author: DAVIDSON, J.

text:
    MATULA v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    1. Criminal Law (§ 1020) — Appeal — Appeal from Inferior Court.
    Where a criminal prosecution has been appealed from an inferior court to the county court and there dismissed, the appellant may procure a further appeal to the Court of Criminal Appeals in conformity with the law; such cases not being within the statute prohibiting an appeal where the fine assessed in the county court on appeal from an inferior court is less than $100.
    [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1020.]
    2. Criminal Law (§ 1017) — Appeal from Inferior Court—Trial de Novo.
    Where accused on appeal to the county court from a conviction in the corporation court is deprived of the right to a trial de novo to which he is entitled, he may enforce such right by a further appeal to the Court of Criminal Appeals.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2572-2576, 2589; Dec. Dig. § 1017.]
    3. Bail (§ 68)—Recognizance—Requisites.
    Where recognizance on appeal in a criminal case failed to recite one of the causes in statutory form which requires that the appellant abide the judgment of the Court of Criminal Appeals “in this case” the recognizance was insufficient to sustain the appeal.
    [Ed. Note.—For other cases, see Bail, Cent. Dig. § 286; Dec. Dig. § 68.]
    Appeal from Ft. Bend County Court; W. I. McFarlane, Judge.
    Frank Matula was convicted of using language calculated to provoke a breach of the peace, and he appeals.
    Dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted for using language calculated to provoke a breach of the peace. The conviction occurred in the corporation court. The case went on appeal to the county court, where it was dismissed on motion of the county attorney. Another appeal bond was given after the first motion was sustained, and to this also a motion to dismiss was interposed and sustained by the court.' Prom this action of the court this appeal is prosecuted.

Where a ease has been appealed from an inferior court to the county court and there dismissed, the appellant would have the right to prosecute an appeal in conformity with the law. Oases of this character are not within the purview of the statute which prohibits an appeal where the fine is less than $100 in the county court when appealed from an inferior court.

If appellant complies with the law he is entitled to a trial de novo, and where he is deprived of that trial he is entitled to an appeal to this court for revision of the action of the court dismissing his appeal in the county court..

The trouble, however, is the recognizance entered into by appellant is not in compliance with the statute, for, among other things, the recognizance fails to recite one of the causes in the statutory form which requires the appellant to abide the judgment of the Court of Criminal Appeals “in this case.” The language “in this case” is omitted. This, under a great number of decisions, is held to be insufficient. That language or expression must be employed in the appeal recognizance. We would be inclined, however, if we entertained jurisdiction and tried the case on its merits, to sustain the action of the county court in dismissing the appeal for want of a sufficient bond in the county court to justify the appeal from the county court.

However, the appeal is here dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    LEONARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    Appeal and Ebrob (§ 695) — Record—Facts.
    Where the facts are not sent up with the appeal record, an objection that the evidence is insufficient to support a conviction cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2914; Dec. Dig. § 695.]
    Appeal from Johnson County Court; J. B. Haynes, Judge. .
    George Leonard was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant prosecutes this appeal from a conviction for violating the local option law. The only ground of the motion for new trial is the alleged insufficiency of the evidence to support the conviction. The facts are not before us, not having been sent up with the record. In this condition of the record there is nothing to revise.

The judgment is affirmed.


text:
    HAMPTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    1. Criminal Law (§ 1099*) — Statement op Facts — Filing—Time.
    Where accused was convicted at a term of the county court which adjourned August 16th, and his statement of facts was not filed until September 15th following, it was not filed within the required 20 days after adjournment of the court and could not therefore be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    2. Criminal Law (§ 1097*) — Appeai^Statement op Facts — Necessity—Insufficiency of Evidence.
    Insufficiency of evidence to support a conviction, alleged as a basis for new trial, cannot be reviewed on appeal in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934. 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]
    Appeal from Ft. Bend County Court; W. I. MeFarlane, Judge.
    Tom Hampton was convicted of aggravated assault on an officer, and he appeals’.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was for aggravated assault upon an officer."

The court adjourned on the 16th day of August; the statement of facts was filed on the 15th of September. This being a ease tried in the county court, the statement of facts to be considered ought to have been filed within 20‘ days from the adjournment of court. As the statement of facts was filed more than 20 days after adjournment of court, it cannot be considered under the decisions.

The motion for new trial is based on the alleged insufficiency of the evidence. In the absence of the statement of facts, this ground of the motion for new trial cannot be considered.

The judgment is affirmed.


text:
    JOBE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Criminal Law (§. 507) — Corroboration.
    As regards necessity of corroboration, ,one was an accomplice to any burglary, from which defendant obtained whisky, he having after the transaction got from defendant, and drunli some of the whisky, knowing beforehand that the “raid,” as he termed it, was to be made, and understanding that the whisky came from it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    2. Criminal Law (§ 1090*) — Review—Necessity of Bills of Exception.
    In the absence of bills of exception, .grounds of motion for new trial, remarks of prosecuting officers, application for continuance, and objections to evidence cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. 1090.] •
    3.' BuRglary (§ 3) — Purpose of Breaking.
    If the wrecking of saloons was for the purpose of stealing goods from them, all present and engaging in it would be guilty of burglary, but if the breaking was actuated only by a mob and riot spirit, with no intent to appropriate the property, there was no burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 24-27; Dee. Dig. § 3.]
    4. Burglary (§ 42) — Sufficiency of Evidence.
    Two saloons having been' raided at the same time, evidence merely that defendant had some whisky shortly after, and that he said it came from the raid, is insufficient to convict him of burglary of one of the places, .though whisky of that kind was in such saloon; it not being shown the same kind was not in the other.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 80, 104-107; Dec. Dig. § 42.]
    Appeal from District Court, Tarrant County ; R. H. Buck, Judge.
    Jack Jobe, alias Grundy Jobe, was convicted of burglary, and appeals.
    Reversed and remanded.
    C. E. Lane, Asst. A tty. Gen., for the State.

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

   DAVIDSON, J.

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

The alleged owner of the house and property was Joe Patterson. Patterson was the owner of a saloon located on East Ninth street in Ft. Worth, and had been in that business for eight years, and was so engaged in it on the night of the 15th of May, when this matter is alleged to have occurred. When he left his house at night it was in good condition and properly closed. Some of the openings were glass windows. He says that there were no bricks about the building ; when he left it in the afternoon everything was all right, and no breakage about it. The next morning when he came down, somewhere between 10 and 11 o’clock, it had been broken; all the windows had been broken and a door forced open; the mirrors in the saloon were all broken. “The front of the saloon was all torn up; the doors and windows were all knocked out, or rather the windows were, and the doors broken .in, and seemed like the locks had been knocked open with a heavy instrument of some kind, crowbar or something. There- was- glass and empty bottles on the floor, and furniture and everything else all torn up. The furniture inside the building was torn up in there, everything broke, whisky cases, bar fixtures, and everything in there; some of the bar seemed to have been turned over — that is, the back bar — and it was all down there, the work board and everything was torn up and torn to pieces. I missed about $2,000 worth of whisky, $200 or $300 worth of cigars, and wine, and all such as that, I found a few bottles there and boxes. I left about 2,000 or 3,000 cigars and two barrels of whisky, and that had never been bunged; I left between 80 and 100 eases of whisky; I left champagne, and I did not find any of that. The stuff that I had left there the night before was all gone next morning; there might have been two or three boxes there.” Speaking particularly of the goods he had on hand, he uses this language; “I had on hand Epworth whisky; that was in bottles; then I had some Maxwell whisky in bottles; then I handled Jersey Creme; that is in bottles; then I handled Myrtle Springs; that is in bottles; then I had my barrel goods, Jersey Creme and Kentucky Home, and all such stuff in barrels; that is the way I left my stuff. Then I had the John W. Brooks- whis-ky in bottles. I think McGar handled that whisky, too. McGar’s place was 60 or 75 feet, I guess, from my place, just across the street.” We might say here that MeGar’s place was also wrecked. This witness knew nothing about who broke into his saloon of his own personal knowledge, and says: “I cannot swear that this defendant had anything to do with that or not. I don’t claim that I know all the brands of whisky that are handled by the saloon men in Ft. Worth; as a matter of fact they, all handle different brands. I purchase from all these different wholesale houses here, some of the stuff. The furniture and stuff in there was all torn- up. They broke my mirrors, all. of them. They broke the big mirror.back against the wall; that was broken all to pieces.” He- did not see many broken bottles; but it seemed like they were all packed, off and carried off. The front is glass; the doors are double doors. The glass front was all broken to pieces. The building is a two-story building; there are rooms over the saloon, being a rooming house. He says there is a private club in there and rooms; some windows in the upper part of the house were broken.

