. 709; Murphy v. State, 143 S. W. 618; Bost v. State, 64 Tex. Cr. R. 464, 144 S. W. 589; Curry v. State, 151 S. W. 319; Gillespie v. State, 166 S. W. 139; De Rossett v. State, 168 S. W. 531; and cases cited in these opinions.

In this case the injured female testified:

“My name is Ella Clay. I am 24 years old now at this time. In the year 1911, I was 21 years old. I know the defendant, Charlie Slaughter. I have known him since October, 1911. No, I have known him since 1910. I am single. I have never been married. When I met the defendant, I was living at the Haekley house. I met him there. I had sexual intercourse with him. The first time I ever had sexual intercourse with him was in March, 1911, out here at the bail park. No one was out there with me but him. It was at nighttime. I had intercourse with Charlie Slaughter because I loved him, and he promised to marry me, and I relied on that promise. We were engaged to be married. We were first engaged to be married in January, 1911. When we first became engaged, I was working at the Crown Boarding House. He was boarding there at that time. Mrs. Holder was running the boarding house at that time. I had been going with him since October, before, up to the time we became engaged. We were together as much as two or three times a week. The first time he ever asked me to submit to his sexual embrace was in March. At that time we had been engaged since January. It was in March that we had our intercourse. At the time we had this intercourse there was something said about us being engaged. He said we would marry that fall, but we did not have the date set. We did not have any date set¡ but we were to marry that fall. I permitted him to have intercourse with me because I relied upon his promise of marriage. There is no other reason for which I submitted to his having sexual intercourse with me. I loved him. He had intercourse with me several times after that. I don’t know just how many times. We had intercourse at the same place — at the ball park. At these subsequent times when he had intercourse with me we talked about our relationship and about our engagement. He said he would marry me, and he would carry out his promise. I relied upon that promise. He has never married me. As a result of that copulation, there was a child born to me — one baby. During this time I was keeping company with him, I did not keep company with any one else at that time. I kept company exclusively with Charlie Slaughter. As to why I was keeping company exclusively with him, I didn’t have any other company, and didn’t want any other company, and I was engaged to him, and I didn’t think I should be going with other parties. I didn’t want to go with anybody else. When I received his company most of the time, it was there at the boarding house. Mr. and Mrs. Cloe were the proprietors, at that time, of the boarding house. He was boarding there, and we went to the shows and to church very frequently. He took me out as much as twice a week, and sometimes two or three times a week. These acts of intercourse occurred in Taylor county, Tex., right here in Abilene. My baby will be three years old in December.”

It is thus seen that her testimony makes a clear case of seduction.

Appellant testified and admitted the sexual intercourse, but denied any promise of marriage. While there is no direct proof of a promise of marriage, yet the facts and circumstances testified to by the witnesses would amply corroborate prosecutrix on this point. It is shown: That Miss Olay was first at the Hackley house in Abilene, and she there met appellant. That she changed her place of abode and went to the Crown Boarding House. Appellant’ at once changed his place of stopping and also went to the Crown Boarding House. Miss Clay went to Anson, and so did appellant. She returned to the Crown Boarding House at Abilene, and so did appellant.

Prank Wasson testified that he also boarded at the Crown Boarding House, and that “he saw appellant and Miss Clay together nearly every night.” Mrs. Cloe téstified:

“I am not in any way related to Miss Ella Clay. I know the defendant, Charlie Slaughter. I have known him about 3½ years, X guess. Me and my husband ran the Crown Hotel here in the early part of 1911, in Abilene. Miss Clay was staying’ at our house at that time. The defendant boarded at our house at that time. He boarded there three or four months. During that time X saw the defendant keep company with Miss Clay about once or twice a week. I never did see him though, with any other young lady. I never did know of her going with any other young man at the time the defendant was going with her.”

This witness also testified that after the arrest of appellant, and be was brought back to Abilene, appellant.went to see and asked her to go to Miss Clay and get her to leave town and not appear against him; that he told her she could go to his lawyer, and he would tell her how to talk to Miss Clay, how Miss Olay could get away, and what she was to say; that he wanted her to get Miss Clay and get her to go to his lawyer and sign some kind of papers, but she declined to do so. Other facts and circumstances are testified to; also the flight of appellant when Miss Clay went to him and told him her condition, and demanded that he carry out the promise to marry her. Miss Clay admits that appellant told her at this time he was a married man, but she says this was the first time she ever heard it. Appellant introduces testimony tending to show that Miss Clay knew he was a married man prior to the time the act or acts of intercourse took place. The court submitted that issue to the jury, and they found against appellant; and the record shows he had not lived with his wife for 12 years, and she had never been at Abilene, nor in Taylor county.

