text:
    JORDAN et al. v. JOHNSON et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 1, 1913.)
    1. Appeal and Error (§ 1058) — Harmless Error — Exclusion op Evidence.
    Any error in excluding the answers to questions in depositions was harmless, where ■ the same evidence was substantially embraced in answers 'given by the witnesses to other interrogatories, and introduced in evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.]
    2. Appeal and Error (§ 1050) — Harmless Error — Admission of Evidence.
    Any error in admitting evidence was harmless, where similar evidence was admitted without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3.Witnesses (g 392) — Impeachment—Affidavit.
    An affidavit by a witness, containing statements in conflict with material evidence given by her on the stand was properly admitted for purposes of impeachment.
    [Ed. Note. — For other cases, see Witnesses, tat Dig. §§ 1249-1251, 1257; Dec. Dig. § 392.]
    4. Appeal and Error (§ 216) — Presentation Below — Limitation op Evidence.
    _ In the absence of a requested instruction limiting the effect of an affidavit by a witness containing statements conflicting with facts testified to by her on the stand, offered for the purposes of impeachment, appellant cannot complain that such affidavit might have been considered by the jury for other purposes.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216.]
    5. Marriage (§ 48) — Marriage by Repute.
    Proof of marriage may be made by evidence of common repute and public recognition by the parties thereto, including their declarations.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 76; Dee. Dig. § 48.]
    6. Trial (§ 240) — Instructions — Argumentative Instructions.
    A requested instruction which was argumentative was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.]
    7. Trial (§ 194) — Instructions—Weight op Evidence.
    A requested instruction which was on the weight of the evidence was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    8. Appeal and Error (§ 663) — Statement op Facts — Eppect op Certificate.
    Where the statement of facts is certified to as containing a full and correct statement of all of the evidence, the appellate court must accept it as such, though appellant’s brief asserts the contrary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2853-2855; Dec. Dig. § 663.]
    9. Marriage (§ 42) — Common-Law Marriage.
    The alleged wife’s testimony on the question of a common-law marriage would not be exclusive thereon; other competent evidence being admissible to establish it.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 70, 78; Dec. Dig. § 42.]
    Appeal from District Court, Parker County; D. M. Alexander, Special Judge.
    Action by Mary Jordan and others against Ed Johnson and another, in which Jane Britt and others'intervened. From a judgment for defendants and interveners, plaintiffs appeal.
    Affirmed.
    J. M. Richards and Sam Shadle, both of Weatherford, and Stephens & Miller, of Ft. Worth, for appellants. Stennis & Wilson, Jim L. McCall, and E. A. Swofford, all of Weatherford, for appellees.

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

   DUNKLIN, J.

This suit was in trespass to try title to recover 160 acres of land in Parker county.

Plaintiffs and defendants all claim title as heirs of Henry Owens, deceased, who owned the land at the date of his death. Mary Jordan, one of the plaintiffs, was a sister of Henry Owens, and the other plaintiffs are descendants of Aaron Walker, deceased, who was a brother of Henry Owens, and the remaining plaintiffs are descendants of Lizzie Fullirlove, deceased, who was a sister to Henry Owens. Henry Owens was formerly a slave; his master living in Louisiana, where plaintiffs all reside at the present time. After emancipation he took the name of Ful-lirlove for a while, that being the name of his former master, but later adopted the name of Henry Owens, while his brother seems to have adopted the surname of Walker, and his sister the name of Fullirlove. Shortly after the close of the Civil War Henry Owens moved to Texas, and settled near the town of Acton, in Hood county, where he resided for some three or four years, and then moved to Parker county, where he resided until his death. Jane Riley, now Jane Britt, formerly a slave and owned by J. Riley, also resided near the town of Acton, in Hood county, and while Henry Owens resided in that vicinity she gave birth to two daughters, Ola and Lizzie, whose father was Henry Owens. Ola, one of these daughters, married Ed Johnson, and this suit was instituted by plaintiffs against her and her husband as defendants. The other daughter, Lizzie now deceased, married-Humphries. Her children joined- by her mother, Jane Britt, formerly Jane Riley, intervened in the suit, claiming that Jane Britt was the common-law wife of Henry Owens at the date of his death, and that the property in controversy was the community property of Henry Owens and his wife, Jane Britt, intervener, and that interveners together with defendant Ola Johnson, daughter of intervener, Jane Britt, are the sole heirs of Henry Owens, and entitled to undivided interests therein as follows: Jane Britt, one-half; the children of Lizzie Humphries, one-fourth ; and Ola Johnson, one-fourth. Inter-veners prayed for judgment for the interests so claimed by tbem, and intervener, Jane Britt, claimed a homestead interest in the land as the surviving wife of Henry Owens. Defendant Ola Johnson, who was older than her sister Lizzie Humphries, alleged that she, Ola Johnson, was born during the common-law marriage relationship 'of Hienry Owens and Jane Riley; that that marriage was dissolved; that she was the only child born of that marriage; that Lizzie Hum-phries was born after that marriage was dissolved, and after Henry Owens was lawfully married to Kate Riley, sister of Jane Riley. By their verdict the jury found that there was a common-law marriage between Henry Owens and Jane Riley, and that Ola Johnson and Lizzie Humphries were both children of that marriage and heirs at law of Henry Owens; that the heirs of Lizzie Humphries were entitled to one-half the land in controversy and Ola Johnson entitled to the remaining one-half. Upon their verdict a judgment was rendered vesting in interveners, who were descendants of Lizzie Humphries, a one-half interest in the land and in defendant Ola Johnson the remaining one-half interest, and that intervener Jane Britt and plaintiffs take nothing. From that judgment plaintiffs alone have appealed.

The statement of facts appearing in the record is confined to testimony upon the issues of the alleged heirship of the various parties to Henry Owens, including the chiefly contested issue of the alleged common-law marriage between Henry Owens and Jane Riley. In addition to the facts stated above, the following facts were also established by uncontroverted proof: About the year 1871 Henry Owens married Kate Riley, sister of Jane Riley, under the sanction of a marriage license duly issued. One child who died in infancy was the only fruit of that marriage, and Kate, the wife, afterwards died. It does not appear that Henry Owens again married after the death of Kate. After Henry Owens married Kate, her sister Jane Riley married Ike Chisholm, from whom she separated after a short time, and later married Herbert Britt, who joined with her pro forma as an intervener in this suit. The proof further shows that no divorce was ever granted dissolving the alleged common-law marriage between Henry Owen's and Jane Riley; that Jane Riley together with her mother, Grace Riley, and other members of her family, were present at the time of the marriage of Henry Owens to Kate Riley, which occurred in the home of Grace Riley; and that neither Jane nor her mother nor any one else questioned the lawful right of Henry Owens to marry Kate, in the absence of an annulment of the alleged common-law marriage of himself and Jane Riley through divorce proceedings in court.

By their first and second assignments errors are assigned to the exclusion of certain answers of certain witnesses given in their depositions. These assignments are overruled because the testimony thus excluded was substantially embraced in answers by the respective witnesses to other interrogatories and introduced in evidence.

Likewise the error, if any, in admitting the answers of several witnesses to certain interrogatories, the admission of which is complained of in the third, fourth, and fifth assignments of error, are overruled in view of the fact that the answers of the respective witnesses are substantially to the same effect as others admitted in evidence without objection.

The affidavit of Jane Britt, the admission of which is assigned as error in the sixth specification of error, contains statements which were in conflict with the material facts testified to by her on the witness stand, and was properly admitted because it was competent for the purpose of impeachment; and in the absence of an instruction limiting the affidavit to that purpose appellants cannot complain that the same might have been considered by the jury for another purpose.

By the seventh assignment of error appellants insist that the court erred in admitting the testimony'of several witnesses, some of whom testified that Henry Owens recognized Ola Johnson as his child, and claimed that he and Jane Riley were husband and wife, and that Henry Owens and Jane Riley claimed each other as husband and wife, and others testified that Jane Riley stated that she and Henry Owens were living together as husband and wife, all of which statements were alleged to have been made before Henry Owens married Kate Riley. One of the grounds of objection was that it did not appear that such recognition and claim of the marriage relations were open and, public. We think the testimony tends to show the contrary of this contention. S. T. Edwards, one of the witnésses, testified: “It was my understanding that she and Henry Owens claimed to be husband and wife.” An additional ground of objection to that statement was that it was hearsay and inadmissible. In the light of other testimony of last-named witness, we think the statement quoted amounts to no more than a statement of the general reputation of the marriage relation between Henry Owens and Jane Riley. The further grounds of objection, that Jane Riley was present in court and testified as a witness, and that her alleged former declarations were therefore not admissible, we think untenable.

It is well settled that proof of marriage may be made by evidence of common repute and by public recognition by the parties thereto, including their declarations. Wigmore on Evidence, §§ 1770-2083.

The court charged the jury on the statute of descent and distribution preliminary to the charge submitting the contested issues between the parties.

By the eighth, and ninth assignments appellants insist that there was error in the court’s1 failure in that connection to explain to the jury that the heirship provided by the statute in favor of a man’s child was limited to his legitimate children. These assignments are overruled because in a subsequent paragraph of the charge the right of Lizzie Humphries’ children and grandchildren and of defendant Ola Johnson to recover was1 made to depend upon proof of a common-law marriage between Jane Riley and Henry Owens.

It is insisted that there was error in the court’s refusal to give appellants’ requested instruction No. 1. That instruction contains a rehearsal of the facts and circumstances upon which appellants rely to refute the claim of the alleged common-law marriage between Henry Owens and Jane Britt, together with an ’instruction from the court to the jury to consider all these facts and circumstances in determining whether there was such a common-law marriage, and, furthermore, the requested instruction is highly argumentative; therefore it was1 properly refused, besides we thinlr the instruction given by the court upon the necessary essentials to constitute- a common-law marriage was sufficient.

Appellants’ requested instruction No. 4 was upon the issue of common-law marriage, and like instruction No. 1 was erroneous, in that it was upon the weight of the testimony.

By the thirteenth and last assignment appellants insist that the court erred in refusing to set aside the verdict and judgment because the evidence was insufficient to establish a common-law marriage between Henry Owens and Jane Riley. There is no proof in the record that the mother and father of Henry Owens were dead at the date of his death. In the absence of such proof, appel-lees insist that’ plaintiff is not entitled to recover, even though no title be shown in ap-pellees.

Appellants’ brief contains a statement substantially that evidence upon some of the issues was omitted from the statement of facts for convenience, and by direction of counsel, but to this statement counsel for appellees do not agree. At all events, the statement of facts is certified to as containing a full and correct statement of all the evidence adduced upon the trial, and we will be compelled to give that certificate full force and effect. Appellants insist, however, that as between them and interveners they, the appellants, are substantially in the same position as defendants, and interveners in the position of plaintiffs, and that, if the rule is invoked that plaintiffs must recover upon the strength of the title proven by them hnd not upon- tije weakness of'’defendant’s title, then they are in position to urge the insufficiency of the evidence to establish title recovered by the interveners. If there was a common-law marriage between Henry Owens and Jane Riley, who is now living, and from whom he was never divorced, then, even though the parents of Henry Owens survive him, they inherit no interest in the property.

The evidence presents a “Comedy of Errors,” but we think it sufficient to support the verdict, especially in view of the manifest benighted moral and social conceptions of the principal actors1; and as the jury, who had the witnesses before them with a better opportunity to determine their credibility than is-presented, to us1, and as the trial judge has approved their findings, we do not feel warranted in setting aside the verdict, notwithstanding Jane Britt testified that she and I-Ienry Owens were never married, “but just took up together” with the- understanding that, “when he saw anybody he liked better, he would take her, and if I saw anybody I liked better I would take him.”

If as a matter of fact the common-law relationship did exist between herself and Henry Owens at the dates of the births-of her daughters Lizzie and Ola, this fact could be established by competent evidence, and her testimony on the witness stand would not be exclusive of other competent testimony to establish that relationship. Chapman v. Chapman, 16 Tex. Civ. App. 382, 41 S. W. 533; Id., 88 Tex. 641, 32 S. W. 871. As noted already, the proof shows that no-divorce was ever granted by any court dissolving the alleged common-law marriage between Henry Owens and Jane Riley. It follows from this that, if the marriage relation ever existed, it continued up to the date of the death of Henry Owens and as his alleged wife, Kate, and his only child by her,, both died before the death of Henry Owens, this removing any possible claim of title to the property by Kate or- her child, by reason of the marriage of Henry and Kate, it would • seem to follow conclusively that, if Ola Johnson and the descendants of Lizzie-Humphries were entitled to recover any portion of the land, their motherTJane Britt, was also entitled to recover an interest therein. But intervener Jane Britt has not appealed from the judgment denying her claim of title; and, even though the interveners who did recover a one-half interest in the property be considered as plaintiffs against the appellants, they would still be entitled to recover the interest of their mother as well as the interest shown to be in them, they being tenants in common with their mother.

The judgment is affirmed,


source: Caselaw Access Project

author: DUNKLIN, J,

license: Public Domain

text:
    WHITAKER et al. v. BROWNING et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 30, 1912.
    On Motion for Rehearing, Feb. 15, 1913.)
    1. Actions (§ 57) — Consolidation of Causes.
    Where in trespass to try title, - because of disclaimers filed by the parties, the only issues involved were issues of boundary, the correct location of which depended on the same proof, 'a consolidation of the causes was not prejudicial.
    [Ed. Note. — For other cases, see Actions, Cent. Dig. §§ 632-675; Dec. Dig. § 57.]
    2. Continuance (§ 22) — Grounds—Absence of Witnesses — Stipulations.
    It is not error to deny a continuance on the ground of the absence of a witness, whose testimony is in the record of the trial of_ a companion case and available to the parties ■pursuant to a stipulation signed by them.
    [Ed. Note. — For other eases, see Continuance, Cent. Dig. §§ 58-67; Dec. Dig. § 22.]
    3. New Trial (§§ 47, 56) — Misconduct of Pbesiding Judge — Communication with Jury.
    Rev. Civ. ‘St. 1911, art. 2021, making a communication with the jury during their deliberation a ground for new trial, provided such ■communication is material, includes a communication made by the judge, but a new trial will not be granted unless injury resulted therefrom.
    [Ed. Note. — F'or other cases, see New Trial, Cent.Dig. §§ 88-95,116-119; Dec.Dig. §§ 47, 56.]
    On Motion for Rehearing.
    4. Evidence (§ 342) — Records — Certified Copies.
    Under Rev. Civ. St. 1911, art. 3700, making a certified copy of any instrument affecting title to land admissible in evidence when a proper predicate is laid, and article 5445, declaring that a certificate that a person named has- filed proof of residence and occupancy of land for three years-is a muniinent of title and may be recorded, a certified copy of such a certificate is admissible in evidence on a proper predicate being laid.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1302-1314; Dec. Dig. § 342.]
    5. Appeal and Error (§ 1051) — Harmless Error — Erroneous Admission of Evidence.
    The error, if any, in admitting evidence to prove a fact shown by competent evidence is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    6. Evidence (§ 175) — Records—Admissibility.
    Excerpts from the Abstract of Texas Band -Titles, published by the land commissioner as required by Rev. Civ. St. 1911, art. 5389, are admissible in evidence in trespass to try title.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 561, 565, 568, 569; Dec. Dig. § 175.]
    Appeal from District Court, Baylor County; J. A. P. Dickson, Judge.
    Action between B. F. Whitaker and others and Mrs. Jennie Browning and others. From a judgment for the latter, the former appeal.
    Affirmed.
    W. N. Coombes, -of Benjamin, -H. -G. McConnell, of Haskell, and Theodore Mack, of Ft. Worth, for appellants. Cowan & Burney, of Ft. Worth, R. S. Holman, of Spur, Stephens & Miller, of Ft. Worth, and B. G. Wors-wick, of Dickens, for appellees'. - .

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

   Conclusions.

DUNKLIN, J,

In view of the disclaimers filed by all parties, leaving the only issues to be tried issues of boundary only, the correct location of which depended upon the same':proof, namely, the original'location of the block of surveys, including all the land in controversy, and which were all located at the same time by the same surveyor, appellants could not have been prejudiced by the consolidation of causes mentioned in thé first assignment of error. -

There was no error in overruling appellants’ application for continuance, as the testimony of the absent witness was in the record of the trial of the companion ease of Jennie Johnson v. C. C. Haile, and was available to appellants under the agreement signed by all parties that the same might be used as evidence upon the trial of this cause.

It clearly appears that the communication with the jury by the trial judge, made the basis of the third assignment of error, had no efiieet whatever upon the minds of the jury in reaching their verdict. Article 2021, Revised Statutes 1911, which was enacted in 1905, makes a communication with a jury during their -deliberations a sufficient ground for a new trial in the event only that such communication be found material. That statute is broad enough to include the action of the judge now complained of within the communications therein mentioned. This statute was not discussed by our Supreme Court in the case of Tex. Mid. Ry. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137. But whether or not it was there considered can make no difference, we think, in determining the merits of the assignment now under discussion, since, under the new rule adopted by our Supreme Court, the communication would not be reversible error if no injury resulted therefrom.

In view of the fact that appellants filed disclaimers of title to the east half of A. C. H. &.B. Railway Survey No. 4, claimed by Mrs. McCarty, leaving, as above noted, the only issues to be tried between all the parties issues of boundary only, assignments Nos. 4, 5, 6, 7, 8, 9, and 11, complaining of the admission of evidence to prove-Mrs. McCarty’s title, are overruled. For the same reason there was no error in the refusal of appellants’ requested instruction No. 1 peremptorily directing a verdict in their favor against Mrs. McCarty. Viewing all the special findings contained in the verdict in the light of the evidence introduced, it is clear that the Jury concluded that the work on the ground by Surveyor Williams was correct, and that the true locations of all the disputed boundaries were the same as those recited in the Judgment afterwards rendered. Houston v. Darnell Lbr. Co., 146 S. W. 1061. We are of the opinion further that the verdict and Judgment are supported by the evidence.

The judgment is affirmed.

On Motion for Rehearing.

In our original opinion we were in error in stating that appellants had filed disclaimers of title to the east half of A. O. H. & B. Railway Survey No. 4 claimed by Mrs. McCarty. Hence it becomes necessary to discuss the merits of appellant’s1 assignments Nos. 4, 5, 6, 7, 8, 9, and 11. Mrs. McCarty 'filed a plea over against appellant B. F. Whitaker in the form of trespass to try title to recover that land. To this plea over B. F. Whitaker filed a plea of general denial and not guilty. No issue was joined between Mrs. McCarty and appellant Cannon relative to this land. Cannon did not claim the land, and neither did Mrs. McCarty seek to recover from him.

By the ninth assignment of error complaint is made of the admission in evidence of a certified copy of a certificate from the Commissioner of the General Land Office that W. G. McCarty had filed proof of residence and occupancy of the land for three consecutive years, as required by the statute, and that the land was originally sold to J. F. Speer. One objection made to the admission of that testimony was because “it is only secondary and admissible only after the best evidence has been accounted for.” There were other, grounds of objection, but the one just stated is the only ground of objection assigned in the proposition submitted under the assignment now under discussion. By article 5445, Rev. Statutes 1911, such a certificate from the Land Commissioner is expressly made a muniment of title permitted to be recorded by the county clerk; and by article 3700 of Revised Statutes a certified copy of any instrument affecting title to land is made admissible in evidence when the predicate therein prescribed is complied with. There is nothing to show that the proper predicate had not been laid for the introduction of this certified copy , rather than the original. Hence the assignment is overruled.

If the cards issued by the Commissioner of the General Land Office and mentioned in the seventh and eighth assignments of error were improperly admitted in evidence, the error was harmless, as the certificate of the Land Commissioner mentioned above was sufficient prima facie to show title out of the state. Binion v. Harris, 32 Tex. Civ. App. 371, 74 S. W. 580.

According to the decision in Jones v. Wagner, 141 S. W. 280, the excerpts from the Abstract of Texas Land Titles, shown in the fifth and sixth assignments of error, were admissible. By statute it is made the duty of the Land Commissioner to publish abstracts for patented title and surveyed lands. Article 5389, Revised Statutes 1911. A writ of error in the ease of Jones v. Wagner, supra, was denied by our Supreme Court, as shown in 142 S. W. xxxvii. But even though it be said that that decision is in conflict with the decision of our Supreme Court in Bassett v. Martin, 83 Tex. 339, 18 S. W. 587, and erroneous, nevertheless the error in admitting such abstract was harmless, as the same fact shown by this evidence was established by the certificate of the Land Commissioner of proof of occupancy of the land for the period of three years, as shown above. And, with that proof properly in the record, the transfer from C. M. Speer to W. G. McCarty, mentioned in the sixth assignment of error, and the deed from W. G. McCarty to J. J. McCarty, mentioned in the eleventh asL signment of error, were properly admitted, and the peremptory instruction requested by appellants and referred to in the tenth assignment of error was properly refused.

Motion overruled.


author: MOURSUND, J.

text:
    SIMMANG v. CHENEY et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 16, 1913.)
    1. Appeal and Error (§ 334)—Weit 0p Ee-boe—Parties.
    A petition for writ of error, naming three persons as defendants in error, could not be considered as the suing out of a writ of error as to the executrix of one of them, who had previously died.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1848, 1851-1863; Dec. Dig. § 334.]
    2. Appeal and Ebeob (§ 395)—Wbxt of Error—Bond.
    Where the obligee in a bond given for writ of error was dead when the bond was executed, it was a nullity, and could confer no jurisdiction on the appellate court.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 2064^-2070, 2085, 2086, 3127; Dec. Dig. § 395.]
    Error to District Court, Bexar County; A. W. Seeligson, Judge.
    Action between Frank Simmang and George P. Cheney and others. From a judgment in favor of the latter, Simmang brings error.
    Dismissed.
    Jno. C. North, of San Antonio, for plaintiff in error.

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

   MOURSUND, J.

A motion has been made to dismiss the writ of error, on the ground that the writ of error supersedeas bond is payable solely to George P. Cheney, and that at the time said bond was executed and filed Cheney was dead, as was shown at the time by sworn statement of his death, made by his widow, Sarah Cheney, to which is attached a copy of letters testamentary issued to her as independent executrix of his will, on file among the papers of the cause, as provided by article 3720, Revised Statutes 1911.

While said sworn statement was' filed August 29, 1912, and an order of sale issued, yet in the petition for writ of error, filed October 25, 1912, no mention is made of the death of Geo. P. Cheney, nor of the fact that the order of sale, mentioned therein as having. been levied, was issued in favor of Sarah Cheney, executrix. The petition makes George P. Cheney, Carl Haeberle, and D. A. McAskill defendants in error; but the bond is payable only to Cheney. The petition for writ of error cannot be considered the suing out of a writ of error as to Sarah Cheney, executrix. Western Union Telegraph Co. v. Wofford, 32 Tex. Civ. App. 427, 72 S. W. 620, 74 S. W. 943.

It is also well settled that, when the obligee in an appeal or writ of error bond is dead at the time of its execution, such bond is a nullity, and can confer no jurisdiction upon the appellate court. Dial v. Rector, 12 Tex. 99; Johnson v. Robeson, 27 Tex. 526; Smith v. Williams & Parks, 55 Tex. 87; Futch v. Palmer, 11 Tex. Civ. App. 191, 32 S. W. 566; Terry v. Schultz, 38 S. W. 374; Ry. Co. v. Neal, 65 S. W. 49; Telegraph Co. v. Wofford, 32 Tex. Civ. App. 427, 72 S. W. 620, 74 S. W. 943.

Writ of error dismissed.


author: KEY, C. J.

text:
    CARTLEDGE v. WORTHAM, Secretary of State.
    (Court of Civil Appeals of Texas. Austin.
    March 26, 1913.)
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Suit by E. Cartledge against John L. Worth-am, Secretary of State. Prom a decree for defendant, plaintiff appeals. Certified to the Supreme Court. Questions answered 153 S. W. 297.
    Affirmed.
    Gregory, Batts & Brooks, of Austin, for appellant. B. F. Looney, Atty. Gen., and C. M. Cureton, Asst. Atty. Gen., for appellee.
   KEY, C. J.

In this suit appellant sought to contest an election, and restrain the Secretary of State from canvassing the vote and certifying the result of said election, by which a certain amendment to the Constitution was adopted.

The trial court sustained a general demurrer to the petition, and after the case was submitted in this court the controlling question was certified to the Supreme Court, and the ruling of that court sustains the action of the trial court, and therefore the judgment is affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    WHITEHURST v. WALKER.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1912.)
    Appeal from Wheeler County Court; J. B. Reynolds, Judge.
    Action between W. H. Whitehurst and W. S. Walker. From an adverse judgment, one of the parties appeals.
    Affirmed.
    L. D. Miller, of Shamrock, for appellant. Reynolds & Hill, of Shamrock, for appellee.
   HENDRICKS, J.

No briefs having been filed, and fundamental error not apparent in the record, the judgment is affirmed.


author: BROWN, C. J.

text:
    REED v. ROBERTSON et al.
    (Supreme Court of Texas.
    May 7, 1913.)
    1. Trial (§ 92) — Reception of Evidence-Motion TO STRIKE — ORDERS NUNC PRO Tunc.
    While nunc pro tunc orders are proper to record what actually occurred but was not entered of record, yet a nunc pro tunc order, sustaining a motion to strike evidence, filed after rendition of judgment, upon the ground that such evidence was not within the pleadings, is highly improper because making the record speak falsely; for parties have the right to have all the evidence, which was actually admitted, embodied in a statement of facts or bill of exceptions, and this procedure would falsify those instruments.
    [Ed. Note. — Eor other eases, see Trial, Cent. Dig. §§ 245, 252; Dec. Dig. § 92.*]
    2. Appeal and Eeeoe (§ 522) — Record — Preservation oe Evidence.
    Parties have the right to have all evidence which was admitted in a trial to the court embodied in a statement of facts or bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2367-2371; Dec. Dig. § '522.*]
    3. Estoppel (§ 110) — Pleading—Necessity.
    In trespass to try title a party relying up.on estoppel to defeat Ms adversary’s superior title must plead it.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. § 110.]
    4. Partition (§ 36) — Decree—Conclusiveness — Matters Concluded.
    Where administration was had upon the estate of defendant’s intestate, which consisted of two tracts of land, located under a head-right certificate, and the county court in which the administration proceedings were had partitioned the larger tract of land covered by the certificate among the other heirs to the exclusion of defendant, and the parceners floated the certificate as to that tract, taking a certificate for the unlocated balance, which was subsequently located, defendant has no right in the land so located; the decree having the same effect as if the partition had been made by a deed or deeds conveying to each heir the portion of land which he received.
    [Ed. Note. — For other cases, see Partition, Dec. Dig. § 36.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by IT. B. Reed, against S. C. Robertson and others. • A judgment for the defendant named was affirmed on appeal to the Court of Civil Appeals (150 S. W. 306), and plaintiff brings error.
    Reversed and rendered.
    IT. C. Ferguson, of Bubbock, for plaintiff in error. Bean & Klett, of Lubbock, for defendants in error.

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

   BROWN, C. J.

Plaintiff sued the unknown heirs of Jas. R. Robertson in an action of trespass to try title for a tract of land in Lubbock county granted by patent No. 49, vol. 23, dated June 17, 1879, “located by virtue of unlocated balance certificate No. 23/113 issued to Jas. R. Robertson and being the unlocated balance certificate of the headright of said Jas. R. Robertson granting to the heirs of Jas. R. Robertson 15,404,634 square varas in Lubbock county and known as survey 33, which includes the land in controvery in this cause.” The trial was had before Hon. W. R. Spencer, judge of the district court of Lubbock county, without a jury.

This written agreement was introduced by the parties: “Be it remembered that on the trial of the above entitled and numbered causes that the following agreement shall be read as evidence on the trial thereof, to wit: That at the date of the death of Jas. R. Robertson and his wife, Susan Robertson, there were three children and descendants of two predeceased children entitled to inherit from the estate of Jas. R. Robertson and Susan Robertson, deceased, to wit, Hays H. Robertson, A. J. Robertson, and Fannie Napier, sons and daughter surviving, and Sterling C. Robertson, grandson, being the son of Eliza Hamer Robertson, daughter of Jas. R. Robertson and Susan Robertson, and Van Irion, grandson, being a son of Medora Robertson Irion, who was the daughter of Jas. R. Robertson and wife, Susan Robertson. It is further agreed that ITays H. Robertson, A. J. Robertson, and Fannie Napier each inherited a one-fifth interest in the estate of Jas. R. Robertson and Susan Robertson, deceased, and that Sterling O. Robertson, who was born April 20, 1849, inherited a one-fifth interest in the estate of Jas. R. Robertson and Susan Robertson, deceased, and that Van Irion inherited a one-fifth interest in the estate of Jas. R. Robertson and Susan Robertson, deceased. It is further agreed that the plaintiffs in these suits hold the title of Hays H. Robertson, A. J. Robertson, Fannie Napier, and Van Irion; and that the defendant Sterling O. Robertson is entitled to recover the other one-fifth of the estate of Jas. R. Robertson and Susan Robertson, unless defeated by the matters pleaded in the plaintiff’s petition to these suits.”

The effect of the above agreement was to eliminate from the case every issue but the right of Sterling O. Robertson in the land, and, under the agreement, the burden was upon the plaintiff to prove that Sterling C. Robertson never had an interest in this land or that the plaintiff had acquired that interest.

The statement of facts as made and filed by the judge does not contain the evidence as introduced, because after the evidence was admitted to the court, and after the court had heard the argument and had announced judgment for defendant Sterling 0. Robertson for one-fifth of the land, the plaintiff having filed no plea of estoppel, the judge gave permission to counsel for S. 0. Robertson to file a motion to strike out certain evidence, which motion was prepared and presented, and the judge directed the clerk to filé the motion as of date December 18, 1911; and the court after having given judgment for defendant on December 23, 1911, entered an order on that date striking out and refusing to consider the evidence introduced by plaintiff, which order was entered as of date December 19, 1911, the day on which the trial began. The reason assigned in the motion was that the facts sought to be proved constituted an estoppel against defendant- Robertson, and plaintiff had failed to plead such estoppel. We have never before known of such proceeding in any court. We see no reason to believe that the action was prompted by any improper motive of the judge, but it had the effect to make a false record against the plaintiff, and, if sustained, to deprive him of a statement of the facts proved on the trial. Nunc pro tunc orders are legitimate, that is, to record what actually occurred but which was not entered of record so as to make it disclose the truth. But this procedure reverses the rule and places on the record what is done now as if done then, making the record speak falsely. Whatever may have been the purpose, such action was unauthorized and must be disregarded by this court. Parties had the right to have all evidence which was admitted in a trial before the judge without a jury embodied in the statement of facts or bill of exceptions, so that if improperly excluded it may be considered by the appellate courts. In every essential the bill of exceptions in this case constitutes a statement of the facts proved and will be so considered.

If there had been a defense pleaded which would be sufficient to defeat plaintiff’s recovery, as a matter of law, but by reason of some conduct of Robertson the plaintiff had been deceived in the acquisition of his title, which fact would estop Robertson to set up the defense, then a plea setting up the estoppel would have been necessary; but no such conditions exist in this case; there was no estoppel to be pleaded.

The undisputed evidence admitted by the trial judge proves this state of facts: A certificate for one league and labor of- land was issued to Jas. R. Robertson in 1841, which was located in Robertson county, Tex., making two contiguous surveys. Jas. R. Robertson and his wife died, and administration upon their estate was had in the county court of Robertson county. The land was partitioned among the five heirs, and, by the judgment of the court regularly entered, the four heirs under whom plaintiff claims received the larger survey in several tracts; Sterling C. Robertson was not given any part of that survey. For some reason not necessary to be stated, the certificate was floated from the larger survey at the instance of the four heirs to whom it was allotted in the partition, and a certificate for an unlocated balance was issued and delivered to the said four heirs, which was located upon this land. The question here arises: To whom did the certificate for the unlocated balance belong? The judgment of the county court is conclusive of the rights of the parties and vested title to each heir in the apportionment of the land so allotted.

The effect of the decree was to vest title to the land certificate by virtue of which the land was located, in each of the persons to whom the land was adjudged in the proportion of the number of acres allotted to each. Renick v. Dawson, 55 Tex. 102; Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300; Ansaldua v. Schwing, 81 Tex. 198, 16 S. W. 989; Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102. Many cases could be cited to this proposition. The effect of the decree was the same' as it would be if the partition had been made by a deed or deeds of partition conveying to each the given portion of the land.

S. C. Robertson had no right in that part of the certificate by which the land in suit was located; therefore he could have no right in or title to the land.'

It wás not necessary for the plaintiff to show that Sterling G. Robertson received anything in the partition; the judgment is conclusive of the rights of the parties; it is conclusively presumed to have properly adjusted the claims of all of the heirs.

The application for writ of error is granted, and, the defendant Robertson having answered the application, this court will proceed to enter final judgment.

It is ordered that the judgments of the district court and Court of Civil Appeals as to Sterling C. Robertson be reversed, and that judgment be here entered that the plaintiff in error, H. B. Reed, recover of said Sterling O. Robertson all of the interest claimed by him in the land sued for, and that said Robertson pay all costs of all courts, except that which was incurred in summoning the unknown heirs of Jas. R. Robertson. This cause will be remanded to the district court for the enforcement of this judgment.


text:
    CONLEY et al. v. DAUGHTERS OF THE REPUBLIC.
    (Supreme Court of Texas.
    April 30, 1913.)
    1. Constitutional Law (§ 26) — Power oe LEGISLATURE.
    The state Legislature has all governmental powers residing in the people, except as limited by the state and federal Constitutions.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 30; Dec. Dig. § 26.]
    2. States (§ 88) — Powers—Acquisition or Realty.
    Since the state has the same power to contract as a corporation or individual, including the power to acquire property by conveyance, etc., and dispose of it, the state had the power to acquire title to the Alamo property, and place it in the custody of the Daughters of the Republic of Texas, a corporation, as it did by Act Jan. 26, 1905 (Acts 29th Leg. e. 7).
    [Ed. Note. — For other cases, see States, Dec. Dig. § 88.]
    3. Officers (§ 1) — Definition.
    An “officer” is one who exercises some functions of government.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 1, 4; Dec. Dig. § 1.,
    For other definitions, see Words and Phrases, vol. 6, pp. 4933-4951; vol. 8, p. 7737.]
    4. States (§ 88) — Property— Trustee for State.
    The Daughters of the Republic of Texas by accepting the terms of Act Jan. 26, 1905 (Acts 29th Leg. c. 7), providing for the acquisition of the Alamo Mission and property by the state, and the placing of it in the custody of that corporation, became the trustee of the property for the,state.
    [Ed. Note. — For other cases, see States, Dec. Dig. g 88.]
    5. Corporations (§ 381) — Trustees — Who may Act.
    A corporation may act as a trustee for any purpose within the scope of its charter or the governing statute.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1541; Dec. Dig. § 381.]
    6. Trusts (§ 21) — Express Trusts. ,
    To constitute a direct trust, there must be a transfer to one capable of holding the property, or some object or fund, and also a cestui que trust or purpose to which the fund is to be applied.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 29, 30; Dec. Dig. § 21.]
    7. Statutes (§ 119) — Subject and Title-States.
    Act Jan. 26, 1905 (Acts 29th Leg. c. 7), is entitled “An act to provide for the purchase and conveyance to the state of the land in the city of San Antonio known as the Hugo & Schmeltzer Co. property which was a part of the Alamo Mission and for the care and preservation of said property and of the Alamo church property now owned by the state, and appropriating the sum of $65,000 to carry out the provisions of this act,” and the body of the act provided for the purchase of such property and for an appropriation of the sum named for payment therefor, and further provided that, upon receipt of the title, the Governor should deliver the property to the custody of the Daughters of the Republic of Texas, to be maintained by them in good repair without charge to the state, and that no alterations should be made in the Alamo church as it stood except such as were necessary to preserve it. Betel, that the act did not violate Const, art. 3, § 35, prohibiting any bill from containing more than one subject, which shall be expressed in its title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 164-167; Dec. Dig. § 119.]
    8. Corporations (§ 14) — Purpose of Formation — “Educational Purpose” — “Education.”
    The Daughters of the Republic of Texas which was organized as a corporation for the declared purpose of perpetuating the memory and spirit of the men who achieved Texan independence, and to encourag'd historical research into the early history of Texas, and promote the celebration of Independence Day of the Texas Republic, and erect monuments upon places made historic in the war for Texan independence, was a corporation organized for “educational” purposes within Rev. Civ. St. 1911, art. 1121, permitting private corporations to be formed for educational purposes, “education” in the statutory sense meaning not merely instruction received at school, but the whole course of training, both moral, intellectual, and physical.
    [Ed. Note. — For other eases, see Corporations, Cent.-Dig. § 16; Dec. Dig. § 14.

    For other definitions, see Words and Phrases, vol. 3, pp. 2316-2318; vol. 8, p. 7647.]
    9. States (§ 88) — Repeal—Implied Repeal.
    The Appropriation Bill of 1911 (Acts 32d Leg. [1st Called Sess.] c. 3), making an appropriation for the improvement of the Alamo property belonging to the state to be expended under the direction of the superintendent of public buildings and grounds upon the Govern- or’s approval, did not impliedly repeal Act Jan. 26, 1905 (Acts 29th Leg. c. 7), placing such property in the custody of the Daughters of the Republic of Texas, and requiring them to repair it without expense to the state.
    [Ed. Note. — For other cases, see States, Dec. Dig. § 88.]
    10. Statutes (§ 158) — Repeal — Repeal by Implication.
    Repeals by implication are not favored. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.]
    11. Statutes (§ 159) — Repeal — Related Statutes.
    Statutes which relate to the same subject should be considered as if incorporated in one act and construed together, if possible, so as to give effect to each, in which case one does not impliedly repeal the other.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. § 229; Dec. Dig. § 159.]
    12. Statutes (§ 225*) — Construction —Related Statutes.
    Statutes which are in pari ma.teria should be construed together so as to give effect to each, if possible.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 302, 303; Dec. Dig. § 225.]
    13.'Injunction (§ 46) — Right of Action.
    The entry upon the Alamo Mission property by the state superintendent of public buildings and grounds pursuant to the Governor’s direction to have repairs made as expressly authorized by the appropriation bill of 1911 (Acts 32d Leg. [1st Called Sess.] c. 3), appropriating $5,000 for repairs to be made under the superintendent’s direction, did not interfere with the possession of the Daughters of the Republic of Texas under Act Jan. 26, 1905 (Acts 29th Leg. c. 7), giving the proper-' ty into their custody, so that that corporation could not enjoin such entry by the superintendent.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 98, 99, 107; Dec. Dig. § 46.]
    14. Statutes (§ 119) — Subjects and Titles —Appropriation Statutes.
    Under the express exception of appropriation bills in Const, art. 3, § 35, relating to subjects and titles of acts, a separate statute is not necessary to direct and control the expenditure of every item of the general appropriation for state purposes.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 164-167; Dec. Dig. § 119.]
    15. States (§ 191) — Suits Against States.
    A suit by the Daughters of the Republic of Texas against the superintendent of public buildings and grounds of the state to enjoin defendant from entering upon the Alamo property on the ground that it was given to tlie custody of plaintiff corporation by Act Jan. 26, 1905 (Acts 29th Leg. c. 7), is not an action against the state so as to be prohibited, being merely an action against defendant charging him with violating a statute, and interfering with plaintiffs property.
    [Ed. Note. — For other cases, see States, Cent. Dig. §§ 179-184; Dec. Dig. § 191.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit 'by the Daughters of the Republic against A. B. Conley and others. Judgment for plaintiff in the Court of Civil Appeals (151 S. W. 877), and. defendants bring error.
    Reversed, and injunction granted dissolved.
    J. F. Carl, of San Antonio, B. F. Looney, Atty. Gen., and C. M. Cureton, Asst. Atty. Gen., for plaintiffs in error. Denman, Franklin & McGown and Webb & Goethe, all of San Antonio, and Williams & Stedman, of Austin, for defendant in error.

      For otiler 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-Np. Series & Rep’r Indexes

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

   BROWN, C. J.

The plaintiff in error A. B. Conley is. the superintendent of public buildings and grounds of the state of Texas. The defendant in error is a private corporation created under the second subdivision of article 1121 of the Revised Statutes of 1911, which reads as follows:

“See. 1121. The purposes for which private corporations may be formed are: * * * (2) The support of any benevolent, charitable, educational or missionary undertaking.”

The charter of the corporation was prepared and filed in accord with the requirements of the law and expressed the purposes of the corporation thus:

“1st. To perpetuate the memory and spirit of the men and women who have achieved and maintained the independence of Texas.

“2nd. To encourage historical research into the earliest records of Texas, especially those relating, to the revolution of 1835 and the events which followed; to foster the preservation of documents and relies and to encourage the publication of records of individual service of soldiers and patriots of the Republic.

“3rd. To promote the celebration of March 2nd (Independence day) and April 21st (San Jacinto day); to secure and hallow historic spots by erecting monuments thereon, and to cherish and preserve unity of Texas as achieved and established by the fathers and mothers of the Texas Revolution.'

“This Association may have and hold by purchase, grant, gift or otherwise real estate on which battles for the independence of Texas were fought; such monument or monuments as may be erected thereon and burial grounds where the dead who fought and died for Texas independence are buried; and personal property consisting of books, manuscripts and other historical records relating to the early history of Texas, and relics.”

A statute (Acts 29th Leg. e. 7) enacted by the Legislature of the state became a law in full force January 26, 1905. The first section of that act provided for the purchase of certain property in the city of San Antonio described thus: “All the land in the city of San Antonio, Texas, known as the Hugo & Schmeltzer Company property, formerly a part of the old Alamo Mission and adjoining the Alamo Church property now owned by the state,” giving the metes and bounds of that to be purchased. The second section of the act limited the price to be paid and provided for payment and appropriated $65,000.-00 to pay the same. The third section reads: “Upon the receipt of the title to said land, the Governor shall deliver the property thus acquired, together with the Alamo church property, already owned by the state, to the custody and care of the Daughters of the Republic of Texas, to be maintained by them in good order and repair, without charge to the state, as a sacred memorial to the heroes who immolated themselves upon the hallowed ground; and by the Daughters of the Republic of Texas to be maintained or remodeled upon plans adopted 'by the Daughters of the Republic of Texas, and approved by the Governor of Texas; provided that no changes or alterations shall be made in the Alamo church proper, as it now stands, except such as are absolutely necessary for its preservation. All of said property being subject to future legislation by the Legislature of the state of Texas.” The ground was purchased and the entire property was delivered into the possession of the corporation, “the Daughters of the Republic,” which held the exclusive possession and control thereof until plaintiff in error by direction of the Governor of the state entered upon said property. The corporation “maintained the property in good order,” but did not remodel it nor prepare any plans therefor.

At the first called session of the Legislature in 1911 [Laws 1911 (1st Called Sess.) c. 3] the general appropriation bill was enacted, and contained this provision:

For the Years Ending'
Aug. 31, Aug. 31, 1912. 1913.
For the improvement of the Alamo property belonging to the state of Texas, in the city of San Antonio, to be expended under the direction of the superintendent of public buildings and grounds, upon the approval of the Governor.$5,000.00.

Acting under the direction of the Governor, Conley entered upon the property to make improvement without a plan having been prepared by the Daughters of the Republic, and the corporation applied to the Honorable J. L. Camp, judge of the district court of the Forty-Fifth judicial district, for a writ of injunction upon the allegations stated in the findings of the court, as hereinafter copied and embraced in the charter of the corporation. The judge granted the writ, and upon a Rearing perpetuated the injunction, which was affirmed 'by the Court of Civil Appeals.

The judge of the district court filed the following findings of fact, which were adopted by the Court of Civil Appeals:

“(1) The Daughters of the Republic of Texas is a private corporation, duly incorporated under the laws of the state of Texas, for the purpose set forth and alleged in plaintiff’s petition herein.

“(2) Under the act of the Legislature of the state of Texas, approved January 26, 1905, as averred in plaintiff’s petition herein, the state of Texas through its Governor purchased the property known as the old Hugo & Schmeltzer building in plaintiff’s petition fully described, and being a part of what is commonly known as the ‘Alamo property,’ and previous to such purchase, the state of Texas had acquired what is known as the ‘Alamo Mission’ property proper in said city of San Antonio, the two properties together constituting what is commonly known as the Alamo property in the city of San Antonio.

“(3) In accordance with the provisions of said act of the Legislature, said two properties were delivered by the state of Texas into the custody and care of plaintiff prior to any of the trespasses alleged in plaintiff’s petition, and at the time of said alleged trespasses said plaintiff was in possession of said property, holding the care and custody of same under the terms of the act of the Legislature above referred to.

“(4) No plan for any changes or alterations or remodeling of any of the buildings upon said property has been made or adopted by plaintiff and approved by the Governor of the state of Texas.

“(5) No plan for any alterations or changes or remodeling of any of said buildings had been prepared by the Governor of the state of Texas and submitted to plaintiff for consideration by plaintiff.

“(6) Plaintiff has never surrendered said property nor the care or custody of same to any one, but has retained such possession, care, and custody ever since the delivery of the property to plaintiff.

“(7) The defendants in their official capacities alleged in plaintiff’s petition entered upon the said property prior to the filing of plaintiff’s petition, and without the consent of plaintiff were at the time of the filing of said petition engaged in tearing down certain of the improvements upon said property, making excavations thereon for rebuilding certain of the improvements thereon, and for the erection of new improvements thereon, and were rebuilding certain of the improvements thereon and remodeling certain of the improvements thereon.

“(8) This work was being done without any plan as to what future improvements would be made upon the property or what remodeling of the property would be done, the evidence showing that the work was being done without any fixed or definite plan, and the defendants were unable to inform the court what remodeling of any improvements was contemplated, nor what improvements were contemplated, nor what changes in the present buildings were contemplated by them or by the Governor of the state.”

It is well established that the state Legislature is clothed with all governmental power which resides in the people, subject to such limitations as may be expressed in the Constitution of the state, and any limitation embraced in the Constitution of the United States. Brown v. Galveston, 97 Tex. 1, 75 S. W. 488. Article 3, § 1, of the state Constitution provides: “The legislative power of this state shall be vested in a Senate and House of. Representatives, which together shall be styled ‘The Legislature of the State of Texas.’ ”

The power of the Legislature of this state, with reference to the property in question, is not limited by any provision of the Constitution; therefore, it has in general “the same rights and powers in respect to property as an individual. It may acquire property, real or personal, by conveyance, will, or otherwise, and hold or dispose of the same or apply it to any purpose, public or private, as it sees fit. The power of the state in respect to its property rights is vested in the Legislature, and the Legislature alone can exercise the power necessary to the enjoyment and protection of those rights, by the enactment of statutes for that purpose. * * * The state has, in general, the same power to contract as a corporation or an individual.” 36 Oye. pp. 869, 871.

We are of opinion that the state, acting by its Legislature, had the authority to acquire title to the Alamo • property and to place that property in the custody of the corporation, the Daughters of the Republic. But it is said that the care of the property was the act of an officer. An officer is one who exercises some functions of the government. No such authority is vested in that corporation. We do not care to discuss this question further than to say that the preparation of plans for improvement is not a function of the government, but of an architect. The service to be performed by the corporation was such as could have been committed to any person.

We are of opinion that by the acceptance of the terms of the statute the corporation became a trustee for the state. But the question arises, Can a corporation act as trustee? “The power of a corporation to act as trustee for any purpose within the scope of its charter or governing statute * * * is entirely free from doubt.” 10 Cyc. p. 1140. “To constitute a direct trust, there must be a conveyance or transfer to a person capable of holding it: there must also be an object or fund transferred, and a cestui que trust or purpose to which the trust fund is to be applied.” Commissioners v. Walker, 6 How. (Miss.) 143, 38 Am. Dec. 433. In the case cited the trustees were appointed by the state, and it was held that the action by the state was valid and created a trust in favor of the state. The state had the power by its Legislature to create the corporation and to convey the property to it; the corporation hafl the power to perform the duties, and there was a purpose that was public. None of the elements of an office are present; but each element of a trust exists. This constitutes the corporation a trustee of the state with power to maintain the property. “in good order and repair.” No title passed to the corporation, nor did any authority vest except that expressed or implied by the terms of the law.

Plaintiff in error insists that the act under which the corporation claims is void because it does not comply with section 35 of article 3 of the Constitution, which reads: “No bill (except general appropriation bills, which may embrace the various subjects, and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title.” The caption of the act in question reads: “An act to provide for the purchase and conveyance to the state of Texas of the land in the city of San Antonio known as the Hugo & Sehmeltzer Company property, which was a part of the Alamo Mission; and for the care and preservation of said property, and of the Alamo church property how owned by the state; and appropriating the sum of sixty-five thousand dollars ($65,000.00) to carry out the provisions of this act.” The purpose was the acquisition of the Alamo property, and to provide for the care of it and the appropriation of .a sum to purchase the property. Everything provided for in the bill is included in the subject of the bill, as expressed in the caption. The objection is not sound. Murphey v. Menard, 11 Tex. 673; Barnes v. Hardeman, 15 Tex. 366.

The Attorney General asserts that the corporation was not lawfully created under the statute of this state, because the law does not authorize the creation of such corporation for the purposes named in its charter. The second subdivision of article 1121, Revised Statutes, reads: “The purposes for which private corporations may be formed are: * * * (2) The support of any benevolent, charitable, educational or missionary undertaking.” The purpose of this corporation is clearly “educational.” Whatever educates is within the meaning of “educational undertaking.” Education in the sense as used in the statute includes: “In its broadest sense, * * * not merely the instruction received at school or college, but the whole course of training, moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with ‘learning.’ ” 14 Cyc. p. 1230. The sentiment of regard for the memory of those who gave their lives for the blessings of this great state stimulates patriotism, and is in the highest sense educational. The facts to be preserved furnish the means of the best education for the young men and women of this state. The purpose is laudable in its influence upon the present generation; it. is laudable, educational, and benevolent for the future citizens. This question is asked: “Should a state commit its interests to corporations?” This court has naught to do with the policy of the state on that question. All litigants “look alike” here. However, we will say that this is not such a soulless corporation as needs to have a watch upon its actions. The heart, the soul, and spirit of patriotism are the capital employed by those women which would not detract from the authority and power of the state. On the contrary, those ladies, with no hope of gain to themselves, undertook to substitute for the state’s fund, which would have been created by taxation, the voluntary offerings of the people— a tribute of patriotism, sanctified by love for the state, and reverence for the memory of her heroic dead. Can there be danger from such a corporation? We think not.

It is also urged that the act which committed the Alamo property to the care of the Daughters of the Republic was repealed by the appropriation bill of 1911, which we again copy:

For the Years Ending
Aug. 31, Aug. 31, 1912. 1913.
For the improvement of the Alamo property belonging to the state of Texas, in the city of San Antonio, to be expended under the direction of the superintendent of public buildings and • grounds, upon the approval of the Governor . $5,000.00.

There is no express repeal of the former law; hence, if repealed, it must be by implication, which is not favored. The two laws relate to the same subject, and should be considered as if incorporated into one act. If being so considered the two can be harmonized and effect given to each, there can be no repeal. Neill v. Keese, 5 Tex. 23, 51 Am. Dec. 746. “There statutes, being in pari materia, and relating to the same subject, are to be taken together and so construed, in reference to each other, as that if practicable, effect may be given to the entire provisions of each. * * * Thus considered, there is no repugnancy between the provisions of these statutes. They may stand together, and effect may be given to the entire provisions of each. And thus to construe and give effect to them, is in accordance with the established rule of construction.” Brown v. Chancellor, 61 Tex. 438. The first act directed the Governor to purchase the Hugo & Schmeltzer Company property and deliver it to the corporation, to be maintained in good order at its own expense. The corporation was authorized to remodel and improve the property (except the church) at its owu expense, upon plans to be provided by the corporation, and to be approved by the Governor. This conferred upon the corporation the initiative as to improvements, with the power in the Governor to disapprove the plans. His authority was limited and negative. In 1911 the Legislature evidently believed that there was need for some improvement of the property. The members of the corporation had been at war among themselves, which doubtless caused the appropriation to be made in these terms: “For the improvement of the Alamo property belonging to the State of Texas in the City of San Antonio, to be expended under the direction of the Superintendent of Public Buildings and Grounds, upon the approval of the Governor.” The Legislature intended that the funds of the state should be expended by its officer—that is, under the direction of the superintendent of public buildings and grounds—which implies that the superintendent should have the right to enter the buildings and grounds for the purpose of improvement. The limitations were (1) it must be done with the approval of the Governor; and (2) he could not interfere with the “old church,” except to make repairs necessary to its preservation, which limitation of the statute was general and bound the Governor as well as the corporation.

The entry by the plaintiff in error did not dispossess the corporation, but the duties of each might be performed at the same time, for neither the corporation nor the superintendent could improve the property without the consent of the Governor. When the $5,000 had been expended, the right of the superintendent would have expired. The execution of both laws could have been accomplished in harmony. The provision that the plans to be provided by the Daughters of the Republic for improvement should be approved by the Governor and that the expenditure of the $5,000 should be under his direction and control rendered a conflict altogether improbable, if not impossible. There was no repeal of the first act by the item in the appropriation bill.

To the argument that the direction as to expenditure of the $5,000 is unconstitutional, it is sufficient to say that from this language—“no bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title”—the exception relieves that bill from the limitation and permits the same treatment of each subject of the appropriation bill that would apply if it were embraced in a separate bill.

It cannot be that a separate and independent law would be necessary to direct and control the expenditure of every item of appropriation.

It has been insisted that this is a suit against the state; therefore not maintainable. This is not an action against the state, but against plaintiff in error, charging him with a violation of a law of the state and an invasion of plaintiff’s rights. Stanley v. Schwalby, 85 Tex. 348, 19 S. W. 264; 36 Cyc. 917. The subject is treated exhaustively in the text and notes at the place cited. If the decision should be agains.t plaintiff in error, it would not affect the state, but simply establish that he entered upon the premises and proceeded contrary to law, or without lawful authority. The petition for injunction alleged no act done by the plaintiff in error which he was not authorized by law to do under the instruction of the Governor. His entry did not interfere with the corporation in its possession, nor hinder the performance of any duty. The injunction was improperly granted. It is ordered that the injunction be dissolved, and that judgment be entered that the plaintiff, the corporation, take nothing by this suit, and that plaintiff in error go hence without day and recover of the corporation, the Daughters of the Republic, all costs of the several courts.


author: BROWN, O. J.

text:
    HOUSTON, v. KOONCE.
    (Supreme Court of Texas.
    April 23, 1913.)
    Public Lands (§ 172)—Lands of State— Risiit to Purchase—Quantity oe Land.
    Acts 27th Leg. e. 125, § 3, prohibiting the Commissioner of the General Land Office from selling to the same person more than four sections of land, was not repealed by Acts 29th Leg. c. 103, § 8, providing for the survey and sale of public school lands, but the two acts, so far as they relate to the same subject, are to be construed together; and hence, where one had purchased four sections under the act of 1901, a further purchase of two sections under the act of 1905 was void.
    [Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. § 172.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by G. G. Houston against J. E. Koonce. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    For opinion of Court of Civil Appeals, see 136 S. W. 1159.
    J. E. Starley, of Barstow, for plaintiff in error. A. S. Hawkins, of Phcenix, Ariz., for defendant in error.

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

   BROWN, O. J.

We copy the statement of the ease made by the Court of Civil Appeals, as follows:

“G. G. Houston sued Mrs. J. E. Koonce in trespass to try title to recover two tracts of land designated as surveys Nos. 17 and 16, and from a judgment rendered in defendant’s favor upon a verdict returned in obedience to a peremptory instruction by the court plaintiff has appealed.

“The evidence of title upon which the plaintiff relied was a purported purchase from the state under and by virtue of section 8, c. 103, p. 164, Acts of the Legislature 1905. Prior to the purported sales of the two surveys to the plaintiff by the Commissioner of the General Land Office, plaintiff had already purchased from the state the following four surveys of public school land, designated as surveys Nos. 12, 13, 14, and 11. Plaintiff applied for the purchase of said survey 12 for purposes of a home on condition of settlement, and for the purchase of surveys 13, 14, and 11 as additional to survey 12, his home section. These four tracts were surveyed under section 8, c. 103, of the Act of 1905, and no sale of any of those four surveys has been canceled.”

Section 3, e. 125, p. 294, Acts of the Legislature 1901, provides that: “The Commissioner of the General Land Office is hereby prohibited from selling to the same party more than four sections of land, and all applications to purchase land shall also disclose the prior lands purchased by the applicant from the state, if any, since the taking effect of this act, and the residence of the applicant at said time, and if it appear therefrom or from the records in the land office that said applicant has already purchased land aggregating four sections since the taking effect of this act, his application shall be rejected.”

From section 8 of chapter 103 of the Laws of 1905, p. 164, we copy: “Any person desiring to purchase any portion of the unsur-veyed school lands shall first make a written application to the surveyor of the proper county or district in which the land, or a portion thereof, is situated, signed and sworn to by the applicant, giving his post office address, and designating the land he desires by metes and bounds, as nearly as practicable, and stating that he desires to have the land surveyed with the intention of buying it, and that he is not acting in collusion with, or attempting to acquire said land for another person or corporation. It shall be the duty of the surveyor to file and record such application and to survey the land and file the application and field notes in the land office within ninety days from the date of the filing of the application, together with a properly prepared and certified sketch of the survey, with the variations at which all lines were run. The land shall be surveyed under the instructions of the Commissioner of the General Land Office, and where practicable, into sections of six hundred and forty acres each, and of a regular form. The applicant shall pay to the surveyor one dollar as a filing fee, and his further lawful fees for surveying the land. When the surveyor returns the application and field notes to the land office, he shall report under oath the classification and market value of the land, and also the timber thereon and its value, which may be considered in connection with such other evidence as may be required in determining the class and price to be given the land or timber. If upon inspection of the papers, the Commissioner is satisfied from the report of the surveyor and the records of the land office, that the land is vacant and belongs to •the school fund, and the survey has been made according to law, he shall approve same and notify the applicant that the land is subject to sale to him, stating the classification, price and terms, which shall be the same as that for surveyed lands, except as herein provided.”

The two laws are entirely consistent, so far as they apply to the same subject, and no repeal of the previous law was effected by the law of 1905. In the act of 1905 (section 8), which regulates the sale of unsur-veyed lands, this language is used: “He (the Commissioner) shall approve same and notify the applicant that the land is subject to sale to him, stating the classification, price and terms, which shall be the same as that for surveyed lands, except as herein provided.” Conclusive of this issue is this provision: “The land shall be surveyed under the instructions of the Commissioner of the General Land Office, and where practicable, into sections of six hundred and forty acres each, and of a regular form.”

It is apparent that the only difference between the terms of sale of surveyed and un-surveyed lands was that the applicant was required to have the unsurveyed land surveyed, and the Commissioner might make different terms of payment. Under neither law could a purchaser acquire more than four sections. The Commissioner being prohibited in the emphatic terms of the statute to sell more than four sections to one man, the sale of the land in controversy to Houston was void, and he had no title upon which to recover.

It is ordered that the judgments of the Court of Civil Appeals and district court be affirmed, and that the plaintiff in error pay all costs.


text:
    HOUSTON v. AVERY.
    (Supreme Court of Texas.
    April 23, 1913.)
    Error to Court of Civil Appeals of Second ' Supreme Judicial District.
    “Not to be officially reported.”
    Action by G. G. Houston against G. Q. Avery. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    J. E. Starley, of Barstow, for plaintiff in error. J. F. McKenzie, of El Paso, A. _J. Wilson, of Pecos, and E. Cartledge, of Austin, for defendant m error.
   BROWN, C. J.

This is a companion case to Houston v. Koonce (No. 2,301) 156 S. W. 202, this day decided by this court. The 'facts are practically identical with that case, and for the reasons stated in the opinion in that case the judgments of the Court of Civil Appeals and district court are affirmed, with all costs against the plaintiff in error.


author: DAVIDSON, P. J.

text:
    LANE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    Criminal Daw (§ 1090*) — Statement of Facts — Bills of Exception — Necessity.
    On appeal in a criminal case, where the record contains neither a statement of facts nor bills of exception, the sufficiency of the evidence to warrant a conviction cannot be reviewed ; the testimony not being before the court.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Sam Dane was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. E; Dane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at two years’ confinement- in the penitentiary.

The record is before us without a statement of facts or bills of exception. The only ground of the motion for new trial is that the evidence does not justify or warrant the conviction. Inasmuch as the testimony is not before us, we are unable to revise this matter.

The judgment is affirmed.


author: HARPER, J.

text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    On Motion for Rehearing, May 7, 1913.)
    1.Criminal Daw (§§ 393„ 448) — Evidence-Statement of Fact.
    The testimony of a witness, who had measured tracks and the shoes of accused that they were of the same length, was a statement of fact and admissible to connect accused with the crime charged.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 871-874, 1035-1039, 1041-1043,1045, 1048-1051; Dec, Dig. §§ 393,448.]
    2. Darceny <§ 50*) — Evidence—Admissibility-.
    Where the state depended on circumstantial evidence to establish a larceny of cotton, that tracks leading to the door where the cotton was found had been rubbed out by the foot could be proved.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    3. Darceny (§ 50) — Evidence—Admissibility.
    On a trial for theft of cotton, the testimony of a witness that he had seen mule tracks and that accused owned mules was admissible.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    On Motion for Rehearing.
    4. Darceny (§ 55) — Evidence—Sufficiency.
    Evidence held to justify a conviction of theft.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    Appeal from Collin County Court; H. D. Davis, Judge.
    John Wilson was convicted of theft, and he appeals.
    Affirmed.
    Wallace Hughston, of McKinney, for appellant. O. E. Dane, 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 convicted of the offense of theft of cotton under $50 in value, and prosecutes this appeal.

While this case was tried in the county court in January, 1911, the record has but recently been filed in this court. We know of no reason why more than two years should have elapsed from the time the case was tried until the record was filed in this court. The law comma'nds the clerks to make out these records and forward them to this court immediately after the trial, and, if the clerks would do their duty in this • respect, there perhaps would not be such complaint about delay in the disposition of cases.

It appears that Ham Howery testified; “I am a deputy sheriff, and was constable in 1910, and have been an officer for 16 years. I know the defendant and Scott Dynch. I remember going to their home in October of last year. I got there between 10 and 11 o’clock. Wilson and Dynch were in the bed asleep. Jim Dewis went with me. A man named Woods came along after we got there. After we came, a woman and little child came. I made some investigation of the smokehouse and found 1,200 or 1,500 pounds of cotton and some sacks, which were on the south side of the house and right at the door. The tracks had been tramped out. I saw some mules in the lot. They were shod and had corks on their shoes. I saw mule tracks at the wagon by the side of the field and at the house. I did not measure the mule tracks. The tracks that I saw were common mule tracks, and they were all about the same size. All the mule tracks that I saw at" the field and at the house and in the lot were about the same size. I measured some shoe tracks in the field of two different parties who came from the wagon, and I measured their tracks. 1 went to where the wagon stood, and the tracks led from that wagon, and there were two different sizes, and I measured them. I also measured Wilson’s and Lynch’s shoes at the house. I measured the tracks with two pieces of cotton stalks, and I measured Wilson’s shoes and Lynch’s shoes with the same measure I used in the field, and the length of Wilson’s shoe was the same as the length of one of the tracks, the shortest, and Lynch’s shoes were the same length as the longest tracks. Wilson had the smallest shoe.”

Appellant objected to this witness and Jim Lewis being permitted to testify that they measured the men’s tracks found where the cotton was stolen, with two pieces of cotton stalks, and had also measured the shoes of appellant and another, and they corresponded. No brief has been filed in behalf of appellant, and the only grounds urged to the introduction of this testimony were that the testimony “was immaterial, irrelevant, incompetent, prejudicial, and hearsay, and it was an opinion.” The testimony was very material and was not an opinion but a statement of a fact; they had measured the tracks and the shoes of appellant, and these were very cogent circumstances and admissible in evidence. Mr Branch in his Criminal Law says: “Where a witness qualifies himself to give his opinion as to similarity of tracks by taking measurements, making tests, etc., his opinion is admissible” —citing Weaver v. State, 46 Tex. Cr. R. 618, 81 S. W. 39; McLain v. State, 30 Tex. App. 482, 17 S. W. 1092, 28 Am. St. Rep. 934; Goldsmith v. State, 32 Tex. Or. R. 115, 22 S. W. 405; Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Meyers v. State, 14 Tex. App. 48; Rippey v. State, 29 Tex. App. 37, 14 S. W. 448.

He also objected to this witness and Wm. Rector testifying that they noticed the tracks and stating that the wagon had been backed up to that smokehouse (where the cotton was found) and the team taken out and the cotton unloaded; that the tracks had been rubbed out by the foot (the witnesses moving their hands backwards and forward), and the tracks had been spoiled out as far as 20 feet from the door. These were facts which the witnesses should have been ■ permitted to testify to, as they saw them, and the fact that the tracks had been rubbed out leading to the door where the cotton was found, to say the least of it, would be a very suspicious circumstance, and, as this is a case depending on circumstantial evidence, the court did not err in admitting, the testimony.

The only other testimony objected to was testimony as to the mule tracks found in the field. The witnesses say they were “common mule tracks”; and, as there was no evidence offered to show that these tracks were compared with the tracks made by mules owned by appellant, nothing prejudicial to appellant was admitted. It was certainly permissible for witnesses to state that they saw mule tracks, and it was admissible to prove that appellant owned mules. If there had been an effort made to compare the tracks found with the known tracks made by appellant’s mules, then, if an objection had been made that no sufficient predicate had been laid, it might be good. There is no motion for a new trial in the record, and the bills of exception present no error.

The judgment is affirmed.

On Motion, for Rehearing.

Appellant has filed a motion for a rehearing in which he earnestly insists that the testimony is insufficient to sustain the conviction. We have again reviewed the record, and, while it is a case of circumstantial evidence, we think it amply supports the verdict. Jim Lewis had some cotton stolen from him one night. Dr. Maxwell was called to Lewis’ house that night about 12 o’clock, and in going there he saw a wagon, with a mule team, stopped near where Lewis’ cotton was stored. He called Lewis’ attention to it, and shortly thereafter Lewis and a neighbor, Mr. Bowman, went to investigate the matter. The wagon had left Lewis’ cotton patch, but they followed on down the road, and at appellant’s house they saw a wagon with a mule team backed up to the smokehouse of appellant. The next morning cotton was found in this smokehouse. Lewis lost a certain character of cotton, Rowden. They found Rowden cotton in appellant’s smokehouse. No explanation is given in the record where he got this Rowden cotton. Men’s tracks were found at the point where Lewis lost his cotton. These tracks were measured. A known track of appellant was measured and they corresponded exactly. If these facts would not justify a finding that he was the person who stole the cotton, then it would be impossible to sustain a conviction unless some one saw the theft committed.

The motion for rehearing is overruled.


text:
    CORBETT v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    Crimin'ax Law (§ 1020*) — Appeal—Jurisdiction.
    The Court of Criminal Appeals has no jurisdiction of an appeal from a judgment of the county court fining defendant $25 on appeal from a recorder; Code Cr. Proc. 1911, art. 87, declaring final a judgment of the county court for $100 or less on appeal from an inferior court.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2578-2580; Dec. Dig. § 1020.*]
    Appeal from Matagorda County Court; W. S. Holman, Judge.
    J. M. Corbett was fined $25 in the county court, on appeal from the recorder’s court, and appeals.
    Dismissed.
    Gaines & Corbett and J. W. Conger, all of Bay City, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged in the recorder’s court with a violation of the city ordinance, and was there fined $25. ■He prosecuted an appeal to the county court, in which court, upon trial, he was again fined $25. From that judgment he prosecutes this appeal.

Motion is made by the Assistant Attorney General to dismiss the appeal for want of jurisdiction in this court. This motion is well taken, and should be and is sustained. Article 87 of the Revised Code of Criminal Procedure provides that where the case originates in the justice or recorder’s court, or other inferior courts, and is appealed to the county court, and in the latter court the judgment is for $100 or less, the case shall be final. Some of the cases are collated under article 87 of the Revised Code. It is not deemed necessary here to cite them.

Motion to dismiss is sustained, and the appeal is dismissed.


author: PRENDERGAST, J.

text:
    MADDOX v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    Embezzlement (§ 44) — Sufficiency oe Evidence.
    Evidence in a prosecution for embezzlement by an agent or employé held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 67-70; Dec. Dig. § 44.]
    Appeal from Bexar County Court; P. H. Shook, Judge.
    J. Y. Maddox was convicted of embezzlement, and he appeals.
    Reversed and remanded.
    Carlos Bee and C. C. Todd, both of San Antonio, 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 St Rep’r Indexes

   PRENDERGAST, J.

Appellant was convicted of the embezzlement of $17, the property of A. Bernstein, and his penalty fixed at one month confinement in jail.

The evidence shows: That Bernstein employed appellant to sell beer for him on a commission basis. Appellant was to collect for the beer. That appellant sold a large quantity of beer, collected for some of the sales, and that Bernstein himself collected for others. How much either collected is not disclosed by the record. Appellant sold a large quantity of beer to various persons, which Bernstein refused to consummate, for the reason, as stated by him, in many instances, that he had lost confidence in appellant. After appellant had been working for him something over a month, Bernstein called on him for a settlement. According as we understand from Bernstein’s contention, appellant lacked $17 of paying to Bernstein the full amount that he had collected. Appellant demanded a statement from Bernstein. Bernstein refused to give it; appellant claiming, upon a settlement, Bernstein would owe him more than appellant had collected and held. Appellant offered to settle, stating to Bernstein at the time that he was ready, able, and willing to do so if Bernstein would make him a statement, so that he could tell what, if anything, he owed him.

Taking the evidence as a whole it does not disclose whether appellant owed Bernstein or not. The best we can tell from the statement of facts is that Bernstein would owe appellant more than appellant had collected and not turned over to him. In other words, this record fails to disclose any fraudulent intent or fraudulent appropriation of any of Bernstein’s money, and it fails to disclose that upon a settlement appellant would have owed Bernstein anything, but indicates, on the contrary, that Bernstein owed him more than appellant owed him. We think the evidence wholly insufficient to sustain the conviction. Stallings v. State, 29 Tex. App. 220, 15 S. W. 716; Loving v. State, 44 Tex. Cr. R. 373, 71 S. W. 277; Mortimore v. State, 60 Tex. Cr. R. 69, 130 S. W. 1004.

The judgment will be reversed,' and the cause remanded.