author: HIGGINS, J.

text:
    CHAVEZ v. SCHAIRER.
    (No. 768.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 19, 1917.
    Rehearing Denied Jan. 10, 1918.)
    1. Judgment @=>707 — Tboveb and Convebsion @=>23 — Timbeb—Ownebship oe Land as Defense — Pebsons Not Pasties to Judgment.
    Where one having a lien on land under a trust deed is not made a party to an action against the trustor for th'e ownership of the land, lie can set up, as a perfect defense to conversion of wood sold by the prevailing party and removed and seized by him, any superior title he may prove to have obtained as a purchaser on foreclosure of the trust deed, not being bound by the judgment to which he was not a party.
    2. Moetgages @=>196 — Cutting Standing Timbee — Convebsion.
    One having a lien under a deed of trust has no title to wood cut and removed prior to foreclosure, and in taking possession of such wood is guilty of conversion.
    3. Tboveb and Convebsion @=>40(3) — Standing Timbee — Supeeiob Title to Land — Peooe.
    Where one seizes timber removed from land • and is sued in conversion, and he defends on the ground of superior title to the land, it is sufficient to show a common source and superior right, and it is unnecessary to deraign title from the sovereignty of the soil.
    4. Tboveb and Convebsion @=>40(3) — Sufficiency oe Title to Maintain Action.
    One in possession of timber which he purchased from one claiming land under a judgment, and which' he has cut and removed, has sufficient evidence of title to maintain an action of conversion as against another claiming the land.
    5. Tboveb and Convebsion @=>40(3) — Defense — Supeeiob Title — Common Soubce— Evidence.
    One claiming land under a foreclosure of a trust deed, by showing the execution of the trust deed by one P., does not show common source of title with one claiming title by judgment against P. and another.
    6. Set-Oee and Counteeclaim @=>28(1) — Convebsion oe Timbee — Set-Oee.
    As against a claim for standing timber converted by a mortgagee prior to foreclosure, the mortgagee can set off damages to his security by the act of plaintiff in cutting and removing other timber from the land.
    7. Tboveb and Convebsion @=>54 — Damages —Standing Timbee — Expenses oe Cutting and Removing.
    Whore one buys standing timber from one claiming, title to land when in fact another has a superior title, and seizes the wood, he is a trespasser, and is not entitled to be reimbursed for the expenses of cutting and removing.
    Appeal from El Paso County Court; E. B. McClintoek, Julge.
    Suit in conversion by Andreas Chavez against J. J. Schairer. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    R. M. Reed and W. C. Porterfield, both of El Paso, for appellant. F. E. Hunter and R. B. Redie, both of El Paso, for appellee.
   HIGGINS, J.

Chavez sued Schairer to recover 72 cords of wood or its value and $250 exemplary damages. On February 23, 1915, Eugenio Perez and wife conveyed to F. E. Hunter, trustee, survey 18 of the San Elizatio grant to secure the payment of a note in sum of $2,500 executed by Perez to appellee, Schairer. This deed of trust was duly recorded February 24, 1915, and was foreclosed by the trustee on November 7, 1916, and the land conveyed to Schairer by deed dated November 9, 1936, duly recorded November 14, 1916; Schairer having been the purchaser at the foreclosure sale. On January 25, 1916, a judgment was rendered in the district court in favor of Martina Borrego, Jesus Borrego, Pedro Borrego, Ut-tilia Borrego, Angela Lucero, and her husband, Elizatio Lucero, against Eugenio Perez and the heirs of Rafael Telles, deceased, for the title and possession of survey 18. The petition in this case was filed March 31, 1915. Hunter and Schairer were not parties to this suit. Upon the judgment writ of possession was issued and executed April 22, 1916, by placing Jesus Borrego in possession of the land for all of the plaintiffs in the suit. In October, 1916, Chavez purchased from Jesus Borrego the wood upon the land. Between the 5th and 23d days of November, 1916, Chavez cut and removed about 70 cords of wood from the land. After its removal Schairer took possession of the wood and refused to surrender same to Chavez. The defendant answered by a general denial, and by cross-action set up his lien and ownership of the land by virtue of the deed of trust and foreclosure proceedings, and that he had been damaged by the removal of the wood in the sum of $500, for which he prayed judgment.

The case was tried without a jury, and judgment rendered that Chavez take nothing ; that Schairer take nothing by his cross-action for damages, but recover of Chavez the possession of the wood.