We are convinced that the prosecutrix’s testimony is sufficiently corroborated; and, there being no error in the record, the judgment is affirmed.

DAVIDSON, J. I dissent. May write later. I believe the plain definition of the offense contained in the statute ought to control this court.

DAVIDSON, J.

(dissenting).

At the time of the rendition of this opinion I entered my dissent to the affirmance. I have reviewed the case again in the light of the motion for rehearing and the action of the court overruling it.

With reference to accomplice testimony, the court gave the following charge:

“You are instructed that the witness Ella Clay is an accomplice. Now you cannot convict the defendant upon her testimony alone, unless you first believe that her testimony is true and shows that the defendant is guilty of the offense charged; and then you cannot convict the defendant upon said testimony, unless you further believe that there is other testimony in the case corroborative of the testimony of said Ella Clay, and tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense charged and of the act of intercourse.”

It will be noted that this charge is in the general form and does not apply the law to the case, except it requires corroboration of the act of intercourse. It omits to charge the jury that her corroboration must be by independent testimony and must show or tend to show a promise of marriage. The charge would have been better for the defendant if the last clause had been omitted, to wit, “and of the act of intercourse.” There was no question of the intercourse between the parties. The issue between the defendant and the state was as to the promise of marriage. Appellant admitted the intercourse, but placed it on the ground that it was not induced by any promise of marriage. Exception was reserved to this charge on the ground that it omits and fails to charge the jury affirmatively that the prosecutrix’s testimony should be corroborated as to the promise of marriage, and requested the court to give special charges Nos. 1 and 2 referred to and made a part of the exception to the charge, and also objects to the court’s charge on corroboration of the evidence of Ella Olay, and says the same is too general and does not apply the law to the facts. It is the universal rule that an accomplice cannot corroborate himself. The corroboration must come from sources independent of the accomplice. To meet this, appellant requested, as part of the law of the case, that the jury be informed:

“That unless you believe from the evidence, beyond a reasonable doubt, that the prosecuting witness, Ella Glay, is corroborated outside of her own testimony as to the alleged promise of marriage, it will be your duty to acquit the defendant in this case and say by your verdict not guilty.”

Another charge was asked, which was refused:

“That it is not sufficient that the prosecuting witness, Ella Olay, be corroborated alone as to the act of sexual intercourse, but you are charged that the alleged promise of marriage is an essential part of this offense; and unless the said Ella Glay has been corroborated with other evidence than her own as to said alleged promise of marriage, if any, then in that event you will acquit the defendant.”

These charges were refused. The judge signing the refusal says these charges were given in the general charge, and for that reason refused. I do not find this charge given by the court. In fact, I quoted above the general charge given by the court. Under all the authorities, it is necessary that the prosecutrix be corroborated at least as to two facts; First, promise of marriage; and, second, the illicit intercourse. It takes at least these two things to constitute seduction. This is so by the statute, and by all the authorities that have been called to my attention. It would seem unnecessary at this late date to collate them. There are a number of cases which hold that this charge should be given. Theye has been a tendency by recent decisions to hold that it was not necessary to so charge, but none of these cases that I have observed holds otherwise than it is necessary to corroborate the accomplice on these propositions. Some of them intimate that it may not be necessary to charge specifically a corroboration as to promise of marriage and intercourse. The court did, however, in this ease, select out the act of intercourse and charge specifically upon that, but did not inform the jury that the prosecutrix must be corroborated as to the promise of marriage. This would intensify the reason why the charge should have informed the jury that she must be corroborated as to the promise of marriage. It has always been held that it is error not to give the charge when requested. Barnard v. State, 76 S. W. 475; Keeton v. State, 73 Ark. 265, 83 S. W. 911. It is unnecessary to go further with this matter. Appellant availed himself of all the technical rules with reference to exception, and not only excepted to the court’s charge at the proper time and requested special instructions, but embodied in his exceptions the refusal to give the special instructions. This error was conceded by the Assistant Attorney General, and appellant not only reserved his exceptions in this way but embodied them in bills of exception. So there was no question of the fact these matters are presented for review.

There was some testimony admitted which I think was erroneous, but I do not purpose_ to enter into a discussion of that matter. I am therefore of opinion this judgment ought to have been reversed, and the jury instructed as to the law of the case upon another trial. The defendant certainly is entitled to have the law administered as found in the definition of the offense, and especially when he did everything within his power to see that the law was presented in the charges.