Vann Childress testified he was working on the night of this transaction at Joe Vick-ery’s barber shop. That Jobe worked there on the second chair. He says: “I don’t know just the date but I seen him next morning after that raid; I saw him about 10 minutes to 6 next morning; he came into the , shop there; he had four quarts of whisky and a quart'of wine; he sold me one bottle; I gave Iiim 50 cents for it; I bought a quart of Jersey Creme. I seen several bottles, one broken one, as I came from breakfast. He asked me where I went the night of the raid, and I told him I went home, and he says ‘Good reason you did go home’; I says, ‘Yes’ I thought it was; I let my conscience be my guide. He had a pocketful of cigars; he asked me was I going to stay there, and I says, ‘Yes’; I asked him was he going to stay there, and he says ‘Yes,’ and I says, ‘I am going to breakfast,’ and after I came back there from breakfast he opened a quart of wine him and his brother had been drinking. He said he had been out in that raid the night before. He never said nothing particularly to me that morning, just different men coming in that they were working on and talking together and were talking about the raid that night, but I never paid any attention to that at all. That was the next morning after the raid. * * * I went home that night of that raid. I went home because there was a gang around up here, and X did not want to get into anything, and I knew about what they were going to do so I went home. I just had a suspicion what they were going to do; that they were going to do something, and I went home. I don’t know exactly where Jack got this whisky;, he said he was going out in the raid. This conversation took place over at the shop where we were both working. X never saw anybody else but Blubber at the time he gave me the wine; Blubber was in there. There was nobody present in the shop that morning when I had that conversation except me and him.” Speaking of the conversation he had with one of the attorneys, Mr. Baldwin, he says: “I told him I had been out early that morning, and he came in there. I did not describe the kind of whisky he had. I don’t know that I am sore about them tearing up all these darkies’ property; I can’t pay no mind to what some other nigger done; it is none of my business.”

The witness Merrett says he saw defendant about 1 o’clock that night, and had a conversation with him. “Henry Vaughn and myself had been there to the jail, or here on the steps watching the crowd at the jail, and we went home and stopped in over there to eat a lunch; we both room at the Scott hotel, and Grundy had some whisky ; he had four quarts of whisky, as I remember; that is what I seen. I remember one brand was Mitchell Spring or Myrtle Spring and the other Jersey Creme; I don’t remember the other brands. The bottles were sealed. He had some cigars in his pocket; there was about a dozen in the upper coat pocket, and a can of cigars in his lower coat pocket. He didn’t say where he got this stuff. He said he had been down here and had plenty of whisky and wanted to sell some. He tried to sell some to me; he said he would take $3.50 for four quarts. I don’t remember that he mentioned what part of town he had been in. I don’t remember what he said about the raid. * * * • There was nothing else said there by the defendant with reference to where he had been the night before or what he had been doing. I stated we had been over there at the courthouse steps watching the crowd at the jail, and I just came from around there to this restaurant; there was quite a crowd around there. I was not in the crowd at the jail, but I was over here and saw them going down Commerce street; they were going in the direction of the negro raid; I understood that was on Ninth street. When I saw them they were just starting out going like a bunch of hounds, right down this street, and then I was here as they came back; I was here on the steps in front of the courthouse when they came back. X would say it was 10:30 or 11 that I saw them go down there. I did not pay much attention to how many did go down, but there was a big noise, and I heard the noise that came from them. They were just yelling and talking. I was out here when they came up the street; there was more than a hundred came up the street. That nigger killing that policeman is what 1 think caused all 'that excitement, and I taken that crowd to be the rioters that went down that way. X did not follow them to see what they were going to do.”

The witness Schwain testified that he was night captain of the police force on the night of this raid. He says: “The saloons that were raided, as well as I remember, was Joe Patterson’s place and McGar’s; I don’t remember of there being any others. I mean by raided that they just stampeded the saloon and stole a lot of stuff out of there. They threw stones, a shower of stones, that broke out the windows and broke the furniture and mirrors. I understand they made some noise; I was not present myself. .1 went by indications when I said they had stampeded. I went down there early the next morning. It looked as though a cyclone had passed through there, and the street was literally covered with brick, both small stones and big enough to carry in your pockets. They had been in Joe Patterson’s place. McGar’s place was also broken into. Then there was a bank there and drug store, jewelry shop; it all happened about the same time. It looked like they had come there to destroy property ; it was a riot that resulted from this excitement here that day.”

The witness Morris testified that he was 14 years of age, and had been working at the Savoy Theater, and lived with his father and mother on Weatherford street, his father being Dr. Morris. “I was down on Ninth street the night there was some saloons broken into. I was on the opposite side of the street. I heard some windows crash in and bricks going through; I could not svrear who throwed the bricks, and I saw people coming out and bringing whisky out. After this glass crashed X saw people going in there; I could not see them all, they were going in so fast; they were all men; when they came out they had whisky in their hands; some of them had whole boxes of cigars and cigarettes and Bull Durham. They were just getting whisky and coming out with it. They were all white men; some of them were young men, and some of them were pretty old. I did not go up to the saloon where they were bringing it out. I don’t believe I know this defendant. I knew some of the people who were bringing whisky out of there; I knew a few boys. I didn’t stay there until they cleaned up that saloon. I just stayed about five minutes and left. I could not tell who it was broke it open; I was coming down this way when they broke the glass; I had just got off from work. They didn’t go against the door; the bricks were flying; there was 10 or 12 people throwing bricks and a big bunch around them. I guess there was a thousand people there, I did not count them. The bricks were flying through the air, and they broke open the doors and windows; I saw some people going in there; just a big crowd of them went in there as soon as the doors were opened, they all went in there, and they commenced carrying it out; they were handing it out around to some of the boys around there; some fellow would go in there and get some stuff, and come out and pass it out around to the rest of them there.”

The witness Musick testified he was around at the courthouse about 11:15 or 11:20 o’clock that night; that he saw the defendant there; saw him in the crowd in front of the jail; “he was talking, but I could not call to mind the exact words he said there at the jail; I could not tell you how long he was there; I seen him in the crowd, just like I seen several others there; I did not notice any one particularly or when they left; this crbwd remained there up to near 1 o’clock, maybe a little later than that, and then it dispersed. The crowd was coming and going all the time; individuals would break out of the crowd and leave, and then others would come in. I did not see a great number of them leave and go in any particular direction; I seen a bunch return. I did not see this man in any crowd that was down on East Ninth street. I did not know at the time I was at the jail what had transpired down on Ninth street. I went down to Joe Patterson’s saloon, and the doors were open and all glass was broken out; the inside of the saloon was nearly completely demolished, as nearly so as anything could be. There was no stock of goods in it; they were all gone.”

The witness Elippin testified that he had a conversation with two men, one being defendant, the other man doing most of the talking; that during the conversation they informed him: “You want to be away from your be§.t up about the courthouse about 9 o’clock, and he says,.‘We are going to take that nigger out — those niggers out and hang them or burn them, all three of them’; says ‘We are going to raise thunder,’ or something to that effect up here at that time. I told him I would not be on duty, and had nothing to do with it; that I went off at or before 9 o’clock and would not be there at that time at all. I.rung off at 8:30.”

Another witness says he saw defendant a couple of times the night of this transaction; the first time he supposed about 9 or 9:30 o’clock, and the second time about 11 or 12 o’clock, or maybe after 12. The last time he had some cigars and whisky and some champagne; some Mumms extra dry. He said he had been down on Ninth street. He says: “I don’t know where that whisky, wine, and cigars came from. I don’t know whether he went down there and stole them, or whether somebody gave them to him; I did not see the saloon they came from; all I know is that he said he had got some from down on Ninth street. That was the night after the raid; about an hour after the raid, I suppose, I am not sure.”

This is the case practically in full on the facts.

Prom the evidence of the witness Childress he is an accomplice, if appellant is guilty. He drank and got some of the whisky from defendant after the transaction, knowing beforehand, he says, the raid was going to occur, and understanding that this whisky came “from the raid,” as he terms it. His testimony to connect the defendant with the burglary would have to be corroborated, and this would apply to any witness who received or bought any of the whisky from appellant, if the whisky came out of Patterson’s saloon. This remark is made in a general way to show their testimony would not be sufficient unless corroborated.

There are some grounds of the motion for new trial that cannot be considered in the absence of bills of exception: The remarks of the prosecuting officers, the application for continuance, and objections to some of the testimony. There are no bills of exception, and these matters are in no way verified and pass out of consideration.