There is no merit in the contention of appellant that Schairer could not defend against the alleged conversion by showing a superior title and right of possession to the wood by virtue of his ownership of the land from which the same was cut. None of the authorities cited by appellant support such contention. In an action for conversion a defense is permissible which disproves a right of recovery in the plaintiff. And there can be no right of recovery in an action for conversion if the defendant had the superior title and possessory right to the property alleged to have been converted. 38 Cyc. 2059 and 2061; Trammell v. Guffey, 42 Tex. Civ. App. 455, 94 S. W. 104; Crane v. McGuire, 64 S. W. 942. So, if Schairer had the superior title to the land at the time the wood was cut therefrom, he had the superior title and possessory right to the wood, and this would constitute a perfect defense to the action.

From the record as presented it is impossible to say how much wood had been cut and removed prior to the time of the foreclosure. Until such foreclosure Schairer acquired no title to the land. Wood cut prior to the foreclosure ceased to be a part of the realty, and the foreclosure passed no title thereto.

If Schairer, by the foreclosure, acquired a title to the land superior to that of the parties under whom Chavez claimed the wood, then Sehairer’s superior title to the land would have constituted a perfect defense as to all wood cut subsequent to the foreclosure. His rights respecting the wood cut prior to the foreclosure are different. As to this wood he simply had a lien on the land, and his right of action, if any, with respect thereto, was for injury to his security. Smith v. Frio County, 50 S. W. 958; Carey v. Starr, 93 Tex. 508, 56 S. W. 324.

In no event can Schairer predicate any defense to the action based upon his lien and foreclosure unless he shows that his lien and title was superior to the title under which Chavez claims. Schairer is not bound by the judgment rendered in the district court against Perez because he was not a party thereto. In order to show his superior lien and title under the foreclosure, it is not necessary for him to deraign title from the sovereignty of the soil. It is sufficient to show a common source and superior right under the common source. The deed of trust was of record and this was constructive notice of his rights to Chavez.

Chavez being in actual possession of the wood under a claim of right at the time the same was converted by Schairer was sufficient evidence of title to enable Chavez to maintain his action. Bank v. Brown, 85 Tex. 80, 23 S. W. 862; Stockbridge v. Crockett, 15 Tex. Civ. App. 69, 38 S. W. 401. In defense of such prima facie right, Schairer undertook to establish a superior title. He did not attempt to deraign title from the sovereignty nor to show a limitation title. He relies upon a superior title emanating from Perez as a common source. But upon the facts disclosed by the record and the manner in which the question arises he has failed to show a common source. He claims , under Perez alone, whereas Chavez claims title by purchase from Jesus Borrego. The judgment in the district court in favor of Jesus Borrego and his coplaintiffs was not against Perez alone, but was against Perez and the heirs of Telles. Had the judgment been against Perez alone, then a common source would have been shown.

The case is reversed and remanded because of the insufficiency of the evidence to show a superior lien and title to the wood in Schairer; also because the judgment rendered is not in conformity with the rights, if any, which Schairer may have arising out of the difference between such rights respecting the wood cut prior to the foreclosure of his lien and the wood cut after foreclosure.

Upon retrial Schairer, by establishing a superior lien and title; will have established a defense for the taking by him of all such wood as may have been cut from survey 18 subsequent to the foreclosure. As to this wood he would be guilty of no conversion. As to the wood cut prior to the foreclosure, he would be guilty of conversion, but if he has shown a superior lien and injury to his security, then by proper pleadings he would be entitled to offset his damages, if any, arising from such injury, against the damages sustained by Chavez for the conversion.

Chavez will in no event be entitled to the cost of cutting and removing the wood from the premises. If Schairer had a superior lien and title, Chavez was a trespasser against the rights of Schairer, and is not entitled to be reimbursed for any expenses incurred by him in the commission of' his trespass. Upon the record here presented Chavez has not shown any right to exemplary damages for any conversion which may have been committed by Schairer.

Reversed and remanded.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Su-' preme Court.
      <&zz>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    GIBSON et al. v. WOOD.
    (No. 8494.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 13, 1917.
    Rehearing Denied March 3, 1917.)
    Mechanics’ Liens ⅞=81 —Laborers Working with Threshing Machine — “Factory or Mill oe any Character” — “Factory Operator” — “Mill Operator” — “Mill” —“Factory.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, providing that any factory operator, mill operator, or common laborer, or farm hand performing any service in any factory or mill under any contract shall have a first lien on all products or things owned by the employer, and making the lien of farm hands subordinate to a landlord’s lien, and in view of article 5502 requiring the ordinary signification to be applied to words except words of art, etc., common laborers working with a threshing machine do not have a lien upon the grain threshed; as a threshing machine is not a “factory or mill of any character,” and as a common laborer working with a threshing machine in threshing grain is not a “factory operator” or a “mill operator,” and as the terms “mill” and “factory” are not in common parlance, applied to a threshing machine (citing Words and Phrases, Second Series, Factory; Mill).
    Appeal from County Court, Wichita County; Harvey Harris, Judge.
    Action by W. J. Wood against J. F. Gibson and others. Judgment for plaintiff, and defendants appeal.
    Reversed, and judgment rendered that plaintiff take nothing by his suit, and that appellants recover their costs.

      ' Huff, Martin & Bullington, of Wichita Falls, for appellants. W. E. Weeks,'of Wi■chita Palls, for appellee.
   DUNKLIN, J.

We are of thie opinion that the court erred in holding that by the terms of article 5614, Vernon’s Sayles’ Texas Civil Statutes, a lien was given to common laborers working with a threshing machine upon the grain threshed by such machine, and in establishing and foreclosing such a lien upon the wheat and oats in controversy, and the proceeds of the sale thereof. That article of the statute specifically defines the kind of labor for which a lien is given, and work upon a farm is not included in the services so defined. The concluding proviso of the article reading, “that a lien herein given to a farm- hand shall be subordinate to the landlord’s lien now provided by law,” would seem to imply that the Legislature in enacting the ■statute understood that in previous portions ■of the article a lien had been provided for a farm hand, but even this proviso does not indicate what character of work to be performed by a farm hand was intended, and it would be a strained construction to read into the previous portions of the statute a provision that a farm hand is entitled to a lien for work done on a farm, and thus enlarge the provisions of the statutes wherein the character of work for which a lien was provided is specifically defined.

We are also of the opinion that a threshing machine cannot be held to be a “factory or mill of any character,” nor that a common laborer working with a threshing machine in the threshing of grain can be termed a “factory operator,” or “mill operator,” within the meaning of the statute. By article 5502 of Vernon’s Sayles’ Texas Civil Statutes, it is provided that:

“The ordinary signification shall be applied to words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such art or trade, or with reference to such ⅜ ⅜ * matter.”

The terms “mill” and “factory” are not, in ■common parlance, applied to a threshing machine, and even though a threshing machine ■should be said to perform some of the functions of a mill or factory, it cannot be included within the meaning of those terms without doing violence to the rule of statutory construction above quoted. See decisions ■cited in 3 Words & Phrases (2d Series) pp. 384 and 385, and 2 Id. page 432.

In view of the foregoing conclusions it is unnecessary for us to determine the further question, whether or not a common laborer working with a thresher in threshing a crop, who has been hired by the owner of the thresher and not by the owner of the crop,, could be designated as a “farm hand”; or the further question, whether or not, in order to claim the lien provided for in the stat-. ute, it would be incumbent upon such claimant to show that the service was performed under a contract or agreement with the owners of the grain threshed, or his duly authorized agent, to hire such servants as the servants of the owner of the grain; the record in this case showing that the work of threshing was done by Gibson as an independent contractor.

Accordingly, the judgment of the trial court rendered against" appellants herein is reversed, and, as the facts have been fully developed and are undisputed, judgment will be here rendered that W. J. Wood, plaintiff in the trial-court and appellee here, take nothing by reason of his suit against appellants, and that appellants recover of said Wood their costs incurred in the trial court, as well as in this court. The judgment in favor of Wood against J. P. Gibson, from which no appeal was prosecuted, is undisturbed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ICING, J.

text:
    WATSON-CHRISTENSEN LUMBER CO. et al. v. MAUND.
    (No. 297.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 20, 1917.)
    Principal and Surety <S=»115(2) — Release of Sureties.
    Where plaintiff contracted to sell lumber with sight draft attached, but sued for a balance due, showing waiver of the sight draft clause, the purchaser’s sureties on the contract were not liable.
    Appeal from District Court, Sabine County; W. R. Blackshear, Judge.
    Action by II. M. Maund against the Watson-Ohristensen Lumber Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed as to the company, and reversed and rendered as to the individual defendants. •
    Hamilton & Hamilton, of Hemphill, and E. E. Easterling, of Beaumont, for appellants. J. W. Minton and E. P. Padgett, both of Hemphill, for appellee.
   ICING, J.