I therefore respectfully enter my dissent.
      ©scEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    GLASPER v. STATE.
    (No. 3466.)
    (Court of Criminal Appeals of Texas.
    March 10, 1915.)
    1. Robbery &wkey;>24 — Evidence — Admissibility.
    In a pi-osecution for robbery, evidence held to warrant a conviction.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§.32-36; Dec. Dig. &wkey;24.]
    2. Criminal Law &wkey;>1092 — Exceptions, Bill oe.
    A bill of exceptions, unlike a statement of facts which can be filed within 90 days after adjournment, must be filed within the time limited, and, unless so filed, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;1092.)
    3. Criminal Law <&wkey;841 — Apbeai^-Presen-tation oe Grounds oe Review in Court Below — Exceptions.
    Unless excepted to before read to the jury, objection to a charge cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2022; Dec. Dig. <&wkey;>841.]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Will Glasper was convicted of robbery, and he appeals.
    Affirmed.
    John I. Moore, of Crockett, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

There were two theories presented by the testimony. The evidence for the state discloses that there was a monte game being exhibited, and appellant and a negro named Ringer were in the game. Ringer won appellant’s money and started away. Appellant told him to stop or he would blow out his brains, at the same time making a demonstration as if to draw a pistol. This was in connection with the demand for the money from Ringer. A bystander named Evans, who had, as he says, staked Ringer, called upon Ringer to turn the money over to him. Appellant, with some forcible adjectives in connection, informed Ringer he must turn it over to Evans, which Ringer proceeded to do. This money, or most of it, had been won by Ringer from appellant in the game. Under this testimony appellant would be guilty of robbery whether he himself took the money or forced Ringer to turn it over to Evans.

The defendant’s theory of the case was that he had no pistol, made no demonstration, and did not demand of Ringer to turn over his money; and he and his witnesses who were present at the game testified that he asked Ringer, after Ringer had won all his money, to loan him $2 on his (appellant’s) watch, which Ringer declined; that Evans then claimed from Ringer half of the money he had won, because he had staked Ringer, and was therefore entitled to half of the winnings; and that Ringer turned over the money to Evans and went away. Under this theory, of course, appellant would not be guilty of robbery. The jury settled this question in favor of the state.

There was a bill of exceptions reserved to the introduction of some testimony from the witness Howard. Howard was permitted to testify that some time during the day of this trouble, and at about three-quarters of a mile distant from where it occurred, he met Ringer, and Ringer told him about the trouble, and asked Howard’s advice as to his course. Howard states that he told him he supposed appellant would return the money after a while. When the motion .for new trial was overruled, appellant had 30 days allowed in which to file bill of exceptions. This time was not extended. Court adjourned on the 24th day of November. The bill of exceptions was not filed until the 15th day of January, 50 days after the adjournment of the court. In order to have had this bill of exceptions considered it should have been filed within the 30 days, or time should have been extended so as to cover the time in which it was filed. The rule is different with reference to statements of facts and bills of exception. A statement of facts may be filed at any time within 90 days after adjournment of court, but bills of exception must be filed within the time allowed.

In the amended motion for new trial there is some criticism of the court’s charge and refusal to give special instructions. These matters cannot be considered as presented. There was no exception taken to the charge before it was read to the jury, and the matters were not mentioned until in the amended motion for new trial. Under the decisions of this court these matters cannot be considered.

Finding no reversible error in the record, the judgment is affirmed.
      &wkey;pPor otter oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PRENDER GAST, P. J.