Appellant insists that the evidence is not sufficient. The writer is inclined to the opinion that this contention is correct. To sum up, in a general way, this evidence shows that a policeman had been killed by a negro, and that a mob had gathered around the jail for the purpose of securing this negro, as well as two others. In this they seemed to have failed, and then they passed from the jail down the street and tore up the saloons belonging to McGar and Patterson; wrecked them to such an extent that the captain of the night police said it looked like a cyclone had passed through that part of the town. No witness places appellant present at the wrecking of the saloons; no one identifies the whisky as coming out of Patterson’s saloon, unless it be contended that the fact that appellant had a bottle of Jersey Creme and a bottle of Champagne, Mumms extra dry, and a bottle of Mitchell or Myrtle Spring whisky. Patterson had in his house champagne; he does not say it was Mumms extra dry. He had also Jersey Creme and Myrtle Springs whisky in bottles, but he does not undertake to identify these as coming from his house; in fact, does not testify in regard to these one way or another. They may as well have come from MeGar’s. No witness places appellant at the scene of the wrecking of either saloon, and the connection, if it is made by the state, is found in the fact that- he had four bottles of whisky and some cigars an hour or so after the wrecking of the saloons. If those saloons were wrecked for the purpose of stealing the goods out of them, then all parties who. were present and engaging in it would be equally responsible as principals. If the saloon was broken, not for the purpose of stealing the whisky, but to wreek it because it belonged to the negroes Patterson and McGar in connection with the feeling of mob spirit with reference to failing to get the negroes in jail for killing the policeman, then the case might not be one of burglary for the purpose of committing theft. If the mob and riot spirit actuated the breaking of the saloons with no intent to appropriate the property, then it would not be a case of burglary. It is not burglary simply to tear a house to pieces; there must be the intent connected with it to commit some other offense in connection with the breaking and entry. But even if burglary was committed, and it be conceded the facts are sufficient to show a burglary, unless appellant participated in it, still he would not be guilty of burglary. He might be guilty of receiving stolen property if he knew that the property he had came out of the saloon. The most cogent fact against appellant in connection with the burglary, it occurs to us, is found in the fact that he stated the whisky he had came out of the raid, or he got it in the raid, whichever it may be.

We have a line 'of decisions in effect holding that where a breaking has been shown and property taken in connection with the breaking from the broken house, find the property is identified as coming out of that house and found in possession of the accused, this would sustain a conviction for burglary. In order to sustain a conviction under this line of authorities, it must show a burglary for the purpose of committing theft, and that the property was taken and recently thereafter found in possession of the accused, and this property must be identified as the property coming out of" the house. Patterson did not undertake to identify this property, and no one undertakes to identify it as Patterson’s property. The main fact by which it is sought to show this property is that of Patterson is that the whisky was Jersey Creme and Mitchell or Myrtle Spring whisky. There is no evidence in the record denying this property came from MeGar’s saloon. The same mob that raided one raided the other; they were there in 60 or 75 feet of each other. McGar was not used as a witness, and no one connected with the McGar establishment was used as a witness. This record shows the testimony could have been made much clearer and stronger, identifying this whisky, and not only so, but it could have been shown whether or not appellant was in that crowd at either or both saloons. The record clearly shows that there was a great number of men in that mob, and they all seemed to have been white men. Out of that vast crowd who were out on the streets that night and in that riotous condition about the courthouse and around the saloons, evidence could have been obtained that would put this case in such a light that defendant’s guilt could have been shown, if as a matter of fact he participated in the taking of the property. There was a singular dearth of evidence in regard to that transaction, and it was one of the most important questions in the case; that is, to show that appellant was in the mob that broke into Patterson’s house, and the purposes for which that breaking occurred. 'With- the legal machinery -under the control of the government and the courts, this matter could have been elucidated clearly and satisfactorily. Appellant may have been in the crowd; they have not shown it. He -may have gotten the whisky from Patterson’s saloon; they have not proved it when they could have done so. • It is not shown that he did not receive it from others who were engaged in it; he himself not being present. In that crowd some one would have known, or ought to have known, the parties present. Every witness who testifies about the matter did not know whether appellant was in the crowd or not.- None of them saw him there, and in fact there were many people on the street at that time of the night and engaged in these matters, and only one witness was placed on the stand, to wit, John Morris, who saw that crowd breaking in those saloons, and' he did not see defendant there, and said they were white men breaking in the saloon. The writer is not willing to agree to an affirmance of the case on this sort of record.

The judgment is reversed, and the cause is remanded.


author: PRENDERGAST, P. J.

text:
    DARNELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.
    On Rehearing, Dec. 17, 1913.)
    1. Bail (§ 68) — Appeal Bond.
    Under Code Cr. Proc. 1911, art. 919, fixing the form of recognizance in cases of appeal from convictions of misdemeanor, which concludes, “In order to abide the judgment of the Court of Criminal Appeals of the state of Texas in this case,” a recognizance omitting the three words “in this case” is insufficient to confer jurisdiction on the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 286; Dec. Dig. § 68.]
    On Rehearing.
    2. TELEGRAPHS AND TELEPHONES (§ 79) — OE-penses — “Indecent” — “Vulgar” — “Obscene.”
    The use of the expression “son of a bitch” in a conversation over the telephone falls within the provision of Pen. Code 1911, art. 471, making the use of vulgar, profane, obscene, or indecent language over or through a telephone a misdemeanor, the term “indecent” meaning unfit to be heard, offensive to modesty and delicacy,” the term “vulgar” signifying “lack of -cultivation or refinement,” while the term “obscene” means “offensive to chastity or modesty,” for the expression used is not merely rude and uncouth.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. § 79.

    For other definitions, see Words and Phrases, vol. 4, p. 3537; vol. 8, pp. 7364, 7831; vol. 6, pp. 4887-4889; vol. 8, p. 7735.]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    R. H. Darnell was convicted of using vulgar, obscene, profane, and indecent language over and through a telephone, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted under an indictment charging that he unlawfully used vulgar, obscene, i>rofane, and indecent language over and through a telephone.

The Assistant Attorney General makes the point that this court has no jurisdiction because the recognizance is not in compliance with the statute in that it leaves off the three words “in this case” in the form prescribed by the statute (article 919, C. C. P.). In the opinion of the writer this should not have been held a fatal defect in- the recognizance. However, this court has in so many cases held this defect fatal and dismissed the cases because thereof that the court is not now willing to overrule all these cases. We cite some of them. Cryer v. State, 36 Tex. Cr. R. 621, 37 S. W. 753, 38 S. W. 203; Brock v. State, 72 S. W. 599; Page v. State, 72 S. W. 1134; Bradley v. State, 72 S. W. 1133,; Mason v. State, 74 S. W. 25; Heinen v. State, 74 S. W. 776; Mallard v. State, 83 S. W., 1115; Armstrong v. State, 77 S. W. 446; Fortenberry v. State, 72 S. W. 586; Fortenberry v. State, 44 Tex. Cr. R. 535, 72 S. W. 588; Adams v. State, 44 Tex. Cr. R. 535, 72 S. W. 588.

Under the circumstances this court has no jurisdiction of this appeal, and the case is therefore dismissed.

On Rehearing.

Since this case was dismissed for an insufficient recognizance, appellant has-had it corrected and now brings the proper evidence of a sufficient recognizance entered into in the lower court. His motion to set aside the former dismissal of this ease and now decide the case on the merits is therefore granted.

The statute under which appellant was convicted was passed in 1909 and is now article 471, P. C., as follows: “If any person shall use any vulgar, profane, obscene or indecent language over or through any telephone in this state, he shall be guilty of a misdemeanor, and, on conviction shall be fined in any sum not less than five dollars nor more than one hundred dollars.” The lowest penalty was assessed against appellant.

The uncontr'adicted proof introduced by both sides shows that on April 30, 1913, appellant, who was a subscriber of the telephone company, called up, on a party line, Mr. Dinsmore and discussed with him over and through the phone the insufficient service the phone company was giving to its subscribers, and said: “I think I know what-the trouble is, but I don’t know where it is from. Like the fellow that went into the saloon and shot it up and shouted, T am son of a bitch from Texas;’ and the saloon man replied, T knew you were but did not know'where you were from.’ ” At least two others on this party line heard this conversation at the time. One of the witnesses at least says appellant used the words “son of a bitch” twice.

It is well known that the telephone' exchanges in this state are in charge of and operated by young ladies almost exclusively. It was evidently the intention of the Legislature to protect these young ladies, as well as the patrons of the telephone companies, when in use by any person, from hearing any vulgar, profane, obscene, or indecent language used over it, and that the proper way to prevent this was to make it an .offense and ■ punish the person who used any such language. It makes no difference whether such person at the time is using it in anger or otherwise, or uses such language to and of the person to whom he is talking.

The language- used was not profane, but it was certainly indecent, vulgar, and obscene. The lexicographers define “indecent” substantially as: “Not decent; unfit to be heard; offensive to modesty and delicacy.” ■ “Vulgar.” as: “Lacking cultivation or refine- : ment; offensive to good taste or refined feelings; low; coarse.” “Obscene” as: “Offensive to chastity or modesty; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed; offensive to the senses; repulsive; disgusting; foul; filthy; offensive to modesty and decency.”

Appellant contends that the word “son of a bitch” used by appellant, taken separately or as a collective phrase, is neither profane, Indecent, vulgar, nor obscene, and that the language of appellant at most is only rude and uncouth and not comprehended by the statute.

The court expressly charged the jury that they could not convict appellant unless they believed from the evidence, beyond a reasonable doubt, that such word constituted either vulgar, profane, obscene, or indecent language. We think appellant’s contention cannot and should not be maintained, but that the jury found correctly. We have no doubt but that in contemplation of this law the language used was vulgar, obscene, and indecent.

There is no other question raised in such a way that we can review it. The judgment is affirmed.


text:
    CHAVARIO v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    1. Criminal Law (§ 1101) — Appeal—Statement of Pacts.
    Where the court, after accused had filed a pauper’s affidavit, ordered the stenographer to make out a statement of facts, the stenographer’s refusal to make out same on the ground that he was entitled to pay therefor did not excuse the want of a statement of facts in the record, where accused did not resort to mandamus or any other process to compel obedience to the order, and there was ample time before adjournment of the court and also within the time allowed for filing the statement to have resorted to such proceedings.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. § 1101.]
    2. Criminal Law (§ 1092) — Appeal—Bill of
    Exceptions.
    That the trial judge, after receiving the bill of exceptions within the time allowed for approving same, stated that he could not give his approval until he had received the statement of facts did not excuse the failure of accused to secure bills of exception in time, where he made no application for extension of the time; it being obligatory upon counsel to follow up bills of exception and see that they are approved and signed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §8)2803,2829, 2834-2861,2919; Dec. Dig. § 1092.]
    Appeal from District Court, Payette County; Prank S. Roberts, Judge.
    Domingo Chavario was convicted of manslaughter, and appeals.
    Affirmed.
    L. D. Brown, of La Grange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

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

The case is before us without a statement of facts or bills of exception. The court adjourned on May 31st. The record was filed in this court on July 25th following. After conviction and before adjournment of court the defendant filed his pauper’s affidavit to the effect that he was unable to pay or give security for the costs for making out the stenographic statement of facts. This was filed May 15th, before the adjournment of court on May 31st. The court entered an order ordering the stenographer to make out a statement of facts, which he declined to do on the ground that he was entitled to receive his pay. So far as the record is concerned, there is no showing that appellant resorted to a writ of mandamus or any process to compel the stenographer to file the statement of facts. Under our decisions this showing is not sufficient. In order to have brought himself within the statute, as construed by the decisions, appellant should have resorted to some means or measure by which he could have compelled the stenographer to file a statement of facts; and, had the court refused to force him to do so, then appellant would be in condition to urge this matter before this court. The appellant could have secured a statement of facts by resorting to compulsory process at any time within 90 days after the adjournment of court; and, had the court refused to require the stenographer to make out and file same, this court would reverse because appellant had been deprived of his evidence on appeal.

Bills of exception were presented to the court within 30 days. Just how long before the expiration of the 30 days is not made definitely to appear. There is a letter attached to the affidavit of the attorney in the ease, signed by the district judge, written on the 26th day of June, in which he acknowledges receipt of bills of exception in a civil case and refers to the fact that he had received the bills of exception in appellant’s case some time before writing this letter but was not in position to sign or approve the bills of exception for want of the statement of facts, stating he would not approve the bills of exception until he received the statement of facts; that his mind was not sufficiently clear about what occurred so that he could intelligently pass upon and approve the proffered bills of exception. Under our decisions this is not a sufficient showing. If the defendant desired a longer time than the 30 days after the adjournment of court, he should have had an order from the judge extending the time beyond the 30 days, and further it seems to be the rule under the decisions that it is obligatory upon counsel to follow up bills of exception and see that they are approved and signed. 1-Ie was notified by the judge, by the letter previously mentioned, that he could not or would not approve the bills of exception until he had the statement of facts. At the time that letter was written, it was within five days of the limit of the 30 days, counting from the 31st of May, or rather the 1st ■day of June. There may not then have been, and was not under the circumstances set out in the affidavit and this record, time in which to secure the statement of facts for the judge. It then became the duty of appellant to have an extension of time or some action by which the statement of facts could have been gotten before the judge or at least to have presented the matter for action on the part of the judge in either approving the •bills or rejecting them. The statute seems to require that there shall be no want of diligence on the part of appellant or his counsel in securing bills of exception. In the absence of securing the necessary statement of facts and bills of exceptions, under the terms of the statute, the appellant is required to exercise all diligence necessary, otherwise laches will be imputed. Under the circumstances, in the light of the statute and our decisions, appellant has not brought himself within the rule so that these matters can be considered and a reversal granted on account of the failure to secure bills of exception and statement of facts.

Without these matters before us, there is no ground alleged that would require or authorize a reversal of this judgment. It is therefore affirmed.


author: HARPEE, J.

text:
    CLEMMONS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    Criminal Law (§ 1172) — Harmless Error— INSTRUCTIONS.
    In a prosecution for robbery, the court’s failure to submit the issues of simple and aggravated assault was not prejudicial to defendant, where the court instructed the jury to acquit if defendant did not take the ring, which he was charged to have taken, from off the person of another, though the evidence would have sustained a conviction for assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Frank Clemmons was convicted of robbery, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPEE, J.

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

No objection was made to the introduction of testimony on the trial of the case, and the record is brought before us on the sole exception that the court failed to submit the issues of simple and aggravated assault.

The record discloses beyond doubt that an assault was made by appellant on Mr. Jones, and Mr. Jones says that he took a diamond ring, from off his person, of the value of at least $300. Appellant denies taking this ring, and testifies to facts which would perhaps justify him in making the assault. The court in his charge instructed the jury that if appellant did not take the ring, they would acquit appellant. Under the evidence in this case, when the court instructed the jury that if appellant did not take the ring from off the person of Mr. Jones to acquit him, it was a charge presenting the case as made by the testimony in behalf of appellant in as favorable light as he had a right to expect. If he took the ring under the circumstances detailed by Mr. Jones and the witnesses for the state, it was robbery, and when the court instructed the jury that if he did not take the ring, as he and his witnesses testify, to acquit, it was all he had a right to ask. While, perhaps, it is true that, under the evidence, if he did not take the ring, he might have been convicted of an assault, yet when the court made the criterion of his conviction the fact of whether or not he took the ring as testified to by the state’s witnesses, this would not be error of which he would be heard to complain. In plain terms, the jury was instructed, if he did not take the ring from the person of Mr. Jones with the intent and purpose to appropriate it to his own use, to acquit him, or if they had a reasonable doubt of such being the case, to acquit. The .case was presented in a way of which appellant will not be heard to complain.

The judgment is affirmed.


text:
    YOUNG v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    Criminal Law (§ 1081*) — Appeal—Notice.
    Unless the record shows that notice of appeal was given at the term during which accused was tried, the Court of Criminal Appeals is without jurisdiction.
    [Ed. Note. — For other eases, see Criminal Law, 'Cent. Dig. §§ 2722-2724, 2962; Dec. Dig. § 1081.*]
    Appeal from District Court, Grimes County; S. W. Dean, Judge.
    Wait Young was convicted of assault to murder, and he appeals.
    Affirmed.
    C. E, Lane, Asst. Atty. Gen., for the State.
   HARPEE, J.

Appellant was prosecuted, and convicted of the offense of assault to murder, and his punishment assessed at three years’ confinement in the state penitentiary.

The record before us does not disclose that any notice of appeal was given during the term of court at which appellant was tried; and, under such circumstances, we have no jurisdiction of the case. Offield v. State, 61 Tex. Cr. R. 340, 585, 135 S. W. 566, 568. However, we have read the record; and, if the case was properly before us for review, there is no error assigned that would authorize a reversal of the case.

The appeal is dismissed.


author: HARPER, J.

text:
    FLOYD v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    1. Criminal Law (§ 1097)—Appeal—Neces-sity of Statement of Facts.
    In the absence of any statement of facts, the court cannot say whether the charges requested should or should not be given, nor review those grounds in the motion complaining of the charge of the court.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934,2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    2. Criminal Law (§ 1144)—Appeal—Pre-sumptions.
    In the absence of a statement of facts, the court must and does presume that the trial court charged the law applicable to the evidence introduced and all the law necessary to be given.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    3. Criminal Law (§ 1036) — Necessity of Objection—Evidence.
    Objection to the admission of evidence comes too late after verdict and appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dec. Dig. § 1036.]
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    Will Floyd was convicted of murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of murder, and his punishment assessed at imprisonment in the penitentiary for life.

No statement of facts accompanies the record; consequently we cannot say whether the charges requested should or should not have been given. Neither can we review those grounds in the motion complaining of the charge of the court.

In the absence of a statement of facts we must and do presume that the court charged the law applicable to the evidence introduced, and all the law necessary to be giv.en. However, there are several bills of exception in the record in regard to the introduction of testimony. As to the testimony of the witness H. Baker, under the facts as stated by the court in approving the bill, it was clearly admissible as res gestae of the transaction. As to the testimony of Dr. Howard, which was excluded by the court, we do not think the court erred in permitting the county attorney to ask the questions he propounded to this witness and other witnesses. In our opinion, if the court correctly states the facts in approving the bills, the court was in error in excluding the testimony, and the county attorney was' correct in insisting that the testimony was admissible as a dying declaration, and his persistence in trying to get it admitted would not present reversible error.

Several of the other bills copied in the record the court declined to approve, stating that no such objections were made, and the testimony was admitted without objection. It may be that counsel, after the trial of the case, decided that certain testimony ought not to have been admitted, but it is too late after verdict and judgment to raise the objections.

The judgment is affirmed.


text:
    DEAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    1. Cbiminal Law (§ 406*)—Admissibility of Evidence—Agreement to Plead Guilty.
    Where defendant through her attorney agreed to plead guilty, but afterwards exercised her right not to do so, such agreement was not admissible in evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.*]
    2. Criminal Law (§ 1056*)—Appeal—Neces-sity of Exceptions.
    On appeal in a misdemeanor case, where no exception was reserved to the failure of the court to give defendant’s requested charges, the court’s action was not presented in a way to authorize a review.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dee. Dig. § 1056.*]
    3. Criminal Law (§ 1172*)—Prosecution-Instructions.
    Under an information charging that defendant was the lessee of the premises and kept a house of prostitution, where the evidence fully supported such allegation, error in defining the offense by copying the entire statute as to such offenses was not reversible error.
    [Ed. Note.—For other eases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.*]
    Appeal from Gregg County Court; J. H. McHaney, Judge.
    Ella Dean was convicted of keeping a house of prostitution, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of the offense of keeping a house of prostitution, and her punishment assessed at a fine of $200 and 20 days’ confinement in the county jail.

In bills of exception it is shown, that the county attorney, by appellant’s attorney and the county clerk, undertook to prove that appellant through her attorney, had agreed to enter a plea of guilty at this term of court. The court promptly sustained appellant’s objections to any such proof being made, and, having done so, the bills present no error. While it is true, if an agreement had been entered into it ought to have been lived up to, yet if the appellant did not desire to enter a plea of guilty, as her counsel agreed she would do, it was her right not to do so, and let the state prove her guilt if it could do so, and the court correctly held that this agreement of counsel was not admissible in evidence.

There were several special charges requested, some of which were not given, but no exceptions were reserved to the failure of the court to give such instructions, and, this being a misdemeanor, the questions are not presented in a way that we would be authorized to review them.

There is one complaint, in the motion for a new trial to the charge as given, that it authorized a conviction of appellant upon a state of facts not supported by the evidence. The information did charge that she was the lessee of the premises, and kept the house as a bawdyhouse or house of prostitution, and the evidence amply and fully supports these allegations, and that in defining the offense the court copied the entire statute would not, under the circumstances, present reversible error. The statement of facts in this case is not presented in a very intelligent shape. It embraces more objections and remarks. of counsel for appellant and the state than it does the testimony of the witnesses. However, we have carefully studied it, and no testimony was admitted by the court that was not properly admissible.

The judgment is affirmed.


text:
    Ex parte COFFEE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    1. Contempt (§ 44) — Power to Punish.
    It is essential to the power to punish for contempt that the court have jurisdiction both of the subject-matter and the person and authority to render a judgment upon the facts adduced.
    [Ed. Note. — For other eases, see Contempt, Cent. Dig. §§ 128-130; Dec. Dig. § 44.]
    2. Habeas Corpus (§ 92) — Scope op Review —Contempt.
    In determining, in original proceedings in habeas corpus in the Court of Criminal Appeals, the power of a court to fine for contempt, the court may go behind the judgment and ascertain the facts.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 81, 83, 87-96; Dec. Dig. § 92.]
    3. Contempt (§ 10) — What Constitutes— Statement op Attorney.
    A statement by the county attorney in the presence of the court that, inasmuch as the court had permitted a private citizen to appear and defend in a criminal case, he would decline to represent the state and dissolve his connection with the case did not subject him to be fined for contempt, where the court did not order him to proceed in the case but adjourned court and subsequently appointed another attorney to represent the state.
    [Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 19-22; Dec. Dig. § 10.]
    Original application for writ of habeas corpus by Thomas J. Coffee.
    Relator discharged.
    Thos. J. Coffee, of Colorado City, for appellant. Lightfoot, Brady & Robertson, of Austin, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Applicant is county attorney ' of Mitchell county and was fined for contempt in the sum of $10, by the county judge. The judgment of the court is as follows: “On this the 21st day of July, 1913, when cause No. 1604, State of Texas v. Andrew McGehee, was called for trial, J. N. McGehee, father of the said Andrew Mc-Gehee, addressed the court and asked permission to appear as counsel for his son, the said Andrew McGehee. Premises considered, the court granted the said J. N. McGehee the privilege of representing his son, the said Andrew McGehee, being then and there a minor and charged by indictment for a misdemeanor, against the peace and dignity of the state. Whereupon the county attorney, Thomas J. Coffee, arose and addressed the court, stating that if the court permitted the said J. N. McGehee to appear in behalf of his son, the said Andrew Mc-Gehee, who was a minor, being only 18 years of age, he (the said Thomas J. Coffee, county attorney) would not appear as counsel for the state of Texas, whereupon the court asked the said Thomas J. Coffee, county attorney, if it was only from the fact that the court had given said J. N. McGehee, the father of said Andrew McGehee, permission to appear for his son, the said Andrew Mc-Gehee, that caused him to withdraw from the prosecution of said cause. The said Thomas J. Coffee, county attorney, answered ,in the affirmative and started to absent himself from the courtroom, the court then and there being in session, and for the said conduct of the said Thomas J. Coffee, county attorney, A. J. Coe, county judge of Mitchell county, holds and is of the opinion that the said Thomas J. Coffee, county attorney, is guilty of contempt of said court and should be fined in the sum of $10. It is therefore adjudged and decreed by the court that the defendant is guilty of contempt of court and a fine of $10 is assessed against defendant Thomas J. Coffee” — and then follows the usual recitals in the judgment of the court. And it was further ordered that he be ordered into the custody of the sheriff to be held by him until the fine was paid, and in default of payment the sheriff was ordered. to place defendant in the county jail of Mitchell county until it was paid.

There Is also an approved statement of facts filed by the county judge as follows: "Be it remembered that on the 21st day of July, 1913, the case of State of Texas v. Andrew McGehee (No. 1604), pending in the county court of Mitchell county, Tex., was regularly called for trial, and J. N. McGehee, father of the defendant, Andrew McGehee, asked permission of the court to appear as counsel for his son, the defendant, after the state had announced ready for trial, and said McGehee had also announced ready for his son, the said defendant, and the said Andrew McGehee being a minor, 18 years of age, the court granted the said J. N. McGehee the privilege of acting as counsel for and in behalf of his said son, the defendant, Andrew McGehee. The jury had been .challenged for cause and peremptorily, but jury had not been sworn to try the case, when thereupon the county attorney, Thos. J. Coffee, stated to the court that, if the court permitted the said J. N. McGehee to represent the defendant, his son, he (Coffee) would not represent the state of Texas. The court then asked the said county attorney, Thos. J. Coffee, if it was for that reason (referring to the statement of said Coffee, above given), and the said Coffee stated it was that fact alone (J. N. McGehee was not a lawyer, and no license had been issued him to practice law). Thereupon the court had the clerk to enter up a fine of $10 against said Coffee for contempt of court, after which the said Coffee absented himself from the courtroom.”

There are also some matters made to appear by affidavits to the effect that the court then took a recess, this being in the morning, until after the noon hour, when another attorney was appointed to represent and did represent the state. It is little doubtful as to whether we should consider these affidavits in the attitude in which the case is presented. If the evidence had been presented only upon affidavits, there would be less room for doubt upon this question; but, where the judge has adjudicated the matter and followed by an approved statement of facts in relation to it, there may be some question as to whether the affidavits in this connection should be considered, but it is not deemed essential, in the manner in which this case is presented, to pass upon that question.

We have an unbroken line of authorities since the Degener Case, 30 Tex. App. 566, 17 S. W. 1111, to the effect that three things must occur in order to authorize the court to fine for contempt: First, jurisdiction of the subject-matter; second, jurisdiction of the person; and, third, the authority of the court to render a judgment upon the facts adduced. In other words, that, having jurisdiction of the person and subject-matter, there must be authority in the court to render a judgment upon the facts which form the basis or predicate for the judgment, and, if no judgment would be justified under the given state of facts, then the judgment would be void and subject to be set aside under habeas corpus; and the rule is further laid down that we can go behind the judgment of the court to ascertain these facts.

In the instant case the applicant was the county, attorney, and it seems from the statement of facts and adjudication of the court that he refused to appear in this case because J. N. McGehee was not a lawyer, and therefore not authorized to appear in court and represent his son or practice law. It is deemed unnecessary to discuss the right of the elder McGehee to appear in behalf of his son and the relation to this case of this matter.

The question here is as to whether or not appellant, refusing to appear as counsel in the case, would subject himself to contempt. From the adjudication of the court and from the facts approved by him, quoted above, the offense of the county attorney was that, inasmuch as the court permitted a private citizen to appear in court and defend a criminal ease, he, as county attorney, would decline to appear and represent the state, and for this reason only the court states he did not appear and for this reason only he placed him in contempt. It will be noticed, when he notified the court that he declined to appear under the circumstances and dissolved his connection with the case, the court fined him. The court did not order or require applicant to proceed, but, if we go to the affidavits above referred to, then we find that he adjourned court and subsequently appointed another attorney, which the judge was authorized to do on account of the absence of the county attorney at the time of reconvening the court. The appointed counsel seems to have conducted the trial of the case. The simple fact that a lawyer states he severs his connection with a case in the presence of the court would not, in our judgment, in and of itself form a basis of contempt punishment. There must be something more. If the court had ordered him to proceed and he had disobeyed the order, we would have a different proposition. There may be reasons why an attorney may under some circumstances sever his connection with a case, and in which he would not only be justified but the ethics of his profession, as well as the law, may demand or authorize such action. We are of the opinion, therefore, that the mere act of stating he severed his connection with the case would not be sufficient to justify the court in placing the attorney in contempt.

We are of opinion the county attorney was not in contempt of court in stating that he severed his connection with the case under the circumstances. We therefore hold that the contempt punishment was not justified, and relator is ordered discharged.


text:
    LEACH v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    Criminal Law (§§ 1090,1097) — Appeal—Record — Statement of Facts in Bill of Exceptions.
    Absent a statement of facts and bills of exceptions, grounds in the motion for new trial, complaining of the rejection of evidence, of the failure of the court to charge, and based on newly discovered evidence, cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2862, 2864, 2926-2928, 2934, 2938, 2941, 2947, 2948: Dec. Dig. §§ 1090, 1097.]
    Appeal from Criminal District Court, Dallas County; Robt B. Seay, Judge.
    Aaron Leach was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst Atty. Gen., .for the State.-

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

   DAVIDSON, J.

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

The record is before us without a statement of facts or bills of exception. The first, second, and third grounds of the motion for a new trial refer to the rejection of testimony, and cannot be considered in the absence of the statement of facts and bills of exception. The fourth ground alleges error on the part of the court in not charging on circumstantial evidence. Because the evidence is not before us, this matter cannot be revised. The fifth ground refers to newly discovered evidence. In the absence of the statement of facts, we cannot tell whether this ground presents error or not.

As the record is presented to us, the judgment is affirmed.


text:
    WHITE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    Criminal Law (§ 857*) — Misconduct of Jury.
    Where the,sole defense is insanity, and an agreement on a- verdict of guilty of murder in the second degree is procured as a result of the argument of certain jurors that there is a lunacy commission at the penitentiary, and that this commission is better able to pass upon defendant’s insanity that the doctors who testified thereon, and that if defendant is insane he will not be placed in the penitentiary, the case will be reversed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. § 857.*]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Sterling White was convicted of murder in the second degree, and appeals.
    Reversed and remanded.
    Taylor & Humphrey and Wantland & Parrish, all of Henrietta, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant, from a conviction for murder in the second degree, prosecutes this appeal. His sole defense as made by the evidence was that he was insane at the time he killed the young lady.

The record discloses that appellant was a young man who had lived an exemplary life up to the time of the commission of this offense. He had been .engaged to marry Miss May B. Lee. When the time fixed for the marriage approached, Miss Lee postponed the marriage for two months. When the second date approached, appellant procured the license, but Miss Lee insisted again on postponing the marriage, this time .for two years. Words ensued, and the engagement was broken. Miss Lee began receiving company from other young men, when appellant approached her father and asked him to send her away until he could gather his crop, when he would leave, stating at the time he loved her so much that he just could not stand seeing her go with others. Witnesses say that appellant became morose and different from what he had been before. One night Miss Lee was at a party. Appellant went to this party and saw her there with another young man. She passed and he saw the flash of a ring on her hand, when he pulled his pistol and shot her; the shot causing her death. He then turned the pistol on himself, shot himself twice in the breast and once in the head, but none of these wounds proved fatal. The pivotal issue in the case was: Was appellant sane or insane at the time he fired the shot? The state’s witnesses detail facts that would authorize the jury to find that appellant was sane, and this, their verdict would indicate was their finding. Appellant introduced a number of witnesses on the question of his sanity, and these witnesses would have him insane. Mr. Blackstock would have a streak of insanity in appellant’s family; some of his relations being in the insane asylum in Arkansas. Drs. Reed, Foote, Jones, and Calhoun all testify that in their opinion he was insane at the time of the commission of the offense. Drs. Reed and Foote were called to see him immediately after the shooting and waited on him that night and the next morning. Dr. Foote says he was the family physician and had known appellant intimately, and testifies: “I observed his actions and listened to his talk that day while I was there and saw him several times before- he was moved to Henrietta, and from his manner of talk and from his actions I am sure he was insane at that time, and I am sure that he did not know the nature and consequences of the act he had committed. He was insane at that time, and he was suffering with that type of insanity known as melan-eholia. I am sure at the time I saw him and talked with him that he-did not have mind enough to know right from wrong.”

The court fairly submitted the issue to the jury, and we would not disturb their verdict if- it was not for matters that took place in the jury room. On the motion for rehearing there was evidence adduced, and J. F. McNeal, a witness for the state, testified three of the jurymen, Pamplin, Roberts, and Coggins, voted, “Not guilty,” giving as their reason they believed appellant was insane, when the following questions were propounded and answers elicited from the witness: “Q. Now I will ask you if it is not a fact that Pamplin . and Roberts stated in the presence of the jury up there that the reason they had concluded to vote with the balance of the jury was because some of the jurors said that there was a commission in the penitentiary that would pass on his sanity or insanity, and that if he was insane he would not have to stay in the penitentiary? A. Well, they did say something of that kind. Q. They did admit to you and the balance of the jurors that the reason they had agreed to convict him was because some of. the jurors had argued that a commission was appointed and there was no danger of his having to stay in the penitentiary if he was insane? A. It is true that there was some talk of that kind, but I could not say there was anything about it being appointed. Q. But the question I asked you was: Did not they say that they were willing to convict him because they had learned that there would be a commission down there that would examine him and if he was insane they would send him to the asylum? A. Yes, this commission, they said there would not be insane men worked in the penitentiary. Q.-And that was - the reason they would give him a verdict of guilty? A., Yes, sir; Q. That was after some of them had argued that there would be a commission down there to pass on it? A. It was after we had talked about that. Q. -Now, then, who was it, if you remember the name of the juror, who advanced the idea that there would be a commission down there to pass on his sanity or insanity? A. Well, Mr. King and I both talked about it; said that we. believed there would be arrangements made for crazy men; that we did not believe they worked crazy men in the penitentiary. Q. You all had argued that before these jurors said if that was so they would be willing to convict him, hadn’t you? A. Yes, sir.”

Mr. King was foreman of the jury and tes-; tified: “Q. Now, is it not a fact that after you all had retired to consider of your verdict, and soon after you began to -discuss these matters, the jurors began to discuss the fact, and you and Mr. McNeal began the argument with the jury that there was not any danger of this fellow having to serve in the penitentiary if he was insane; that there was. a commission there that would pass on his sanity; and, if he was insane, that he would not have to stay in -the peni: tentiary? A. That question came up; ¿ said this, ‘They did not work crazy men in the penitentiary.’ Q. Is it not a fact that you and Mr. McNeal used the argument to these jurors- that there would be a commission there to pass on his insanity, and that if he was.crazy he would not have to work in the penitentiary? A. I said this, ‘They would not work a crazy man there, and had authorities to look after that business.’ I did not say commission; that was my opinion. Q. You did not hear any testimony about there being that kind of an arrangement in the penitentiary? A. No, sir. Q. In other words, that argument that you were putting up was not because of any testimony that you heard or any law? A. That was simply my opinion, and there was no doubt in my mind at the time that there was; but since that I am told there is not. Q. Is it not a fact that Mr. Pamplin and Mr. J. W. Roberts, in the presence of J. F. McNeal, said that if they had such an arrangement there they would vote for “Guilty”? A. No, sir; I did not hear that. Q. Now, then, Mr. King, it was the intention and purpose of yourself to have made those statements for the purpose of letting the jurors see that there was not any danger of an insane man being worked there like a sane man; that was your object? A. That was my opinion, I believed that was true. Q. Now, Mr. King, you are not in' a position to say that that did not influence some of the jurors, you giving that opinion? A. No, sir; I do not know what.influenced the jurors.”

Mr, Coggins was also offered by the state and testified on this, issue: “Q. Did you hear them arguing up there in the - jury room about there being a commission appointed in the penitentiary to pass on the sanity of men? A Yes, sir. Q. Tell the court what you heard. A. It was something like this: One man (I kinder believe it was Mr. McNeal; I am not sure about that) said, ‘If the fellow is insane, we have got him, and, if he is not, we have got him.’ Q. Did he say anything about a commission down there? A. He said that there was a commission, down there to pass on the insanity of convicts ; that he would go to the asylum if he was insane; and there was another suggestion (I know that somebody made it) that the commission down there was better able to pass on the sanity than these doctors around here were.”

These were all the witnesses introduced by the state to meet the affidavits filed by appellant’s counsel, which we do not deem it necessary to copy, and we have only taken short excerpts from the testimony of these jurymen, as from these excerpts- it is manifest that the argument was used that there was a lunacy commission at the penitentiary, and that this commission was better able to pass on tlie sanity of appellant than the three or four doctors who had testified in •the case, and, if that commission found appellant was insane, he would not be placed in the penitentiary; as one juryman expressed it, “If he is crazy, we have got him, and, if he is not crazy, we have got him.” Thus it is seen at least a part of the jury did not pass on the question of whether appellant was sane or insane but thought a commission at the penitentiary would later pass on the question. As this was the sole question in the case, this character of argument being used, and facts considered not in evidence, we do not think the verdict should be permitted to stand, as there is no evidence that such proceedings did not take place.

There are a number of other grounds stated in the motion, and we have reviewed each of them carefully and painstakingly, but none of the others present any error; but on account of the above error, the issue being so sharply drawn by the testimony, we are of the opinion the case should be reversed and remanded.


text:
    DOSH v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    1. CRIMINAL Law (§§ 1095, 1102) — Statement 0® Facts — 1Time ‘ foe Filing.
    The statement of facts and bills of exceptions must be filed within 90 days after the adjournment of the term at which accused was convicted, and, if subsequently filed, will be stricken.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2817; Dec. Dig. §§ 1095, 1102.]
    2. Robbeby (§ 30) — Indictment — Sueei-' CIEN C Y.
    In order to authorize the jury to assess the death penalty for robbery, the indictment must allege that the robbery was committed by exhibiting firearms or deadly weapons.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 43; Dec. Dig. § 30.*]
    3. Robbeby (§ 28*) — Vebdict.
    In a prosecution for robbery, where the indictment charged that it was committed by the exhibition of deadly weapons, a verdict finding accused guilty as charged in the indictment, and assessing his punishment at the lowest term of imprisonment prescribed, is suffi-
    cient because there are no degrees of robbery, however committed.
    [Ed. - Note. — For other cases, see Robbery, Cent. Dig. § 41; Dec. Dig. § 28.] .
    Appeal from District Court, Grayson County; W. J. Mathis, Special Judge.
    John Dosh was convicted of robbery, and he appeals.
    Affirmed.
    Burton Richards and John C. Wall, both of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

The appellant was convicted of robbery, and his punishment fixed at five years in the penitentiary— the lowest prescribed by law.

The statement of facts and bills of exceptions were filed in the court below 159 days after the adjournment of the court at which appellant was tried. Upon the motion of the Assistant Attorney General both the statement of facts and all the hills of exceptions are struck out, as 90 days is the longest time after adjournment in which either can be filed.

There is hut one question which can be considered, in the absence of a statement of facts and bills of exceptions. The indictment properly charged robbery, and in order to authorize the jury to assess the death penalty, it further charged that the robbery was committed by using and exhibiting deadly weapons. The verdict of the jury was: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at five (5) .years’ confinement in the penitentiary.” Appellant contends that this verdict is invalid, and the judgment must be set aside because it does not find of what degree of robbery appellant was guilty. There are no degrees of robbery. Robbery, however committed, is only one offense. If the state seeks to inflict capital punishment, it is necessary to allege that the robbery was committed by exhibiting a firearm or deadly weapon; and, unless this is alleged, the jury cannot inflict the death penalty. The verdict in this case was clearly sufficient. Green v. State, 147 S. W. 594.

There is no other question raised which can be considered in the absence of a statement of facts and bills of exceptions.

The judgment is therefore affirmed.


author: MOURSUND, J.

text:
    ROSS v. VELTMANN et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 10, 1913.
    Rehearing Denied Jan. 7, 1914.)
    1. Injunction (§§ 163, 188) — Restraining Order — Dissolution — Changed Conditions.
    Where, after the issuance of a temporary restraining order, a sworn answer is filed showing changed conditions that no longer entitle complainant to an injunction, the court may properly dissolve the same, taxing against defendant the costs incident to the proceedings so far as necessary to give complainant the relief to which she is entitled; complainant’s further rights depending upon the changed conditions.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 357-371, 408; Dec. Dig. §§ 163, 188.]
    2. Highways (§ 30) — Establishment—Notice — Record.
    It is not essential to the legality of proceedings for the establishment of a highway that the character of the notice given be made a matter of record, but it is sufficient if a proper notice is given or notice has been waived.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 60-70; Dec. Dig. § 30.]
    3. Injunction (§ 118) — Pleading—Requisites.
    In a suit for an injunction, the rule that the allegations of the petition must be taken most strongly against complainant is re-enforced by the further requirement that the material and essential elements which'entitle complainant to relief shall be sufficiently certain to negative every reasonable inference arising from the facts so stated, that complainant might not, under other supposable facts connected with the subject, be entitled to such relief.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]
    4. Highways (§ 38) — Establishment—Notice of Hearing — Objections—Waiver — Appearance.
    An objection to notice of intention to lay •out a highway, in that it was signed by only one member of the jury of view, was waived by the landowner’s appearance pursuant to the notice.
    [Ed. Note. — For other cases, see High-ways, Cent. Dig. §§ 93-97; Dec. Dig. § 38.]
    '5. Highways (§ 41) — Establishment—Report op Viewers.
    Where the jury of view in highway proceedings were only authorized to lay out a third class road, their report was not fatally defective because it recited the laying out of a “road” instead of a “third class road,” since no other kind of a road could be legally established thereunder.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.]
    6. Highways (§ 41) — Establishment — Viewers’ Report — Hearing by Commissioners’ Court.
    In proceedings for the establishment of a third class road, the law does not require notice to the landowner qf the date of the hearing by the commissioners’ court, on the report of the jury of view, since the owner, having received notice from the jury, must follow up the proceedings in the court.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.]
    7. Highways (§ 41) — Establishment — Viewers’ Report — Hearing by Commissioners’ Court.
    In proceedings to establish a third class road, it was not necessary that the commissioners’ court should pass on the report of the jury of view at the first term, or at a regular term, of such court.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.]
    8. Highways (§ 41) — Establishment- — Viewers’ Report — Hearing—Order—Modification — Notice to Landowner.
    Where an order of the commissioners’ court, adopting the report of the jury of view in third class highway proceedings, was held by the district court, at the suit of a property owner, to be defective in certain particulars, it was not necessary that such landowner be notified of the court’s intention to pass a new order to cure the defect.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.]
    9. Injunction (§ 122) — Supplemental Petition-Verification.
    Where a supplemental petition in ah injunction suit alleged a new ground for injunc-tive relief, it should have been verified.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.]
    Appeal from District Court, Kinney County; W. C. Douglas, Judge.
    Suit by Virginia Ross against Jos. Veltmann and others. Decree for defendants, and complainant appeals.
    Affirmed.
    Martin & Martin, of Uvalde, for appellant.

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

   MOURSUND, J.

On May 21, 1913, appellant submitted to Hon. W. C. Douglas, judge of the Sixty-Third judicial district, her petition, under oath, praying that upon final hearing an order of the commissioners’ court of Kinney county, establishing a road across a section of land owned by her, be vacated and annulled, and that a temporary injunction issue restraining Jos. Veltmann, county judge of Kinney county, Hans Petersen, Albert Sehwandner, L. N. Lewis, and A. M. Slater, the other members of the commissioners’ court of said county, and T. F. Scarborough, from interfering with her fence and opening up said road. The order establishing the road was alleged to be void on the grounds: (1) The road was classified as a “community road.” (2) The width of the road was not stated. (3) The notice received by plaintiff from the jury of view gave plaintiff no notice that a community road was to be laid out across her land. (4) No road overseer was appointed by the court who would be authorized to apportion hands to work the road. (5) The jury of view was appointed to lay out a third class road through plaintiff’s land, but the court classified and established a community road. It was further alleged that defendant Scarborough had been employed by the commissioners’ court to remove plaintiff’s fences and open up the road. Judge Douglas granted a temporary restraining order, but refused to grant a temporary injunetion until a hearing could be had alter notice I to defendants, stating in his order that the petition- showed, by allegation and inference, that all requirements necessary to legally lay out a third class road had been complied with, except that no classification was. made of the road, and no width aseribed’to it, and that if this was correct, it would be his duty to forbid the opening of the road until the two requisites named were complied with. He concluded that the classification as a community road was no classification because such a road is not recognized by statute, and that no “neighborhood road” was authorized because the road did not follow section lines.

On June 7, 1913, the defendants answered by general demurrer, three special exceptions, a general denial and a special answer, containing thel following allegations: That at the regular February term, 1913, of said commissioners’ court, said court upon its own motion passed an order to establish a third class road, leading from the town of Brackett to the Tom Perry ranch, and appointed a jury of view to lay out and survey said road, the names of the members of the jury of view being stated; that proper and legal notices were issued to said members of the jury of view, and legally served upon them by the sheriff of Kinney county and due return made thereon, said notices being attached to and made part of the answer; that four members of the jury of view, naming them, subscribed the oath prescribed by law, their said oaths being also attached to the answer; that before said jury of view laid out and surveyed the road complained of by plaintiff Scarborough, one of the members of the jury of view issued to J. E. Fritter, the agent of plaintiff, the proper and legal notice required by law to be given to owners of land over which the road to be established would run or be likely to run, stating at the time the date when the jury of view would lay out and survey said road, an affidavit of said Scarborough to that effect being attached to the answer; that on February 26, 1913, said four members of the jury of view proceeded to survey and lay out the road, and made their report, a copy of which was attached, in which the road was described; that when said jury of view met to assess the damages to the landowners over whose lands said road was laid out, Fritter, plaintiff’s agent, was present and failed and refused to submit any claim for damages; that on May 12, 1913, the report of the jury of view was approved by the commissioners’ court of Kinney county, the field notes of the road recorded in the minutes of said court, damages allowed plaintiff in the sum of $15, and the road classified as a “community road,” but on June 2, 1913, said court in special session rescinded and annulled said order, and passed an order approving the report of the jury of view, establishing and classifying the road as | | I | a “third class road” and allowing plaintiff I $15 as damages. A certified copy of the order attached to the petition shows that the width of the road was fixed at 30 feet. It was further alleged that a warrant had been drawn in favor of plaintiff for $15 and placed in possession of the county treasurer of Kinney county subject to her demand. On June 16, 1913, plaintiff filed her first supplemental petition, consisting of a general demurrer to defendants’ answer, various special exceptions thereto, and an answer to the effect that plaintiff had no notice of the intention of the commissioners’ court to pass the order entered on June 2,1913, and had no opportunity to contest the same, wherefore she prayed as in her original petition, and in the alternative for all costs because of the proceedings taken by the commissioners’ court after the filing of her petition. Upon consideration of the cas.e as made by the additional pleadings, and after hearing argument, the judge refused the temporary injunction, and dissolved the temporary restraining order. Plaintiff appealed.

The contention made by appellant’s petition, briefly stated, was that the order establishing a community road was null and void, both because no such road is known to our statute, and because there was no order appointing a jury of view to lay out tha£ kind' of road; and the notice given appellant by the jury of view did not disclose that a community road was to be laid out. These contentions were sustained by the court. Later it was made to appear to the court by sworn answer that a new order had been entered by the commissioners’' court, establishing a third class road upon the same report of the jury of view, whereupon he refused to grant a temporary injunction, and dissolved the temporary restraining order. Even when a temporary injunction has been granted, if it be made to appear by sworn answer that the conditions have changed and no longer entitle plaintiff to an injunction, the judge is authorized to dissolve the injunction. Allen v. Abernathy, 151 S. W. 348.

As was correctly held by Judge Douglas, the matter then resolves itself in to a matter of costs. Plaintiff has been protected' from unlawful acts, and the costs incident to the proceeding, in so far as it gave plaintiff the relief to which he was entitled^ should be taxed against defendant. Any further rights asserted by plaintiff must be based upon conditions then existing, and it must appear that such conditions still entitle plaintiff to relief by injunction; otherwise the appellate court will not set aside the dissolution of the injunction. The question to be considered upon this appeal is whether plaintiff is entitled to have a temporary injunction restraining the opening and laying out of the road established and classified as a third class road by the order of June 2, 1911. Several contentions are made by ap- | pellant in this connection, one of which is that appellees’ answer contained no allegation stating the character of notice given plaintiff’s agent by the jury of view, hut merely a conclusion that the written notice given plaintiff’s agent was “the proper and legal notice required by law,” and that therefore the subsequent proceedings are not legal. It is not necessary to the legality of the proceedings that the character of the notice be made a matter of record. Sneed v. Palls County, 91 Tex. 168, 41 S. W. 481. If sufficient notice was given, or notice was waived, the further proceedings are authorized to be taken. It will be noticed that in plaintiff’s petition it is admitted that notice was given, but it is expressly denied that the same was of the proposed laying out of a community road. It is also alleged that the order appointing a jury of view directed the laying out of a third class road. The natural inference arising from these allegations is that the notice given by the jury of view was that a third class road would be laid out, and such inference is not negatived in any of plaintiff’s pleadings, nor shown to be untrue by any allegations of defendants’ pleadings.

The rule with regard to pleadings in injunction suits is as follows: “The rule of pleading that the statements of a party are to be taken most strongly against himself is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.” Cillis v. Rosenheimer, 64 Tex. 246; Sehlinke v. De Witt County, 145 S. W. 665; Weaver v. Emison, 153 S. W. 923.

It is clear that the record discloses no charge of illegality in the proceedings because of failure to give notice of the intention to lay out a third class road, and on the contrary that the inference from the facts stated is that such was the character of the notice given. It further appears from the answer and the affidavit of a member of the jury of view, thereto attached, that such notice was in writing, and that it brought on negotiations between said agent and the jury of view, and at the request of the agent the jury of view did not meet to assess damages until he returned from San Antonio, and when it met he was present, but declined to state what damages plaintiff claimed, if any. The record discloses no illegality in the notice on the ground of not stating, or misstating, the character of the road to be laid out, and if the notice be insufficient because signed by only one member of the jury of view, such defect is waived by appearance pursuant to the notice. Railway v. Baudat, 18 Tex. Oiv. App. 599, 45 S. W. 939.

The jury of view made their report, and only one objection is urged thereto, namely, that they reported the laying out of a “road” instead of a “third class road.” As they were only authorized to lay out a third class road, and no other kind of road could be legally established upon the report as a basis, we do not regard the objection as fatal, and hold that the report was sufficient in law to authorize the establishment of a third class road. Railway v. Baudat, supra.

The question then arises whether the commissioners’ court complied with the law in its proceedings, taken after such report was filed. The law does not require notice to the landowner of the date when the commissioners’ court will pass upon the report of the jury of view. The owner, having received notice from the jury of view, must follow up the proceedings in the commissioners’ court, and it is not necessary to give him notice of the time when the court will take up the matter. At the regular May term the court entered an order which plaintiff contended, and still contends, was a nullity, and which Judge Douglas held to be null and void when first passing upon the petition. The commissioners’ court was not required to pass upon the matter at the first term, nor at a regular term. Terrell v. Tarrant Co., 8 Tex. Civ. App. 563, 28 S. W. 367. It was not necessary to notify plaintiff of the intention of the court to pass a new order, pursuant to the suggestion of the district judge in his order granting the temporary restraining order, nor does it appear that plaintiff ever filed any objections to the report of the jury of view, or asked to be heard, nor that she was prevented from perfecting an appeal, if she was entitled to appeal withqut having made any claim for damages.

It further appears that the supplemental petition, in which a want of notice of such intention is pleaded, was not sworn to, and, being a new ground alleged for the purpose of securing relief by injunction, it appears that the same should have been sworn to.

Although the jury of view allowed no damages, no claim being made, the commissioners’ court allowed $15, for which a warrant was drawn in favor of plaintiff, and placed in the hands of the county treasurer subject to her order.

We conclude that all of appellant’s assignments are without merit, and that therefore the judgment should be affirmed.

Judgment affirmed.