text:
    FORD v. ROBISON, Commissioner of General Land Office, et al.
    (No. 2964.)
    (Supreme Court of Texas.
    March 13, 1918.)
    1. Public Lands <&wkey;54(3) — Right to Pue-ohase — Cases of Complement.
    Under Acts 34th Leg. c. 150-, § 3 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5420c), providing that school lands situated in Jeff Davis county may be sold in quantities not to exceed eight sections of 640' acres each, more or less to one person, and in whole tracts only, and without condition of settlement and residence, the quantum of land which may be purchased by a single individual is determined by the number of sections regardless of acreage.
    2. Public Lands <&wkey;54(3) — Right to Pub-chase — Cases of Complement.
    Rev. St. 1911, art. 5420, provides that the Commissioner of the General Land office is prohibited from selling to the same party more than one complement of four or eight sections of land, according to the county; and all applications to purchase land shall also disclose the prior lands purchased by the applicant from the state, if any, and the residence of the applicant at said time; and, if it appear therefrom, or from the records in the land office, that said applicant has already purchased land aggregating four or eight sections, according to county, since April 19, 1901, his application shall be rejected; provided, this shall not apply to sales made to a purchaser and after-wards canceled as invalid for some reason other than abandonment, and where the purchaser himself was not at fault. Acts 29th Leg. c. 103, § 6, similarly requires prior purchases to be charged against an intending purchaser, as does also Acts 30th Leg. (1st Galled Sess.) c. 20, | 6. Acts 34th Log. e. 150, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5420a), does not specifically make such requirement, but declares that “the * * * land shall be sold under the terms, conditions, limitations and regulations * * * now provided by law, except as changed herein.” Held, that an intending purchaser of lands under the act of 1915 is chargeable with all lands purchased by him under the prior acts in the same county.
    Original petition for mandamus by George Ford against J. T. Robison, as Commissioner of General Land Office and others.
    Writ granted.
    W. L. Hill, of Huntsville, and J. R. Hill, of Alpine, for relator. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondents.
   HAWKINS, J.

Section 1330, certificate 3910, Gulf, Colorado & Santa F6 Railway Company, containing only 320 acres of public free school land, lying in Jeff Davis county, classified as mineral and grazing land and appraised at $1.50 per acre, came on the market on January 1, 1916, for sale by the state, and was awarded by the Commissioner of the General Land Office to the corespondent, W. T. Jones, on his bid of $2.05 per acre, which was the highest bid for said land. The next highest bid therefor, $1.75 per acre, was that of relator, George Ford. Prior to the filing of his application to purchase said land, and even prior to the act approved April 5, 1915 (Gen. L. 1915, c. 150, p. 256), under which said award of this section 1330 was made, but after April 19, 1901, Jones had purchased from the state, and, on January 1, 1916, held, in good standing on the books of the General Land Office, various other tracts of public cá <D hr a .. ⅛0 ⅜ d o d 03 4h ¾ _ ,q O ¾ fl m o <j> m ¾ ® rrj 2 d

It appears that sections 6, 8, 10, and 32 are original surveys or sections, and each contains 640 acres; that the west half of section 4 and the east half of section 12 aggregate 640 acres; that the east half of section 696 and the north half and southeast quarter ■of section 5 and the east half and northwest quarter of section 34 aggregate 1,280 acres; that section 842 contains only 277½ acres, and that, all together, such previous purchases hy Jones, comprising either all or portions of ten different sections or surveys, aggregate only 4,757½ acres, or less than eight sections of 640 acres each, but that section 842 is an •entire original section or survey. In other words, such previous purchases by Jones embraced four entire surveys of 640 acres each, three half surveys of 320 acres each, and two three-quarter surveys of 480 acres,each (all together comprising an acreage just equal to seven sections of 640 acres each), and also one other entire survey, containing only 277½ acres; but the aggregate acreage of all of said former purchases and this section 1330 amounts to less than 5,120 acres, the aggregate acreage of eight ordinary sections of 640 acres each. Relator contends that on and after January 1, 1916, by reason of said prior purchases, which he claims constituted I a full “complement,” Jones had become and was disqualified to purchase said section 1330, wherefore, relator says, said award of that section to Jones was contrary to law and void; and thereupon relator prays this court to require the Commissioner to cancel said award and to award said section 1330 to relator.

The single question, therefore, is: Was Jones a lawful purchaser of that section, 320 acres, the land in controversy? If so, the award to him should stand; otherwise, the writ of mandamus should go.

The sole general issue is one of law as to what quantum of public school lands lying in Jeff Davis county might lawfully be purchased on January 1, 1916, by one circumstanced as was Jones. That issue involves these two vital questions: First. Whether such quantum is measured by the number of sections, with a maximum, for that county, of 8, or by the acreage, with a maximum, for that county, of 5120. Second. Whether, in determining such quantum Jones’ said purchases should be counted against him. Upon each branch of the issue relator insists upon the former, and respondents up the latter, theory of statutory construction. Among the provisions of said act of April 5, 1915, are these:

“Section 1. On the first day of September, 1915,- and on the first day of each January, May and September of each year thereafter, the surveyed lands and portions of surveyed and un-surveyed land shall be sold under the terms, conditions, limitations and regulations as is now provided by law, except as changed herein.
_ “Sec. 2. Land that is situated in the counties of * * * may be sold in quantities not to exceed two sections of 640 acres each, more or less, to one person, and in 80-acre tracts, or multiples thereof, and on condition of actual settlement of some portion of the land so purchased and continuous residence thereupon for three consecutive years, as now provided by law.
“Sec. 3. Land that is situated in the counties of * * * Jell Davis * * * may be sold in quantities not to exceed eight sections of 640 acres each, more or less, to one person, and in whole tracts only, and without condition of settlement and residence.” (Italics ours.) Vernon’s Ann. Oiv. St. Supp. 1918, arts. 5420a-5420c.

The expression used by the Legislature in defining that quantum, as applicable to Jeff Davis county, “not to exceed eight sections of 640 acres each, more or less, to one person, and in whole tracts only,” indicates, clearly and unmistakably, a definite purpose to give controlling force and effect to the number of sections, rather than to the acreage, and plainly negatives the idea that the acreage shall control. The number of sections comes first, as of greater importance, and the words “of 640 acres each” are used to carry recognition of the amount of the acreage ordinarily thrown into one section, under both state and federal practices, and the words “more or less” are added, in the nature of a videlicet, to prevent a rigorous construction which would require the survey, or section, to contain precisely 640 acres, no more and no less; and any other construction of the statute is precluded by the addition of the words “and in whole tracts only.” The positive inhibition against making any sale except “in whole tracts” unquestionably prevents the Commissioner from carving out of an entire section containing more than 640 acres, and acreage which, when added to seven other sections aggregating more than 4480 acres, would make up 8 x 640 = 5120 acres.

Moreover, if acreage is to control, what reason was there for saying anything about sections? We can see none. Historically, also, the word “section” as used in said section 8 of said act of 1915 has the meaning which we here attribute to it. That is made manifest by reference to previous decisions of this court and of other courts of this state construing laws providing for sale or for lease of public lands. Hazelwood v. Rogan, Commissioner, 95 Tex. 295, 67 S. W. 80; Winans v. McCabe, 41 Tex. Civ. App. 99, 92 S. W. 817.

In the Hazelwood Case this court construed the following portion of R. S. art. 4218f, as amended by Acts 1897, Gen. Laws 1897, p. 184:

“When any portion of said’ land has been classified to the satisfaction of the Commissioner of the General Land Office, under the provisions of this chapter or former laws, such land shall be subject to sale, but to actual settlers only, except where otherwise provided by law, and in quantities of not loss than eighty acres or multiples thereof, nor more than four sections containing s⅛ hundred and forty acres, more or less.”

The court, through Chief Justice Gaines, said:

“The question is, Did the Legislature mean by four sections four original surveys, or did they mean lands amounting in quantity to four sections of 640 acres each, or to 2,560' acres? In the primary and broad signification of the term, any division of a thing is a section. But probably by reason of the fact that the United States has surveyed its lands in sections of a square mile each, it has become customary to speak of such a survey as a section. But any survey may be appropriately designated as a section. When in the provision last quoted the Legislature uses the words ‘four sections consisting of six hundred and forty acres, more or less,’ they meant surveys, that is, to include survey's intended and purporting to contain the quantity named, though they might contain more, and surveys of less than that quantity. In other words, the amount of land the settler was entitled to purchase was to be determined by the number of surveys, and not by the quantity in acres. * * * It might well have been deemed the more practicable and convenient rule to grant the right to purchase three original surveys rather than the quantity of 1,920 acres, when such surveys contained less than that quantity. * *. * The survey for which the relator applied, and which contained only 457 acres, and a fraction was known in the land office as ‘section 65,’ and was so described in his application.”

Counsel for the Commissioner frankly concede that their contention on this point, in the ease at bar, “appears to be in conflict” with that decision, but suggest that the two cases may be distinguished, in that, they say, the statute there actually before the court for construction was a portion of the act of 1901, page 292 et seq., which expressly limited to just “four sections” rather than to four sections “of 640 acres each more or less,” the quantity of land which might be sold to one applicant. Whatever force lies in the suggested distinction seems to us to operate in the opposite direction, strengthening the idea that the conclusion there announced should be applied to the facts of this case. The same counsel say, also:

“We think it clear, however, that the portion of article 4218f discussed by the court in the Hazelwood-Rogan Case and above quoted, had been superseded by that portion of the act of 1901 above referred to fixing the quantity at ‘four sections of land.’ ”

The court seems to have entertained the opposite view, saying:

“The right to purchase additional lands is expressly conferred by article 421Sf of the Revised Statutes as amended by the act of 1897 (Laws 1897, p. 184), and that article, as to its main provisions, is not affected by the act of 1901.”

In any event the reasoning of this court in that case is, we think, conclusive upon the question as it arises in the case at bar. If “section” as used in section 3 of said act of 1901, when not coupled with any reference to the amount of the contained acreage, is applicable to a tract of less than 640 acres, as was held in the Hazelwood Case, surely “section” as used in section 3 of said Act of 1915, when immediately followed, as it is, by the words “of 640 acres each, more or less, to one person, and in whole tracts only,” is fairly applicable to this section 842, although it contains less than 640 acres.

In this connection Ross v. Terrell, 99 Tex. 502, 90 S. W. 1093, has been cited in behalf of the Commissioner as applying a liberal rule of construction; but it is not claimed that the present issue was in that case. There, in construing sections 5 and 6 of the act of April 15, 1905, giving to any settler, in certain counties, who had not “purchased one complement of land under this or former law,” a right to purchase “not to exceed eight sections of six hundred and forty acres each, more or less, or such part thereof as will complete his complement under this act, including the former purchase, since April 19, 1901” (Laws 1905, p. 163), this court said:

“We-do not see why one should be denied the privilege of buying eight sections in all, merely because he had bought four sections under the previous laws.”

Accordingly the court there held that the expression “under this act or former law” should be read “under this act and former law.” But the issue there was as to how many sections rather than as to how many acres one applicant might purchase. A supporting reason there assigned was, indeed, that the approved construction would prevent inequalities as between purchasers, in the administration of the law; but the slight change in one word of the statute which the court there thought would develop more clearly tlie legislative intent is not analogous to the extensive changes necessary to conform the provisions of said act of 1915, supra, to the meaning which counsel for the Commissioner ask us to place upon it. We find no ambiguity in said portion of section 3; hence the public policy involved is not one of judicial control or concern.

We hold that in section 3 of said act of 1915, supra, the maximum of land which one may purchase thereunder is defined in sections, not in acres.

Upon the second question, R. S. art. 5420, which was in force on January 1, 1916, provides:

“The Commissioner of the General Land Office is hereby prohibited from selling to the same party more than one complement of four or eight sections of land, according to the county ; and all applications to purchase land shall also disclose the prior lands purchased by the applicant from the state, if any, and the residence of the applicant at said time; and, if it appear therefrom, or from the records in the land office, that said applicant has already purchased land aggregating .four or eight sections, according to county, since April 19, 1901, his. application shall be rejected ; provided this shall' not apply to sales made to a purchaser and aft-erwards canceled as invalid for some reason other than abandonment, and where the purchaser himself was not at fault.” Gen. L. 1901, c. 125, p. 294, § 3.

It seems true that Act of 1897, c. 129, p. 184, in authorizing sales of state lands, made no restriction based on former purchases by an applicant. It seems true, also, that various subsequent acts, preceding, however, said act of 1915, expressly required that, in determining whether an applicant was qualified to purchase the lands described in his application, prior purchases by him should be charged against him (Acts 1901, c. 125, p. 294, § 3; Acts 1905, c. 103, p. 163, § 6; Acts 1907 [1st Called Sess.] c. 20, p. 490, § 6), and that said act of 1915.did not do so; but that circumstance does not conclusively indicate a legislative purpose to revert to the practice under said act of 1897 and to relieve or exempt the operation of said act of 1915 (under which the award here in question was fhade) from such requirement of R. S. art. 5420, supra, which was not expressly repealed.

Obviously the purposes of said article 5420 are: (a) to prohibit state sales of more that “a complement” of lands to one person; and (b) to charge the applicant with all lands so purchased by him since April 19, 1901, with certain exceptions which are not claimed to exist in the present case.

Now section 1 of said act of 1915, which was in force when the land here in controversy came on the market, and when both applications to purchase same were filed, expressly declares that “the surveyed lands * * * shall be sold under the terms, conditions, IMnitations and regulations as is now provided by law, except as changed herein.” Consequently, said article 5420 having never - been repealed, the stated restrictive requirements thereof should be read into, and should be construed and applied in connection with, the above-quoted provisions of said act of 1915, unless the latter are so inconsistent with the former as to repeal them by necessary implication. In support of that settled rule of construction no authorities need be cited. We find no such inconsistency. The material changes from preexisting law which were made by said act of 1905 were these: (a) Different sale days were designated; (b) conditions of settlement and residence on the land were removed; (c) the amount of first payment was increased; (d) the rate of interest was increased. By the terms of R. S. art. 5418 (Acts 1907, 1st Called Sess. p. 490, § 6), which also was left in force, as well as by the terms of said act of 1915 (section 3) Jeff Davis county, in which section 1330 lies, is an eight section county; the “complement” in that county being “eight sections.”

Inasmuch, therefore, as none of the changes made in said act of 1915 conflicts with the quoted requirements of article 5420, those requirements also- must be applied to the facts of the present case, with the result that, inasmuch as all of Jones’ former purchases, aggregating eight sections, were made prior to April 19, 1901, they must be charged against him, and since they and section 1330, which must be counted as a section containing “6J¡0 acres * * * or less’’ together overrun the statutory “complement” of “eight sections,” Jones could not, on January 1,1916, or afterwards, legally purchase said section 3330, and said attempted sale thereof to him must be canceled. This conclusion, besides finding strong support in reason, is in line with precedent. Houston v. Koonce, 106 Tex. 50, 156 S. W. 202.

A statute later than said article 5420 declared that “any person desiring to purchase OMy portion of the unsurveyed school fund” may designate “the land he desires,” and that such land shall be surveyed by the county surveyor, etc., and that, “if upon inspection of the papers, the Commissioner is satisfied * * * that the land is vacant and belongs to the school fund, and the survey has been made according to law, he shall approve same and notify the applicant that the land is subject to sale to him, stating the classification, price and terms, which, shall be the same as that for surveyed lands, except as herein provided.” Gen. Laws 1905, c. 103, p. 164, § 8. The language conferring that right to purchase is very broad, placing no express limitation upon the amount of land to be purchased.

That act did not expressly carry forward the provisions of article 5420, supra, or refer in terms to the act of 1901 from which it was taken, but did declare that “all laws and parts of laws in conflict with the provisions of this act are hereby repealed” (section ’12); nevertheless this court, through Chief Justice Brown, in the cited case, declared:

“The two laws are entirely consistent so far as they apply to the same subject, and no repeal of the previous law was effected by the law: of 1905. * * * Under neither law could a purchaser acquire more than, four sections.”

The effect of that decision was to read into section S of said act of 1905 the restrictions set out in said article 5420, which forbade the Commissioner to sell to the same party “more than one complement of four or eight sections of land, according to the county.”

The writ of mandamus should be granted, in all respects as prayed for; and it is so ordered.
      c®33For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    HARRIS v. STATE.
    (No. 4636.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.)
    Criminal Law <&wkey;941(l) — New Triad — Newly Discovered Evidence.
    On trial for violating the local option law by selling whisky to accused’s father, where the father was the only witness testifying to the sale, and all of the other evidence showed that no sale was made, that on one occasion accused gave him whisky, and on another occasion lie took it without the knowledge of accused, and there was evidence that the father was at times considered crazy, and that he felt very unkind towards accused and his daughter, and on motion for new trial there was stronger evidence that the father was crazy, especially when he had been drinking, and as to the reasons for his feelings towards his children, a new trial should be granted, though the evidence presented on the motion for the new trial was in part at least cumulative.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    John Harris was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    Y. D. Harrison, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law.

This case presents rather an anomalous record. Tom Harris, father of appellant, was the only witness relied upon by the state to prove the sale, and this he states was to him by his son John. He testified that on the morning of the alleged transaction, which was the 2d day of February, 1916, as shown by tbe sheriff’s testimony, he was at the resilience of his daughter and got a pint of whisky from the defendant and paid for it; that while at the house he did not drink any whisky, but took the pint and went away. Going by the courthouse, the sheriff found him with the whisky and took it. The sheriff testified that the witness told him that he wanted him to go down to his daughter’s house and stop a disturbance that was going on at that place. The witness says he did not make such statement to the sheriff, and that there was no disturbance there at the time. Upon cross-examination this witness testified the son give him the whisky. Tom Harris and the sheriff both testified that when the sheriff took the whisky from the witness the sheriff gave him a dollar with which to get more whisky from appellant; that Harris took the money and went away. The sheriff and another officer named Bacchus followed. They did not go into the house at the time that Tom Harris did. Bacchus followed Tom Harris from the house and overtook him some distance going away from the house and took another pint of whisky from him. Tom Harris says he bought that also from appellant. The sheriff knew nothing of this transaction further than as above stated, and did not examine to see whether Tom Harris had the money on him, or to see that John Harris had the money; he arrested John Harris at once. There was no money found left in the house.

Appellant, his sister, and a witness named Jackson all testified that they were present at the house where the first transaction occurred, and that John Harris was not present when the witness Tom Harris got the second pint Their testimony, in substance, was this: That appellant and his sister were in the habit of ordering whisky for their own use, and on this occasion his father had been to the house. At that time they had no whisky. After he left appellant and Jackson went to the depot and received from the express office five bottles, half of which belonged to appellant and the other half to his sister. They took these bottles to his sister’s residence, and there they divided this whisky by putting some of it into pint bottles; that it belonged equally to appellant and his sister. After they reached home with the whis-ky their father, Tom Harris, returned, took two or three drinks, and when he left they gave him a pint of whisky, which he took with him. This was the whisky that the sheriff found on the person of Tom Harris near the courthouse. These witnesses testified that there was no sale made to the witness ■ Tom Harris, and that appellant gave him the pint when he left the house. With reference to the second pint, the witness Tom Harris returned to the house, went into the room where the whisky was, took a pint and went away, but left no money and paid nothing for it; that appellant was not present, and did not know he got it until later. There is some evidence to show that Tom Harris felt very unkindly to his son and daughter. He made such admission. There is evidence also that Tom Harris was at times considered crazy, and had been since he received a lick on the head working in the Texas & Pacific Railroad shops, and that he was irresponsible for what he said. There is appended to the motion for new trial affidavits of various parties to the effect that Tom Harris was crazy at times, and his daughter malees affidavit also as to the conduct of her father towards her; that he had insisted continuously upon his having illicit relations with her, which she declined, and this brought about his persecution of her. She says the reason she did not let this be known prior to the trial was that she wanted to avoid publicity of such things, and indicates the reason she does it now was on account of the unjust conviction of her brother. This bore upon the feeling and antipathy of her father towards her and her brother, the defendant. In this connection it will also be noticed that the sheriff testifies that he got the whisky from Tom Harris on the 2d day of February, 1916. There was nothing done about the matter except to arrest the defendant at the time. On the 18th day of March, 1917, more than a year subsequent to this transaction, the indictment in this case was returned. Because of the contradictory statements of the witness Tom Harris in which he states that at one time he bought the whisky, and the next time that appellant gave him the whisky, and his general condition as a witness, his mental status, and the environments of this case as already stated, and the newly discovered evidence, we are of opinion that this conviction ought not to stand. All the testimony shows, except that of Tom Harj-is, that there was no whisky sold; that it was a gift by the son to his father in one instance, and a taking of the whisky without the knowledge of appellant in the other instance. Tom Harris is not corroborated as to the sale by any testimony, not even the sheriff. The sheriff knew nothing about it except what Tom Harris told him, which was as stated by the sheriff, that he (Tom Harris) got the whisky from his son, appellant. He knew nothing of the second transaction except that he gave Tom Harris a dollar and told him to get some more whisky. Whether he bought it or not he could not say. There was no explanation given why, after the sheriff arrested appellant on the 2d of February, 1916, a prosecution did not follow, and that it was deferred for more than a year. We are not willing to sanction this verdict under the circumstances. While some of the evidence set out in the motion for a new trial may be said to be in its -nature cumulative, yet it goes stronger to the point that Tom Harris was not responsible for his acts; that he was at times, and especially when he had a little whisky in him, crazy. Some of this testimony was cumulative perhaps, but yet there was enough in these affidavits to authorize, and we think require, the court to grant a new trial.

For the reasons indicated, the judgment will be reversed, and the cause remanded.

PRENDERGAST, J., absent.
      <&wkey;For other oases see same topic and KEY - NUMBER, in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J. PRBNDERGAST, J.

text:
    STEPHENS v. STATE.
    (No. 4868.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    Dissenting Opinion, Feb. 22, 1918.)
    Criminal Law &wkey;>1069(5) — Appeal—Curb of Errors — Admission of Evidence.
    In prosecution for burglary, the error in allowing statement made by accused be,fore the grand jury of «an incriminating nature to go to the jury was not cured by withdrawing such evidence from the jury in the court’s charge.
    Prendergast, J., dissenting.
    Appeal from District Court, Henderson. County; John S. Prince, Judge.
    Sherman Stephens was convicted of burglary, and he appeals.
    Reversed and remanded.
    Bill of Exceptions.
    The court permitted Ora Hart to testify for the state over the objection of the defendant, and his testimony was as follows:
    “The negro, Sherman Stephens, testified before the grand jury as follows: ‘Said he got up there at Tom Frizzell’s, he got up there at the house. It seems he saw a squirrel up the road before he got to the house — He goes on up to the house; I believe he said the doors were open and he went in the house and got something to eat; don’t remember just about that; but anyway there was a gun sitting over in the corner; he got the gun and went on to find the squirrel; he couldn’t find the squirrel, and two or three hours after that they caught him. I believe he said that the doors were open, both doors were open and he just walked in — I believe that is what he said.’
    “Judge J. S. Prince: Before giving you the charge the court permitted the witness Ora Hart to testify over the objection of the defendant to certain statements. which the witness testified that the defendant made in the grand jury room —I now believe that that testimony was not admissible and I withdraw it from you. You will not consider it for any purpose in the world; it is just as though you had not heard it.”
    The defendant’s attorneys objected to the court permitting the said Ora Hart to testify, and the court overruled the objection and did permit said witness to testify as set out above, but just before he went to read the charge to the jury, he then instructed the jury not to consider said testimony for any purpose as set out above. That the defendant objected and excepted to the decision of the court, and this was done at the time said testimony was offered.
    E. B. Hendricks, Asst. Atty. Gen., for the-State.
   DAVIDSON, P. J.

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

It is deemed unnecessary to notice but one question, which is properly raised by bill of exceptions which shows that appellant was carried before the grand jury and there made statements. These were incriminating and connected him with the burglary. Objections urged to the introduction of this evidence were overruled. The testimony remained before the jury until the court gave its' charge, when it was by the charge withdrawn. This was error, and of such a nature that we are of opinion its withdrawal did not cure the error.

The judgment will be reversed, and the cause remanded.

PRBNDERGAST, J.

(dissenting).

My Associates do not state the facts. X will.

The uncontradicted and unimpeached testimony, without any shadow of doubt, .established that on August 13th, about noon, some one, by force, entered the home of Mr. Tom Frizzell while he and his good wife were at church, ate' the dinner she had prepared, tumbled up the beds and dresser drawer and things in the'house generally, evidently hunting for valuables to steal, and, among other things, stole Mr. Frizzell’s gun, nearly two boxes of cartridges, and two plugs of tobacco, and fled. Mr. Frizzell and wife arrived home very soon after their home was broken into and must have at once called an officer. The deputy sheriff soon arrived and began a chase after the burglar. The officer got onto his tracks and followed them, and ran him for some distance afoot. He then got on a horse and he and others of his posse headed him off in a field, after running him about three-fourths of a mile, caught the burglar, who was appellant. When caught he still had said tobacco and some of the shells. In his flight he had thrown the gun away on a branch along which he ran. When asked where the gun was he took the officer, went to where he had thrown it in his flight, got and delivered it to the officer. The gun and cartridges were restored to the owner, Mr. Frizzell. The tobacco was unfit for any one else, so the officer let appellant chew it. There was no evidence, or suggestion, or claim, in any way, that any other person broke into Mr. Frizzell’s house and stole said property or any of it, other than appellant himself. There can be no doubt but that he, and he alone, was “the thief who did break through and steal.” He offered no witness or testimony whatever.

My Associates reverse this ease, as their opinion shows, on one bill of exceptions alone. The reporter will copy said bill in full in reporting this case. It is on pages 18 and 19 of the record.

It will be seen from this bill that the testimony he gave before the grand jury was wholly exculpatory — in no way inculpatory. There is no intimation by the bill that his ap-pearaiice- was other than voluntary, nor is there .an intimation therein that he was under arrest or in custody. If the grand jury had believed his testimony they would have indicted him solely for petty theft. There can be no doubt, from the bill, but what he wanted to testify before the grand, jury, and did so, to try to prevent an indictment for burglary. His testimony before the grand jury was therefore clearly admissible as an admission by him as any other admission would have been, under all the authorities.

But even if it could be held that it was not admissible, the judge, as the bill shows, withdrew it from the jury because he had concluded it was not admissible, and told them, “You will not consider it for any purpose in the world.” There can be no sort of doubt ' that the jury did not consider it, for if they had, and believed it, they would not have convicted, but would have acquitted him of burglary..

They assessed the lowest punishment. He could not have been injured by it. The with'drawal of it clearly cured the error, if any, in its admission. The authorities are all to that, effect. I will quote what this court, through Judge Davidson, held in the death penalty case of Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 926, 37 Am. St. Rep. 836. He said:

“The affidavit charging defendant with the offense of slander was also admitted in evidence. The slander charged imputed to the female mentioned a want of chastity of a most revolting nature. The contents were hardly germane to any issue in the case, in the absence of evidence bringing home knowledge to defendant of the existence of the affidavit, and we are not prepared to say that it may not have prejudiced defendant in the minds of the jury. The court, however, subsequently withdrew the affidavit from the consideration of the jury, and instructed them verbally, as well as in writing, to disregard it as evidence in the case. The effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, has been the subject of much discussion in the courts, and the decisions are not harmonious upon the question. The .weight of authority, however, seems to be that such withdrawal cures the error, and such has been the opinion entertained by this court. Sutton v. State, 2 Tex. App. 342; Marshall v. State, 5 Tex. App. 273; Phillips v. State, 22 Tex. App. 139 [2 S. W. 601]; Nalley v. State, 28 Tex. App. 387 [13 S. W. 670]. See, also, State v. Fowler, 13 R. I. 661; Thomp. Trials, §§ 715, 722, 723, and notes. In Sutton’s Case, supra, it was said: ‘But, conceding the court erred in admitting this testimony, the error, if in fact any was committed, was corrected by the court afterwards withdrawing it from the consideration of the jury.’ This ruling has been approved in subsequent cases, and the doctrine uniformly upheld, that, when improper evidence has. been admitted over objection, it is the proper practice, and may become the duty of the court, to exclude or withdraw it from the jury, and instruct them to disregard it in iindiug their verdict. Authorities above cited; Willson, Crim. Stats. § 2514. To hold otherwise would be to sanction the doctrine that the court could not cure any error into which it may have fallen by mistake or inadvertence, and thus render it helpless to rectify errors committed, and the trial a mockery and a farce. We cannot sanction such a doctrine.”

I add, it would not only be “a mockery atíd a farce,” but it would require a perfection in trial judges which would be unreasonable, absolutely unattainable, and absurd.

That case has many times been cited and quoted and is good common sense, is right, and it is the law. Miller v. State, 185 S. W. 38; Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 349; McDonald, v. State, 77 Tex. Cr. R. 612, 179 S. W. 881. The cases so holding are too numerous to collate. Many others are cited in the above cited cases.

This case should be affirmed, not reversed. I dissent.
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text:
    LACEY v. STATE.
    (No. 4925.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.)
    DISORDERLY HOUSE &wkey;>19 — QUESTIONS FOR Jury.
    In prosecution for keeping a disorderly house, evidence held sufficient to make a question for the jury, and to sustain a conviction.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Annie Lacey was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of keeping a disorderly house, her punishment being assessed at a fine of $200.

She seems to rely upon Bowman v. State, 73 Tex. Cr. R. 194, 164 S. W. 846, for her proposition that the evidence does not support the conviction. We are of opinion that the facts of the two cases are not analogous. The state shows the resort by prostitutes to the house of appellant on different occasions, and that men would resort there, a number of these being soldiers. It is also shown that a naked man and a naked woman were seen in the house together, and other circumstances of that character showing that women who resorted there were anything but chaste, and engaged in conduct that indicates this was a disorderly house, and that appellant knew of the acts and conduct of at least some of these parties. We are therefore of opinion the court did not err in giving the charge of which complaint is made in bill of exceptions No. 1. The charge complained of submitted to the jury the question of conviction if they should find appellant kept or was concerned in keeping, or knowingly permitted to be kept, a house at Nos. 103 and 109 Lakeview avenue, in the city of San Antonio, for prostitution, or where prostitutes were permitted to resort and reside for the purpose of plying their vocation. We are of opinion that the evidence justified the court submitting this issue. Nor do we think the exception reserved to the court’s failure to charge an acquittal under the facts stated is well taken. Appellant introduced evidence to the effect that the house was not disorderly, and that she knew nothing of the disorderly conduct of those who resorted there. If the jury had believed her testimony they should have acquitted, but with the testimony for the state in the record we are of opinion the court did not err in refusing to charge an acquittal. If the state's testimony is to be credited, we are of opinion that the state made a case sufficiently strong to justify the verdict.

As the record is presented, the judgment will be affirmed. •

PRENDERGAST, J., absent.
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text:
    BATTS v. STATE.
    (No. 4917.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.)
    Receiving Stolen Goods >&wkey;8(3) — Evidence —Sufficiency.
    Evidence held to warrant conviction of the offense of receiving stolen property.
    Appeal from District Court, Smith-County ; J. R. Warren, Judge.
    Lula Batts was convicted of receiving stolen property, and she appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of receiving stolen property, her punishment being assessed at two* years’ confinement in the penitentiary. There were no bills of exception reserved during the trial. The contention here is that the evidence does not support the conviction, and that appellant was entitled to a charge with reference to the voluntary return of stolen property. Appellant was convicted of receiving and concealing stolen property. Had she been convicted of theft, however, the evidence would, not have called for a charge on that question.' The alleged owner, Terr rell, had about three hundred-odd dollars secreted in his smokehouse. This money was taken. There was evidence showing that appellant and the state’s witness, Miller, were concerned in the taking. There was evidence going to show that appellant was an accomplice, if not a principal. This came from the accomplice Miller. She made-a statement, however, that she did not take the money, but that Miller did, and gave her a part of it with the injunction that she must remain silent. When accused of having the money or having taken it she denied and told the alleged owner she knew nothing about it. The next morning, however, she returned as much as $50 to Terrell. Had she been convicted of theft, we are of opinion still that the question of voluntary return, under the facts, was not in the case. Only part of the stolen money was returned under the circumstances detailed. But this was a case of receiving and concealing stolen property, as found by the jury, she being charged with theft and receiving stolen property in the same indictment in different counts. The evidence, we think, i& ample to support the conviction. In fact, the case is strongly made by the testimony. The judgment will be affirmed.

PRENDERGAST, J., absent.


author: MORROW, J.

text:
    BURNETT v. STATE.
    (No. 4804.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.)
    1. Criminal Law i&wkey;365(l) — Evidence of Owier Offenses — Res Gestas.
    In prosecution for burglary of store, where upon the same trip and at about the same time defendants entered another store, it was competent for the state to trace defendants on the occasion, to develop as part of the res gestee the things they did while on the expedition, although it disclosed another offense.
    2. Ckiminal Law <&wkey;351(3) — Evidence — Flight.
    Testimony of witnesses who claimed that when they went to arrest defendant they saw him at a distance and called to him is not subject to objection that there was no proof that defendant heard them; there being evidence that defendant was within hearing distance, and that he was aware that the burglary had been discovered.
    3. Criminal Law <&wkey;413(l) — Self-Serving Declarations — Admissibility.
    A letter written by defendant after,he knew he wasi suspected and while he was engaged in flight was inadmissible, being self-serving.
    4. Witnesses <&wkey;4S(l) — Disqualification— “Conviction of Felony.”
    Vernon’s Ann. Code Or. Proc. 1916, art. 865b, prescribes the power of trial court to suspend sentence, and article 865e provides that, when one is convicted of a felony and sentence suspended, where he is convicted of another felony, the court shall issue a capias for his arrest and pronounce sentence upon him in the original conviction. Held that, while a trial court would have no authority to suspend sentence of accused, convicted of a felony in seven separate eases, lie, not having- been sentenced, was not disqualified as a witness under article 788, as to disqualification after “conviction of felony,” which means a final conviction and judgment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Conviction.]
    5. Criminal Law <&wkey;396(2) — Right to Have Entire Admission go to Jury.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 811, providing that, when part of an act, declaration, or conversation is given in evidence by one party, the whole on the same subject may be inquired into by the other, where the state introduced a witness who reproduced a portion of testimony given by defendant in a former prosecution, for a burglary growing out of the transaction involved, defendant had the right to prove by the same witness other facts testified to by defendant at the same time.
    6. Criminal Law <&wkey;1170(l) — Abbeal—Re-versible Error — Restricting Evidence.
    Denial of such right was reversible error.
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Ben Burnett was convicted of burglary, and appeals.
    Reversed.
    Benson & Benson and Ratliff & Spencer, all of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for burglary. The theory of the state is that appellant and one Wilson Lanier committed the burglary. Among the articles stolen were some sacks of flour, which were found in the possession of appellant. His theory was that he was not connected with the burglary, but purchased the flour from Lanier. The record contains a number of bills of exception. M'any of them present no new or debatable question. These have been examined, but will not be discussed. Some of the special charges requested contained correct legal propositions applicable to the case, but with one exception they were sufficiently embraced in the main charge, and the special charge which was given.

It was an undisputed fact that after the flour was 'stolen and taken to appellant’s home, and delivered to him, he gave to the alleged accomplice, Lanier, some money, the state’s theory being that this money was given Lanier to compensate him for his part of the crime committed by him and appellant, and appellant’s theory being that he took no part in the crime, and that the money was delivered to Lanier in the purchase of the flour. The special charges drawn by appellant touching this issue were so drawn as to be subject to the construction that, even if appellant participated in the crime, his purchase of the flour from Lanier would excuse him.. If a correct special charge upon this issue had been submitted, it would have been' the duty of the court to give it to the jury.

Evidence that appellant and Lanier committed another burglary was admitted, and is complained of. The state’s evidence on this issue tends to show that Lanier at appellant’s request, and with money furnished by him, hired a buggy in which they rode together at nighttime, and that they entered a storehouse belonging to one McKay and took therefrom certain articles, including some sacks of flour; that about the same time, on the same trip, they entered a store of another party and took therefrom some articles, including several sacks of flour; that the flour taken from each of the buildings was put by appellant and Lanier in the buggy and by them taken to appellant’s house and left in his possession, and subsequently found and identified there. The learned trial judge was of the opinion that the proof of acts of appellant and his accomplice, Lanier, in breaking into the other store and taking therefrom the property described was not inhibited by the rule against the admission of other crimes, but was within one of the exceptions thereto, in that it was a part of the res ges-tae. In making proof of the facts showing the connection of appellant with the offense charged it was, we think, competent ior the state to trace by the evidence the appellant and his accomplice on the occasion of the alleged offense, and to develop as part of the res gestae the various things that they did while on the expedition in question. Their acts were admissible. The fact that these acts disclosed another offense does not opér-atelo deny the state the right to prove them. The two offenses were so linked together in point of time and circumstance as to render the acts constituting proof of both admissible in order to develop one. Appellant’s connection with Uanier in the transaction in which he got possession of the flour was a controverted issue. His possession of flour from both the buildings was one of the circumstances which we think rendered the whole transaction with reference to the acquisition of the flour from the owners admissible, in that it tended to connect him with the offense. Lynne v. State, 53 Tex. Cr. R. 375, 111 S. W. 729; Watters v. State, 94 S. W. 1038; People v. Nagle, 137 Mich. 88, 100 N. W. 273; State v. Kelley, 65 Vt. 531, 27 Atl. 203, 36 Am. St. Rep. 884; Ruling Case Law, vol. 8, p. 200.

We do not think the objection to the testimony of the witnesses who claimed that when they went to arrest appellant they saw him at a distance and called to him is sound. The point is made that it was not shown that appellant heard them. There is evidence that he was in hearing distance, that he was aware of the fact that the burglary had been discovered, and that his possession of the stolen property was known, and that at the time he was seen he was engaged in flight which he subsequently accomplished, leaving the state.

The letter to one of the parties written by appellant after he knew that he was suspected of the offense and while he was engaged in his flight was inadmissible for the reason that it was a self-serving declaration.

A witness by the name of Ohastian gave some testimony against the appellant tending to corroborate the testimony of the accomplice, and show appellant’s connection with the crime. It appears that this witness had been recently convicted of a felony in seven separate cases from which there had been no appeal. Objection was made to his evidence upon the ground that -he was disqualified as a convicted and unpardoned felon. The court overruled the objection, and in qualifying the bill states that, there were seven charges against the witness; that they were all submitted to the jury by agreement at one time, and one verdict returned finding him guilty and suspending the sentence in each of the cases.

Article 865b (Vernon’s) O. O. P., prescribes the power of the trial court to suspend the sentence of one convicted of a felony. It contains the following provision:

“Provided, that in no case shall sentence be suspended except when the proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this state or any other state.”

Article 865e, O. O. P.,. provides that, when one is convicted of a felony and the sentence suspended, and is convicted of another felony, the court shall issue a capias for his arrest and pronounce sentence upon him in thej original conviction.

In view of these provisions of the statute it is difficult to understand by what legal procedure one could be convicted of seven felonies in the same court and receive the benefit of a suspended sentence in each of them. The absence of such power has been expressly declared by this court in Weatherford v. State, 73 Tex. Cr. R. 441, 166 S. W. 149.

Article 788, O. O. P., declares that one who has been convicted of a felony is disqualified from testifying as a witness. It has been held under this statute uniformly that the term “conviction of a felony” as used in the statute means a final conviction, final judgment, and that one is not disqualified who has not been sentenced. Flournoy v. State, 59 S. W. 903; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685; Jones v. State, 32 Tex. Cr. R. 135, 22 S. W. 404; Robinson v. State, 36 Tex. Cr. R. 104, 35 S. W. 651; Foster v. State, 39 Tex. Cr. R. 399, 46 S. W. 231; Underwood v. State, 38 Tex. Cr. R. 193, 41 S. W. 618; Stanley v. State, 39 Tex. Cr. R. 482, 46 S. W. 645; and other cases cited in Vernon’s C. C. P. p. 701. See Sheppard v. State, 63 Tex. Cr. R. 569, 140 S. W. 1090. This rule has been applied to one whose sentence has been suspended under article 865b.

Anomalous as the condition presented by this record appears, we are precluded by the rule just' stated from holding the witnesses who had been convicted of felonies, but who had not been sentenced, disqualified from giving their testimony.

We gather from the record that appellant was prosecuted on two indictments for burglary growing out of the transaction involved in this case, that on the trial of the other case he testified, and that the state on this trial introduced a witness who reproduced a portion of the testimony given by appellant with reference to the same facts and with reference to the same defenses that he interposes in this case. The appellant then offered to prove by the same witness other facts testified to by the appellant at the same time that he gave the testimony which was reproduced. The court, on objection of the state, denied appellant this privilege, qualifying the bill with the statement, in substance, that he thought appellant was not entitled to reproduce his testimony on matters not gone into by the state. The statute (article 811, C. C. P.) is as follows:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration, or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

The reproduced testimony of the appellant is a detailed declaration or conversation tending to show the guilt of appellant, and introduced for the purpose of showing his guilty connection with the stolen property and the confessed accomplice. It would seem that what he said at the same time in explanation of that which was relied upon and introduced by the state would, under the statute, be admissible. The rule that, where the state relies upon the admission of the accused in the nature of a confession which contains a recital of inculpatory facts, the appellant is entitled to have the whole statement go before the jury, is well established. See Branch’s Ann. P. C. p. 44, § 73, and numerous cases cited in the same book, page 59, § 92, illustrating the views of the court in construing the statute above quoted. Prom Vernon’s Ann. C. C. P. p. 759, we quote the following interpretation of the scope of the statute:

“This article expands the common-law rule. At common law, when a confession or admission is introduced in evidence against a party, such party is entitled to prove the whole of what he said on the subject at the time of making such confession or admission. But this article does not restrict the explanatory act, declaration, conversation, or writing, to the time when the act, declaration, conversation, or writing sought to be explained, occurred, but extends the rule so as to render such acts or statements 'admissible, if necessary to a full understanding of, or to explain, the acts or statements introduced in evidence by the adverse party, although the same may have transpired at a time so remote even as to not be admissible as res gestee. Greene v. State, 17 Tex. App. 395 (overruling Shrivers v. State, 7 Tex. App. 450, in so far as it conflicts with the above). See, also, Rainey v. State, 20 Tex. App. 455; Harrison v. State, 20 Tex. App. 387, 54 Am. Rep. 529; Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 991.”

Other illustrations of the rule will be found in Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Allen v. State, 64 Tex. Cr. R. 225, 141 S. W. 983; Fitzpatrick v. State, 37 Tex. Cr. R. 20, 38 S. W. 806; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138; Ballenger v. State, 63 Tex. Cr. R. 657, 141 S. W. 91; Shaw v. State, 73 Tex. Cr. R. 337, 165 S. W. 930.

In view of these authorities we are constrained to hold that the court was in error in excluding the proffered testimony, which error requires a reversal of the judgment, which is accordingly ordered.

PRENDERGAST, J, absent.
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text:
    SANDERS v. STATE.
    (No. 4767.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.
    On Motion for Rehearing, Feb. 27, 1918.)
    1. Bail i&wkey;65 — Recognizance on Appeal— Sufficiency.
    Under Code Cr. Proc. 1911, art. 903, stating the requirements of a recognizance on appeal from conviction, a recognizance failing to provide that defendant shall abide by the judgment of the Court of Criminal Appeals, and failing to stipulate that the obligation shall be joint and several as to sureties, and failing to show that accused was convicted of a felony, is insufiicient.
    On Motion for Rehearing.
    2. Forgery ⅛=^>44(½) — Evidence — Sufficiency.
    Evidence held insufficient to warrant conviction of the crime of forgery; defendant’s connection with the offense not being definitely shown thereby.
    Appeal from District Court, Cherokee County; b. D. Guinn, Judge.
    Weaver Sanders was convicted of forgery, and he appeals, and the Assistant Attorney General moves to dismiss the appeal. Motion granted, and appeal dismissed. On motion for rehearing.
    Judgment reversed, and new trial granted.
    John C. Box, of Jacksonville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The Assistant Attorney General moves to dismiss the appeal because of the insufficiency of the recognizance in that it is not in compliance with article 903, C. C. P. First, it fails to provide that defendant shall abide the judgment of ,the Court of Criminal Appeals; second, it fails to stipulate the obligation shall he joint and several in its liabilities of the sureties; and, third, it fails to show appellant was convicted of a felony. We find from an inspection of the recognizance that it does not comply with article 903, C. C. P., in the respects indicated.

'The motion is well taken, and the appeal is dismissed.

On Motion for Rehearing.

On a former day of the term this appeal was dismissed for want of d sufficient recognizance. A new recognizance has been filed complying with the law. At the request of appellant the appeal is reinstated, and the case will now be passed upon on its merits.

The indictment contained two counts, one charging appellant with forgery of the name of J. R. Taylor, drawn on the First National Bank of Jacksonville for the sum of $7.50, and the second charges an attempt to pass the instrument on F. D. Newton, an employé of the bank.

It is contended the evidence is insufiicient to support the conviction: First, because appellant lias not been sufficiently identified as the party who undertook to pass the check; and, second, that he proved by quite a number of witnesses an alibi.' The evidence for the state shows that the check was attempted to be passed upon the bank at about 2:30 o’clock, not earlier than 2 o’clock perhaps, and before 3 o’clock. Appellant proved, as well as human testimony can, that he was not in Jacksonville at that time, but had left the town some time before T o’clock. It is unnecessary to repeat the testimony of these different witnesses, but the evidence is uneon-tradicted, unless the testimony of Mr. Newton would indicate that appellant did in fact present the check at the bank. Mr. Newton’s testimony is so inconclusive and uncertain as to the identity of appellant that we are not willing that this judgment should stand in the light of the entire testimony. It was shown that another party was first arrested for- this offense, and subsequently appellant. Speaking of the party who presented the check, Mr. Newton says:

“The boy came in with the check. As I said just now, I couldn’t be absolutely positive that it was this defendant. Whoever it was presented the check to me, and while we were talking about the) check, as I told Mr. O’Quinn, some one else came in, and I waited on them, and when I looked around this party who had presented the check was gone. -I think at that time Mr. Boles was just outside talking with some parties, and he came on in the bank then pretty soon. I think he was standing right near the door where our customers come in and go out. I never knew this defendant only in a passing way before this trouble came up, and I am unable to swear positively that he is the party who presented this check to me for payment. I would not say that I ever knew him before this time; not as Weaver Sanders, anyhow. As I told Mr. Box just now, I wouldn’t be willing to swear absolutely that this defendant is the party who presented the check to me for payment; but, as I told you on direct examination, from his personal appearance and size and color and general appearance, it is my best knowledge and belief that this is the same party.”

On motion for new trial Mr. Newton filed an affidavit to the effect:

That .he “is not absolutely certain about the identity of the defendant as the one who presented the forged check, and that because he is .not absolutely certain as to the identity of the defendant he joins in the request that a new trial be granted.”

Appellant is a negro boy, and had borne concededly a fine reputation for honesty, fair dealing, and as being a hard-working, industrious negro. Upon this there was no issue; it seems to have been conceded. Appellant swears positively that he did not present'the check; that he left town some time prior to the presentation of the check and had nothing to do with it. He proves an alibi, and the state’s case relied upon the testimony of Mr. Newton, and one other witness who testified about as did Mr. Newton. Mr. Taylor, whose name was alleged to be forged, gave the boy a high rating from the standpoint of being an industrious, hard-working negro, and against whose character nothing had ever been shown. • He also filed an affidavit which is attached to the motion for new trial, to the effect that he was a large dealer in farming and had a sawmill and employed a great number of negro laborers, and also bought and sold cattle, and had given many checks to ne-groes; that many of them lived around in the country where he resides; that he had known appellant for a number of years, and he had an unusually good reputation for honesty and good conduct. He says:

“I have very serious doubt as to whether he is in truth and in fact the negro who forged or tried to collect the check for $7.50 in connection with which Sanders-was prosecuted. I do not believe he should have been convicted; that this opinion is based on what I know of the negro, what I have learned from conversations with the people in the bank, from testimony which I heard upon the trial, and from all of the facts and circumstances with which I am acquainted ; and that in the interest of justice I join in the request that the negro be granted a new trial solely because of my strong doubt as to his guilt.”

Mr. Newton also filed an affidavit to the effect that he is not absolutely certain about the identity of the defendant as the one who presented the forged check, and that because he is not absolutely certain as to the identity of the defendant he joins in the request that a new trial be granted him.

Mr. Parrish, president of the bank, files an affidavit:

That “he has on his own motion made inquiry into the facts concerning the forging and presentation of said check; that he has talked with Mr. J. R. Taylor, and finds that Mr. Taylor is in serious doubt about the guilt of Weaver Sanders; that said J. R. Taylor is seriously disturbed on account of the fear that an innocent negro has been convicted for said offense; that he has further discussed the facts with Prank Boles and P. D. Newton, employes of said bank, who have some connection with the presentation of said check, and who testified as witnesses for the state upon the trial of Weaver Sanders; that he finds that there is, in fact, a considerable uncertainty in the mind of Prank Boles and P. D. Newton as to whether Weaver Sanders is in truth and in fact -the party who forged, presented, and attempted to collect said check; that he fears that a gross injustice has been done in the conviction of this negro.”

We are of opinion that the evidence as to identity of the defendant and his connection with this matter is too indefinite to form the basis of his incarceration in the penitentiary as presented by this record. The uncertainty of the identity, the good character of the boy, the strong evidence of alibi, leaves this case in such shape that we believe this judgment ought to be reversed, and another trial awarded, and it'is accordingly so ordered.

PRBNDERGAST, J., absent.
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author: SWEARINGEN, J.

text:
    STAFFEL et al. v. SAN ANTONIO SCHOOL BOARD OF EDUCATION et al.
    (No. 6008.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1918.
    Rehearing Denied March 6, 1918.)
    1. Schools and School Disteicts &wkey;158(l) — Pupils — Conditions oj? Admission — Vaccination.
    Under the charter of an independent school district vesting the management and control of the district in a board of education and providing that the board shall establish, manage, and control all public free schools within the district, the board may prescribe rules for the qualifications of children for admission to the public free schools, and this authority includes the authority to prescribe vaccination as a condition of admission, provided the requirement is not unreasonable.
    2. Constitutional Law &wkey;>274 — Schools and School Disteicts &wkey;>158(l) — Health Regulations — Due Peocess.
    A resolution of the Board of Education of an independent school district for the exclusion from the schools of children not vaccinated in accordance with a city ordinance did not violate Const, art. 1, § 19, providing that no citizen shall be deprived of privileges except by due course of the law of the land, though vaccination was contrary to the consciences, beliefs, and convictions of certain children and their parents, as' it was such consciences, beliefs, and convictions, and not the resolution, that prevented the children from attending the schools, and, furthermore, the privilege of having children admitted to the public free schools is 'a creation of the statute and can be changed by statute.
    3. Schools and School Disteicts <&wkey;l'58(l) —Pupils—Health Regulations — Vaccination.
    Such resolution did not violate Const, art. 7, §§ 1, 2, 3, 4, and 5, requiring the Legislature to establish and provide for the support and maintenance of an efficient system of public free schools or Rev. St. 1911, arts. 2899-2901, providing that every child of scholastic age shall be permitted to attend the public free schools uj. the district in which he resides, and ■ that all children between certain ages at the beginning of any scholastic year shall be entitled to the benefit of the public school fund for that year and defining the scholastic year.
    4. Schools and School Disteicts <&wkey;158(l) —Pupils—Health Regulations — Vaccination.
    Such resolution was not invalid as in conflict with the Compulsory Education Law (Acts 34th Leg. c. 49 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 2779a-2779h]), though unvacqinated children thereby excluded from the schools and their parents may be subjected to the pains and penalties of such law.
    5. Schools and School Disteicts <&wkey;158(2) —Pupils—Health Regulations — Vaccination.
    A resolution of the board of education of an independent school district requiring superintendents and teachers to refuse admission to un-vaccinated children was not unreasonable where, as was shown by sworn answer on an application for a temporary injunction, there was smallpox within the limits of the district and danger that it would spread and be communicated from one person to another, and it was necessary for the preservation of the public health and the preservation of the welfare of the city and its citizens and their children that proper precaution should be taken to prevent the spread of the disease.
    6.Injunction &wkey;>161 — Temporary Injunction — DISCRETION OE COURT.
    Under Rev. St. 1911, art. 4663, providing that no injunction shall be dissolved before final hearing because of a denial of the material allegations of the petition unless the answer denying the same is verified by oath or affirmation, where a sworn answer was filed, it was in the trial court’s discretion to dissolve a temporary restraining order previously granted and to deny a temporary injunction.
    Appeal from Bexar County Court.
    Suit by Ferd Staffel and others against the San Antonio School Board of Education and others. From a decree denying a temporary injunction, plaintiffs appeal.
    Affirmed.
    Ward & Bickett, of San Antonio, for appellants. Bruce W. Teagarden, of San Antonio, for appellees.
   SWEARINGEN, J.

This is a suit by five residents of San Antonio, Bexar county, Tex., viz. Ferd Staffel, W. M. Pardue, A. D. Zueht, A. A. Burger, and Ira Calder, to have the court cancel and amend a resolution adopted by the San Antonio board of education in control of the San Antonio independent school district, and to enjoin the enforcement of said resolution.

The plaintiffs, who are appellants, alleged that they were the parents of children of scholastic age in attendance upon the public schools of San Antonio, and alleged that they brought this suit in their own behalf and as citizens of the city of San Antonio, Bexar county, Tex., and as constituent persons residing within the said San Antonio independent school district, and also in behalf of all other persons and all other children who are similarly situated to themselves and are in like manner subject to the said resolutions of the said San Antonio board of education.

The defendants, appellees, are the San Antonio independent school district, a corporation, the trustees of said corporation, Nat Washer, Winchester Kelso, Charles Ger-lach, Dr. E. O. Evans, Mrs. E. W. MeCamish, Miss Elvira Pizzini, Mrs. Dan Leary; and C. S. Meek, the superintendent, and Paul H. Scholz, the secretary. The city of San Antonio intervened in its own behalf.

A temporary restraining order was granted, but on a hearing upon the amended petition and the amended answer of the defendants and the intervention of the city the restraining order was dissolved and the temporary injunction denied.

This appeal is from the decree of the trial court denying the temporary injunction.

The portion of the resolution of the board of education the enforcement of which was sought to be enjoined was that which instructed the superintendents and teachers of the schools of the San Antonio independent school district to refuse admission to the schools of said district, and to prevent further attendancé thereat, of children not complying with the vaccination ordinance of the city of San Antonio. The particular part of the city vaccination ordinance referred to is:

“Sec. 25. No child or other person shall be permitted to attend any of the public schools, or any place of education within this city, unless such child or other person sha[l first present a certificate from some duly qualified physician to the city physician that such child or other person has been successfully vaccinated within six years preceding the time at which such child or other person desires to attend school.”

The allegations showing a violation of public rights by the San Antonio board of education are that the board has passed the aforementioned resolution and will enforce it unless enjoined. The allegations are, substantially: That the said resolution is void; or, if not void, that the resolution is an unreasonable exercise of the vested power. The reasons alleged which show the said resolution is void are: (1) The charter conferred no authority on the San Antonio board of education to pass or enforce such a resolution. (2) If the charter did pretend to delegate such power, the charter provision itself was void, because forbidden: (a) By Const, art. 1, § 19; (b) by Const, art. 7, §§ 1, 2, 3, 4, 5; (c) by 'articles 2899, 2900, and 2901 of the statutes; and (d) by the Compulsory Education Law (chapter 49 of Laws' 34th Leg. [Vernon’s Ann. Civ. St. Supp. 1918, arts. 2779a-2779h]).

The alleged reasons why the resolution was an. unreasonable exercise of a given power were: That there was no epidemic of smallpox raging in San Antonio at the time, nor was there any imminent danger of any such epidemic; that vaccination is not a preventive of smallpox; that the process called vaccination was loathsome, terrible, and dangerous, because likely to permanently impair the health or cause loss of the member of the body vaccinated or even result in the death of the vaccinated person.

The individual danger threatened to appellants alleged is that appellants fear that the resolution of the San Antonio board of education will be enforced and their children excluded from the public free schools in the San Antonio independent school district, inasmuch as all of their children will persist in their refusal to be vaccinated.

In connection with the allegations that there was imminent danger of the children being excluded from the schools because they refused to be vaccinated, the petition alleges the following reasons for the refusal to be vaccinated: That plaintiffs and their children are conscientiously opposed to vaccination; that their faith, religion, and consciences forbid them to submit to vaccination.

By their Sjnswer appellees admit the resolution was passed, and that they will enforce it unless prevented by injunction. The answer claims the authority to pass the resolution is conferred by the charter creating i the school corporation and deny that the authority therein granted is forbidden by the Constitution either in article 1, § 19, or by article 7, §§ 1, 2, 3, 4, 5; deny that the authority is forbidden by the statutes (articles 2899, 2900 and 2901); and deny that it is rorbidden by the Compulsory Education Law. Appellees further deny that the resolution is an unreasonable exercise of their power, and to that end aver:

“That there is smallpox in the city of San Antonio at the present time, and within the limits of the said school district, and there is danger of the smallpox spreading and being communicated from one person to another in the city of San Antonio and in said independent school district at this time, and it is necessary for the preservation of the public health, and the preservation of the welfare of the city of San Antonio and its citizens, and the children thereof, that proper precaution should be taken to prevent the spread of the disease of smallpox, and the way to accomplish this end is to vaccinate the children attending the public schools of the city of San Antonio.”

It is alleged that vaccination prevents the contagion of smallpox and is the only preventive.

It is not necessary to our opinion to mention the allegations' of the intervener, the city of San Antonio.

We will consider the contentions of appellants in the order in which we have stated the facts pleaded: Was the resolution void? Did the board of education have the power to pass the assailed resolution?

San Antonio independent school district was created a corporation by the act of the Thirty-Fifth Legislature of the, state of Texas (Sp. Acts 35th Leg. c. 49), and in the charter thus granted the boundaries of the district were made coextensive with the limits of the city of San Antonio; and it was therein provided in section 3 that the management and control of the said school district should be vested in nine trustees, who shall be called San Antonio board of education. Again in section 6 this language is used:

“The board shall establish, manage, and control all public free schools within said district.”

By these charter provisions the Legislature, in so far as it could, delegated to the San Antonio board of education the authority to control and manage the public schools in San Antonio. The words “manage and control” confer the authority on the said board to prescribe rules by resolution for the qualifications of children for admission into the San Antonio public free schools. This authority to prescribe the qualifications includes the authority to prescribe vaccination as a condition precedent, provided, of course, the requirement is not unreasonable, which will be considered further on.

The Legislature was authorized to create the San Antonio independent school district by the Constitution of Texas (article 11, § 10). It follows that the resolution was authorized by the San Antonio independent school district charter, which waá authorized hy the act of the Legislature, which in turn was authorized to create the school corporation by the Constitution of the state.

Conceding that the charter vested in the San Antonio board of education authority to pass such resolution, was that charter provision ineffective because forbidden by article 1, § 19, of the Constitution, which guarantees that no citizen of this state shall be deprived of privileges except by the due course of the law of the land? The only privilege the appellants complain that they are deprived of is the privilege of having their children admitted as pupils of the public free schools of San Antonio, where they reside.

The board of education by its resolution did not undertake or intend to compel the children to be vaccinated. They claimed no such power. The board only undertook to control the schools under its jurisdiction. The resolution did not prevent the children from attending the schools; it was their own consciences, beliefs, and convictions that did. Furthermore, the privilege of having children admitted to the public free schools is a creation of the statute, and can be changed by statute. Middleton v. Tex. Power Co., 185 S. W. 556, § 4.

That the San Antonio board of education’s resolution to prescribe such regulations for admission of pupils to the school under its management! and control does not violate sections 1, 2, S, 4, and 5 of article 7 of the Constitution of Texas is held in the case of Zucht v. San Antonio School Board, 170 S. W. 840. The opinion in the Zucht Case also holds that such regulations by the San Antonio board of education are not in violation of articles 2899, 2900, and 2901 of the statutes.

The last contention for the invalidity of the attacked resolution of the San Antonio board of education is that it is in conflict with the Compulsory Education Law (chapter 49, General Laws, passed by the Thirty-Fourth Legislature). The last-mentioned act does not directly nor indirectly repeal the act of the Legislature conferring upon the San Antonio board of education the authority to control the schools under their jurisdiction.

The argument that the resolution of the board excludes the unvaccinated children from the public free schools in San Antonio and subjects them and their parents to the pains and penalties of the Compulsory Education Law has no bearing upon the case before us, and will not be discussed further than to reply that the control of the schools in San Antonio is given by law to the San Antonio board of education, and not to individual parents, no matter how correct their consciences, convictions, faith, and religious beliefs may be. We may add that such a regulation has been held a valid defense to a prosecution under a Compulsory Education Law. State v. Turney, 31 Ohio Cir. Ct. R. 222. However, we must not be understood as passing upon any such question here.

The contention that the resolution requiring vaccination as a condition precedent was an unreasonable exercise of the charter authority, even if there was such authority, has been determined against appellant in the case of Zucht v. San Antonio School Board, 170 S. W. 840. The resolution must be reasonable. Supra; Waldschmit v. New Braunfels, 193 S. W. 1077. In the Zucht Case the jury found that the existing conditions in San Antonio constituted a menace to the public health, and that the regulation requiring vaccination of the children was reasonably necessary for the preservation of the public health by preventing the spread of smallpox; and because of this finding of facts the court held the regulation was not an unreasonab^ exercise of the authority vested in the school board by the charter.

In this case there is no finding of facts. No evidence was heard; but the sworn answer of the appellees alleged facts substantially as found by the jury in the Zucht Case, and these allegations warranted the trial court in holding the resolution a reasonable exercise of power and justified the decree denying the temporary injunction. That was an exercise of the discretion of the trial court, which is recognized by article 4663 of the statutes. Smith v. Palo Pinto County, 60 Tex. Civ. App. 531, 128 S. W. 1193.

Thus far it appears from our discussion of the allegations of the sworn pleadings that no public right has been violated, which conclusion renders it unnecessary to discuss appellant’s allegations made for the purpose of showing that the individual apppel-lants suffered, or are threatened with, some damage to themselves. San Antonio v. Strumberg, 70 Tex. 366, 7 S. W. 754.

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


author: KING, J.

text:
    READ et ux. v. BLAINE.
    (No. 314.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 28, 1918.
    Rehearing Denied March 13, 1918.)
    1. Deeds &wkey;>114(5) — Construction — Land Conveyed.
    A deed conveying all the certain part or parcel of land and containing 640 acres, more or less, located for one W. by virtue of certificate No. 1450, and providing that it was understood that the 640-acre tract was a one-half undivided interest out of survey No. 1123, which contained 1,280 acres, more or less, indicated an intent to convey an undivided one-half interest in the survey, and not any specific number of acres undivided out of it.
    2. Vendor and Purchaser &wkey;>165 — Shortage in Acreage — Recovery by Purchaser.
    Where land is conveyed in gross, the purchaser takes the risk as to the acreage and ean-not recover a shortage without allegation and-proof of fraud or mutual mistake.
    S. Pleading <&wkey;246(l) — Parol Evidence — Varying Terms of Deed.
    In trespass to try title to two tracts of land out of a survey, the allowance of a trial amendment that plaintiff held title to the premises by virtue of a deed from defendant, and that when the land was conveyed it was understood to contain a certain acreage and that the grantee should acquire an undivided one-half of a survey, was erroneous, as the amendment attempted to vary and limit the terms of the deed without alleging mutual mistake, accident, fraud, duress, or undue influence, etc., so as to bring the action within the principles of equity covering such matters.
    Error from District Court, Liberty County; J. Llewellyn, Judge.
    Suit by E. W. Blaine against W. A. Read and wife. Judgment for plaintiff, and defendants bring error.
    Reversed and rendered.
    H. E. Marshall, of Liberty, and John M. Conley, of Beaumont, for plaintiffs in error. Stevens & Stevens, of Houston, for defendant in error.
   KING, J.

On the 5th day of July, 1916, E. W. Blaine filed suit in the district court of Liberty county in the ordinary form of trespass to try title for two tracts of land out of the Thomas H. Wheeler survey in that county, one tract containing 431 ½ acres and the other tract containing 39 ¾ acres. The suit was originally instituted against a great many defendants, some of whom were subsequently dismissed, and judgment was entered against others upon their disclaimers, and the cause was finally heard as to ap-pellee, E. W. Blaine, as plaintiff, and W. A. Read and wife, Ruthie I. Read, as defendants. To the original petition plaintiffs in error filed a general demurrer and plea of not guilty, and specially pleaded that they disclaimed any right, title, interest, claim, or demand in and to the premises sued for, save and except an undivided one-half interest thereof, to which they claimed title, and prayed that they be awarded the same against the defendant in error.

By trial amendment, the plaintiff further alleges:

“That he holds title to the premises in controversy by virtue of a deed executed by W. A. Read and his wife, Ruthie I. Read, to C. E. Stacey on the 1st day of September, A. D. 1895, and that when said land was sold to said Stacey by said defendant it was understood that it contained 1,280 acres of land, and that the said C. E. Stacey should acquire by virtue of said deed an undivided one-half of the 1,280 acres of land known as survey No. 1123, located for Thomas H. Wheeler by virtue of certificate No. 1450 in Liberty county, Tex., but that as a matter of fact said location for said Thomas Wheeler was void, on account of conflict with senior surveys, with the exception of two tracts of 431 ⅛ and 39¾ acres respectively, which was subsequently patented by the state of Texas on the 21st day of January, 1902. as patents respectively numbered 240, volume 38, and 241, volume 38. Plaintiff avers that, on account of it being understood that the 640 acres of land conveyed as aforesaid by said defendants to O. H. Stacey was an undivided one-half of a tract which contained 1,280 acres of land, he is entitled to have and to hold the tracts described in the patent above set forth, the same being less than 640 acres of land. Wherefore, he prays for judgment for all the land in controversy, and for general and equitable relief.”

To this trial amendment the defendants filed an answer specially demurring to all that part of the trial amendment which set up that it was the intention of W. A. Read and wife, Ruthie I. Read, to convey to O. E. Stacey by deed dated September 1, 1895, 640 acres of land undivided out of the 1,280 acres, Thomas H. Wheeler survey, because said allegation attempted to alter and vary the written contract by parol testimony, and change the terms of the conveyance as set forth in a deed, by the introduction of parol testimony, and defendants also denied all the allegations contained in the trial amendment. The court overruled the exceptions, and the cause went to trial, resulting in a judgment by the court in favor of defendants in error, and from which judgment this appeal has been perfected.

The first assignment of error complains that the trial court erred in holding that the deed executed by plaintiffs in error to C. E. Stacey on September 1, 1895, conveyed an undivided 640 acres instead of an undivided one-half interest in survey No. 1123, erroneously supposed to contain 1,280 acres.

The description in the deed from Read and wife to Stacey is as follows:

“All that certain part or parcel of land known as survey No. 1123 and containing 640 acres, more or less, and located for Thomas H. Wheeler by virtue of certificate No. 1450, by J. N. Dart, county surveyor of Liberty county, for a more particular description reference is made to the record in the surveyor’s office of the county and state aforesaid, and, further, that said land lies about 14 miles north, 87 east, from the town of Liberty in the county of Liberty and state of Texas, and it is further understood that the 640-acre tract above referred to is a one-half (½) undivided interest out of survey No. 1123, said survey No. 1123 containing 1,280 acres, more or less.”

We are of opinion that this assignment is good, and that the purposes and intentions of the parties were to convey an undivided one-half interest in the survey, and not any specific number of acres undivided out of said survey, and where land is conveyed in gross the purchaser takes the risk as to the acreage, and cannot recover a shortage in the absence of allegations and proof of fraud or mutual mistake. An analysis of the two descriptive parts shows that in the first part of the paragraph, the grantors convey all that certain part of land known as survey No. 1123, containing 640 acres, more or less. A part of the survey seems to have been in the minds of the parties with reference to the amount of land bought and sold. The parties did not attempt to describe 640 acres by metes and bounds, nor did they undertake to describe it even in the most general way, although it was known that the same was a part of a larger tract, and the fact that quantity was not the essence of the contract is indicated by the words “more or less” added to the clause containing the reference to quantity. In the second part of the paragraph containing a description of said land, the parties declare “it is further understood” — that is further construing the subject-matter of the sale — “that the 640 acres above referred to is an undivided one-half (½) interest out of survey No. 1123, and said survey No. 1123 contains [not a definite number of acres, but] 1,280 acres, more or less.” Thus again the parties emphasize their intention to declare that the sale and purchase of land was not based upon the sale and acquisition of an undivided 640 acres out of said survey, but that the moving and actuating inducement to the trade was the sale and acquisition of an undivided one-half interest in saiu Wheeler survey, whether the same contained'more or less than 1,280 acres. The entire absence of field notes and the most general description of the quantity and the repeated use of the words “more or less,” both as qualifying the 640 acres and the 1,280 acres, throughout this paragraph, shows that the quantity of land involved in the transaction was not the thing to which the parties were looking, but that the grantors were selling and the purchaser was buying an undivided one-half interest in the survey, a chance of acquiring more or less than 640 acres. Eaton v. Tod, 68 S. W. 546; Daughtrey v. Knolle, 44 Tex. 450; Wuest v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Wheeler v. Boyd, 69 Tex. 293, 6 S. W. 614; Elder v. Bank, 42 S. W. 124; Mosteller v. Astin, 61 Tex. Civ. App. 455, 129 S. W. 1136; Holland v. Ashley, 158 S. W. 1033; Bellamy v. McCarthy, 75 Tex. 293, 12 S. W. 849; Barton v. Cox, 176 S. W. 793.

Plaintiffs in error complain in their second assignment of error of the action of the court in overruling their special exception to the trial amendment filed by defendant'in error, because said amendment was an effort to vary and alter the terms of a written contract. This assignment must be sustained. The wording of the deed is plain and unambiguous. Parol evidence will not be admitted to alter or vary the terms of a written contract between the.parties in such a case, in the absence of appropriate pleadings of mutual mistake, accident, fraud, duress, undue influence, etc., so as to bring the case within the rules and principles of equity covering such matters. Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109; Stark v. Homuth, 45 S. W. 761; Cooper v. Singleton, 19 Tex. 262, 70 Am. Dec. 333; Haralson v. Langford, 66 Tex. 112, 18 S. W. 339; Wright v. Hays, 34 Tex. 253; R. R. Co. v. Pfeuffer, 56 Tex. 66; Caffey v. Caffey, 12 Tex. Civ. App. 616, 35 S. W. 738; L. & G. N. v. Dawson, 62 Tex. 261; Railway Co. v. Jones, 82 Tex. 161, 17 S. W. 534, and authorities cited under the first assignment.

In view of our action in sustaining the above assignments of error, appellants’ third and fourth assignments become immaterial. Believing that, under the law and evidence in this case, the trial court should have decreed that tíre 471½ acres, as found by a resurvey by the county surveyor of Liberty county to be the correct acreage of the Thomas H. Wheeler survey, was jointly owned by plaintiffs and defendant in error, we reverse and render the cause, decreeing to plaintiffs in error an undivided one-half interest in 471½ acres and to defendant in error an undivided one-half interest in said 471 ½ acres.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes