author: DAVIDSON, J.

text:
    FAIR v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    Criminal Law (§ 510) — Evidence—Corroboration oí? Accomplice — Sufficiency.
    Evidence on a trial for murder held insufficient to support a conviction, in that there was no corroboration of an accomplice’s testimony connecting accused with the crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124-1126; Dec. Dig. § 510.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.,
    George Fair was convicted of murder in the first degree, and he appeals.
    Reversed and remanded.
    W. G. Carpenter and Thos. H. Lewis, both of Bay City, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of murder in the first degree, and given a life sentence in the penitentiary.

The case is submitted on appeal on one question: The insufficiency of the evidence to support the conviction, in that the accomplice, Charles Brown, is in no way corroborated, so as to connect the defendant with the homicide. Charles Brown, the accomplice, testified: That on the day of the killing he, Diggs Perry, and appellant went to the house of deceased. That Diggs Perry killed him by shooting him over the right eye with his (deceased’s) gun. After killing him Diggs Perry took a purse from the pocket of deceased, in which was $35 in currency, and gave appellant a $10 bill. There is no testimony, except of the accomplice, Brown, that appellant was present at the time and place of the homicide, or had any connection with it. Diggs Perry and Brown were seen together with defendant before the homicide. After the homicide Brown and Diggs Perry were together the balance of the day, or practically the remainder of the day. A passenger train conductor testified that a day or so after the killing appellant boarded his train and tendered him a $30 bill in payment of his fare, and he in obedience to a request arrested the defendant and subsequently delivered him to the authorities. Brown testified: He had been with Diggs Perry and appellant, and that Diggs Perry had stated that he wanted money and would kill a man to get it. That thereafter by accident he met Perry and appellant. That they went to the house of deceased, and Diggs Perry borrowed the gun of the deceased, ostensibly for the purpose of killing a bird for the deceased. He killed the bird and brought it in, and after deceased had cleaned the bird and was salting it Perry put a cartridge in the gun and shot and killed the deceased and took his money.

If there is any corroboration which tends to connect the defendant with this homicide, outside of the testimony of the accomplice, the writer has been unable to find it. It is true, the parties had been together some a day or two prior to the homicide, but Brown says they did not discuss the killing of deceased. Appellant was not seen with Brown and Diggs Perry on the day. of the homicide by any witness except Brown. Brown and Perry were seen together the day of the homicide coming from the direction of the homicide, and there is evidence tending to show beyond this that Perry fired the shot that killed deceased; but there is no evidence outside of Brown’s that defendant was there or had anything to do with it. The fact that he had a $10 bill which he exhibited to the conductor on the train is not corroborative of Brown’s testimony. If it could have been shown that this $10 bill was one that Brown says was in the purse of the deceased, and that he had received from Perry, it would be of some cogency; but nobody undertook to identify this bill as being one that had been owned by deceased, or that it had ever been in his possession, or in possession of Perry. The bare fact that appellant had a $10 bill a day or two after the killing ■ is not evidence that it was taken from the deceased. We deem it unnecessary to go over this testimony any further. The killing was a horrible one, and Diggs Perry was shown by this record to have been given the death penalty for his crime, and this record shows further there was evidence against Perry sufficient for his conviction in addition to Brown’s testimony.

Because the evidence does not support this conviction, for the reasons stated, the judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    HOOPER et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Witnesses (§ 287) — Redirect Examination.
    Where, in a prosecution for assault to rape, a witness for the state testified on cross-examination that he had not promptly reported the ol't'ense to the officers after he saw its commission, and had not himself interfered, he was properly allowed to explain on redirect the reason for his failure to do so.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930,1000-1002; Dec. Dig. § 287.]
    2. Criminal Law (§ 622) — Joint Defendants — Severance—Application—Time.
    An application by one of two joint defendants for a severance, not made until after the jury had been impaneled and sworn and the indictment had been read to them, was too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1380-1383, 1385, 1386,1388-1390; Dec. Dig. § 622.]

      3. Criminal Law (§ 814)—Instructions— Applicability to Case—Assault to Rape —Aggravated Assault.
    Where the state’s evidence showed an assault with intent to rape a girl under 15, and defendant’s evidence showed that no assault of any character was committed, the court was not required to submit the issue of aggravated assault.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Criminal Law (§§ 1037, 1090)—Appeal-Review—Remarks of Prosecuting Attorney.
    Alleged improper remarks of the prosecuting attorney will not be reviewed, where they, are not shown by bill of exceptions and it does not appear that a special charge was requested with reference thereto.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645, 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. §§ 1037, 1090.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Sanford Hooper and Buford Benton were convicted of assault with intent to rape, and they appeal.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellants were jointly indicted, tried together, both found guilty of assault with intent to rape, and their punishment assessed at two years’ confinement in the penitentiary.

A witness for the state, Cleveland Johnson, had testified as a witness for the state to material facts tending to corroborate the testimony of the witness Beulah Thomas, the alleged assaulted girl. On cross-examination the appellant elicited from him the fact that he had not promptly reported to the officers that an assault to rape was being made at the time and place he saw the appellants and the girl under the circumstances he described, and the fact he himself had not interfered. After they had elicited this testimony, on redirect examination he was permitted to explain why he had not interfered, and why he had not promptly reported to the officers that an attempt to rape was being made. Under the circumstances there was no error in the ruling of the court.

This case was called for trial, and both defendants announced ready for trial, a jury was impaneled and sworn, and the indictment read to the jury. The record discloses that Buford Benton made a verbal application to the court for a severance, asking that his codefendant, Sanford Hooper, be first placed on trial. The application came too late, for a serious question as to jeopardy would have been presented had the court granted the application. The application must be made before the trial is begun.

The state’s evidence makes a plain case of assault with intent to rape. The defendant’s evidence would show that an assault of no character was made. The girl was under 15 years of age, and, under such circumstances, it was not incumbent on the court to submit the issue of aggravated assault.

There is no bill showing that the district attorney made use of any such remarks as complained of in the motion for a new trial. If such remarks were in fact made, no special charge was requested in regard to the matter; and, as no bill is in the record evidencing that such remarks were made, the question is not presented in a way we can review it.

The evidence amply supports the verdict, and the judgment is affirmed.


text:
    ULMER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied Dec. 3, 1913.)
    1. Rape (§§ 43, 48)—Admissibility of Evidence-Complaint.
    In a prosecution for rape, recent complaint by the prosecutrix, her state and appearance, marks of violence, and the condition of her dress shortly after the alleged occurrence may be proved as original testimony.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. §§ 62, 65, 67-69; Dec. Dig. §§ 43, 48.]
    2. Rape (§ 4S)—Admissibility of Evidence —Accusation.
    In a prosecution for rape on his daughter, a girl under 15 years of age, the fact that she accused defendant would not be admissible as original' testimony.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. §§ 67-69; Dec. Dig. § 48.]
    3. Witnesses (§ 277)—Cross-Examination —Matter Brought Out on Direct.
    In a prosecution for rape, where defendant went into the matter as to whether prosecutrix had accused him, cross-examination as to that fact was proper.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§> 925, 979-983; Dec. Dig. § 277.]
    4. Criminal Law (§ 721½)—Trial—Argu-ment.
    In a prosecution for rape of a daughter a remark of the prosecuting officer, that: “The mother did not testify; the law seals her lips— he is her husband. I could have proven what she told her, but it is inadmissible evidence, and the law would not permit me”—was improper.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721½.]
    5. Criminal Law (§ 726)—Argument) of Counsel—Retaliatory Statements.
    Improper argument of prosecuting attorney is not reversible error, where it was in reply to and admitted because of remarks by defendant’s counsel.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. § 726.]
    6. Criminal Law (§ 829)—Requested Instructions—Given Instructions.
    In a prosecution for rape, where the court charged that the state has elected to rely for a conviction upon a particular act of carnal knowledge, and that any other act could not be considered except for the light it might throw upon the act charged, specially requested instructions on that point were properly refused.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]

      7. Criminal Law (§ 829) — Requested Instructions — “Penetration.”
    Where the court instructed that in cases of rape, “penetration” must be proved beyond a reasonable doubt, by which term was meant that the sexual organ of the male entered and penetrated the sexual organ of the female, there was no error in refusing the special charge re-guested on the word “penetration.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829

    For other definitions, see Words and Phrases, yol. 6, p. 5279.]
    8. Rape (§ 59) — Elements—;Force.
    In a case of rape on a girl under 15 years of age, it was not necessary to define “force,” and charge that the rape must be accomplished by force.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    9. Criminal Law (§ 814) — Instructions— Application to Evidence,
    In a prosecution for rape where if the girl was penetrated it was shown to have been by defendant’s male organ, and where the defendant’s testimony was that there was no attempt to rape and no penetration, a requested instruction that if some part of defendant’s body penetrated the prosecutrix, yet if they did not believe beyond a reasonable doubt it was the private male organ of defendant, to acquit was inapplicable to the evidence..
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    10. Criminal Law (§ 678) — Evidence—Election.
    When a father, or other person standing in such relation to a girl under 15, is prosecuted for rape on her, all acts of intercourse are admissible in evidence, but the state must elect upon which act it will seek a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    11. Criminal Law (§ 957) — Impeachment of Verdict — Affidavit of Juror.
    Jurors will not be allowed to impeach their verdict by alleging that different members of the jury misunderstood the testimony of a witness.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    W. P. Ulmer was convicted of rape, and he appeals.
    Affirmed.
    W. P. Ulmer, pro se. C. B. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted arid convicted of rape on his daughter, Lucile Ulmer, a girl under 15 years of age.