text:
    HIMMELFARB v. STATE.
    (No. 3415.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 3, 1915.)
    1. Embezzlement <&wkey;28 — Indictment—Pur-eose oe Delivery oe Money to Accused.
    An indictment for theft by a bailee, alleging that the money was delivered to accused for the purpose of buying barroom fixtures and whisky, was not defective for failure to allege the kind, character, quality, name, etc., of the fixtures or the quantity of whisky.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 41, 42; Dec. Dig. <®=^28.]
    2. Criminal Law &wkey;>699 — Trial—Preliminary Statement by Counsel.
    Under Code Or. Proc. 1911, art. 717, subd.
    3. providing relative to the order in which the trial shall proceed that the district attorney or counsel prosecuting in his absence shall state to the jury the nature of the accusation and the facts which are expected to be proved in support thereof, where other attorneys in addition to the district attorney were employed to prosecute, it was not error to permit one of the attorneys for the state to make a preliminary statement of what the state expected to prove, .as the state had a right, under the statute, to make such statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1655, 1656; Dec. Dig.
    699.]
    3. Criminal Law <&wkey;730 — Trial—Improper Argument oe Counsel.
    On a trial for theft by a bailee, one of the prosecuting attorneys in his argument told the jury to consider another contract made by one of defendant’s kind, stating that he, at that time, demanded his pound of flesh. The court sustained an objection to such language, reprimanded the attorney, and told the jury not to allow the language - to excite any prejudice in their minds, and the attorney withdrew the remarks, stating that he was sorry he made such remarks, though the provocation was great. The attorney further stated that accused, when he got the first money from the prosecuting witness, conceived the idea of converting all the money the old negro had to his own use, that he and another' attorney assisting the district attorney were, not going to get anything out of the case, and that they could not get a dollar out of it from accused, and that accused had no sympathy for the negro when he took from him every dollar he had in the world. Held, that no reversible error was committed, especially as, to justify a reversal because of remarks of the prosecuting counsel, it must appear that they were improper, of a material character, and such as under the circumstances were calculated to injuriously affect accused’s rights.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. &wkey;>730.]
    4. Criminal Law <®=o1037 — Appeal—Reservation oe Grounds oe Review — Improper Argument.
    A judgment will not ,be reversed for objectionable remarks made in argument by the prosecuting attorney, unless such remarks were objected to and a special charge to disregard them requested in writing, and refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. <©==> 1037.]
    5. Embezzlement &wkey;>38 — Evidence—Admissibility.
    On a trial for theft by a bailee, where it appeared that accused obtained money from a negro for the ostensible purpose of purchasing fixtures and whisky and procuring a license for a saloon which the negro was to conduct, and there was evidence that accused told the negro that he had applied to C.. for a license, and that the negro then inquired of C. whether such application had been made, it was not error to permit C. to testify that accused never applied for a license, and that a negro inquired of him whether accused had so applied, though he could not identify the prosecuting witness as the negro who made the inquiry.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. <©==» 38.]
    6. Embezzlement <&wkey;38 — (Evidence—Admis* sibility.
    On a trial for theft by a bailee, the proser cuting witness was properly permitted to testify that he never consented that accused might convert the money turned over to him to his own use.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. <&wkey;> 38.]
    7. Embezzlement <&wkey;42 — Evidence—Admissibility.
    On a trial for theft by a bailee, where it appeared that accused used the money turned over to him by the prosecuting witness for another purpose in purchasing a car load of pool tables, the bill of lading for such pool tables was properly admitted in evidence.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 64; Dec. -Dig. <&wkey;>42.]
    8. Embezzlement <&wkey;38 — Evidence—Admissibility.
    Where accused agreed to rent a building to the prosecuting witness for a saloon, and at different times received money from him for the ostensible purpose of purchasing fixtures and liquors and procuring a license, evidence as to the entire transaction was admissible on a trial for theft of the* money received for the purpose of buying whisky.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. <&wkey;> 38.]
    9. Criminal Law &wkey;>564 — Venue — Sufficiency of Evidence.
    The venue of an offense need not be proved beyond a reasonable doubt, and it is sufficient if it is proved by positive testimony from which the jury might reasonably conclude that the offense was committed in the county alleged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. &wkey;564.]
    10. Criminal Law <&wkey;564 — Venue — Sufficiency of Evidence.
    The venue may be as effectually proved by circumstantial as by direct evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. <&wkey;564.]
    11. Embezzlement <&wkey;35 — Indictment—Variance.
    Under an indictment charging theft by a bailee of money received for the purpose of buying barroom fixtures and whisky, it was sufficient to sustain a conviction that the money was received for the purpose of buying whisky alone.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;s35.]
    12. Embezzlement <&wkey;16 — Elements of Offense — Receipt of Money for Illegal Purpose.
    A bailee converting the money of his bailor to his own' use was guilty of the theft thereof, though the money was delivered to him for an illegal purpose.
    . [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 17, 18, 21; Dec. Dig. <&wkey;16.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    L. Himmelfarb was convicted of tlieft, and he appeals.
    Affirmed.
    George G. Clough and King & Hughes, ail of Galveston, for appellant. C. H. Theobald, Co. Atty., of Galveston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDER GAST, P. J.

Appellant was convicted of the theft of money delivered to him by M. G. Hubert by virtue of a contract of bailment.

1. The indictment follows substantially the form therefor prescribed by Judge White in section 1501 of his Annotated Penal Code. It alleged that on or about January 20, 1914, said Hubert delivered $300 to him to buy certain barroom fixtures and whisky with which he bound himself and agreed to purchase for Hubert. It was unnecessary for the indictment to allege either the kind, character, quality, name, etc., of the fixtures, or the quantity of whisky, and the court did not err in overruling appellant’s motion to quash the indictment on that ground.

2. It is unnecessary to give any extended statement of the evidence. It was amply sufficient to establish, and for the jury to believe therefrom, that said Hubert, a negro and a stranger, arrived in Galveston, with his wife, on December 24, 1913. He had formerly lived in Trinity county and had there made and then had about $1,500 in money. Part of it he left on deposit with the bank in Trinity county and took another portion with him, or afterwards transferred part of it, to the I-Iutehings-Sealy & Co. Bank in Galveston. Hubert was in bad health and went to Galveston to be treated by a physician there. On January 5, 1914, he saw carpenters working'on a building at the corner of Twenty-Eighth and Church streets in Galveston. He learned, upon inquiry, from them that appellant owned or controlled said building. Appellant was pointed out, and he introduced himself to him. He told appellant that lie was a stranger from Groveton in Trinity county, and there where he could be attended by his doctor, and that he expected to open a restaurant or saloon. Appellant asked him if he had the money and upon his telling him he- had, appellant told him that a saloon would be the thing, and agreed to. rent him said house for $100 per month for a saloon. Appellant asked him how much money he had, and he told him enough to open a saloon, without telling him the exact amount. Thereupon appellant made an engagement with him to meet him that night at his house to go over the matter, which he did. Appellant then figured for him about how much it would take to open up a saloon, buy the fixtures, the liquor and other stock, procure the license, etc., and figured that it would take $1,200 to $1,500; that it would take $300 or $400 to buy the bar fixtures, $300 for liquor, $750 for the license, etc. After going over this matter, appellant engaged to meet him the next day to arrange for the business. They did meet the next day. Hubert informed appellant he had some of his money in said bank. He took Hubert in his buggy down to that bank, waited out in the buggy while Hubert went into the bank, drew a check and got $375 cash, having some money, in addition, with him. As soon as he got this money and appellant saw it, he engaged to meet him at the interurban train and go to Houston with him that evening to buy the bar fixtures, Hubert taking the money along with him. After they got to Houston appellant took him to a negro rooming house, procured a room, they went therein, and Hubert then delivered to him $380 cash with which he was to buy, and agreed to buy therewith, the said bar fixtures. Appellant swore he took that money back to Galveston with him when he returned the next day. Hubert paid their expenses to Houston and return. Hubert returned from Houston to Galveston that night. On his return appellant claimed to Hubert that he had bought said bar fixtures while in Houston. He swore on this trial that he did not then, or at any other time, buy any bar fixtures whatever with that money, or any other that Hubert afterwards delivered to him. Appellant and Hubert met in Galveston from day to day thereafter for weeks, and discussed the procuring of the-necessary fixtures, furniture, stock, etc., for the opening and operation of said saloon. On January 14, 1914, appellant again took Hubert to said bank, and had Hubert to draw from said bank and turn over to him $600, with which he said he would procure the license to run said saloon. Appellant swore that he applied to Hr. Cheesborough, the postmaster, some three or four times to get said license. Mr. Cheesborough swore that he never applied to him at any time for that purpose. Appellant on the trial swore that he never got any license from Mr. Cheesbor-ough or anybody else with that money, or ^.ny other, of Hubert’s and got no such license at all. On January 20th appellant had Hubert to again get from said bank in Galveston $300 in cash and turn it over to him, with which he said he would buy the stock of whisky for • said saloon.' 1-Ie never bought a drop of whisky for Hubert with that money or any other money that Hubert turned over to him. He himself swore on this trial that he never bought any liquor therewith. Later he procured from Hubert another $100 in cash, with which he said he would at once buy some cigar show cases to use in said saloon business. Still a little later he procured from Hubert another $50 in money, with which he said he would buy the cigars for said saloon business. At the time he procured the said $100 Hubert told him that he had about stripped him of money. Appellant told him when he got the $50 for the cigars that he wanted $100 for that purpose, but Hubert claimed that he only let him have for that purpose at the time $50, and that he had to get that $50 from his wife. Doubtless it thereupon appeared to appellant that he had gotten all of the money from Hubert that Hubert was going to let him have, or all that he did have. Appellant, by his own testimony, never used one cent or any other amount of all the money that Hubert turned over to him, under the bailments above specified, for procuring any of the articles for which he got the money from Hubert. He swore on this trial in effect that he used some of the money to pay his debts and for other purposes and to buy a car load of secondhand pool tables. Appellant admitted that he got $1,250 of Hubert’s money for the purposes above stated, but denied that Hubert paid him the last two items of $100 and $50, respectively. From time to time, soon after appellant returned from Houston, just after January 6, 1914, he took Hubert to the railroad freight office in Galveston and inquired of the agent for a car load of bar fixtures •which he told Hubert he had shipped to him (appellant) from Houston, representing from day to day and time to time to Hubert that he had bought said fixtures in Houston on the i occasion they went there, and expected them at the railroad depot in Galveston. As stated, he swore on the stand that he never bought any fixtures at Houston or elsewhere with Hubert’s money or any part of it, or ■any such fixtures at all. The state produced, identified, and introduced in evidence a bill of lading to a concern in Houston for a car load of secondhand pool tables shipped in the name of - that concern to Galveston to their order and to notify appellant. Appellant swore-that he had to go to the bank in Galveston to get that bill of lading, and at the time, in order'to get it, he had to pay the-bank for said bill of lading, which he did, and he at once took .that bill of lading to the railroad depot at Galveston and got the car load of secondhand pool tables which he paid for at that time out of Hubert’s money, as the jury was authorized to find from the testimony. He said he paid $400 for this car of pool tables. After he had gotten all of Hubert’s money for the purposes specified, Hubert was after him from day to day to fix and open up said saloon, and appellant was delaying him from time to time until he got all of his money, and then it dawned upon Hubert, the old negro, that appellant was not going to fix up any saloon whatever, and he never did. He thereupon demanded ms money back. The appellant, as the jury were authorized to believe from the testimony, in the form of a bill of sale to Hubert, gave him a mortgage on another old secondhand set of pool tables for an expressed consideration of $1,250, which he testified he had been himself running at a certain location in Galveston for many years. And he also, nearly two months after executing said mortgage, had Hubert to execute to him a lease to said old pool tables for a year, at a monthly rental of $5 a month. All of this was for the purpose, as the jury were clearly authorized and justified to believe, of attempting to manufacture a defense and cover up the crimes he had committed.

3. In addition to the district attorney representing the state, other attorneys also were employed to prosecute. When the case went to trial one of the attorneys for the state desired to make, and did make, in proper time, a preliminary statement of what the state expected to prove. Appellant objected to this. Clearly the state had the right, under the statute and decisions to make such statement. Article 717, subdiv. 3, C. C. P.; House v. State, 171 S. W. 207.

4. Appellant’s bills Nos. 2, 3, 4, and 8; in very meager statements, complain of the argument of the prosecuting attorneys. In No. 2 the language complained of is this:

“Cast your mind back thousands of years to another contract made by one of defendant’s kind with one of your kind, and he at that time demanded his pound of flesh.”

In the third, the language complained of is this:

“That the defendant at the very time that he got the first $380 in Harris county, then and there conceived the idea of converting all the money this old negro had to his own use.”

In the fourth the lanuage complained of is this:

“Gentlemen, Mr. Fuller [meaning his partner] and I are not going to get anything out of this. We cannot get a dollar out of this from the defendant.”

In the eighth the language complained of is this:

“This man [the defendant] did not have any sympathy for this negro man when he took from him every dollar he had in the world.”

Appellant requested no charge to the jury , not to consider any or either of these statements. He merely objected and took his bills of exceptions. The second shows that as soon as the matter was called to the attention of the trial judge and he understood it, he sustained appellant’s objection to the language used, reprimanded the attorney, and instructed the jury not to allow the language to excite any prejudice in their minds against the appellant, and the attorney withdrew the remarks, stated to the jury that he had no idea of influencing or impassioning them; that the remarks were provoked; that he was sorry he mado them; that they were highly improper, and should not have been made, though the provocation was great, and for the jury not to consider them. In our opinion neither all nor any of these bills present any reversible error. This court, through Judge Willson, in Pierson v. State, 18 Tex. App. 564, said:

“It has become quite common to except to the remarks of counsel for the state in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The state has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us: (1) That the remarks were improper; and (2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.”

The Piersou Case, supra, has many times been cited and approved by this court. In House v. State, 19 Tex. App. 239, wherein a much worse statement was complained of, by the district attorney, Presiding Judge White said:

“We construe the remark to be not so much evidence of a desire to make use of foreign matter to the injury and prejudice of defendant as an impassioned expression, highly exaggerated it may be, but springing inadvertently from the heat of debato. If all such remarks were held reversible error, but few convictions would stand the test where the case had been hotly contested by able and zealous counsel in the courts below.”

Again, in Tweedle v. State, 29 Tex. App. 591, 16 S. W. 545, this court, in discussing the argument of the district attorney in. that case, through Judge Davidson, said:

“Concede that this argument was improper; it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any impox’tance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Tex. App. 227; Bass v. State, 16 Tex. App. 62.”

See, also, McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Young v. State, 19 Tex. App. 536; Frizzell v. State, 30 Tex. App. 42,16 S. W. 751; Rahm v. State, 30 Tex. App. 310, 77 S. W. 416, 28 Am. St. Rep. 911; Tipton v. State, 30 Tex. App. 530; Walker v. State, 28 Tex. App. 112, 12 S. W. 503; Love v. State, 35 Tex. Cr. R. 29, 29 S. W. 790.

It is also well established that where even objectionable remarks are made in argument by the prosecuting attorneys, this court will not reverse unless the remarks were objected to at the time and the appellant requests a special charge in writing to the jury to disregard it, and the court refuses such charge to which refusal he takes a bill. Hatchell v. State, 47 Tex. Cr. R. 385, 84 S. W. 234; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Kennedy v. State, 19 Tex. App. 634; Young v. State, 19 Tex. App. 543; Lancaster v. State, 36 Tex. Cr. R. 20, 35 S. W. 165; Dies v. State, 56 Tex. Cr. R. 36, 117 S. W. 979; Rahm v. State, 30 Tex. App. 313 ; Garello v. State, 31 Tex. Cr. R. 61, 20 S. W. 179; Yann v. State, 48 Tex. Cr. R. 15, 85 S. W. 1064; Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004; Franklin v. State, 38 Tex. Cr. R. 347, 43 S. W. 85; Clayton v. State, 149 S. W. 122.

In the Hatchell Case, supra, this court, through Judge Henderson, said:

“Bills 3 and 4 embody exceptions to the argument of the district attorney. In the first of these bills it appears that the district attorney stated: ‘This defendant is guilty of one of the most cruel and diabolical crimes ever committed in this county; and you cannot, as good citizens of this county, turn this defendant loose, and I want to tell you if you do, every good respectable citizen within the borders of Shelby county will hangs their heads in shame.’ The first portion of this statement of the district attorney may have been a proper deduction from the testimony and may have been permissible. As presented, we cannot say it was not. The last portion, however, which tells the jury, in substance, that unless they convict appellant, every good and respectable citizen within this county would hang his head in shame, could not be authorized from the testimony. It has been held that an invocation or appeal to the jury by a menace of this sort is not permissible. However, no charge in writing was requested on the subject and refused by the court, and we do not regard it of that character which would authorize a reversal. And, again, the district attorney in his argument is shown to have made these remarks: ‘The defendant, unlike the hyena who digs in the grave for the body of the dead and buried, while the defendant revels in living streaming blood of his victim; that he took the life of Old Man Judge and walked away from his lifeless body with blood dripping from his hands, calm, cool, and deliberate; and his attorneys come here and ask you to acquit him. It may be that defendant’s counsel have some one man on this jury whom they expect to hang it, and no doubt expect by such means to induce and persuade some one to hang it, but you Askew, you Wes Darnell, nor you Bob Williams can’t afford to hang the jury.’ The court explains as to this latter portion that the counsel for defendant in their address to the jury had called names of Turner and others, and the district attorney in referring to that matter had used the language. We held in Kugadt v. State, 38 Tex. Cr. R. 681 [44 S. W. 989], referring to defendant as a hyena, in the connection in which it was used, did not constitute a reversible error. In that case, the court immediately reprimanded counsel for the state, and instructed th.e jury to disregard the same. In this case, however, while there was an attempt to differentiate between defendant and a hyena, it was rather to the disparagement of defendant. The court’s explanation that the district attorney referred to the jurors by name because- der fendant’s counsel had done so, may explain that matter. But it hardly explains the reference that appellant’s counsel had succeeded in stocking the jury with some man to hang it. These remarks were uncalled for and reprehensible; but no ■written request was made of the court, instructing the jury to disregard the same. We do not believe that they are of that character as to cause a reversal, in the absence of such requested written instruction, the refusal of the court to give the same, and emception reserved thereto.”

5. The court did not err in permitting the state’s witness Cheesborough, as objected to by appellant’s bill No'. 5, to testify that appellant did not apply to him for a saloon license. Nor in permitting him to testify that some colored man inquired of him whether or not appellant had so applied to him for a saloon license, even though he could not identify said Hubert as the negro who did so ask him about it, the testimony showing that appellant told said Hubert that he had so applied to Cheesborough for the license, and Hubert showing that thereupon, to ascertain whether or not he had done so, he inquired of Cheesborough whether he had; the testimony all identifying the license for a saloon at the location which appellant agreed to rent to Hubert for the purpose of opening a saloon therein. Neither did the court err in permitting the state to ask, and Hubert to answer, that he did not consent that the defendant could convert the said $300 he had turned over to him, as objected to by appellant’s bill No. 6. Neither did the court err in permitting the state to introduce in evidence the said bill of lading for the car load of secondhand pool tables, as shown in the statement above.

6. Appellant, in his tenth bill of exceptions, complains of the court admitting the testimony of Hubert and other witnesses to the whole transaction and dealing between Hubert and appellant from the time their negotiations begun to the time they ended. This bill is quite lengthy, and gives the questions and answers of most of the direct testimony of these several witnesses. All this testimony was admissible and material for the purpose of showing system and the intent of the appellant in getting and converting to his own use the $300 with which the indictment charged him, the court in his charge expressly restricting it for that purpose. They were all so interwoven and necessary to be shown to determine the main issues in this case. The testimony shows a continuous transaction between them from first to last and the jury could not understand the issues in this case without such testimony. It is unnecessary to state or quote this bill in full. ICaufman v. State, 159 S. W. 60; Dugat v. State, 160 S. W. 377, and authorities cited in , those cases.

7. Appellant had some objections to the court’s charge, and requested some charges which the court refused. We have carefully considered all of these matters, and none of them present any error. We think it unnecessary to state them. Among appellant’s complaints thereunder is one that the evidence shows that if there was a conversion of the $300 specified in the indictment, the conversion occurred in Harris and not in Galveston county. The reverse of his contention is true. The particular $300 charged to have been converted in the indictment is the $300 that was delivered to appellant by Hubert on January 20, 1914. The evidence in no way even remotely tends to show that appellant ever had this money, or any of it, or converted it, or any of it, in Harris county, but on the contrary that it all occurred in Galveston county. The only money of Hubert which he is ever shown to have had in Harris county is the $380 delivered to him by Hubert on January 6, 1914, and appellant himself swore that he took that money back to Galveston with him, and all the testimony shows that he converted all of appellant’s money in Galveston county, and not $1 of it in any other county than Galveston. It is true that he is shown to have bought a car load of secondhand pool tables from a party in Houston, but the evidence does not tend to show that he even paid any part of that money in Harris county for those pool tables, but the evidence shows that whatever he paid for said car load of pool tables he paid in Galveston county and not elsewhere. The court’s charge affirmatively required the jury to believe beyond a reasonable doubt that appellant converted said money in Galveston county, with other requisites, before they could find him guilty. As to venue, this is more than the law requires.

It is the settled law of this state that it is not essential to prove venue beyond a reasonable doubt; that the doctrine of reasonable doubt does not apply to the issue of venue. Barrara v. State, 42 Tex. 260; McReynolds v. State, 4 Tex. App. 327; Deggs v. State, 7 Tex. App. 359; Achterberg v. State, 8 Tex. App. 463; McGill v. State, 25 Tex. App. 499, 8 S. W. 661; Cox v. State, 28 Tex. App. 92, 12 S. W. 493; Abrigo v. State, 29 Tex. App. 143,15 S. W. 408. Venue may be proved by other than positive testimony; if from the evidence the jury may reasonably conclude that the offense. was committed in the county alleged, it is sufficient. Hoffman v. State, 12 Tex. App. 406; Bowman v. State, 38 Tex. Cr. R. 14, 40 S. W. 796, 41 S. W. 635. It may be as effectually proved by circumstantial as by direct evidence. McGill v. State, supra; Cox v. State, supra; McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Nance v. State, 17 Tex. App. 385.

Again, our statute (art. 938, C. C. P.) says:

“In all cases, the [appellate] court shall presume that the venue was proven in the court below; * * * unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge of the court below, * * * and incorporated in the transcript as required by law.”

No such bill is contained in this record. McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Scott v. State, 42 Tex. Cr. R. 607, 62 S. W. 419; Belcher v. State, 161 S. W. 461.

8. There is no merit in appellant’s contention that by the charge of the court the jury was authorized to convict him for the conversion of the identical $300 when it was not received by him for the purpose of buying both fixtures and whisky, but for whisky alone. It was not necessary that it be shown that he received the money for both purposes. Either would suffice. Terry v. State, 62 Tex. Cr. R. 73, 136 S. W. 485, and cases cited; Alderson v. State, 2 Tex. App. 10; Edwards v. People, 26 Colo. 541, 59 Pac. 56; Edson v. State, 148 Ind. 283, 47 N. E. 625; 1 Whart. Crim. Ev. § 129; Robinson v. State, 62 Tex. Cr. R. 646, 138 S. W. 704; Arnold v. State, 168 S. W. 124, and cases cited therein.

9. In appellant’s brief he contends, in effect, that as the money Hubert turned over to him to be used to buy whisky and fixtures in operating a saloon in Galveston in the name of appellant, but for Hubert’s benefit, was in effect to be an illegal transaction, and as the bailment was illegal, therefore appellant could not be convicted for converting Hubert’s money and be guilty of the theft thereof. We think there can be no merit whatever in this contention. It is unnecessary to discuss it at all.

We have carefully read and studied the record and briefs in this case. In our opinion there is no error in the trial which would authorize or justify this court to reverse it. Therefore the judgment will be affirmed.

      .17 S. W. 416, 28 Am. St. Rep. 911.

      «gssEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes