author: HARPER, J. DAVIDSON, J.

text:
    SHORT v. STATE.
    (No. 4049.)
    (Court of Criminal Appeals of Texas.
    April 26, 1916.
    Dissenting Opinion July 3, 1916.)
    1. Homicide <§=3300(7) — INSTRUCTIONS—Sele-Deeense.
    Where accused’s evidence merely tended to show that he shot deceased in the heat of passion, induced by deceased’s gossip regarding accused’s cousin, requested charge on self-defense was properly refused.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 622; Dec. Dig. <@=3300(7).]
    2. Homicide <@=>300(7) — Instructions—Sele-Deeense.
    If the evidence raises the issue of self-defense, such issue should be fairly and affirmatively presented to the jury; but, if there is no evidence thereon, it is properly withheld.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 622; Dec. Dig. <@¿=300(7).]
    3. Witnesses <s=>392(1) — Impeachment—Conflicting Statements — Evidence—Admissibility.
    In a prosecution for murder, where a witness for the defense testified at variance with a statement made on the day of the murder, it was proper for the district attorney, who elicited such statement, to testify that he wrote it as nearly in the witness’ language as he could, using narrative form, and that he explained the nature of the inquest before taking the statement, which witness signed after he read it to her.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1249, 1250; Dec. Dig. <@=>392(1).]
    4. Criminal Law <@=>695(6) — Appeal—Preservation oe Exceptions.
    On objection to testimony, part of which is admissible and part perhaps inadmissible, specific objection must be made to the inadmissible portion.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1637; Dec. Dig. <@=>695(6).]
    5. Criminal ;Law <@=>1170%(6() — Harmless Error — Impeaching Evidence — Cure oe Errors.
    Where the court instructed the jury to consider only relevant impeaching testimony, and excluded from consideration irrelevant statements of the witness, there is no available error.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 6134 ;< Dea Dig. <@=> 1170% (6).]
    6. Homicide <@=>131 — Evidence—Admissibility.
    Where accused’s evidence merely tended to show that he shot deceased in the heat of passion, induced by deceased’s gossip regarding accused’s cousin, it was permissible to show accused’s own alleged illicit relations with his cousin, as tending to disprove his claim of passion, by either circumstantial or positive evidence.
    [Ed. Note. — Por other eases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. <@=181.]
    7. Criminal Law <@=1170% (6) — 1Trial—Con-duct oe Prosecuting Attorney.
    Where an alleged improper question was objected to and excluded, and the answer, if given, was not heard by the jury, and the court instructed them to disregard the question, there was no available error.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3134; Dec. Dig. <@=>1170% (6).]
    8. Criminal Law <@=>706 — Trial—Conduct oe Oeeicers.
    Prosecuting attorneys are officers of the state, whose duty it is to see that justice is done, and they should never attempt to get before the jury evidence they know to be inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. <®=»706.]
    Davidson, J., dissenting.
    Appeal from District Court, Jones County ; John B. Thomas, Judge.
    Hamby H. Short was convicted of murder, and he appeals.
    Affirmed.
    W. I-I. Murchison, of I-Iaskell, E. T. Brooks, of Anson, and J. C. Randel, of Hamlin, for appellant.. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

The first question raised by appellant is that the court erred in failing to submit the issue of self-defense. We agree with appellant that, where there is evidence raising that issue, it should be fairly and affirmatively submitted to the jury; therefore it is unnecessary to discuss the authorities cited by him. But it is equally well settled that, when there is no testimony raising such an issue, it should not be submitted. The state’s evidence would make a case of murder, while the defendant’s testimony raises the issue that he is only guilty of manslaughter ; but in no instance does he testify to any facts that deceased had or was about to attack him. He says that Mrs. Ruth Foster was his third cousin, and on the morning of the homicide she told him that deceased was claiming that he was the father of her baby, and said that no grounds existed for such claim; that deceased had attacked her on the road one time, and dragged her from her buggy, but did not accomplish his purpose. He says he told Mrs. Foster he would see deceased, and see if he had any explanation to make; that he went to Nu-gent, and had his horse shod, and as he came out of the blacksmith shop he saw A. D. Blackwell, deceased, and asked him why he (Blackwell) had treated Mrs. Foster the way he had, when Blackwell replied, “Damn Mrs. Foster,” and he shot him. This was his testimony on direct examination. On cross-examination he said:

“I was six or seven steps from Blackwell when I spoke to him. I did not speak in a loud tone of voice. I spoke loud enough for him to hear me. I asked him for an explanation. I says, T want an explanation of why you have treated Mrs. Foster the way you have.’ That was all I said, and he just sort of frowned up and said, ‘Damn Mrs. Foster,’ and it just flew over me in an instant, and I shot him.”

It is thus seen that neither in his direct nor cross examination does appellant contend that deceased made any demonstration of any character, while the state’s evidence is that appellant walked out of the blacksmith shop and shot deceased without even speaking. It is thus seen that there is not the slightest testimony to raise the issue of self-defense.

Mrs. Ruth Foster testified in behalf of appellant, and testified on this trial that Mrs. Bessie Delap had told her deceased was claiming to be the father of her baby, and that she told appellant about it on the morning of the homicide; that she also told him that somo seven months prior to the homicide deceased had met her on the road and made indecent proposals to her, and when she refused to accede to his requests he caught hold of her, and jerked her out of the buggy, a.nd threw her down in the road, but she screamed and hollered, when he left her, saying, “Well, d-n you, go on;” that she told appellant this but a few hours before the homicide. On cross-examination it is made to appear that this witness had testified at the inquest held over the body of the deceased on the day of the killing, and her testimony was reduced to writing and signed by her. In this statement she said:

“I did not know that A. D. Blackwell was killed until the time Mr. Berrykill came to bring me here. H. I-I. Short told me about three weeks ago that Arthur Blackwell was telling it around that he (Blackwell) was the father of my baby, which was four months old the 7th of this month. Short said Blackwell had told this to him two or three months ago, but that he had never said anything about it. Short and myself were at home when he told me this. A. D. Blackwell never had sexual intercourse with me in his life. I never in my life was with him (A. D. Blackwell) without some one else being present. I was in Mr. Blackwell’s store in January, 1915, when Bessie Delap was with me. I never bought a thing myself at the time I was in the store. I-Iamby Short had told me about what Mr. Blackwell had said at this time. Mr. Blackwell had never been to my house, only when Sol was there, my husband. * * * Hamby Short and I had talked two or three times before this time about Hamby going to Mr. Blackwell and having the talk straightened up. I proposed to Hamby that he go to straighten the talk up, instead of my husband, the first time he talked to me about it. Hamby and I talked about him going to see Blackwell this morning. Hamby Short told me this morning that he was going to go see Mr. Blackwell today and have him (Blackwell) straighten the talk up, or he (Short) would kill him (Blackwell). The last thing Hamby Short said to me this morning, when he left my house, was that he was going to see Blackwell and have him take back what he had said, or he was going to kill him. * * * Blackwell never hugged nor kissed me in my life. He never made love to me. He never made proposals of any kind whatever to me that wore improper. I was never with him, except when some one else was present.”

In regard to making this statement she testified:

“I don’t remember making a statement about this matter to Judge Stinson, which was taken down in writing. I don’t remember making a statement to him the day Mr. Blackwell was killed. I did not make a statement in writing before Judge Arnold that I remember of. I don’t remember making a statement at Esquire Arnold’s residence there in Nugent the day of the killing. I don’t remember seeing Judge Stinson, or him telling me to be careful what I said. I don’t remember him telling me to read the statement over and see if it was what I meant to say. I don’t remember him asking me if I would be willing to swear anywhere that that was my testimony in the matter. I don’t remember him saying to me that I might be asked to change my testimony. I guess that is my signature (referring to signature to statement); that is my name to it. I didn’t do tjiat writing. I don’t remember signing my name to that. I don’t remember writing that at all. I have no recollection whateyer of making a statement to Judge Stinson and Judge Arnold at Judge Arnold’s residence the day of the killing. I don’t remember anything about Judge Stinson telling me he didn’t want me to be scared, but wanted me to be careful, and be sure and make the statement 1 wanted to make. I don’t remember saying in the statement before Judge Stinson and Judge Arnold that ‘Hamby Short told me about two weeks ago that A. D. Blackwell was tolling it, around that he (Blackwell) was the father o@my baby, which was four months old the 7th of. this month.’ That is not true. I did not say that Short said Blackwell had told him that two or three months ago, and that he had never said anything about it. I did not say in that statement that Short and myself were at home when he told me that. 1 did not say in that statement, T never in my life was with A. D. Blackwell without some one else being present.’ If I made that statement I didn’t know anything about it. I did not say in a statement before Judge Stinson that I told him about that on Tuesday night, the 9th of February. Hamby did not talk with me about what Blackwell had said. I did not make the statement to Judge Stin-son that ‘it was two or three days Hamby had been at my house and had talked with me about Mr. Blackwell, and I had talked with him about going to Blackwell to have the talk straightened up.’ I did not have that talk with Hamby Short. I-tamby had never talked about it with me. I didn’t make that statement that Hamby and I had talked two or three times before this about Hamby going to Blackwell and have this talk straightened up. If I made that statement, I don’t remember it. * * * Since I have thought the matter over, I do not have any recollection of going down to Nugent the day Mr. Blackwell was killed. I can’t remember anything about going to Esquire Arnold’s and making that statement. I don’t know whether I wrote my name to that statement or not. I can’t write my name on that paper for you. I guess I could write it, but I couldn’t write it so you could read it.”

After she had so testified, if the state desired to offer the statement in evidence, it became necessary to prove that she had made the statement and signed it on the day of the homicide; and the state in rebuttal called the justice of the peace, Judge F. M. Arnold, who testified that he took the statement of Mrs. Ruth Foster on the day of the homicide; that it was read over to her after it was written, and she signed it. The district attorney, Judge James P. Stinson, was also called, and testified that Mrs. Foster made the statement and signed it before Judge Arnold. In bill No. 4 it is shown he testified:

“My name is James P. Stinson. I am district attorney of the Thirty-Ninth judicial district of Texas. I visited Nugent the day Blackwell was killed and assisted in taking the testimony of parties, I think about 11. I took the testimony of Mrs. Ruth Foster under the following conditions: We went to Nugent that day in response to a telephone call; the sheriff, myself, and Mr. Oearley, the county attorney, and Mr. Keifer, the reporter, and I believe Mr. Reeves or Mr. Hudson, but Mr. Register anyway, and we got down there just a little after 12 o’clock and entered immediately into holding the inquest. We had met the defendant at the end of the 11-mile lane, and the sheriff sent him on with Archer-, and we began summoning the witnesses and issued a subpcena for Sol Foster and his wife, and Mr. Register sent the auto. Mr. Berryhill and Jess Holmes were the drivers. They got there about 4 o’clock in the afternoon, and quite a number of witnesses had'been examined when they got there. When Mrs. Foster came we were waiting for them, they were both sworn as witnesses in the case and a statement taken from both of them. The statement of Mrs. Ruth Foster I wrote as near as I could in her own language, to connect it and make a narrative statement. After I took the statement— Before I took it, I explained to 'her what the proceeding was, and then I took her evidence, and she signed it after it was read over. Before she signed it I read it over to her carefully word by word, in order that she could not possibly make any claim of misunderstanding, and she listened to it carefully. I asked her if that statement was true, and she said it was absolutely true, and says: T will never change it.’ I told her I wanted a statement she was going to swear to when the case was called for trial. I says: ‘When the defendant’s lawyer gets to you, he is going to want you to make another statement.’ ”

The bill shows that the testimony in its entirety was objected and excepted to. The bill does not undertake to point out any specific part of the testimony as objectionable, but the objection is made to all of it. Certainly that portion of Mr. Stinson’s testimony in which he testified:

“The statement of Mrs. Ruth Foster I wrote as near as I could in her own language, to connect it and make a narrative statement. After I took the statement— Before I took it, I explained to her what the proceeding was, and then I took her evidence, and she signed it after it was read over”

—was admissible. Mrs. Foster had testified to a wholly different state of facts on the trial of this cause, and it was permissible, under the rules of law, to show that she had made a different statement prior thereto, when first questioned in regard to the matter. Huffman v. State, 28 Tex. App. 178, 12 S. W. 588; Levy v. State, 28 Tex. App. 209, 12 S. W. 596, 19 Am. St. Rep. 826; Fuller v. State, 30 Tex. App. 563, 17 S. W. 1108; Campos v. State, 50 Tex. Cr. R. 292, 97 S. W. 100; Gonzales v. State, 35 Tex. Cr. R. 35, 29 S. W. 1091, 30 S. W. 224; Newman v. State, 70 S. W. 953; Gallegos v. State, 48 Tex. Cr. R. 61, 85 S. W. 1150; Clanton v. State, 13 Tex. App. 153; Gibson v. State, 45 Tex. Cr. R. 313, 77 S. W. 812; Underhill on Crim. Ev. secs. 238 and 239; Wharton’s Crim. Ev. § 482, and cases cited; Branch’s Renal Code, vol. 1, page 106.

And it is the rule that if an objection is directed at all of the testimony of a witness, a part of which is admissible and a part perhaps inadmissible, specific objection must be made to that part of the testimony which is inadmissible. In the case of Ortiz v. State, 68 Tex. Cr. R. 526, 151 S. W. 1057, this court, speaking through Judge Davidson, held.

“A great deal of this testimony was clearly legitimate, and some of it may or may not be objectionable, owing to the purpose for which it was introduced. * * * The objections are general. * * * A bill of exceptions is too general for consideration if it includes a number of statements, some of which are clearly admissible, and there is nothing in the objection directly pointing out the supposed objectionable portions of the evidence [citing Branch’s Crim. Law, sec. 47; Payton v. State, 35 Tex. Cr. R. 508 (34 S. W. 615); Tubb v. State, 55 Tex. Cr. R. 606 (117 S. W. 858); Cabral v. State, 57 Tex. Cr. R. 304 (122 S. W. 872)]. Where evidence is introduced over objection, some of which is admissible, and some of which is on doubtful grounds, or which might be objectionable, it is the duty of the objector to specify in the bill the particular portion to which objection is urged.”

In this case, as in that case, the objection as shown by the bill was to all the testimony, and the ground, as in that case, was that it was introduced—

“for the purpose of prejudicing the jury and inflaming them against the defendant, and improperly reflecting on the credibility of the witness Mrs. Ruth Poster.”

In Branch’s Ann. Penal Code, § 211, vol. 1, p. 135, the authorities are collated, and the rule is stated to be:

“A bill of exception is too general to be considered, if it includes a number of statements, some of which are admissible, and there is nothing in the objections to directly challenge or single out the supposed objectionable evidence.”

However, in the bill it is shown that the court, without objection, further than objection to all the witness’ testimony—

—“instructed the jury not to consider said evidence of the district attorney relative to his reasons for careful inquiry, and his said statement with reference to what the defendant’s attorney might do, and to stay within the bounds of relevant testimony while upon the stand.”

Under such circumstances the bill presents no error.

The only other bill of exceptions in the record relates to a question propounded to the witness Mrs. Bessie Delap, who was called as a witness by the state in rebuttal It will be seen from the above that appellant’s contention was that deceased had made improper remarks concerning and to his third'cousin Mrs. Ruth Poster. The state’s contention was that appellant himself was criminally intimate with Mrs. Poster, and called Mrs. Delap, who had been an inmate, of Mrs. Poster’s home, to prove certain circumstances from which a jury could deduce such relations between appellant and Mrs. Poster. This testimony was legitimate and proper as tending to show the interest and friendly relations of Mrs. Poster to appellant, she being his most important witness, tending to raise the issue of manslaughter. And as said by this court in Redman v. State, 52 Tex. Cr. R. 596, 108 S. W. 365, if appellant’s third cousin was unchaste, and he knew that to be true, by having had sexual intercourse with her himself, this fact was admissible, if it could be proven by either positive or circumstantial testimony, as he was claiming that slanderous remarks to and concerning this relative so inflamed his mind as to reduce the offense to manslaughter.

By the bill, however, it is shown that after the court had warned the district attorney not to ask the question, at appellant’s instance, the assistant counsel for the prosecution asked the witness Mrs. Delap “if the defendant, Hamby Short, ever got in bed with you.” The question was at once objected to, and objection sustained. It is rendered questionable by the record whether or not the witness answered the question, she saying she did say “yes”; but the evidence of the jurors placed on the stand, when the motion for a new trial was heard, shows they heard the question, but did not hear the answer, and the court in approving the bill says no answer was made to the question, or if one was made it w|is in too low a tone to be heard. As the answer was not heard by the jury, the only question presented is: Does the asking of the question present such error as to call for a reversal of the case?

Appellant relies on the recent case of Bullington v. State, 180 S. W. 681, and we would again emphasize that no question should be propounded which the prosecutors know to be inadmissible, for if it is done, and the circumstances are such that the person on trial may have "been injured thereby, the case should be and will be reversed. But this record is wholly different from that in the Buffington Case, for in this case it is made manifest by the bill that the court promptly sustained an objection to the question, and at once instructed the jury not to consider the question, and permitted no answer to be heard by the jurors, and the Buffington Case, supra, was not reversed on that question alone, but there were other questions in the case which necessitated a reversal. In this case it is made to appear that had Mrs. Delap been permitted to answer the question she would not only have testified that appellant did get In the bed one night while she was residing at the home of Mrs. Ruth Booster, but that she complained to Mrs. Foster about appellant doing so, and Mrs. Foster, appellant’s principal witness, failed and refused to take any steps to protect her, and failed and refused to remonstrate with appellant because of this conduct. The relation existing between Mrs. Foster and appellant was a seriously contested issue in the case, and we are not prepared to hold that such testimony would not have been admissible on this issue.

If a chaste woman is staying at the home of another pure and chaste woman, and a man, even her third cousin, should seek to outrage the visitor in her home, certainly if she made no remonstrance, and permitted this man to continue to visit at her home, both when her husband w'as present and absent, and spend the nights there, it would have some bearing on the relationship existing between the two, when there is other evidence introduced tending to show improper relations. At least, taking into consideration tile action of the court, the bill presents no reversible error.

The judgment is affirmed.

DAVIDSON, J. I cannot agree to this af-firmance.

DAVIDSON, J.

(dissenting). In disagreeing with my Brethren about the affirmance of the judgment and overruling of the motion for rehearing, it may not be of service to make a statement of some of the reasons. The question or doctrine of “harmless error” does not enter Into the disposition of this case, because defendant received the life sentence when there was ample testimony to authorize a conviction of the lower offense of manslaughter. The doctrine of “harmless error” and lower punishment are not discussed by the majority opinion. The jury took the harshest view that could have been taken of the testimony. “Harmless error” is discussed as a question where the punishment is the minimum, it seems.

I do not believe that the majority opinion deals with the bill of exceptions in regard to the district attorney’s testimony as, it should have done legally. The whole bill is predicated upon the fact, and the objection announced in the bill was to the statements of the district attorney laying a predicate to impeach the witness Mrs. Foster.- This was all before the jury, and much of it was very damaging, and cannot be held as properly laying the predicate. The district attorney was permitted to state all his acts and conduct, not only of his relations to the witness Mrs. Foster, after seeing her and hearing her testify before the court of inquiry or magistrate, but he gave a detailed account of his trips and other matters that had no connection with Mrs. Foster or her testimony, and what he discovered, as well as statements reflecting upon her and the attorneys who might be subsequently employed, indicating they were going to induce her to commit perjury by making an entirely different statement from what she made to him. This was the predicate offered by the state, and objection was urged to it. It was all before the jury, and under the guise of laying a predicate to impeach Mrs. Foster the district attorney was permitted to put in the record and before the jury quite a lot of things that should not have been even in the predicate. If Mrs. Foster made different statements to him to what she testified on the trial, the predicate could have been laid, and evidence offered to sustain it; but the predicate must be so laid as to justify a legal and proper contradiction or impeachment of the witness. I think, therefore, my Brethren misunderstood this bill of exceptions and the purport of the objection stated by appellant. It was treated from the standpoint of evidence introduced before the jury, and not as a predicate. It. is a safe rule, at least usually so, that where a bill of exceptions recites testimony some of which is admissible and some not, the inadmissible testimony should be pointed out in the bill, but in my judgment this bill was sufficient to present the matter and show error as indicated in the bill.

The district attorney, claiming to lay a predicate to impeachment, got before the jury those damaging facts from standpoint of original testimony. I do not care to follow this further.

The other question that I desire to mention is the testimony of the witness Mrs. De-lap. Substantially Mrs. Delap was permitted to state that appellant went to her bed and undertook to crawl into it one night while she was residing at the home of Mrs. Foster, and that she complained to Mrs. Foster about appellant’s conduct, etc. Mrs. Foster was a cousin of appellant, about whom much appears in the record, and on account of the conduct of the deceased towards Mrs. Foster appellant killed him. Of course, within the statute Mrs. Foster was a female relative. The state’s theory was that appellant had been intimate with Mrs. Foster, and therefore he was cut off from the issue of manslaughter under the Redmond Case, cited by the majority opinion upon the idea that, if appellant was intimate with Mrs. Foster, he could not become excited under the law of manslaughter for killing the deceased on account of slandering her reputation for virtue. This was a seriously disputed issue.

The Redmond Case is not even in point. Whether that be true or not, I do not now purpose to discuss. If that proposition is correct, as urged by the majority opinion, then I cannot understand why the fact that appellant undertook to have sexual intercourse with Mrs. Delap should have been used against him for killing a man whom he says slandered his female relative, Mrs. Foster. The issue was sharply raised in the record, and most strenuously denied by appellant, that he and Mrs. Foster had ever been guilty of any immoral conduct. What the evidence in regard to an insult by appellant to Mrs. Delap would have to do with the issue of manslaughter on account of insulting conduct of deceased towards Mrs. Foster, as it bore upon the defendant, is hardly explainable upon any legal line. He had not placed his reputation in issue as to being a virtuous man or otherwise. Mrs. Delap had nothing to do with any amours between Mrs.' Foster and appellant, if any such occurred; but this testimony was introduced against appellant, and it is of the most serious and damaging character.

The majority seemed to justify the introduction of this testimony and its effect upon the case by stating that Mrs. Delap was a guest, or at least was in the house owned by Foster and Mrs. Foster, and therefore Mrs. Foster was winking at the amours or attempted amours of appellant with Mrs. De-lap. The state, as well as the majority of this court, seem to overlook one fact of human nature: That, if Mrs. Poster and appellant were carrying on amours through illicit love, Mrs. Delap would hardly be taken under the protection of Mrs. Poster by Mrs. Poster. Such a statement by the majority •opinion is hardly to he verified on the theory of woman nature. But, in any event, the testimony of Mrs. Delap that appellant tried to crawl in bed. with her was not legitimate testimony to show that appellant either was intimate with Mrs. Poster or that he killed the deceased because of the deceased’s intimate relations with Mrs. Poster. This testimony should not have gone to the jury. Appellant was contending for the issue of manslaughter and innocent relations with his relative, Mrs. Poster. She was denying strenuously that there had been any illicit relations between them, and when she informed appellant of the conduct and statements of the deceased the defendant killed him. This testimony as to Mrs. Delap had a tendency to do so, if it did not completely cut him off from the issue of manslaughter. Any illicit relations with Mrs. Delap could not even tend to affect his relations with Mrs. Postor, so as to deprive him of the issue of manslaughter. It did, however, do so, and this to the result of life sentence for murder. It therefore necessarily affected the case seriously against appellant.

The judgment should have been reversed. I do not care to further discuss the matter. This judgment ought to have been reversed, and appellant awarded another trial.
      <@=For othe,T cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RRENDERGAST, P. J.

license: Public Domain

text:
    McKINNEY v. STATE.
    (No. 4133.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.)
    1. Jury c&wkey;l3l(l5) — Voir Dire Examination —Porm of Question.
    Refusal to nermit the ouestion to a juror, “If after hearing the evidence * * * you have a reasonable doubt of the intent of defendant to kill, * * * would you give * * * (him] the benefit of that doubt?” is proper, he being allowed to ask, and having asked, “If after hearing the evidence * * * you have a reasonable doubt of the guilt of' accused, will you give him the benefit of that doubt and acquit him?”
    TEd. Note. — Por other cases, see Jury, Cent. Dig. § 579; Dec. Dig. &wkey;131(15).]
    2. Homicide <&wkey;216 — Dying Declarations— Poundation.
    The requisites prescribed by -Code Cr. Proc. 1911, art. 80S, for- admission of a dying declaration, need not be established by direct and positive statement of deceased at the time, but the proper proof may be inferred from his evident danger, or the opinions of attendants stated to him, or from liis conduct or other circumstances.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 457; Dec. Dig. &wkey;3216.]
    3. Homicide <&wkey;20&wkey;DYiNG Declarations— Time Before Death.
    If dying declarations are made under a consciousness of impending death, without hope of recovery, length of time thereafter before death is immaterial.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 438; Dec. Dig. <S&wkey;204.]
    4. Criminal Daw i&wkey;1169(2) — Harmless Error — Admission of Evidence.
    Erroneous admission of evidence is not ground for reversal if the fact testified to be proved by other evidence not objected to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3138; Dec. Dig. <@=31169(2).]
    5. Criminal Law <&wkey;695(6) — Appeal—Objection to Evidence.
    Admission of evidence, over objection to the whole of it, when part only of it is inadmissible, presents no error.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1637; Dec. Dig. &wkey;>695(6).J
    6. Criminal Law <&wkey;1170(2) — Harmless Error-Exclusion of Evidence.
    Exclusion of evidence was harmless, when other evidence established without controversy the facts sought to' be proved.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3146; Dec. Dig. <®=3ll70(2).]
    7. Criminal Law &wkey;>404(4) — Evidence—Demonstrative Evidence.
    The bloody clothing of deceased was admissible in connection with testimony as to whether wounds were inflicted by one bullet or more.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 873, 891, 893, 1457; Dec. Dig. &wkey;404(4).]
    8. Criminal Law <&wkey;918(10, 11) — New Trial —Matter Not Objected to at Trial.
    Remark of state witness while leaving the stand, when near defendant, not understood by the judge, not shown to have been heard by the jury, and not complained of by defendant at the trial, cannot avail for new trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2163; Dec. Dig. i&wkey;>918(10, 11)J
    9. Criminal Law ®=»1170%(5) — Harmless Error — Limiting Cross-Examination.
    Limiting cross-examination of state’s witness was not reversible error, where it appears certain defendant had in substance got all he could by a longer cross-examination.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3133; Dec. Dig. &wkey;> 1170%(5).)
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    George McKinney was convicted, and appeals.
    Affirmed.
    C. C. Todd, of San Antonio, for appellant. C, C. McDonald, Asst. Atty. Gen., for the State.
   RRENDERGAST, P. J.

Appellant was convicted of the murder of a negro woman, Alice Parrish, and the death penalty assessed.

His defense was accidental shooting. This question was specifically submitted to the jury for a finding in the very language of appellant in his special charge which was given. The jury found against him on it. 'They could not have done otherwise under the testimony. No complaint is made of the charge of the court, tie has several bills of exceptions. We will discuss each.

He complains that the court refused to permit Mm, on the objection of the state, to ask this question of each venireman:

“If, after hearing the evidence in this case, yon have a reasonable doubt of the intent of the defendant to kill deceased, would you give the defendant the benefit of that doubt?”

The court made this explanation in allowing the hill:

“The objection stated was directed to the question as asked in the form asked, and the defendant was never denied the right to ask each and every venireman, and in fact did ask each venireman, the question:
“ ‘If, after hearing the evidence in this case, you have a reasonable doubt of the guilt of the accused, will you give him the benefit of that doubt and acquit him?’
“It was the judgment and opinion of the court that the question as asked fully protected the rights of the defendant, while the question desired to be asked was directed to one single element of the offense of murder, and, if it had been allowed, other .questions covering each and every other element of the case, both for the state and defense, must likewise have been allowed. If this had been done, the trial would have been unreasonably extended: and, further, the defendant never exhausted all his peremptory challenges.”

Tlie court’s action in refusing to permit appellant to ask said question was correct. Ellis v. State, 69 Tex. Cr. R. 468, 154 S. W. 1010; Merkel v. State, 171 S. W. 740, and authorities therein cited.

In his next bill he shows that the district attorney asked its witness Edna Bowman if she heard deceased make any statement on the night she was shot. She answered she did, and stated that no one was present at the time but herself. That she (the witness) was the only one in the room with the deceased at the time. He then asked:

“What, if anything, did she say in regard to who it was [referring to who shot her] ?” Quoting from the bill: “To which question the defendant then and there objected, which objection was by the court overruled, and the defendant excepted because it does not appear that the precedent required by statute that the deceased was conscious of approaching death, had no hope of recovery, and was fully conscious of what she was saying and doing at the time said statement was made; said testimony being material, because the deceased answered said question that ‘Ccorge shot me because I wouldn’t go with him. lie ought to be hung, oughtn’t he?’ ”

The bill then states that the defendant further excepts, because the answer called for a 'conclusion of the deceased, and did not state the conversation that occurred between the defendant and the deceased which led to the conclusion testified to, that George shot her because she would not go with him. The court before approving this bill explains and qualifies it as follows:

“Before the witness Edna Bowman was asked the question and gave the answers complained of, it had been established by other witnesses that at the time or within a few minutes of the speaking of the words recited by the witness Edna Bowman, that the deceased was sane, fully conscious, and knew that she was going to die and had no hope of recovery, as will be seen from the testimony of Fannie Thompson, Dr. H. H. Ogilvie, and Curtis Parrish; also all three of those witnesses testified to dying-declarations of substantially the same words as testified to by the witness Edna Bowman, without objection on the part of the defendant. The testimony of the witnesses Fannie Thompson and Dr. H. H. Ogilvie shows the proper predicate to the introduction of dying declarations, and no change in the condition of the deceased from the time at which they saw her until she spoke to Edna Bowman was shown or suggested.
“The objection was to the question and not to the answer or any portion thereof, and no objection was made, and no motion was made to strike out the answer nor the words: ‘He ought to be hung, oughtn’t he?’ ”

The statute (C. C. P. art. 808) expressly prescribes what the proof shall show before a dying declaration of a deceased is admissible. This statute has been in force for many years and has frequently been discussed, construed, and applied in many cases. The rules applying thereto are well established by the decisions both of this court and our Supreme Court when it had criminal jurisdiction. Aud while all the requisites prescribed by the statute must be shown in order that the dying declaration be admissible, it is held that it is not necessary that all these requisites shall be established by direct and positive testimony of the deceased at the time. It is enough if it satisfactorily appear that the proper proof was made whether it be directly •proved by the express language of the declar-ant or others, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant’s mind and the facts to make the dying declaration admissible. Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330; Cook v. State, 22 Tex. App. 526, 3 S. W. 749; Miller v. State, 27 Tex. App. 81, 10 S. W. 445; King v. State, 34 Tex. Cr. R. 237, 29 S. W. 1086; Connell v. State, 46 Tex. Cr. R. 261, 81 S. W. 746; Thomas v. State, 49 Tex. Cr. R. 642, 95 S. W. 1069; Sims v. State, 36 Tex. Cr. R. 165, 36 S. W. 256; Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 937, 137 Am. St. Rep. 930; Johnson v. State, 67 Tex. Cr. R. 441, 149 S. W. 165; Christian v. State, 71 Tex. Cr. R. 566, 161 S. W. 101; Sorrell v. State, 74 Tex. Cr. R. 505, 169 S. W. 299; Marshall v. State, 182 S. W. 1106.

It is also established that if the dying declarations were made under a consciousness of impending death, without hope of recovery, the length of time deceased lived after making them is immaterial. Fulcher v. State, 28 Tex. App. 472, 13 S. W. 750; Crockett v. State, 45 Tex. Cr. R. 280, 77 S. W. 4; Hunter v. State, 54 Tex. Cr. R. 229, 114 S. W. 124, 30 Am. St. Rep. 887; Brookins v. State, 71 Tex. Cr. R. 101, 158 S. W. 522; Francis v. State, 170 S. W. 779. On these propositions see 2 Branch’s An. P. C. p. 1035; 2 Vernon’s Cr. Stat. p. 746.

Another principle of law is applicable, and that is:

“The erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to.” Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, and cases cited therein. Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541; Tinker v. State, 179 S. W. 573; and many other cases.

And there is still another well-established principle applicable, and that is; Where an objection is made to the whole of certain testimony, a part of which is admissible and a part of which is inadmissible, such objection and the admission of such testimony presents no reversible error. In order to present error, specific objections must be made to that part which is inadmissible and not to the whole, a part of which is admissible. Ortiz v. State, 68 Tex. Cr. R. 524, 151 S. W. 1056; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Gaines v. State, 37 S. W. 333; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; Hughes v. State, 68 Tex. Cr. R. 584, 152 S. W. 914; Pinkerton v. State, 71 Tex. Cr. R. 203, 106 S. W. 87; Boyd v. State, 72 Tex. Cr. R. 521, 163 S. W. 69; Lopez v. State, 73 Tex. Cr. R. 624, 166 S. W. 155; Francis v. State, 170 S. W. 782; Zweig v. State, 74 Tex. Cr. R. 306, 171 S. W. 751; Ghent v. State, 176 S. W. 568; Aven v. State, 177 S. W. 82. If appellant had objected at the time to that part of the deceased’s statement, “He ought to he hung, oughtn’t he?” or if he had later made a motion to exclude it, and the court had overruled such objections or such motion, then reversible error might have been presented. But, as shown, he made no objection to that part of the answer only, and made no motion to exclude it at all; so that, under no contingency, does his bill present any reversible error.

By his bill No. 3 it is shown that he was cross-examining Hugh Lindsey, a state’s witness, and asked him:

“Q. You have known George (McKinney) three years? A. Yes, sir; I have heard tell of him before. Q. Are you friendly with George? A. Yes, sir; I am acquainted with him. Q. Did you know at the time that the Parrishes were — ”

At this point the district attorney interrupted the question, and objected that the witness could have heard it from hearsay only, and it would throw no light on the transaction, would have no bearing on Hie question — it would not serve to show any motive, his knowledge or lack of knowledge. The court sustained the objection. The bill shows that appellant then excepted, in that he was not permitted to finish his question, which he states would have been:

“Did you know at the time that the Parrishes were unfriendly towards the defendant, and objected to Alice Parrish going with the defendant?”

He claims in his bill that all the Parrish-es had testified against him, and it was important for him to show their animosity against him, and he was deprived of the right not only of asking the question, but having the answer “to show that the Parrishes were unfriendly with the defendant.”

The court explained and qualified this bill as follows:

“The question sought to be asked by the defendant, through his attorney, called for hearsay and the conclusion of the witness, and was inadmissible for the further reason that, if admitted, the answer would have been material for one purpose only; that is, it would have been material to show the animus, interest or bias of the Parrish family. The animus, interest, and bias had already been freely admitted by each member of the Parrish family who testified, and the identical information sought to be elicited by this question had already been admitted by each one of them; consequently, there being no denial of their animus and interest, it was not proper for the defendant to prove same from any other source.”

As thus qualified, the bill shows no error. What the answer of the witness would have been is not stated, except, inf eren tially, that the Parrishes were unfriendly to him. Whether his knowledge was such as that it would or would not be hearsay is not disclosed. But, at any rate, when the evidence, as stated by the court, established without controversy the very facts that he wanted to prove, of course no injury was done him by the action of the court.

His next two bills (4 and 5) will be stated and considered together. In the fourth he objected to the introduction of the blood-stained garments of the deceased, claiming that they were introduced for the purpose and with the intention to inflame the minds of the jury against him, and that it did so. In the fifth he claims that the mother of deceased, after she left the stand, said in the hearing of the jury: “He murdered my daughter and ought to be hung.” These grounds were also set up in appellant’s motion for a new trial. The motion on both these grounds was expressly contested and denied by the sworn affidavit of the district attorney.

The court, in approving these bills, fully qualified and explained them. The qualification to the fifth is embraced in that to the fourth, and, while it is quite lengthy, we regard it as of sufficient importance to justify the quotation of the whole of it. It is:

“The state introduced the doctor in attendance (Dr. H. H. Ogilvie) and the undertaker (George Williams), both of whom testified to the location of the wounds. The undertaker" stated that there were three wounds, grouped together ‘in such a manner as to form a triangle, indicating the triangle by holding up three of his fingers so that the tips of his fingers formed a triangle. The physician testified that there were three holes in a straight perpendicular line up and down the throat, and that each was a small bullet hole, and that the spaces between them were about three-fourths of an inch. Upon cross-examination he expressed the opinion that all three of them could have been made by one bullet entering the top hole first, emerging at the seqond, and re-entering at the bottom.
“They both testified to one exit at the back of the neck, but neither testified to the exact location of the point of exit. The declared purpose of the district attorney in offering the dress (the only bloody garment) was to meet the opinion of the witness (Dr. H. H. Ogilvie) that one bullet could have made all three wounds by showing that the bullet hole in the collar of the dress was opposite the lower hole in the throat; that it would have been a physical impossibility for a bullet encountering only fleshy tissues in the throat, ranging downwards, to have been deflected at a right angle in its downward course, so as to make an exit at the point at which it penetrated the dress in the rear. The coat offered in evidence had no blood on it, and was offered both for the purpose of showing the location of the point of exit by holes in the collar thereof, and for the purpose of identifying a button, both by its absence from the coat and its exact correspondence with other buttons on the coat, which button had been found at the place of the homicide, and was offered as a circumstance indicating a struggle, which fact was denied by the defendant who claimed accident. There is nothing in the record to sustain counsel’s conclusion that the dress (the only bloody garment offered in evidence) or the coat (which had no blood on it) was offered for the purpose of inflaming the minds of the jury or that it did do so. The facts in reference to this matter, and to the claimed outburst of the deceased’s mother, just after leaving the witness stand, do not show in the record, but are as follows:
“At the time of the trial counsel for the state and defendant were seated at a table in the courtroom, which table was four feet two inches broad, and eight feet two inches long, and was placed a long ways in front of the jury box, and with its narrow end facing the witness box and the judge’s rostrum, and its long side parallel with the jury box. The edge of the table nearest the jury box was seven feet from the nearest juror, and the edge that was nearest the judge’s rostrum and the witness stand was some eight feet from said witness stand and rostrum. Counsel for defendant was sitting on the far side of the table from the jury, and therefore some eleven feet from the nearest juror. Counsel for the state was sitting on the near side of the table toward the jury, and therefore not more than seven feet from the nearest juror. The witness Mary Parrish, mother of the deceased, was placed upon the witness stand by the state to establish facts known to her alone, as will appear by the record, and was cautioned by the district attorney, when placed upon the stand, to answer •questions asked only. After having testified, and whilst the witness was leaving the witness stand, and whilst proceeding away from the jury around the end of the table nearest the witness stand, and 'therefore with her back or left side face toward the jury, at the moment when she was just around the end of the table, and was by the side of defendant’s counsel, and not more than a foot or so from him, but fully eleven or twelve feet from the state’s counsel and four or five feet from the nearest juror, she said something. The words she spoke were not intelligible, and could not be understood either by the judge trying the case, the stenographer taking the testimony, or state’s counsel, as will appear as to state’s counsel from an affidavit of the district attorney and his assistant, controverting the defendant’s amended motion, for a new trial On the hearing of the amended motion for a new trial no effort was made by the defendant to overcome this controverting affidavit, and no evidence was offered from any source to show that the jury had noticed the fact that the witness had spoken at all after leaving the stand, nor heard any word or words that the witness may or may not have stated at this time, and nowhere is it shown that any one save defendant’s attorney, who was nearer to the witness than any other person in the courtroom, ever heard what she said. Moreover, the defendant did not at the time of the incident, or at any other time, object to the conduct of the witness after she had so left the witness stand, nor did he move to have the jury instructed not to consider her said conduct and remarks, if any, nor did he except to any act or omission of the court in connection therewith, and the stenographer’s record of the whole trial is totally silent upon this subject, and does not show that any incident such as complained of by defendant ever in fact occurred, and this bill of exception is approved only because it contains a matter with reference to objection to the introduction of the clothing to which an exception was properly reserved, and is thus qualified with reference to this matter outside of the record, in order that the appellate court may know the facts as they actually transpired and the conditions surrounding the incident.”

The authorities are abundant that the bloody dress, under the circumstances, was admissible. Burgess v. State, 181 S. W. 465, and a large number of cases collected in 2 Branch’s An. P. C., p. 1031. Neither of these bills as qualified ’ by the judge shows any error.

By his hill No. 6 he shows that Curtis Parrish, Jr., after having testified at first, was later recalled by the state and testified to an occurrence to which he did' not testify when first on the witness stand nor at a previous trial of the case. Appellant’s attorney in cross-examination of him asked him:

“Q. You did not testify to this occurrence at the last trial? A. No, sir. ’ Q. This gun play was not testified to by you in the last trial?”

Upon the objection of the district attorney, he was not permitted to further cross-examine him on this point. In his bill appellant claims that he had the right and strove to cross-examine him to impeach his testimony, and as to why he did not testify to this same occurrence at the previous trial, in spite of the fact that he had then testified that he related all the troubles between defendant and deceased, in' order that the jury might determine his credibility and the weight to be given to his evidence. The court explained and qualified this bill, saying:

“The objection stated was sustained to the question as asked, because it was not in proper form to lay a predicate for the impeachment sought as shown by the bill. The ‘gun play’ referred to did not refer to any trouble between the deceased and defendant, but to trouble between the father of the deceased and the defendant.”

This bill as presented is not full enough to show any error, nor is it full enough to be intelligible without stating further as shown by the record, which we will now do. Besides the bill nor record otherwise shows what the witness would have testified.

The state introduced said witness in at first making out its case before the jury. His testimony then was solely to the effect that he saw his sister, the deceased, and appellant together at a ball on the night previous to the time she was shot and killed. “He was quarreling with my sister, at least I thought he was; he was in an angry manner, he was standing looking at my sister. Nothing occurred, because I told him not to bother my sister,” and he said he was not going to bother her at the ball or elsewhere; that he had some sense. This witness further testified that he next saw his sister that night at his home, where she was lying shot, and he ashed her who shot her, and she said: “George McKinney shot me because I did not go with him.” This is, in substance, thfe whole of his testimony given at that time. Of course, the jury saw and heard and knew this. The state soon after rested. Thereupon apjiellant testified in his own behalf, and introduced, it seems, two other witnesses on other matters, unnecessary to state, having no connection with this matter. Thereupon the state, after introducing other witnesses on other subjects, later introduced the mother of the deceased, who, among other things, testified, in substance, that one night shortly before the homicide her daughter, the deceased, out in the street neár her home, called for her for protection against appellant, when she, her husband, and said son went out to where she was; that she ran up to appellant, and asked him what he meant by meddling and quarreling with her daughter; that he ran his hand in his pocket to pull a gun on her, the witness. Thereupon the state introduced said Curtis Parrish, Jr., who then testified to this occurrence, to the effect that appellant said to him not to come towards him; that he would shoot, and that he had a gun; and while his father had gone and gotten a gun, his mother would not let his father shoot appellant, but prevented it. His father testified to substantially the same thing. It was on his cross-examination of Curtis Parrish, Jr., that the trouble arose as complained of in the bill.

We think it certain from the record and bill that, without any controversy or dispute, appellant succeeded in getting from the witness on this cross-examination, in substance and effect, all he could have gotten by any lengthy cross-examination. The bill nor record does not show what else he could have gotten from the witness. It would have been better perhaps for the court not to have cut him off from his further claimed cross-examination. When the witness testified positively as he did, as shown by the bill, that he did not on the previous trial testify to this occurrence between his sister and appellant and his mother, father, and himself, there was nothing to impeach him upon. He admitted that he had not sworn to this on the previous trial. The jury positively knew at that time that he had not done so in his testimony, when first introduced by the state on this trial.' This bill presents no reversible error.

Appellant’s seventh bill complains that the court permitted, over his objections, the officer who arrested him to state that appellant when he first saw him, asked the officer if she was dead. His objection was this was made after he was arrested. The court’s qualification shows the reverse of this, and, as qualified, the bill shows no error.

The only other hill is to the overruling of' his motion for a new trial. This presents no error.

This being a death penalty case, we have given the record, appellant’s brief, and the clear and forcible argument of appellant’s able attorney, thorough consideration and investigation. We think the evidence is amply sufficient to sustain the verdict, but see no necessity of reciting it, and that no error is shown which would authorize or justify this court to reverse this judgment. It will therefore be affirmed.
      (g^sFor other oases see same topic and KEY-NUMBER in all Key-Nombered Digests and Indexes


author: CONNER, C. J.

text:
    CLARK et al. v. HALLAM et al.
    (No. 8562.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 1, 1916.)
    Schools anb School Districts &wkey;>39 — Formation or I-Iigii School Distbict — Review by Distbict Coukt.
    Under Acts 84th Leg. c. 86, providing for organization of public high schools in common school districts, by section 4a giving the district court “general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts,” and by section 10 providing that appeals from the county superintendent of public instruction shall lie to the county school trustees and from them to the state superintendent of public instruction, and thence to the state board of education, appeals to the district court may be made direct from action of the county board of school .trustees in consolidating districts, since the specific provisions of section 4a, construed with section 10, control the general provisions of the latter.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 68, 69; Dec. Dig. <&wkey;>39.]
    Appeal from District Court, Young County; Wm. N. Bonner, Judge.
    Suit by J. A. Clark and others against R. G. Hallam and others. From an order of dismissal, complainants appeal.
    Reversed and remanded.
    Arnold & Arnold, of Graham, for appellants.
   CONNER, C. J.

On May 19, 1916, J. A. Clark, S. J. Kelly, and G. W. Rose, resident taxpaying citizens of common school district No. 10 of Young county, Tex., presented their petition to Hon. Wm. N. Bonner, judge of the Thirtieth judicial district, which includes Young county, seeking to enjoin R. G. Hallam, Y. M. Burkitt, G. B. Underwood, Walter Long, and S. H. Thomas, composing the board of county school trustees of Young county, from a threatened consolidation of common school districts Nos. 19 and 39 of said county, and from building therein a high school, with an issuance of bonds for its payment. Said district judge indorsed upon the petition so presented his order setting the casa down for hearing at Graham, Young county, on the 3d day of June, 1916, with direction for the issuance of a temporary writ of injunction restraining said proceedings in the consolidation of tiie school districts named pending the hearing provided for. On the day set for the hearing, as appears from the recitations of the judgment, all parties appeared in person and by counsel and announced ready for trial, “whereupon the defendants filed their plea to the jurisdiction of the court, and the court, after hearing said plea to the jurisdiction and having fully considered the same, is of the opinion that said plea should be sustained, and that the district court of Young county, Texas, has no jurisdiction to hear and determine said cause.” It was accordingly adjudged that the cause be dismissed from the docket of the court, and it is from this order of dismissal that the appeal herein has been prosecuted.

A free copy of the plaintiffs’ petition will be unnecessary, we think. In substance, the allegations in effect are that the petitions upon which the board of county school trustees acted and entered its order of consolidation had not been signed by the requisite number of electors of the district; that no necessity existed for the creation of a high school, in that neither district contained children entitled to public free school education of a grade higher than the seventh; that the consolidated district as proposed is some 10 miles long and from 4 to 10 miles wide, and that the location of the proposed high school building would make it necessary for a large proportion of the students residing in the districts named to travel from 2% to 6 miles in order to attend the school. These particular complaints are elaborated in the petition, but, as already indicated, in the view we have taken of the ease, it will be unnecessary to further notice them, inasmuch as the only question presented to us is whether the district court of Young county had jurisdiction to determine the matter in controversy; the sufficiency of the petition not being questioned, if otherwise said court did have jurisdiction.

No brief or argument has been presented in behalf of appellees. Appellants suggest, however, that the theory upon which the trial court acted is that the appeal from the action of the board of county trustees, in the first instance at least, should have been to the county superintendent, and from him to the state superintendent, .and from the state superintendent to the state board of education. This it appears was the approved practice under former laws, and doubtless also as to certain matters relating to the management of public free schools under existing laws. Thomas v. Taylor, 163 S. W. 129; Wier v. Hill, 58 Tex. Civ. App. 370, 125 S. W. 366; McCollum v. Adams, 110 S. W. 526; Caswell v. Fundenberger, 47 Tex. Civ. App. 456, 105 S. W. 1017; Stephens v. Buie, 57 S. W. 312; section 10 of the existing law approved March 5, 1915 (see Gen. Laws 1915, p. 68 et seq.). By a reference to the act just cited, it will be seen that it is an amendment by the Legislature which vests in a board of five county school trustees the power theretofore existing in commissioners’ courts to change the lines and consolidate common school districts into which their counties may have been subdivided. Section 4 of this amendment specifically provides, among other things, that:

“The county school trustees shall have authority to consolidate two or more common school districts into a larger common school district, where a majority of the qualified electors of each common school district at interest shall petition the county school trustees for consolidation, in order that a high school may be established for the children of high school advancement in the common school district so consolidated.”

In relation, however, to the matter of consolidating school districts, it is specificallj' provided in section 4a of the act that:

/‘The district court shall have general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts.”

It is true that section 10 of the same act provides, as had been done under previous laws, that:

“All appeals from the decisions of the county superintendent of public instruction shall lie to the county school trustees, and from the said county trustees to the state superintendent of public instruction, and thence to the state board of education.”

But harmonizing, as it is our duty to do, section 4a with section 10, we think it should be held that the latter section only applies to other proceedings comprehended within the general management and control of the public free schools of the county which is vested by the act in the five school trustees 'mentioned, such as classifying the schools, arranging for free transportation of school children under certain circumstances, prescribing courses of study, approving contracts with teachers, etc. This view is emphasized by the fact that in no previous law relating to the subject do we find express supervisory control over the actions of the county school board of trustees given to the district courts, as provided in section 4a, and by the further fact that section 4a, for the first time conferring such control, is specific in its character, while section 10 is general in character. In accordance with a familiar rule of construction, both must stand, if they can be made to do so. But the specific controls in the matter to which it is made to relate. Warren v. Shuman, 5 Tex. 441, 442; Erwin v. Blanks, 60 Tex. 583; Howard Oil Co. v. Davis, 76 Tex. 630, 13 S. W. 665; National Bank v. Hanks, 104 Tex. 320, 137 S. W. 1120, Ann. Cas. 1914B, 368. As applied to the case we have before us, both sections, we think, may stand and be given appropriate operation. Construing the law as a whole, we think it should be held, generally speaking, that in proceedings relating to the general management and control of the public free schools in a county appeals from the decisions of county superintendents or county school trustees should, in the first instance at least, be made as prescribed in section 10, thus, as to such subjects, limiting the jurisdiction or power of control on the part of the district courts to such power as is vested in them by general principles of equity, such as where it is alleged that the action of the superintendent or trustees is wholly without authority, or corruptly exercised, etc., but that in the matter of consolidating districts section 4a controls, and appeals may be made to the district court direct.

We conclude that the district court of Young county erred in holding that it was without jurisdiction; and it is accordingly ordered that the judgment be reversed, and the cause remanded for a hearing and determination by that court of the questions at issue as presented in the plaintiffs’ petition, thus leaving the temporary writ of injunction effective until otherwise lawfully ordered.

Beversed and remanded.
      <S=»Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BASBUBY, J.

text:
    CITY OF TERRELL v. TERRELL ELECTRIC LIGHT CO. et al.
    (No. 7735.)
    (Court of Civil Appeals of Texas. Dallas.
    July 1, 1916.)
    1. Municipal Corporations &wkey;j680, 681(1)— Granting Licenses — Power to Begulate.
    Municipalities may not, under the grant of exclusive control of streets under direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 854, legislate on everything connected with the subject over which they possess limited authority, such as the manner and means of the business permitted the use of the streets.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1459; Dec. Dig. <&wkey;> 680, 681(1).]
    2. Municipal Corporations <&wkey;6S2(4) — Granting Licenses — Conditions.
    If a municipality, although without power to do so, annexes a condition to a grant to enter upon its streets, a grantee, voluntarily accepting the grant, cannot thereafter refuse to be hound by the condition.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1470; Dec. Dig. &wkey;3 682(4).]
    3. Electricity >&wkey;4 — Franchises — Forfeiture — “Condition”—“Manufacture.”
    In an ordinance, granting to an electric company the “right to manufacture and vend” electricity to the city and the citizens, “subject to the provisions and conditions hereinafter contained,” which conditions were to furnish certain lights and not to erect an ice plant on a certain lot, it was not a “condition” that the company “manufacture” its own electricity rather than purchase it from another, since the grant should be construed according to Vernon's Sayles’ Ann. Civ. St. 1914, art. 5502, providing that the ordinary signification should be applied to words not technical, and since a condition ordinarily is any qualification, restriction, or limitation modifying or destroying the full enjoyment or use of a right, and under the maxim that the “expression of one thing is the exclusion of another,” the word “manufacture” cannot be construed as more than mere description of the extent of the permit.
    [Ed. Note. — For other cases, see Electricity, Cent. -Dig. § 1; Dec. Dig. <&wkey;>4.
    For other definitions, see Words and Phrases, First and Second Series, Condition.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Suit by City of Terrell against the Terrell Electric Light Company and another. From an order refusing temporary injunction, complainant appeals.
    Affirmed.
    M. F. Cate, Morris Brin, and Bumpass & Crumbaugh, all of Terrell, for appellant. Bobt. L. Warren and Bond & Bond, all of Terrell, and Templeton, Beall & Williams, of Dallas, for appellees.
   BASBUBY, J.

This is an appeal from an order of the district judge, refusing in vacation appellant’s application for a temporary injunction to restrain appellees from consummating the acts hereinafter specified. The primary purpose of the suit was to forfeit the charters of the Terrell Electric Light Company and the-Texas Power & Light Company, to. cancel the franchise granted by appellant to Terrell Electric Light Company over its streets, and for the appointment of a receiver for both companies. No issue arises upon the pleadings or the right of appellant to maintain the suit for its primary purpose, and hence it is unnecessary to a disposition of the issues that are raised on appeal to recite the one or discuss the other. At the hearing the following essential and undisputed facts were adduced: The Terrell Electric Light Company is a private corporation, chartered by the state December 19, 1902, and authorized by its charter to manufacture and supply gas and to supply light, heat, and electric motor power to the public in the town of Terrell by any means. When the present controversy arose it was operating an electric light plant in said town for profit and by authority of an ordinance enacted by the authorities of the town of Terrell, which, omitting the enacting clause and the signatures of officials, is as follows:

“Whereas, a company has been formed under the name of ‘The Terrell Electric Light Company’ for the purpose of building and operating an electric light, heat and power plant for the purpose of supplying light, heat and power by electricity to the public, and the manufacture and the sale of electric light material and electric supplies in the city of Terrell, Texas: Therefore be it ordained by the city council of the city of Terrell, Texas:
“Section 1st. The said Terrell Electric Light Company shall have the right and privilege and the same is hereby granted of erecting, establishing, buying, selling, maintaining and operating electric light and electric power works in the city of Terrell, Texas, and shall have the right to manufacture and vend to the city of Terrell and the citizens theieof and to other persons, electricity for motors, light, heat or power purposes for the term of forty-five years from the date of the passage of this ordinance, provided however, that this franchise is subject to the provisions and conditions hereinafter contained and set forth, provided that nothing in this ordinance shall be construed as granting to said company the exclusive privileges for the purpose heroin set forth.
“Sec. 2. To enable said company to construct, maintain, extend and operate its plant in said city, the said company is authorized to erect and maintain along any of the streets or alleys or other public highways of said city for^the purpose of carrying on its business poles, lines, guy posts and braces and such other things as are necessary to the safe and economical construction and operation of its property all to be under the direction of the street committee of the city council of said city of Terrell, Texas, and in accordance with the laws and ordinances of said city now in force.
“Sec. 3. In consideration of the above grant the said Terrell Electric Light Company, agrees to furnish during the continuation of its franchise to the said city of Terrell the following electric lights: Four arc lights of not less than one thousand c. p. each, to be placed on Moore avenue at points where lights have heretofore been stationed, provided however that the city of Terrell shall take from said company two other arc street lights of the same kind, and agree to pay therefor the sum of twelve dollars and fifty cents per month for each of said two lights. Six incandescent lights at city fire station, one of which shall be thirty two c. p. To light the building known as the ‘City Hall’ and used as the city public school building. One incandescent light at mayor’s office in said city.
“Sec. 4. It is furthermore expressly understood and agreed by and between parties hereto that in the event that the Terrell Electric Light Company or its assigns shall ^construct a plant herein provided for at site where electric light plant formerly stood, that is to say on lots twelve and thirteen in block seventy-four, then and in that event the Terrell Electric Light Company and its assigns agrees and binds it-self not to erect or operate in any manner any ice plant in connection with said light and power plant, and it is expressly provided herein that in the event said Terrell Electric Light Company does erect its electric light plant on the lots heretofore described, and does undertake to ran or operate an ice plant in connection therewith then this franchise is thereby made wholly void.
“Sec. 5. Provided furthermore that this ordinance to be effective shall be signed by the may- or and secretary of said city and by the Terrell Electric Light Company.”

Incidentally the foregoing ordinance is dated more than a year prior to the time the company was chartered, but inasmuch as it was probably passed in contemplation of the creation of the corporation, and inasmuch as counsel make no point on that fact, we merely record it as such. The town of Terrell, when the present controversy arose, was also operating within its corporate limits a municipal light plant for profit and for the purpose of lighting its own streets. Such fact does not appear from the statement of facts, but counsel assume it to be so, and in like manner we do. M. A. Joy is president of the Terrell Electric Light Company and owns all of the corporate stock therein, save four or five shares. Prior to the present controversy, and on January 10, 1916, the commissioners’ court of Kaufman county upon the application of Joy, granted him the right or franchise to erect poles or towers and all necessary wires, devices and arrangements on all the public roads and highways of Kaufman county, for the transmission and use of electricity for light, heat, power and other purposes for a period ending in 1966. Thereafter, and on February 12, 1916, the Terrell Electric Light Company entered into a contract with the Texas Power & Light Company agreeing to take from it, at prices enumerated and agreed upon, whatever of electric power or energy it should require for any of its corporate uses or for the uses of its customers. Subsequent to the foregoing contract and in furtherance thereof the Terrell Electric Light Company, on March 15, 1916, entered into a contract with the Texas Construction Company, by which the latter for a recited consideration agreed to construct and equip for the Terrell Electric Light Company at or near the corporate limits of the town of Terrell a station for transforming electric current, and to build as well a line of poles and wires, etc., for the transmission of electricity from the transforming station to a point at or near the corporate limits of the town of Forney in Kaufman county. The transmission line so agreed to be built was under authority of the grant by the commissioners’ court to M. A. Joy, and when built it was Joy’s purpose to there connect his transmission line with that of the Texas Power & Light Company at said point in order to secure from said company electric current under the contract detailed, and in turn transmit the same back to the transforming station at Terrell, and there, after properly transforming it in turn, transmit same over the wires of the Terrell Electric Light Company for sale and delivery to its customers supplied thereby. It was to prevent the Terrell Electric Light Company from thus obtaining electric current and the Texas Power & Light Company and M. A. Joy from thus furnishing it that the temporary injunction was sought, and the refusal of which is the sole issue on appeal, although other grounds were urged in the petition.

The contention of appellant is, in substance, that the ordinance permitting appel-lee Terrell Electric Light Company to use its streets provides that such use is on condition that the electric current furnished by the company to its customers shall be manufactured by it, and that as a consequence the supplying of current in the manner proposed would be in violation of the ordinance, and would entitle appellant to the injunction.

The appellee Terrell Electric Light Company, as we have shown, is authorized by its charter to supply electric light, etc., to its customers by any means, which clearly would include the right to purchase current from another and distribute and sell same to its customers as proposed by the contract with Texas Power & Light Company. And while the Legislature has committed to incorporate towns and cities “exclusive control and power over” its streets, alleys, etc. (article 854, Vernon’s Sayles’ Civ. Stats.), and while, as a consequence, the Terrell Electric Light Company could not enter upon the streets of appellant without its consent reasonably exercised, such consent may not limit or restrict the corporate authority conferred by the state. For, the paramount right to regulate public highways being primarily in the Legislature, municipalities may not, under the grant oí exclusive control of its streets, legislative on everything connected with the subject over which they possess limited authority, such as the manner and means of conducting the business so permitted the use of the streets. Galveston & Western Ry. Co. v. City of Galveston, 90 Tex. 398, 39 S. W. 97, 36 L. R. A. 33. However, a limitation of the general rule stated is that if the municipality annexes to a grant to enter upon its streets a condition, although without authority to do so, and the grantee voluntarily accepts the grant with the annexed condition, it cannot afterwards refuse to be bound thereby or be heard to deny the authority to impose same. Athens Tel. Co. v. City of Athens, 182 S. W. 42. The rule stated was adhered to in the case cited, and was a controlling issue. Writ of error was denied by the Supreme Court. Accordingly, the issue, on the record as submitted, narrows to whether the ordinance constituting the basis of Terrell Electric Light Company’s right upon appellant’s streets was granted upon condition that the electric current to be distributed and sold by the company in the conduct of its business should be manufactured by that company. Obviously the question is one of law arising upon the provisions of the ordinance as a whole. Upon a careful consideration thereof we conclude that the ordinance is not fairly susceptible of such construction. In reaching that conclusion we have not been unmindful of the rule that grants of public rights by municipalities are to be strictly construed in favor of the public and against the grantee, but have proceeded in the light of that rule. The construction sought to be placed upon the ordinance is based upon the use therein of the term “manufacture and vend.” This term is found in section 1 of the ordinance. The substance of section 1 is that the town of Terrell will permit the Terrell Electric Light Company to erect therein a plant for the purpose, among other things, of manufacturing and vending electric current to the citizens of the town. If the consent of the city to erect the plant was necessary to the exorcise of that right, nevertheless it cannot reasonably be said that the language of the section includes more than a bare permit or assent to the erection of the company’s plant within the corporate limits of the city, free from condition or restriction. The language of the section by its common and ordinary meaning imports no more, and by that rule we are controlled in construing it. Article 5502, Vernon’s Sayles’ Civ. Stats. Section 2, when in like manner carefully and fairly analyzed, discloses no more than a similar bare permit, which as we have shown was necessary to the right to use the city’s streets for the erection of poles, wires, etc., for the purpose of enabling the company to conduct its business. Sections 3 and 4 of the ordinance do, however, in our opinion, contain conditions which the Terrell Electric Light Company are bound by under rule in Athens Tel. Co. v. City of Athens, supra. By section 3 it is provided, in substance, that the consideration for or the condition upon which the ordinance was enacted and that grant extended was that the company would, during the continuation of its franchise, furnish free to the city four arc lights at designated points upon the public streets, six incandescent lights at the city fire station, one at the mayor’s office, and in addition light the city hall and the public school building. By section 4 it is provided, in substance, that in the event the company’s plant is erected on certain city lots, it shall not, in connection with the light plant, operate as well an ice plant, and shall forfeit its rights under the ordinance if it violates such provision.

The foregoing are clearly conditions upon the observance of which the company’s right to use the streets with its poles and wires depends. However, so far as the record discloses, such conditions are being observed, and any violation thereof is not urged as ground for the relief sought. The provisions are cited and attention directed thereto solely that the ordinance as a whole may be considered, and in order to illustrate our conclusion that the other sections relied upon by appellant do not contain conditions. A condition ordinarily is any qualification, restriction, or limitation modifying or destroying the full enjoyment or use of a right, etc. As by the ordinance under consideration the full use and enjoyment of the permit to manufacture and vend electric current and set poles and wires upon the streets of Terrell and transmit current over the same to its customers was subject to the qualification, limitation, or restriction that the Terrell Electric Light Company would furnish free the specified electric current, and would not maintain an ice plant upon the designated lots. It is an ancient maxim that the “expression of one tiring is the exclusion of another,” and it seems to us that the .observance of that rule excludes the construction sought to be placed upon the ordinance by appellant, since the only condition found in the ordinance does not regulate the manner and means of securing the electric current. While we think it is probably certain that the Terrell Electric Light Company did intend to generate its own current when the ordinance was enacted, at the same time, in the light of the conditions actually imposed upon it by the appellant, it was not, in our opinion, contemplated by either party that it must do so as a condition precedent to its use of the streets. To do so would be to construe into a condition that which is at most a permit, and would be to attach to language used, in our opinion, more as matter of description or explanation than otherwise, an importance and significance not warranted by the context and other provisions of the ordinance.

What we have said indicates that we are of opinion that the judgment of the trial court should be affirmed. We take occasion, however, to say that our disposition of the appeal determines only the issues and facts as presented, and is not to be considered as foreclosing any rights which may arise upon final trial as the result of other or different facts.

The judgment of the court below is affirmed.
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author: RASBURY, J.

text:
    ST. PAUL FIRE & MARINE INS. CO. v. LASTER.
    (No. 7593.)
    (Court of Civil Appeals of Texas. Dallas.
    June 10, 1916.
    Rehearing Denied July 1, 1916.)
    1. Insurance <&wkey;639 — Action—Complaint.
    A complaint in an action on fire insurance policy need not allege that the fire did not result from causes for which insurer was not liable.
    LEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1554, 1593, 1598; Dec. Dig. <&wkey;> 639.]
    2. Trial <®^141 — Question for Jury — Láck of Evidence.
    It is proper to refuse to submit to the jury issues as to which there is no dispute, and on which only one conclusion could be reached by reasonable minds.
    |Ed. Noto. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. <&wkey;>141.]
    3. Insurance <5&wkey;665(4) — Proof of Loss — Statutory Provision.
    Under Vernon's Saylcs’ Ann. Civ. St. 1914, art. 4874, providing that, in case of a total loss by fire, the claim shall bo considered a liquidated demand against the company for the full amount of the policy, where the insured premises are a total loss, no showing or proof of the amount, etc., of the loss is necessary, for, since the_ policy sum is by the statute converted into a liquidated demand, suit may be commenced on it as on ¡my other demand where the amount due has been ascertained.
    LEd. Note. — For other eases, see Insurance, Cent. Dig. § 1722; Dec. Dig. <S&wkey;665(4).]
    Error from District Court, Freestone County ; A. M. Rlackman, Judge.
    Action by G. W. Laster against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Elliott Cage, of Houston, for plaintiff in error.
   RASBURY, J.

Defendant in error sued plaintiff in error in the lower court, alleging in substance that in consideration of the payment of the premium demanded plaintiff in error insured defendant in error against all direct loss or damage by fire to Ms dwelling in the town of Teague, not in excess of §800; that while said policy was in force and while defendant in error was the owner of the premises, which were of the value of $1,500, they were totally destroyed by fire, by which the amount of the insurance became a liquidated demand; that after the fire defendant in error performed all conditions required of him by the policy, giving notice of the fire to plaintiff in error more than 90 days before commencement of suit, and demanded payment of the sum of insurance, which was refused.

Plaintiff in error’s answer, so far as necessary to state, consisted of a general demurrer, general denial, and special pleas denying the performance by defendant in error of all conditions required by the policy, and alleging that the policy was void because the fire originated by the act, design, or procurement of defendant in error.

Upon conclusion of the evidence the court peremptorily directed the jury to return verdict for the defendant in error for the full amount, of the policy, which was done and upon which verdict was accordingly entered. From such entry this appeal is prosecuted.

The first assignment complains of the overruling of plaintiff in error’s general demurrer. In connection with the demurrer it is provided by the policy, which is attached to and made a part of the petition, that the plaintiff in error shall not be liable for loss by fire occasioned by invasion, insurrection, riot, etc. The petition did not aver that the fire resulted from causes other than those from which plaintiff in error was exempted. The proposition advanced is that as a consequence of such omission the petition did not state a cause of action and the general demurrer should have been sustained. In support of its contention plaintiff in error cites Pelican Ins. Co. v. Troy Co-op. Ass’n, 77 Tex. 225, 13 S. W. 980, and Phoenix Ins. Co. v. Boren, 83 Tex. 97, 18 S. W. 484.

The general and apparently the uniform rule is that:

“Whore a policy insures generally against a particular peril, and contains a further clause exempting the company from liability for loss caused in a certain manner, which would otherwise liave fallen within the general terms of the policy, tlie burden is upon the insurer to allege and prove that the loss fell within the exemption.” 4 Cooley’s Briefs on Insurance, 3025.

Another eminent authority states the rule to be that:

“The plaintiff need not aver the * * * performance or nonperformance of conditions subsequent, nor negative prohibited acts, nor allege that he is within the excepted risks.” 2 May, Insurance, § 490, p. 1377.

By another accepted authority it is said:

“It is not necessary to negative the occurrence of facts which would constitute a breach of condition subsequent, nor to aver that the loss is not within exceptions contained in the policy, * * * and in general plaintiff need not negative facts which might bo sot up by the company as a defense.” 19 Cyc. 921, 922.

Accompanying the texts quoted are many cases from many jurisdictions cited in support of the rule.

Recurring, then, to the cases from the Supreme Court cited by plaintiff in error in support of its contention, which, it must he conceded, tend to support the contention, we conclude they are not controlling, because the holdings in those cases hare been in effect modified by the Supreme Court itself. In Burlington Insurance Co. v. Rivers, 9 Tex. Civ. App. 177, 28 S. W. 453, in referring to the holding in the Supreme Court cases, supra, it was said that:

“While the precise question now under consideration does not appear to have been decided in either of those cases, it must be conceded that both of them * * * tend strongly to support the proposition upon which they aré cited. Still * * * believing that the weight of authority supports a different and better rule, * * * we decline to follow them.”

Many cases are cited in the Rivers Case in support of the rule as we have stated it, and as it is stated in the Rivers Case, and the opinion closes with a quotation from East Tex. Fire Ins. Co. v. Dyches, 56 Tex. 560, wherein on the present issue it is, in effect, held that matters of contract in the nature of conditions subsequent, or exemptions from liability, or the prohibition of certain acts by the parties thereto, are matters of defense, and need not he noticed by plaintiff in his petition. The Rivers Case did not and could not, because of want of jurisdiction, reach the Supreme Court. However, in the subsequent case of Hartford Fire Ins. Co. v. Watt, 39 S. W. 200, where the identical question was involved, and which was decided in consonance with the Rivers Case, and which did reach the Supreme Court, that court refused a writ of error, thereby approving the departure from the rule announced in former cases. For the reasons stated, we conclude that the court below correctly overruled the general demurrer.

The action of the court in refusing to submit to the jury whether the insured property was a total loss is assigned as error. We have carefully read all the evidence adduced on the issue of the extent of the damage to the property, and every witness, in effect, stated that the house was a total loss. Some of the witnesses stated that inconsiderable portions of the framework were left standing, and some that portions of the foundation remained. Neither fact, however, would, under article 4874, Vernon’s Sayles’ Civil Stats., render the house any the less a total loss, and hence a liquidated demand. Murphy v. Am. Cent. Ins. Co., 25 Tex. Civ. App. 241, 54 S. W. 407. That being true, the record contains no evidence save that which shows the building to have been a total loss, and from which it further follows that there was on that issue nothing tó be submitted to the jury.

It is also urged that the court erred in not submitting to the jury whether or not the fire originated by any act, design, or procurement of defendant in error. There is in the record no work or circumstance which could have supported such a finding. Plaintiff in error offered no testimony of any character on the issue which it is claimed should have been submitted, or on any other issue in the case so far as the record discloses. Defendant in error, while on the stand, testified at the instance of his counsel that he did not set the fire which destroyed the house, or procure another to do so. Plaintiff in error declined to cross-examine defendant in error on that issue, but permitted his statement in that respect to stand unchallenged. It is therefore palpable, we think, that the issue was not made, and should not have been submitted to the jury.

It is also urged that the court erred in refusing to submit to the jury whether or not defendant in error was the sole and unconditional owner of the premises destroyed by fire. On the issue of ownership defendant in error testified that he was the owner of the premises at the time same were destroyed. Plaintiff in error did not cross-examine defendant 'in error on that issue. Nor was any original evidence tendered on such issue by defendant in error. Accordingly it was in evidence without dispute that defendant in error was the owner of the property.

In reference to the three preceding assignments of error, in connection with which it is urged that the case should have been submitted to the jury, notwithstanding the evidence on the several issues was without dispute or contradiction, on the theory that the jury was not compelled to accept as true the facts testified to by defendant in error, we understand the rule to be, not that the jury can return a verdict contrary to the undisputed and uncontradicted facts proven in evidence, but that the court cannot withdraw or refuse to submit the case to the jury, save in cases where the evidence is so conclusive of the issues that “reasonable minds, seeking to arrive at a proper conclusion, could not differ as to the effect of the testimony.” T. & P. Ry. Co. v. Taylor, 103 Tex. 367, 126 S. W. 1117, 1200. After reviewing the evidence in the instant case, we conclude that it is of that character and force which excludes all difference of opinion as to the facts deducible therefrom, and that hence the court properly instructed verdict for defendant in error.

The two remaining assignments of error relate to the introduction of a letter offered for the purpose of proving waiver of proofs of loss and to the refusal of the court to submit to the jury the issue of whether proofs of loss were in fact furnished as required by the policy. At another place in this opinion we hold that the evidence shows that the insured premises were a total loss, which by statute converted the sum of the policy into a liquidated demand, which made a showing or proof of the amount, etc., of the loss unnecessary, since suit could be commenced on the policy as on any other demand ascertaining the amount due. Continental Ins. Co. v. Chase, 33 S. W. 602; Hamburg-Bremen, etc., Ins. Co. v. Ruddell, 37 Tex. Civ. App. 33, 82 S. W. 827; Georgia Home Ins. Co. v. Leaverton, 33 S. W. 580; London & L. Fire Ins. Co. v. Schwulst, 46 S. W. 91.

Finding no error in the record the judgment is affirmed.
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