There are but two bills of exceptions in the record in regard to the introduction of testimony. Neither one of the bills are complete enough to bring the questions before us for review, but if we could consider them, as qualified and approved by the court, they would present no error. The first bill complains that while Mrs. Myrtle Plunkett was testifying she was asked if Lucile complained to her of anything, and the witness answered that Lucile “complained that she was hurting.” The record discloses that this occurred a short time after the alleged Tape, and this is the first person she met when her father was not present, and there was no error in admitting the testimony. In Pefferling v. State, 40 Tex. 492, it was said:. “It has been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress shortly after the alleged occurrence may be proved as original testimony.” This rule was reiterated by this court in Sentell v. State, 34 Tex. Cr. R. 260, 30 S. W. 226, and other cases.

The next bill complains that Mrs. Plunkett was asked the following question, “Did she tell you of any mistreatment that had been done toward her by her father?” which question she answered, “Yes, sir.” She was not permitted to detail what her niece, Lucile, had told her, but the fact that Lucile accused her father as the person who had raped her would not be admissible as original testimony. But in approving the bill, the court states appellant had gone into this matter first in the cross-examination of the witnesses Lucile and Mrs. Plunkett, and, if so, then it would not be error to permit the witness to answer the question.

Appellant also complains that the prosecuting officer made use of the following language in his argument: “The mother did not testify; the law seals her lips — he is her husband. I could have proven what she (meaning Lucile Ulmer) told her, but it is inadmissible evidence, and the law would not permit me.” This was improper, but the court, in approving the bill, states the argument was in reply to argument of appellant’s counsel, and admitted because of such remarks. Under such circumstances no reversible error is presented.

There was no error in refusing to give the peremptory instruction requested. The testimony offered in' behalf of the state makes a case of rape.

Several acts of intercourse were testified to by the daughter of appellant, when appellant moved that the state be required to elect on which act of intercourse it would seek a conviction. The state elected to ask for a conviction on the alleged act of intercourse that the girl said took place in the storm cellar on a date named. The court instructed the jury: “You are further charged that the state has elected to rely for a conviction in this case upon the act of carnal knowledge, if any, between the defendant and Lucile Ulmer committed in the storm cellar, if it was. Therefore you cannot consider any other act, if any, of sexual intercourse, except for the light, if any, it may throw upon the act charged.” The court, in his charge, having given this instruction, it was not necessary to give the special instructions requested in regard to this matter.

The court also instructed the jury: “In eases of rape penetration must be proved beyond a reasonable doubt. By the term ‘penetration’ is meant the sexual organ of the male entered and penetrated the sexual organ of the female.” Consequently there was no error in refusing the special charge requested on the word “penetration.”

This being a case of rape on a girl under 15 years of age, it was not necessary to define “force” and charge that the rape must be accomplished by force, and the court correctly refused the charges presenting this issue.

Appellant requested the court to charge the jury that although they believed “that some part of defendant’s body penetrated the prosecutrix, yet, if they did not believe, beyond a reasonable doubt, it was the private male organ of appellant, to acquit.” There was no evidence calling for such a charge. If the girl was penetrated it is shown by all the testimony it was so done by appellant’s male organ. This is the state’s testimony, and the defendant’s testimony is that there was no attempt to rape, and no penetration.

We have, in several opinions, held that when a father, or other person standing in such relation to a girl, is prosecuted for rape on her, she being under 15 years of age, all such acts are admissible in testimony, but the state should be required to elect upon which act it would seek a conviction. This was done in this case, and there was no error in admitting the testimony.

The ground in the motion for a new trial that alleges that different members of the jury misunderstood the testimony of Dr. Milner on the trial cannot be considered. Jurors will not be allowed to impeach their verdict in this manner.

The judgment is affirmed.


text:
    MEYER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    Criminal Law (§ 1106) — Appeal—Record-Time for Perfection.
    Where sentence was pronounced upon accused on the 25th day of January, the records in his appeal should be filed with the Court of Criminal Appeals not later than April 25th.
    [Ed. Note. — For other cases, see Criminal íío'e *]* Dig. §§ 2890-2892; Dec. Dig. §
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    Jim Meyer was convicted of theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of theft, and his punishment assessed at three years’ confinement in the penitentiary.

As no statement of facts, nor bills of exceptions accompany this record, no question is presented in the motion for a new trial we can review.

This appellant was tried and sentence pronounced on him on the 25th day of last January; and, if the appeal was not going to be perfected, it is a hardship on him to be compelled to lie in jail from then until now, about 10 months, before beginning his sentence, and an expense to the county in feeding and caring for him during that time that it should not have been compelled to pay. If records were promptly sent to this court, as required by the law, this would not occur. In this case the law required this record to have been filed in this court not later than April 25th, but it was not done until some five months later than that time. Such neglect is inexcusable, and works a hardship both on the prisoner and the county. We keep calling attention to these matters in the hope that we may get the officers to comply with their plain duty under our Code of Criminal Procedure.

Affirmed.


author: PRENDERGAST, P. J.

text:
    HENDRICKS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Robbery (§ 24*) — Prosecution—Evidence —Sufficiency.
    In a prosecution for robbery, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.*]
    2. Criminal Law (§ 814*) — Trial—Instructions.
    Where the evidence was positive and the facts showing the guilt of accused were not wholly circumstantial, a charge on circumstantial evidence was properly refused.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1821, 1833, 1839, I860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*]
    Appeal from Criminal District Court, Harris County; O. W. Robinson, Judge.
    Will Hendricks was convicted of robbery, and he appeals.
    Affirmed.
    R. H. & A. S. Tiernan, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery, and his punishment fixed at confinement in the penitentiary for 15 years.

The testimony in the case is amply sufficient to establish appellant’s guilt. The alleged robbed party testified positively to the facts that appellant assaulted him, knocked him down, cut and beat up his head with some instrument, and robbed him, and positively and unquestionably identified the appellant as the party. He was corroborated by other facts and circumstances. The appellant denied the robbery and claimed an alibi. The court properly submitted all these questions to the jury in his charge, to which there is no complaint, and the jury found appellant guilty.

There are but two questions raised. The first is the insufficiency of the evidence, and the second that the court should have charged on circumstantial evidence. It is too well settled to need citation of authorities that when the evidence is positive, and the facts showing the guilt of an accused are not wholly circumstantial, a charge on circumstantial evidence is neither required nor should be given. In this ease, as stated above, the evidence was positive, and appellant’s guilt established thereby, and not by circumstantial evidence, so that the court did not err in not charging on circumstantial evidence.

The judgment is affirmed.


text:
    BUTLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Cbiminal Law (§§ 1092, 1099) — Appeal-Statement of Pacts and Bills of Exception — Time of Filing.
    The county court in a misdemeanor case is not authorized, under the statute, to allow' longer than 20 days after the adjournment for filing the statement of facts and bills of exceptions.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§§ 1095, 1102) — Appeal-Statement of Pacts and Bills of Exceptions — Late Filing — Excuse.
    That the county court in a misdemeanor case, authorized under the statute to allow only 20 days after the adjournment for filing the statement of facts and bills of exceptions, made an order allowing 30 days therefor, and at the time convinced defendant’s counsel that the law authorized him to do so, is not, as against a motion to strike them, a legal excuse for not filing them in the 20 days.
    [Ed. Note. — Por other cases, see Criminal Law, Cent Dig. § 2847; Dec. Dig. §§ 1095, 1102.*]
    Appeal from Nacogdoches County Court; Geo. P. Ingraham, Judge.
    Dude Butler was convicted, and appeals. Motion is made to strike out the statement of facts and bills of exception.
    Motion granted, and judgment affirmed.
    Y. E. Middlebrook, of Nacogdoches, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

On a proper complaint and information appellant was convicted for unlawfully selling intoxicating liquor in prohibited territory after the proper legal election had been held and the law put in force, and his punishment fixed at a fine of $75 and confinement for 30 days in the county jail.

The court at which he was tried adjourned on August 9, 1913. The court, by an order entered, allowed 30 days to file a statement of facts and bills of exceptions. Neither the statement of facts nor any of the bills of exceptions were filed within 20 days from the adjournment. The Assistant Attorney General moves to strike out the statement of facts and bills of exceptions because of this. This court has repeatedly been called upon to investigate and determine whether not, under the law, the county court in a misdemeanor case can allow longer than 20 days after adjournment to file these papers; and, after the most complete investigation and consideration of the question, we have uniformly, and in a great many cases, held that the statute does not authorize or permit the county court in misdemeanor cases to allow longer than 20 days after the adjournment to file these papers, and when the question was raised we have uniformly struck out such papers filed after 20 days. The appellant’s attorney herein has filed an affidavit to the effect that the county judge who tried this case convinced him at the time that the law authorized him to grant 30 days within which time to file these papers, and also furnishes the county judge’s written opinion that that is still his opinion of the law. None of this shows, in law, any legal excuse why these papers were not filed within the time prescribed by law, to wit, within 20 days from the adjournment of the court. This had been the uniform holding of this court All have been treated alike. The reports are full of cases showing that we have struck out such statement of facts and bills of exceptions and not considered them and affirmed the cases. We deem it entirely unnecessary to again take up and discuss this question, but refer to the case of Durham v. State, 155 S. W. 222, and cases there cited. Therefore the motion of the Assistant Attorney General to strike out these papers is granted, and they cannot be considered by this court, in the absence of which no question is raised which we can consider.

The judgment is therefore affirmed.


text:
    TRIPP v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Criminal Law (§§ 419, 420) — 1-Iearsax Evidence.
    An unsworn statement of a person who was not independently shown to have ever been connected with an underwriters’ association, made to a third person in a letter, that the association did not have a. certain capital, was not admissible in evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.*]
    2. False Pretenses (§ 26) — Allegations of Indictment — Sufficiency.
    .Allegations of the indictment in a prosecution for swindling, that accused represented that he was the agent of an underwriters’ association, and falsely represented the amount of the capital, etc., thereof, and that prosecuting witness was induced to pay the agent $30 for a receipt set out in the indictment, did not sufficiently allege the offense of swindling, and should have alleged that prosecuting witness, by reason of such representations, was induced to take out an application for insurance, and pay $30 “as a premium on said policy,” etc.; it being the policy, and not the receipt, for which he was induced by the false representations to pay out his money.
    [Ed. Note. — Eor other cases, see False Pretenses, Cent. Dig. § 31; Dee. Dig. § 26.]
    Appeal from Dickens County' Court; O. S. Ferguson, Judge.
    Thomas C. Tripp was convicted of swindling, and appeals.
    Reversed, and prosecution ordered dismissed.
    B. D. Glasgow, of Spur, and Chapman & Coombes, of xlnson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of swindling in an amount less than $50, in that he represented to Mr. Farmer that he was agent of the Reciprocal Underwriters, an insurance company, of Kan-, sas City, Mo.; - that said company had $1,-000,000 capital, and had been in business for 17 years; that said company had a permit to do business in this state, issued by the commissioner of insurance — when in fact and in truth the said company did not have $1,-000,000 in capital, had not been in business for 17 years, and did not have a permit to do business in this state and under such representations Mr. Farmer was induced to pay the agent $30 for a receipt set out in the indictment.

There is no proof in this record that the Reciprocal Underwriters did not have the capital stated, unless by inference to be drawn from letters written by Miss Beatrice Bess, who, in the letters, states she now resides in Houston, Tex. These letters were not written to Mr. Farmer but to Mr. 1-Iam. Except from the contents of the letters, it does not appear from the record that Miss Bess was ever connected with the Reciprocal Underwriters, and we cannot see by what rule of law these ex parte and unsworn statements of hers, made to a third person in a letter, became admissible against appellant. Eliminate these two letters, which were inadmissible, and there is no evidence showing the allegations as to the company were false. If Miss Bess would so testify under oath to these facts, she is in reach of the process of the court.

Again, the facts would show that by reason of the representations made, Mr. Farmer was induced to make an application for an insurance policy, and paid $30 as the premium on the policy; yet there are no such allegations. The allegations are that he paid $30 for a receipt for his money, and: the receipt is copied in the indictment. If he paid $30 for the receipt, he got it, but that was not what he contracted to pay his money for; he was induced to pay the money for a policy of insurance, not the receipt, and the receipt is only evidence that he paid the money as a premium on the policy. The allegations in the indictment are too indefinite to charge the offense of swindling. The facts as sworn to by Mr. Farmer, that by reason of the false representations alleged, etc., would support an indictment for swindling, if properly drawn. It should allege that by reason of these representations he was induced to make an application for insurance on his home in the sum of $2,500, and pay to Mm the said sum of $30 as premium on said policy, which money was obtained by means of said false representations, pretenses, etc. It was not the receipt but a policy of insurance he was induced to pay out his money for, and, the allegations in the complaint and information being so indefinite, it will be necessary to quash them, and the above remarks are made so that a new complaint can be filed, if it is desired to do so.

The Judgment is reversed, and the prosecution ordered dismissed.


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

text:
    DECKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    Criminal Law (§ 1159) — Appeal—'Vekdict.
    In a prosecution for unlawfully carrying a pistol, where defendant claimed that he was taking it to be repaired and showed that the gun was in part defective, a conviction cannot be disturbed on appeal, where the jury were charged that defendant had the right to carry the pistol to the shop for repairs and, when repaired, to take it home; the jury by its verdict having disregarded defendant’s testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    A. F. Decker was convicted of carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted for carrying a pistol; his punishment being assessed at a fine of $100.

The uncontroverted evidence is that appellant was going from Archer county to Wichita Falls in Wichita county, and that he was carrying his cotton to a gin in Wichita Falls to be ginned and baled. A deputy sheriff of Archer county named Taylor and a witness by the name of Kitchen testified practically to the same facts. Their testimony is that appellant was going from Archer county to Wichita Falls; that appellant was on a wagon of cotton down oil the railroad crossing, by the Wichita Ice Company, and on the road that leads to the Farmers’ Union Gin. He says: “We had. come along up behind the defendant from over where the defendant lives in Archer county. This was about 11 o'clock a. m., when we caught up with him down there on the railroad crossing. He had brought this bale of cotton from Archer county, and had loaded it about 3 o’clock that morning. The defendant came the usual road from Archer county, and was on this road to the Farmers’ Union Gin at the time I arrested him. I do not think the defendant went through the business part of town with this load of cotton, but went the usual road toward the gin. We rode up to the wagon and called on him to halt; defendant stopped; made no offer to resist the arrest. I got up in the wagon and took that gun out of defendant’s right-hand coat pocket. The gun was loaded and would shoot. I shot it two or three times, and then put it in the sheriff’s office in Wichita Falls, Tex. I took the gun from defendant’s pocket as soon as I climbed in the wagon.” The evidence of the witness Kitchen is the same as that of Taylor. The defendant testified in his own behalf that he was 48 years old and lived in Archer county. On the occasion mentioned he took the bale of cotton to the Farmers’ Union Gin in Wichita Falls, Wiehi-‘ ta county, from his farm in Archer county. About 11 o’clock that morning, when within one block of the gin with his cotton where he was taking it to have it'baled, Tom Taylor and Kitchen came up to the wagon as he, defendant, was crossing the railroad, and commanded him to halt. He did so, and Taylor climbed up on the wagon and took the pistol from him. He says he put the pistol in his pocket when he left home to bring it to Wichita Falls to have it repaired, or to trade it on a new one, and was going by a gun shop for this purpose just as soon as he left the cotton at the gin; that he wanted to get his cotton ginned early and get in line for that purpose so he could get back home. He says the pistol was broken — the cylinder of it would not revolve — and he called attention to this fact there in the cóurtroom where the pistol was; that in order to shoot the pistol it was necessary to revolve the cylinder with the hand; that if the cylinder was revolved with the hand it would shoot by placing it so that the hammer would strike the cartridge ; and that it would not shoot but once unless the cylinder was revolved with thé hand so as to put it in position to be shot again. The machinery in it which revolved the cylinder was broken. He said he did not know the pistol was loaded when he put it in his pocket. In fact, he says he did not notice or look to see whether it was loaded or not. He further stated that he had no motive in carrying the pistol other than that he was going to carry it to the Winfrey repair shop in Wichita Falls. This is the ease.

My Brethren believe this entitles the state to a conviction. I do not think the facts make a case and the judgment ought to be reversed and remanded. The facts are undisputed. The jury cannot arbitrarily disregard the testimony because a charge was given.

The judgment is affirmed by majority.

PRENDERGAST, P. J., and HARPER, J.

Inasmuch as the appellant requested the following charge and it was given, we are of the opinion the case should be affirmed. The charge is: “You are instructed that defendant had the right under the law to carry the pistol to a shop for repairs and, when repaired, a right to take it home. Now if you believe from the evidence that defendant was carrying the pistol to a shop for repairs at the time alleged, you will acquit the defendant.” This presented the issue made by defendant’s testimony in language selected by appellant’s counsel, and the jury found adversely to this contention.


text:
    ROMERO v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Crimina! Daw (§ 1099) — Appeal—Statement or Facts — Time for Filing.
    Under Acts 32d Leg. 1911, c. 119, providing that the statement of facts may be filed at any time before the time for filing the transcript in the Court of Criminal Appeals, an accused person has 90 days in which to file his statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    2. Criminal Law (§ 1099) — Appeal—Statement or Facts — Allowance
    Where the court stenographer prepared a transcript of the proceedings .for accused, who was a pauper, before the expiration of the 90 days within which he was required by Acts 32d Leg. 1911, c. 119, to file his statement of facts, the failure of the stenographer to prepare it within the 30 days allowed by the court does not deprive accused of a statement so as to entitle the unapproved transcript to consideration on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Criminal Law (§ 1064) — Appeal—Presentation of Grounds of Review Below.
    Where the judge absented himself during a prosecution for felony, and accused desired to present the question on appeal, the court’s action should be excepted to and presented for actual determination by the motion for new trial, and cannot be first raised by affidavits not filed until 80 days after adjournment, even though the judge’s absence was a ground of the motion for new trial, though by agreement with the court this matter was not urged for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dee. Dig. § 1064.]

      4. Criminal Law (§ 1097) — Statement oe Facts — Necessity.
    Without a statement of facts, the sufficiency of the evidence and the failure of the court to charge on various phases of the case cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    5. Criminal Law (§ 1064) — Appeal—Presentation oe Grounds oe Review in Court Below.
    Where the failure of the court to charge on circumstantial evidence was not called to its attention by the motion for new trial, the error cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    Appeal from District Court, Reeves County ; S. J. Isaacks, Judge.
    Jose Romero was convicted of horse theft, and he appeals.
    Affirmed.
    Gibson & Wilson, of Pecos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

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

Overruling the motion for new trial on the 29th of May, the court adjourned on the 31st. The court entered an order granting 30 days’ time in which to file statement of facts. After the expiration of the 30 days, another order was entered granting 30 days’ additional time. The filing of the order was dated back so as to make it come within the time of the previous 30 days. Appellant, being unable to pay the stenographer, filed a pauper’s affidavit. The stenographer was ordered to make out the statement of facts in duplicate, which he did by questions and answers. This was filed in the trial court on the 5th of July, 30-odd days after adjournment of court.

Appellant claims he was deprived of a statement of facts by reason of these matters, and apparently bases this upon the idea that the second order for 30 days was not legal, and, the stenographer not having filed the statement of facts within the original first 30 days, it was illegal, and he has been thereby deprived of a statement of facts. We cannot concur with this idea. The act of 1911, p. 267, provides that the statement of facts may be prepared and filed at any time before time for filing the transcript in this court, and the decisions of this court construing this article have held that' appellant had 90 days within which to file statement of facts. It is unnecessary to cite these cases. The statement of facts transcribed by the stenographer shows to have been filed on the 5th of July, 1913, but neither agreed to by counsel nor approved by the judge. There still remained the difference between the 5th of July and the 90 days, which would have terminated on the 31st of August, in which appellant could have prepared a statement of facts had he used ordinary diligence. A transcript of the evidence made by the stenographer was filed with the papers in the clerk’s office, and accessible to defendant and his counsel. We therefore hold, under the circumstances, that he has not been deprived by the court or any of the officers of having his evidence brought properly before this court.

In the latter part of August affidavits were filed to the effect that the court during the trial absented himself during the argument before the jury for an hour or such matter, and was not in the courtroom. These affidavits narrate the circumstances and things that occurred during the absence of the judge. It is further alleged that this was one of the grounds of the motion for new trial; but, with some actual or tacit understanding with the court, this matter was not urged for new trial. This matter, filed as it was the latter part of August, comes too late. To this action of the court proper exceptions should have been taken and reserved during the term time, and filed within such time as is authorized under the law with reference to filing bills of exception. The affidavits were filed more than 80 days after adjournment of court. Coming in this way the question cannot be considered on appeal.

There are some matters presented in the motion for new trial as to the sufficiency of the evidence and failure of the court to charge certain phases of the law which are claimed to have been applicable to the facts. These cannot be considered in the absence of the evidence.

Another matter is urged in the brief, but we fail to find it in the motion for new trial; that is, that the court’s charge on circumstantial evidence is not sufficient. This matter was not called to the attention of the court in the motion for new trial, and therefore, under the prior decisions of this court, this would come too late, unless it was of that fundamental nature which authorized an illegal conviction.

As the record presents these matters, we are unable to review them; therefore the judgment is affirmed.


text:
    PORTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Criminal Law (§ 322) — Judicial Notice —Judges oe District Court.
    The Court of Criminal Appeals will take judicial notice of the date of the incumbency and resignation of a certain judge, and also of the date on which his successor was appointed and took the oath of office.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 728; Dec. Dig. § 322.]
    2. Criminal Law (§ 1092) — Bill oe Exceptions — Approval.
    Under the statute, only the judge who tried a criminal case could approve a bill of exceptions and statement of facts, and Ms successor could not do so.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    3. Grand Jury (§ 38) — Presence oe Bailiee.
    The fact that the county attorney, while the grand jury was interrogating witnesses in the grand jury room, had with him in the room a regular bailiff as his stenographer taking down testimony, though he was not present while the grand jury was discussing the finding of a bill or voting, would not invalidate the indictment so as to be a ground for quashing it.
    [Ed. Note. — For other eases, see Grand Jury, Cent. Dig. § 81; Dec. Dig. § 38.]
    Appeal from Criminal District Court, Dallas County; Barry Miller and W. L. Crawford, Jr., Judges.
    Will Porter was convicted of murder, and appeals. Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

On December 31, 1912, the grand jury of Dallas county indicted appellant in criminal district court No. 2 of Dallas county for the murder of Jesse Franklin, alleged to have been committed on December 29, 1912. He was tried at the January term, 1913, and the verdict rendered on January 16th assessed Ms punishment at death. The term of the court at which he was tried convened on January 6, 1913, and adjourned on April 6, 1913.

The record shows, and we judicially know, that Judge Barry Miller was the judge of that court and that he did not resign as such judge until February 10, 1913. We also judicially know that Judge W. L. Crawford, Jr., was appointed and took the oath of office as the successor of Judge Miller on March 1, 1913. The record further shows that all of appellant’s motions for new trial and in arrest of judgment were acted upon by Judge Miller during his term of office, and that the notice of appeal was given on February 1, 1913, by which and at which time the jurisdiction of this court attached. In other words, the record shows that the whole case was tried and everything in connection therewith was had before Judge Miller while he was the judge of that court and before his resignation took effect, and that Judge Crawford had nothing to do with any of these matters. His connection with the ease and everything in connection therewith is shown to have begun for the first time on March 3, 1913, when he granted an extension of time to appellant for filing the statement of facts and bills of exceptions, and that his only connection with the case or any proceeding therein were on and after March 3, 1913.

There is filed with the record what purports to be a statement of facts and one bill of exception. The bill of exception was approved by Judge Crawford and not by Judge Miller. It shows to have been signed and approved and ordered filed by Judge Crawford on April 30, 1913, and further shows on its face that it was to the overruling of appellant’s motion made, heard, and acted upon by Judge Miller on February 1, 1913, in arrest of judgment, claiming the indictment was insufficient, because a person not authorized by law and not a member of the grand jury, nor an attorney connected with the prosecution in the ease, was present while the grand jury was investigating and deliberating on this cause as to whether or not they would find an indictment against appellant. It further shows that Judge Miller and not Judge Crawford heard evidence on said motion at the time he acted thereon and overruled the same.

The purported statement of facts was filed in the lower court on April 26, 1913. It was not approved by Judge Miller but shows to have been approved by Judge Crawford. Under this state of facts, as shown by this record, the Assistant Attorney General makes a motion to strike out the said bill of exception and statement of facts. This question has heretofore carefully been considered by this court in the case of Richardson v. State, 158 S. W. 517, wherein this court, after citing the statutes, held that the judge of the court who tried the case, before whom such proceedings were had, could alone approve bills of exceptions and statements of facts, and that his successor could not do so. We are thoroughly satisfied with the holding and opinion in that case, and in accordance therewith and with the statutes we are under the necessity of sustaining the motion of the Assistant Attorney General, which we do, and therefore strike out the said bill of exception and statement of facts.

Notwithstanding this, as tMs is a case where the death penalty is assessed we have carefully read the said bill of exception and purported statement of facts and all of the questions raised by appellant in connection therewith; and, if we could properly consider said purported statement of facts, it would be amply sufficient to show: That on December 29, 1912, about 4 p. m., the appellant and deceased were in a barber shop in the city of Dallas, Tex.; that immediately preceding the killing for some time they had been gambling together, playing against one another; that the deceased had been doing the winning and wanted to quit and did quit the game; that appellant objected to this and became incensed because deceased would not longer continue gambling with him; that the deceased, after getting up from a bathroom wherein they had been gambling, proceeded to leave appellant and procure and start to put on his overcoat; that, before he could complete putting on his overcoat, appellant said to him, “I won’t allow any God damn son of a bitch to treat me wrong,” at once went to his own overcoat, only a step or two from him, procured a six-shooter, and began shooting at the deceased therewith; that the first shot struck the deceased near the center of the hack, going entirely through his body, coming out neár his navel; that the deceased then partially turned around and that appellant again shot him through the left arm and then in the left side near or through the heart; that, after the deceased had fallen on the floor, appellant shot him again, then searched his pockets, and took the deceased’s money out of his pockets, one dollar in silver dropping on the floor which was found soon afterwards when the body of deceased was removed. The appellant himself swore that he shot and killed the deceased, firing five or six times at him, but he claimed that he did so to protect himself because he thought deceased was attempting at the time to get his knife and attack him (appellant); that he did not see any knife and did not see the deceased get any knife, or open any knife, but that he knew he was a dangerous and violent man; that he had on one or two occasions shortly before then seen the deceased have a fight with others in which he attempted to use or did use a knife; and that about a month prior to this, appellant himself had a fight with him, at which time he (deceased) attempted to use a knife on him. Several eyewitnesses for the state testified that at the time appellant killed the deceased the deceased did not have any knife, did not attempt to get any, and made no assault or attempted assault on appellant, and did not threaten to assault him, but that the appellant shot the deceased in the back the first time without any provocation at all and continued shooting him rapidly until he had killed him, as stated above. The evidence by the state, if we could consider it, shows, without doubt, murder in the first degree. The preponderance of it is against appellant’s claimed self-defense, and it .does not show, or tend to show, manslaughter. The • court, however, charged on manslaughter in the only way that it could be claimed with any show of reason to be raised. He charged on self-defense in appellant’s favor fully and correctly, to which there is no complaint. The claimed insulting-language by deceased to appellant, immediately before the killing, even if it had been used, does not show to have been the cause of the killing but rather excludes that idea and the court was not called upon to submit manslaughter on that theory. Even such language would not be adequate eduse. Fitzpatrick v. State, 37 Tex. Or. R. 20, 38 S. W. 806.

If we could consider the said bill of exceptions at all, it shows this: That the county attorney had with him in the grand jury room, at the time the grand jury was interrogating the witnesses in regard to this offense, Frank Barcum, who was a regularly and duly sworn bailiff for said grand jury, as his stenographer, taking down the testimony of the said witnesses; that he was not present while the grand jury was discussing the propriety of finding a bill of indictment, nor while' the grand jury was voting on that question. This court has repeatedly held that under such circumstances the indictment was a valid one and should not be quashed on that account. Sims v. State, 45 S. W. 705; Wilson v. State, 41 Tex. Cr. R. 117, 51 S. W. 916; Haywood v. State, 61 Tex. Cr. R. 96, 134 S. W. 218. So that in no event, even if we could consider it, would the bill of exceptions present any error in this case.

In no way, whether with the bill of exceptions and statement of facts fully considered, or without either or both of them, does the appellant point out any reversible error whatever in this case. The judgment will therefore be affirmed.

MEMORANDUM DECISIONS


text:
    ANDERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge. Frank Anderson was convicted of assault on a woman, and appeals.
    Affirmed.
    C. E. Bane, Asst. Atty. Gen., fqr the State.
   HARPER, J.

Appellant was prosecuted and convicted of making an assault on Mrs. Lorine Smith. The only question presented is one raising the issue that the testimony is insufficient to sustain the conviction. While it is true the testimony offered in behalf of appellant would show an innocent intention, yet the testimony of Mrs. Smith and her husband would make a case, and the court at the request of appellant instructed the jury: “Even though you believe from the evidence defendant took the prosecuting witness by the arm or hand, but by reason thereof she did not feel any sense of shame or other disagreeable emotions of the mind, or if defendant thought, or had reason to believe, that such act on his part would be agreeably received by her, or if you have a reasonable doubt of such facts, you will acquit him.” The judgment is affirmed.


text:
    BANKS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Jim Banks, alias Dirty Red, was convicted, and appeals.
    Affirmed.
    C. E. Bane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of murder in the first degree, and his punishment assessed at death, from which judgment he prosecutes this appeal. There are no bills of exceptions nor statement of facts accompanying this record. We always regret to have records come before us in a way that we cannot review the questions sought to be raised on the motion for a new trial, where a person convicted desires to prosecute an appeal; and more especially do we db so in a case where the death penalty has been inflicted. Several grounds of alleged error are-assigned in the motion for a new trial, but it is impossible for us to review any of them, in the absence of a statement of facts and bills-of exception; consequently there is nothing we can do but affirm the judgment. Affirmed.


text:
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    Appeal from District Court, Bexar County; W. S. Anderson, Judge. Curley Brown was convicted of burglary, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of burglary; his punishment being assessed at five years’ confinement in the penitentiary. The record is before us without a statement of facts or bill of exceptions. The matters set out in the motion for new trial are in such condition that they cannot be intelligently revised in the absence of statement of facts. The judgment is affirmed.


text:
    HOWARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge. Will Howard was convicted, and appeals.
    Affirmed.
    C. E.' Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under an indictment for theft from the person, appellant was ■convicted, and his punishment fixed at the lowest prescribed by law, two years’ confinement in the penitentiary. There is no statement of facts, and no question is raised which we can pass upon without this. The judgment is affirmed.


text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    Appeal from District Court, Houston County; John; S. Prince, Judge. Walter Johnson was convicted of rape, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was indicted and convicted of rape on a girl under 15 years of age, and his punishment fixed at '20 years in the penitentiary. There is neither ■a bill of exceptions nor a statement of facts in this case. In the motion for new trial several grounds of it complain of matters that can only be raised and presented by bill of exceptions; and even if there had been bills, they could not properly be considered without a statement of facts. There are none of the other questions .attempted to be raised by the motion for a new trial that can be considered in the absence of ■a statement of facts. The indictment is good, following the statute and the approved forms. The judgment will be affirmed.


text:
    MARSDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    Appeal from District Court, Travis County; George ■Calhoun, Judge. E. J. Marsden was convicted, .and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of burglary; his punishment being assessed at two years’ confinement in the penitentiary. The ree-■ord is before us without bills of exception or statement of facts, and no showing made why they are not in the the record. The time of filing the exceptions and statement of facts has long since past. Finding no reversible error in the record, the judgment is affirmed.


text:
    TOLLETT v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    Appeal from Tom Green County Court; Oscar Frink, Judge.- J. F. Tollett was convicted of chicken stealing, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was prosecuted and convicted of stealing some chickens —petty theft — and his punishment fixed at a fine of $25 and ten days in jail. The evidence is .amply sufficient to sustain the verdict. There is no bill of exceptions in the record, and there is no complaint in any way of the charge of the court. The only ground of complaint in the motion for a new trial is, in effect, that the verdict of the jury is contrary to the law, and contrary both to the law and the evidence. It would serve no useful purpose in this or any other case to state in full or in substance the evidence. If that introduced by the state was believed by the jury, which evidently it was, as stated above, it was amply sufficient to authorize the verdict. The judgment will be affirmed.


text:
    WILLIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    Appeal from Dallas County Court at Law; W. F. White-hurst, Judge. Roy Willis was convicted of unlawfully giving and selling liquor to a minor without the written consent of his parents or guardian, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted under P. C. 1911, art. 593, for unlawfully giving and selling to a minor, without the written consent of his parents or guardian, intoxicating liquor. He waived a jury and submitted the case to the court. The court found him guilty and assessed his punishment at a fine of $50. The indictment is correct and follows the statute. There is no statement of facts or bills of exceptions. No question is raised that we can consider in the absence of these. The judgment is affirmed.


author: TALBOT, J.

text:
    AMERICAN NAT. BANK v. CORSICANA NAT. BANK.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1913.)
    Appeal from Navarro County Court; J. M. Blanding, Judge. Action between the American National Bank and the Corsicana National Bank. From the judgment, the American National Bank appealed. The judgment was affirmed without opinion, and appellant moves for a rehearing.
    Motion overruled.
    W. W. Ballew, of Corsicana, for appel-land. Richard Mays, of Corsicana, for appellee.
   TALBOT, J.

The judgment of the lower court in this case was affirmed at the last term of the court without a written opinion. Appellant, in due time, filed a motion for a rehearing, and assumes that we declined to consider its assignments of error, because they were not in compliance with amended rules 24 and 25 (142 S. W. xii), promulgated by the Supreme Court for the government of this court, and, therefore affirmed the judgment without a consideration of the case on its merits. This assumption is incorrect. At the time our opinion was delivered we had before us the decision of the Supreme Court in Railway Co. v. Beasley, 155 S. W. 183, and following the construction of the rules referred to in that case appellant’s assignments were considered and the case affirmed, because we were of the opinion the record disclosed no reversible error. Because of the court’s heavy docket, and the conclusion that the record presented no new or important question of practice or of law for decision, no written opinion was filed. In the light of the motion for a rehearing filed by appellant’s able counsel we have again reviewed the rulings of the trial court assailed in the brief, and are still of the opinion that we would not be warranted in reversing the case, and that a discussion of the questions raised would serve no useful purpose. The motion for rehearing is therefore overruled.


author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. v. HARRIMAN BROS.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1913.)
    On Mandate from Supreme Court of United States. Action by Harriman Bros, against the Missouri, Kansas & Texas Railway Company. From a judgment of this court, affirming a judgment of the district court for plaintiff, the Supreme Court of the United States allowed a writ of error, and reversed and remanded to this court for such further proceedings as might be consistent with its opinion.
    Former judgment of this court and judgment of the district court re-, versed, and cause remanded to the district court for another trial, and for entry of judgment consistent with the opinion of the Supreme Court of the United States.
    Coke, Miller & Coke, of Dallas, and Head, Dillard, Smith & Head, of Sherman, for appellant. W. M. Williams, of Booneville, Mo., and Wolfe, Hare & Maxey, of Sherman, for appellee.
   RASBURY, J.

At a former term of this court a judgment of the district court of Gray-son county was by this court affirmed. Missouri, Kansas & Texas Ry. Co. v. Harriman Bros., 128 S. W. 982. A writ of error to the Supreme Court of this state was denied. Subsequently the Supreme Court of the United States allowed a writ of error to this court, and after consideration of the record directed “that the judgment of the said Court of Civil Appeals ⅜ * ⅜ ¿g an<j the game is hereby reversed, with costs, * ⅞ ⅜ and that this cause be and the same is hereby remanded to the said Court of Civil Appeals for such further proceedings as may be consistent with the opinion of this court.” Missouri, Kansas & Tex. Ry. Co. v. Harriman Bros., 227 U. S. 657, 57 B. Ed. 690, 83 Sup. Ct. 397. The appellant now presents its motion to enter'in this court a decree reversing the judgment of the District Court of Grayson County ’ and the rendition here of a judgment for appellant, asserting that no other judgment would be consistent with the opinion of the Supreme Court of the United States. In the absence of such direction by the Supreme Court of the United States as is sought by the motion now made, and in view of certain expressions contained in the opinion reversing and remanding the case to this court for orders consistent with that opinion, we conclude, without an attempt at analysis „of the opinion, that the proper order is to now reverse our former judgment in this cause, as well as the judgment of the district court of Grayson county, and remand the cause to said district court for another trial, and for the entry of such judgment there as is consistent with the decree of the Supreme Court of the United States above referred to. And it is accordingly so ordered.


author: BROWN, C. J.

text:
    SNIPES et al. v. BOMAR COTTON OIL CO.
    (Supreme Court of Texas.
    Dec. 10, 1913.)
    1. MASTER AND SERVANT (§ 256) — ACTIONS eor Injuries — Petition.
    In an action for the death of an engineer of a stationary engine, a petition alleging that the base around the engine was too narrow, that the space between such base and the wheel pit was too narrow, that the employer negligently permitted such space to become greasy and slippery, that the engineer slipped on the greasy door, and fell, or stepped, or otherwise got into the pit, and was injured by contact with the wheel, was insufficient, as it failed to ■advise the employer upon what ground a recovery was sought.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.]
    2. Master and Servant (§ 209) — Liability eor Injuries — Assumption oe Risk.
    An experienced engineer, who for ten days had exclusive control of a stationary engine, assumed the risk of an injury from the height of the base on which the engine rested, the narrowness of the space between such base and the wheel pit, the absence of any guard for the pit except an iron bar, four feet high, running across the middle thereof, and the slippery condition of the floor caused by oil dropped thereon by himself while oiling the drivewheel and engine, and hence could not recover for slipping and falling into the pit, coming in contact with the ‘drivewheel, as he knew the danger involved.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. § 209.]
    3. Pleading (§ 34) — Petition—Construing Against Pleader.
    In an action for the death of an engineer in exclusive control of a stationary engine, where the petition alleged that he had ■ oiled ■the engine and a drivewheel connected therewith, and that the floor was greasy and slippery, but failed to show that any other person ■ caused the greasy and slippery ^condition, it would be construed against plaintiff, and concluded that he' spilled the oil on the floor himself.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.] ■
    Error to Court of Civil Appeals of Sixth : Supreme Judicial District.
    Action by Mrs. Agnes Snipes and others against the Bomar Cotton Oil Company. A . judgment for defendant on demurrer was affirmed'by the Court of Civil Appeals (137 S. W. 428), and plaintiffs bring error.
    Affirmed.
    Potter, Culp & Culp, of Gainesville, and Jas. T. Miller, of Dallas, for plaintiffs in error. Davis & Thomason and Garnett & Garnett, all of Gainesville, and Walter E. Seay, of Dallas, for defendant in error.

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

   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement: “The suit is by the wife and children of James A. Snipes to recover the damages suffered on account of his death. The court sustained a general demurrer to the petition, and, upon the appellants declining to amend, judgment was entered in favor of the appellee. The ruling of the court in sustaining the demurrer is made the basis of the assignment for error. The petition alleged the facts to be that James A. Snipes was employed by appellee as an engineer to run and operate the engine and machinery at its cotton oil mill. The engine was set on a cement base, which was about six inches wider on the side than the engine, and about six inches higher than the surrounding floor of the room. In order to reach and oil the knuckle, or eccentric, on the engine, it was necessary and required that the engineer should stand on this extended space of the cement base upon which the engine rested. Connected to the engine by a shaft was a large drivewheel, which revolved with great rapidity and force. It was situated to the north and near the engine, and extended farther west than the engine. The space between the engine and the wheel was used as a passageway in performing duties about the machinery. This wheel revolved partly above the floor of the room and partly below the floor. To enable the wheel to properly revolve below the floor, an opening was made in the floor, and there was excavated beneath a pit just large enough for the wheel to have clear space in its revolutions. The opening in the floor on the side of the wheel was about fourteen inches, and was safeguarded by an iron rail, about four feet high, running across the- middle of the same. It was alleged that Snipes had worked about the machinery and engine and room for about ten days before his death, and had frequently stepped upon and occupied the extension of the cement base to oil and handle the eccentric, as was his duty, and constantly used the passageway for his work. It is alleged that on October 16, 1909, ‘the said James A. Snipes, acting prudently and in the performance of his duty, went between the engine and the drivewheel and pit, and his feet slipped under him on the broken, uneven, and greasy floor, and he was precipitated into the unprotected pit around said wheel, or he stepped into said pit while at his work, or otherwise came into contact with said unprotected wheel when said wheel was revolving with much rapidity and force, and, his clothes and limbs becoming entangled in said wheel, he was instantly torn, and mutilated, and killed.’ ”

“The object of pleading is to notify the opposite party of what it is expected to prove as the ground of plaintiff’s action or the defendant’s defense, so that he may prepare for the trial of the issues thus tendered. Lemmon v. Hanley, 28 Tex. 220. To determine whether or not a pleading presents a certain issue, it is a safe rule to look at the pleading from the standpoint of the party against whom it is exhibited, and ascertain if the allegations are sufficient to notify him that the evidence offered will be produced, or that he will be called upon to present evidence to meet it.” W. H. Ware v. Shafer & Braden, 88 Tex. 46, 29 S. W. 756. See Lemmon v. Hanley, 28 Tex. 220.

Relying upon the allegations of the petition, could the defendant tell upon which of the grounds alleged plaintiff would rely for recovery? The petition alleged that the base around the engine was too narrow; but no allegation points out in what manner that fact contributed to the death of Snipes. It is alleged that the space between the base on which the engine rested and the pit in which the wheel was operated was too narrow; but it is not alleged that the fact caused or contributed to the injury. It is alleged that defendant negligently permitted the cement space around the pit to become greasy and slippery, and that deceased slipped on the greasy cement, and fell into the pit, or that he stepped into the pit, or otherwise got into the pit, and was injured. How could defendant have prepared to meet proof that deceased slipped and fell into the pit, or that he stepped into the pit, whereas, plaintiffs might' prove that deceased got into the pit “otherwise,” that is, in any unknown manner? It is manifest that there was no such certainty in the allegations of petition as .the law required; therefore the general demurrer was properly sustained.

Each fact alleged to have caused or contributed to the death of Snipes was unquestionably obvious to him. He was an experienced engineer, and for ten days had exclusive control of the machinery. The height of the base ón which the engine rested and the width of the space between the base and the pit were physical conditions which must have been observed in their use. The fact that there was but one iron bar to guard the pit must have been known to a man who approached it so frequently, and who must have come into contact with the bar; he could not possibly have failed to observe the fact that but one rod guarded the pit. Deceased is alleged to have oiled both drive-wheel and engine, and no allegation is made from which it may be concluded that another person caused the cement floor to be “greasy and slippery”; therefore the conclusion must be reached that Snipes spilled the oil on the cement. The allegations, being indefinite as to that fact, must be construed against the pleader. Webb County v. School Trustees, 96 Tex. 187, 65 S. W. 878.

It is manifest that Snipes must have known of the defects alleged, and, being experienced in such service, knew the danger involved in performing the service; therefore he assumed the risk. Texas & Pacific Railway Company v. Bradford, 66 Tex. 732, 2 S. W. 595, 59 Am. Rep. 639.

The judgments of the district court and of the Court of Civil Appeals are affirmed.


author: PHILLIPS, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. PEMBERTON.
    (Supreme Court of Texas.
    Dec. 3, 1913.)
    1. Appeal and Erbob (§ 361) — Petition fob Wbit of Ebbob — Sufficiency.
    Where the Court of Civil Appeals refused to consider the assignments of error on the ground that they did not comply with the rules, it in effect overruled them, and a motion for a rehearing and a petition to the Supreme Court for a writ of error were not defective because they complained only of the “overruling” of the assignments.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1941-1959; Dec. Dig. § 361.]
    2. Appeal and Ebbob (§ 743) — Assignments of Ebbob — Sufficiency. •
    ■The purpose of rule 23 for Courts of Civil Appeals (142 S. W. xii), requiring the record to contain an assignment of errors, rule 24 (142 S. W. xii), providing that the ground of error presented in an assignment must have been set forth in a motion for a new trial unless fundamental, and rule 25 (142 Si W. xii), requiring the assignment to refer to that portion of such motion where the same error was complained of, is to confine the appellant in the Court of Civil Appeals to such grounds of error as were brought to the attention of the trial court in the. motion, to assure the Court' of Civil Appeals that the error assigned was urged in such motion, and to enable it to verify the identity of the errors; and where the assignments, though not in literal compliance with the rules, substantially perform this' purpose, they should be considered, since, while the rules constitute a necessary limitation upon the exercise of the right of appeal, the preservation of that right is ' of equal concern ' with the enforcement of rules of .practice. • ■
    [Ed. Note. — Eor other cases, sée Appeal and Error. Cent. Dig. §§ 2999; 3011; Dec. Dig. § 743.]

      3. Appeal and Error (§ 743) — Assignments op Error — Sufficiency.
    Assignments of error, referring by number to the paragraphs of the motion for a new trial, where the assigned errors were complained of, but not referring to the page of the transcript where the motion or the particular paragraphs mentioned might be found, were in literal compliance with rule 24 for Courts of Civil Appeals (142 S. W. xii), providing that the ground of error assigned must have been set forth in the motion for a new trial, and rule 25, requiring the assignment to refer to that portion of the motion where the same error was complained of; and hence the Court of Civil Appeals improperly refused to consider them.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    4. Appeal and Error (§ 742) — Assignments op Error — Statements.
    Under rule 31 for Courts of Civil Appeals (142 S. W. xiii), providing that there shall be subjoined to the propositions under an assignment of error a' brief statement, in substance, of such proceedings, or part thereof, in the record as will be necessary and sufficient to explain and support the proposition with a reference to the pages of the record, the statement need not refer to the page of the transcript where the motion for a new trial complaining of the assigned error may be found, unless such motion is necessary to explain and support the proposition, as the statement need not refer to such page for the purpose of showing that the error was presented in such motion.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.]
    5. Appeal and Error (§ 742) — Jurisdiction oe Supreme Court — Discretionary Matters.
    Under such rule, where the statements did not refer to the pages of the transcript, where the proceedings necessary to support and explain the propositions might be found, the refusal of the Court of Civil Appeals, in its discretion, to consider the assignments of error would not be reviewed by the Supreme Court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Henry Pemberton against the Chicago, Rock Island & Gulf Railway Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (155 S. W. 652), and defendant brings error.
    Reversed and remanded to the Court of Civil Appeals.
    Lassiter, Harrison & Rowland, of Ft. Worth, and Bennett Hill, of Dallas, for plaintiff in error. W. L. Crawford, Jr., and Carden, Starling, Carden & Hemphill, all of- Dallas, for defendant in error.

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

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

   PHILLIPS, J.

The plaintiff in error was the appellant in the honorable Court of Civil Appeals, and, on the appeal of the case, filed in that court its brief submitting four assignments of error. The court declined to consider any of the assignments, for the reason, as stated in its opinion, that none of them complied with rules 23, 24, and 25 prescribed by this court (142 S. W. xii) for the preparations of briefs, in that the brief failed to point out the page of the transcript where the alleged error was called to the attention of the trial court in a motion for new trial, or to anywhere point out the page of the transcript where the motion for a new trial was to be found, and affirmed the judgment of the trial court.

Objection is made by the defendant in error to .our reviewing the action of the Court of Civil Appeals, upon the ground that the petition for the writ of error, as did the motion for rehearing, complains only of the “overruling” of the assignments as distinguished from the refusal to consider them. While they were not expressly overruled, the effect of the court’s action upon the appeal amounted to that result. The appellant was at liberty, therefore, to treat them as overruled, and its assignments of error in the motion for rehearing and petition for writ of error, so framed, sufficiently challenge the ruling. We are not disposed, at all events, to deny them consideration because not couched in exact and technical phrase.

The first assignment of error presented in the brief of the plaintiff in error in the Court of Civil Appeals is as follows: “The court erred in overruling defendant’s motion for a new trial on the first ground stated therein, to wit, that the verdict of the jury was excessive, and in overruling defendant’s motion for a new trial, for this reason, as stated in the first paragraph thereof.” Under it the following proposition is submitted : “A fair consideration of the evidence in this case shows that the plaintiff’s Injury was comparatively inconsiderable, and that the verdict is grossly excessive.” To the proposition is subjoined a statement of the testimony, constituting nearly three pages of the brief, in which at intervals reference is made to the pages of the statement of facts by number. Each of the other three assignments of error concludes with substantially the same sentence as the first assignment, containing in each instance a reference by number to the paragraph of the motion for a new trial where the same ground of error is presented. It is true that the page of the transcript for the particular paragraph of the motion is not given in any assignment, or in the statement under it. Nor does the brief anywhere designate the page of the transcript where the motion for a new trial may be found. But this was not necessary in our opinion under either of the rules upon which the honorable Court of Civil Appeals predicates its refusal to consider the assignments.

Rule 23 provides that the record shall contain an assignment of errors as required by the statute. It makes no reference to the motion for a new trial. In rule 24 it is provided that the ground of error presented in an assignment must have been set forth in the motion for a new trial; otherwise it will .be considered as waived unless it be fundamental In its nature. And under rule 25 It is required that the assignment refer to that portion of the motion for a new trial where the same error is complained of. The purpose of rules 24 and 25 in their relation to the motion for a new trial is obvious. It is, first to confine the appellant in the Court of Civil Appeals to the submission of only such grounds of error as were brought to the attention of the trial court in the motion; second, to assure the Court of Civil Appeals that the error assigned was urged in the motion; and, third, to enable the court to verify their identity. It is plain, however, that the rules do not require that the brief furnish the court any further means for such verification than “the reference” in the assignment “to that portion of the motion for a new trial in which the error is complained of,” as is stated in rule 25, since they make no other provision in that respect. There is no suggestion that, in addition to the reference to that portion of the motion complaining of the error, required by rule 25, there shall also be given the page of the transcript containing such part of the motion, or where the motion may be found. This court in its amendment of rule 25, incorporating this provision, doubtless considered the reference to such particular part of the motion a sufficient designation of the record. It is not improbable that it recognized the difficulty of complying with any requirement that the assignment contain any further designation, particularly the transcript page of the motion — and it is evident that it regarded the assignment as the appropriate place for the designation — since the appellant complies fully with another rule if he faithfully copies in his brief the assignment as filed in the trial court; and in filing his assignments in that court it is frequently impossible for him to know the transcript page of the motion, as generally the transcript is not prepared until after the assignments of error are filed.

In the application of rules 24 and 25 the brief does not involve the motion for a new trial, except for the purpose we have stated, and, whenever the brief makes faithful attempt to accomplish such purpose by the assignment only of errors presented in the motion, a statement to that effect, with a reference in the assignment to the particular part of the motion, or a designation of the pages of the record in immediate connection with the assignment, such as will enable the court to readily compare the assignment with the motion; in other words, whenever the presentation of the assignment of error substantially performs the office in respect to the motion for a new trial intended by these rules, it is entitled to consideration, though the letter of the rules be not strictly followed. The rules were enacted ■ for the benefit of the Courts of Civil Appeals, and to facilitate their labors by relieving them of some part of the burden which the examination of the numerous and voluminous records before them necessarily imposes. They should be observed; and as they relate to the work of those courts, we are at all times reluctant to revise their enforcement of them. But it was not intended in their adoption to incumber the Courts of Civil Appeals with technical and arbitrary requirements, or to enjoin such rigid adherence to them as precludes their observance by a reasonable and substantial compliance. While they constitute a necessary limitation upon the exercise of the right of appeal, the preservation of that right is of equal concern with the enforcement of rules of practice; and, in our opinion, it should never be denied where by a substantial compliance with their provisions the purpose of such rules is effectually subserved and their end practically accomplished. These assignments comply literally, we think, with rules 24 and 25, and, so far as affected by those rules, were entitled to consideration by the court

The Court of Civil Appeals, as we have stated, based, its refusal to consider the assignments only upon the failure of the brief to comply with rules 23, 24, and 25. The defendant in error, however, insists that under rule 31 (142 S. W. xiii), which relates to the preparation of the statement subjoined to the proposition submitted, it was required that the transcript page of the motion for a new trial be given. That rule provides that under the proposition there shall be made a brief statement, in substance, of such proceedings, or part thereof, in the record, “as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record.” If it had been necessary to state any part of the motion for a new trial in order to explain and support the several propositions under the assignments, this rule would have been applicable, but such does not appear to have been the case. It has no application to the motion for any other purpose, and distinctly not for the purpose of its being shown that the ground of error specified in the assignment was likewise presented in the motion.

It is further urged by the defendant in error that the statements as made, subjoined to the propositions submitted under the second, third, and fourth assignments, are not in compliance with rule 31, and that the court properly refused to consider those assignments, because of the want of reference to the pages of the record. The statements under the assignments just named are defective in this particular. The second assignment is based upon the refusal ro give a special charge. The statement gives the number of the charge and copies it literally, but omits to give the page of the transcript where it may be found. It further purports to give the substance of certain testimony upon the issue submitted in the charge, and with respect thereto gives the transcript pages. The third and fourth assignments both relate to matters made the subject of bills of exception. In the statements the bills are referred to by number, and copied in full, but reference to the pages of the transcript where found is omitted. While the statements under these three assignments are defective in the particular stated, their accuracy was not questioned in the Court of Civil Appeals by the defendant in error, and for this reason we believe the court would have been warranted in considering the assignments, but we do not consider it within our province to revise the exercise of discretion by the Court of Civil Appeals, where the statement wholly fails to refer to the pages of the record, and the assignment is not considered for that reason.

The judgment of the Court of Civil Appeals is reversed, and the cause is remanded to that court for the consideration of the first assignment of error in the brief filed in that court by the plaintiff in error, and for the consideration of the remaining three assignments, unless the court is of the opinion it should refuse to do so because of the statements thereunder being defective in the respect stated, under rule 31.

Reversed and remanded to the Court of Civil Appeals.


author: RICE, J.

text:
    HARRIS v. TOWNLEY.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 19, 1913.)
    1. Exemptions (§ 45) — Articles of Trade-Tools — ‘ ‘Apparatus. ’ ’
    Rev. Civ. St. 1911, art. 3785, subd. 5, exempts all tools, apparatus, and books belonging to any trade or profession from attachment, execution, and any other species of forced sale for the payment of debts, except as otherwise provided. Held, that the word “apparatus” means a complex device or machine designed for the accomplishment of a special purpose ; a complex instrument or appliance, mechanical or chemical, for a specific action or operation; machinery; mechanism — and included a printing press, engine, and other articles in daily use by the publisher and .proprietor of a newspaper and necessary for the conduct of his business.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. § 45.

    For other definitions, see Words and Phrases, vol. 1, pp. 439, 440.]
    2. Landlord and Tenant (§ 246) — Lien— Property Subject.
    Under Rev. Civ. St. 1911, art 5490, providing that the landlord and tenant act was not intended to repeal the exemption laws of the state, a landlord has no lien on property of the tenant which is exempt from execution and forced sale.
    [Ed. Note. — For other eases, see Landlord and Tenant, Cent Dig. §§ 991-1002; Dec. Dig. § 246.]
    Appeal from Lampasas County Court; M. M. White, Judge.
    Action by F. J. Harris against M. D. Town-ley. Judgment for plaintiff for less than relief demanded, and he appeals.
    Affirmed.
    A. McFarland, of Lampasas, for appellant. H. F. Lewis and Word & Walker, all of Lampasas, for appellee.

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

   RICE, J.

Appellant brought this suit against appellee to recover the sum of $384.-50, balance claimed to be due for rent of a certain building situated in the town of Lam-pasas, which had been rented to him by appellant and which was used by appellee as a printing office, and to foreclose his landlord’s lien upon one 6-column quarto Country Campbell press, one typewriter, certain type and type cases, one desk, iron safe, together with a certain gasoline engine used for the operation of said press, as well as other furniture and fixtures belonging thereto. After a general and several special exceptions, defendant answered- that he was a resident of said state and county and was the owner of said property, using it in connection with his business, that of editing, publishing, and printing the “Lampasas Blade,” a weekly newspaper, together with his job or commercial printing business; that he was a printer and publisher by trade and had no other trade or profession by which to support his family; that said articles were in daily use by him in his business and useful and necessary in tbe prosecution thereof, and without them he could not continue the printing and publication of said newspaper —for which reasons he claimed that they were exempt under the laws of this state from forced sale. A jury being waived, there was a trial before the court, resulting in judgment for appellant in the amount sued for, with foreclosure of his landlord’s lien on the safe and certain merchandise, unnecessary to mention; but the court refused to foreclose said lien upon the rest of said property, from which judgment this appeal is taken.

Revised Statutes, art. 3785, subdiv. -5, exempts all tools, apparatus, and books belonging to any trade or profession from attachment, execution, and every other species of forced sale for the payment of debts, except as otherwise provided; and the present ease does not fall within any of said exceptions. If said printing press and engines are exempt from such sale under the law, then it is conceded by appellant that the judgment is correct, otherwise it should be reversed.

The question presented is not an open one in this state but has been settled by several of our decisions, among others that of Green v. Raymond, 58 Tex. 80, 44 Am. Rep. 601, wherein a printing press and cases used in the printing office and owned by an editor and publisher were held exempt from forced sale under this statute, In discussing the expression “apparatus,” used in the statute, the court says: “The word ‘apparatus’ is strikingly apt, a generic term of the most comprehensive signification. The trade or profession of Raymond was that of- editor and publisher of a weekly newspaper. What tools and apparatus belonged to that trade or profession? It is the printing press, type, cases, etc., and not alone the pair of scissors, bottle of ink, and goosequill pen of the' editorial department. The apparatus belonging to the trade of a publisher must of necessity include the press, type, eases, etc., which are essential to the conducting of that business. The blacksmith could as well dispense with his anvil and hammer, the shoemaker with his awl and last, the farmer with his plow and hoe, as could the publisher dispense with his press, type, and cases; and yet all of these are exempt as belonging to these respective trades.” See, also, St. Louis Type Foundry v. Taylor, 35 S. W. 691; Same v. International Live Stock Journal Prtg. Co., 74 Tex. 651, 12 S. W. 842, 15 Am. St. Rep. 870; Betz v. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710; Patterson v. English, 142 S. W. 18.

Article 5490, Revised Statutes of 1911, specially provides that the landlord and tenant act is not intended to repeal the exemption laws of this state; and it has always been held by our courts that the exemption statutes should be liberally construed. We think it is immaterial that the press in this case was not run by hand but by this gasoline engine.

The word “apparatus” is not used in a restricted sense, as contended for by appellant. The Standard Dictionary defines “apparatus” thus: Any complex device or machine designed or prepared for the accomplishment of a special purpose. And Webster defines it as: Any complex instrument or appliance, mechanical or chemical, for a specific action or operation; machinery; mechanism. Under the word “tools,” in Bouvier’s Law Dictionary, a printing press-is referred to as an “apparatus.” In Wood v. Bresnahan, 63 Mich. 614, 30 N. W. 206, 208, a steam engine, shingle machine, and saw gummer in use or lately used in business are articles exempt from execution as being apparatus, enabling the person to carry on the business in which he is principally engagéd.

The court having found that appellee was the owner, publisher, and proprietor of a newspaper, and that the press, engine, and other articles above mentioned were in daily use by him and necessary for conducting his business, we conclude that he was correct in holding as matter of law, that they were exempt from forced sale under this statute, and that he properly refused to foreclose the landlord’s lien thereon, for which reason the judgment of the court below is in all things affirmed.

Affirmed.