Appellee brought this suit against the Watson-Ghristensen Lumber Company upon a contract and against John B. Christensen and Homer R Mitchell as sureties on a bond guaranteeing the performance of the contract by the lumber company. A trial before the court resulted in a judgment' for $621.16, the balance due for certain lumber sold by appellee to appellant lumber company, and against the sureties on the lumber company’s bond.

The contract between the parties had reference to the size, dimensions, time of delivery, and method of delivery. A decision of the case hinges upon the consideration of paragraph 2 of the contract, which is as follows:

“The consideration to be paid to party of " the first-part by party of the second part for the above-described lumber at tbe agreed price of thirteen and 75/100 ($13.75) dollars per thousand feet delivered on board the cars at Bronson, Tex., but should the freight rate be the same from Hemphill, otherwise on board the cars at Hemphill, Tex., otherwise the party of the first part is to pay whatever difference in the freight charges, if any, between Hemphill, Tex., and Bronson, Tex., or in other words, the said lumber is to be f. o. b. Bronson, Tex., to the party of the second part, bill of laden and sigjit_draft attached in favor of H. M. Maund.”

The bond executed by the lumber company sets out the contract, the condition of the bond being as follows:

“The condition of the above obligation is such that if the above-bounden Watson-Christensen Lumber Company, its successors and assigns shall well and truly perform and carry out the terms of the above-mentioned contract, in accordance with the terms thereof, this obligation shall be void; otherwise to remain in full force and effect.”

By reading of paragraph 2, it is seen that sale of the lumber under the contract was for cash, as it was to be shipped with sight draft attached to the bill of lading, and could not have been delivered to the lumber company unless it first paid the draft attached to the bill of lading. Therefore, had this paragraph of the contract been complied with, no balance would have been due to appellee. It therefore follows that appel-lee either did not ship all the lumber f. o. b. Bronson, with sight draft attached, or else he waived this provision, and permitted the lumber company to obtain the lumber Without first paying therefor, and appellee, having waived this paragraph in the contract, cannot hold the -sureties upon the bond for delinquencies upon the part of the lumber company with reference thereto. Persons are bound only to the extent that they bind themselves.

All other provisions of the contract have been complied with, and the liability alleged against the sureties having arisen solely through appellee’s failure to insist upon a compliance with section 2 of the contract, appellee cannot hold the sureties liable for the balance due on lumber so shipped not in accordance with section 2 of the contract.,

The judgment is affirmed as to the Watson-Christensen Lumber Company, and reversed and rendered as to the sureties, John B. Christensen and Homer R. Mitchell. •
      tg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    BROWN v. FIRST STATE BANK OF WEIMAR et al.
    (No. 7471.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Bankruptcy <@=3303(1) — Suit to Avoid a Preference — Burden op Proof — Bankruptcy Act.
    Under Bankruptcy Act July 1, 1898, c. 541, §§ 60a and 60b, 30 Stat. 562, as amended by Act June 25, 1910, c. 412, § 11, 36 ,Stat. 842 (Ü. S. Comp. St. 1916, § 9644), a trustee in bankruptcy suing to set aside and declare void certain deeds of trust given by the bankrupt, and a cash payment to a creditor as being a preference, must not only prove all the facts admitted in an agreed stipulation of the par-> ties, but must affirmatively show that defendants had reasonable cause to believe that the deeds of trust and the payment would effect a preference as against other creditors.
    2. Appear and Error ⅞=3994(3) — Credibility of Witnesses — Review.
    It is not within the province of the Court of Civil Appeals to determine which of the witnesses were to be believed; that being a matter within the exclusive cognizance of the trial court.
    3. Appeal and Error <@=3931(3) — Presumption-Findings to Support Judgment.
    Where the trial court rendered a general judgment in favor of defendants, an essential element of which was that no preference in their favor within the bankruptcy act had been shown, the Court of Civil Appeals, in the absence of a specific fact finding, must presume that the trial court found every fact necessary to support its judgment, including a finding that the evidence failed to show reasonable cause for belief on defendants’ part that a preference would be effected.
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Action by L. D. Brown, trustee in bankruptcy of the estate of Staches Yacek, a bankrupt, against the First State Bank of Weimar, Tex., and the Schuhmacher Company. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    C. D. Krause, of La Grange, for appellant. Lane, Wolters & Storey, of Houston, for appellees.
   GRAVES, J.

This is purely a fact case. The only issue in the trial court was: Did appellees, or either of them, have reasonable cause to believe that the enforcment of the deeds of trust and the payment of the $1,-119.78 in cash to the appellees Schuhmacher Company would effect a preference to them over other creditors of Yacek? That court, by its general judgment in appellees’ favor, having necessarily found that the evidence failed to show that they did have reasonable cause for such belief, obviously the sole issue presented by the appeal from that judgment to this court is whether or not. the trial court was warranted in reaching that conclusion.

Appellant, as trustee of Vacek’s bankrupt estate, brought the suit against appellees to set aside and have declared void as preferences, within the meaning and contemplation of the federal bankruptcy act of 1910, two deeds of trust given by the bankrupt, Staches Vacek, to appellees, and a cash payment of $1,119.78 made by him to one of them, the Schuhmacher Company. Trial was had before the court without a jury, and judgment rendered that appellant take nothing by his suit, and that appellees go hence and recover their costs.

No findings of fact nor conclusions of law were requested or filed; but the parties filed in the court below an agreed stipulation as to facts, in which the material specifications were: (1) That Vaeek was a bankrupt; (2) that within four months of his adjudication as such, he executed to appellees two deeds of trust, one to the bank for $3,500, $1,500 of which represented an antecedent debt due it, and the remaining $2,000 money loaned at that time by it to him, and the other to appellee Schuhmacher Company for $1,250 on the same date, also making to the latter the cash payment aboye mentioned; (3) that the appellees, through these deeds of trust and this cash payment, would realize a greater percentage of their debts than Va-cek’s other creditors; and (4) that at the time of the execution and delivery of the deeds of trust and payment of the money Vacek was insolvent; but it was. not admitted, but expressly denied by the appellees Eirst State Bank of Weimer, Tex., and the Schuhmacher Company that they, or either of them, had reasonable cause to believe that he was then insolvent, or that the deeds of trust were executed and the payment made for the purpose of giving them, or either of them, a preference over other creditors. In addition to these agreed facts, there was then introduced much conflicting testimony upon the only fact issue thereby left open, that is, the one last referred to, and which appellees expressly refused to admit.

Under sections 60a and 60b of the bankruptcy act a.s amended in 1910, it was essential to appellant’s recovery upon his action to establish a preference, not only that he prove all the facts admitted under this agreed stipulation, but also that he go further and establish the affirmative of our previously stated question: “Did appellees, or either of them, have reasonable cause to believe that the enforcement of the deeds of trust and the payment of the money would bring about a preference.to them over other creditors?” Sections 60a and 60b, Bankruptcy Act, as amended in 1910; Grant v. National Bank, 97 U. S. 80, 24 L. Ed. 971; Stucky v. Masonic Savings Bank, 108 U. S. 74, 2 Sup. Ct. 219, 27 L. Ed. 640; Walker v. Tenison Bros. Saddlery Co., 94 S. W. 166; Couturie v. Crespi, 63 Tex. Civ. App. 613, 134 S. W. 257, writ of error denied by Supreme Court, 105 Tex." 657.

As stated there was much conflicting testimony upon that issue, and in discussing and urging that his construction of it should be adopted, appellant inquires, “Which of these witnesses is to be believed?” But it is not within the province of this court to answer the question; upon the contrary, its determination was within the exclusive cognizance of the trial court, and since that court rendered a general judgment in favor of appellees, an essential element of that judgment being that no preference within the meaning of the bankruptcy law had been shown, we must, in the absence of a specific fact finding, presume that it found every fact necessary to support its judgment, which included a finding that the evidence failed to show reasonable cause for belief upon appellees’ part that a preference would be effected.' The only function then left for this court is to determine whether or not there is in the record sufficient evidence to support that finding; and, after a most careful examination of the statement of facts, we think it not doubtful that there was such evidence, if indeed the testimony did not preponderate in favor of the court’s conclusion.

In this state of the record, and without attempting to detail or summarize the testimony, we conclude that there was ample warrant for the judgment entered, and that we are not at liberty to disturb it.

Affirmed,
      <@r=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, O. J.

text:
    ETNA CLUB et al. v. STATE.
    (No. 10392.)
    (Supreme Court of Texas.
    Jan. 16, 1918.)
    Intoxicating Liquors <§=>259, 264 — Abatement of Nuisances — Power oe County Attorney-Statutory Provisions.
    Under Rev. St. art. 4674, providing that persons, firms, or corporations who may engage in or pursue the business of selling intoxicating liquor without a license arc thereby declared to be the creators and promoters of a public nuisance, and may be enjoined at the suit of the county or district attorney in behalf of the state, or any private citizen, where an incorporated social club was selling and keeping liquors for sale without a license, a suit to enjoin such business as a public nuisance was maintainable by the county attorney, though such acts were in excess of the club’s charter powers, and it was within the power of the Legislature to authorize the county attorney to bring such suit, notwithstanding Const, art. 4, § 22, imposing on the Attorney General the duty of bringing such suits as may be necessary to prevent any private corporation from exercising any power, not authorized by law, as article 4674 is not concerned with the character of the person maintaining the nuisance; or if a corporation, whether the act is in excess of its powers.
    Action by the State against the JEtna Club and others. A judgment against defendants was affirmed by the Court of Civil Appeals (193 S. W. 1106), and defendants apply for a writ of error.
    Writ refused.
    Weeks & Owen, of El Paso, for applicants. C. W. Croom, Co. Atty., of El Paso, for the State.
   PHILLIPS, O. J.

The question presented is whether ah action in the name of the state, under Article 4674, to enjoin an incorporated social club from selling and keeping liquors for sale, in admitted perversion of its charter powers, may be maintained by a County Attorney, or alone by the Attorney General.

According to the finding of the jury, supported by the proof, the club had been using its corporate character as a subterfuge for the pursuit of the business of selling liquors without a license. This was in violation of its charter, and at the same time, under Article 4674, made its business a public nuisance, subject to be enjoined at the suit of the County or District Attorney in behalf of the State, or of any private citizen. Such a suit was filed by the County Attorney of El Paso County.

The contention of the petitioners is that the Constitution imposes upon the Attorney General, alone, the duty of taking such action in. the courts as may be necessary “to prevent any private corporation from exercising any power ⅜ '* * not authorized by law” (article 4, § 22), and therefore the County Attorney was without authority to maintain the suit. The Court of Civil Appeals affirmed the right of the County Attorney in the premises, Chief Justice Harper dissenting.

There can be no doubt as to the power of the Legislature to declare, as it has declared in Article 4674, that the business of selling intoxicating liquors without license, whether pursued by an individual or a corporation, amounts to a public nuisance, and to provide for its abatement by summary remedy. With this true, we do not think it could have.been the intention of the Constitution in its definition of the duties of the Attorney General to deny to the Legislature, in its enactment of such a law, the authority to lodge in the-County and District Attorneys of the State the right to invoke that remedy in the name of the State, though, perchance, the violator of the law be a corporation and its violation of the law be equally a violation of its charter. What Article 4674 denounces is the maintenance of a public nuisance. It is not concerned with the character of the person, whether natural or artificial, by whom the nuisance is maintained, or, if it be a corporation, whether the act denounced is in excess of its powers. It broadly declares that any one, an individual, a firm, or a corporation, who does the given act, shall be deemed the promoter of a public nuisance. In the case of a corporation, its act is made unlawful, not because of the violation of its charter, but because of its violation of this law; and if it be the offender, the suit authorized has for its object, not an inquiry into its corporate authority, but simply the suppression of the nuisance. The Constitution does not impose upon the Attorney General, solely, the duty of moving against corporations for their violations of the law, and it is therefore competent for the Legislature to confer upon the County and District Attorneys of the State the authority for such action in the local courts. In the framing and adoption of the Constitution it must have been contemplated that in many instances such violations would be purely local in their nature, whose redress would more appropriately lie within the duties of local officers. The efficient exercise of that authority where conferred is protected by the same power which warrants its grant. If the act of the corporation be a violation of the particular law which demands its exertion, it is not to be rendered vain because that act offends against another law or transcends authority given by such law. The nuisance declared against by the statute is one local in its character. Its abatement at the suit of the State therefore falls naturally within the constitutional duties of the County and District Attorneys; and it was accordingly lawful, in our opinion, for the Legislature to invest them with the authority given.

The contention of the petitioners finds some support in the opinion delivered in State v. Paris Railway Co., 55 Tex. 76, but we do not think that holding should be extended to cases of this character, and we decline to so extend it.

The writ of error is refused.
      <§=>For other eases see same topic and KEY-NUMBER in all KeV-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    COURSEY v. STATE.
    (No. 4597.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    Rehearing Denied Jan. 16, 1918.)
    1. Intoxicating Liquors <§=>205(2) — Prosecution — Indictment.
    Indictment alleging that commissioners’ court passed and published order declaring result of local option election, and thereupon the order was published for the time and in the manner required by law, sufficiently alleges publication of the order.-
    2. Criminal Law <§=3938(2) — New Trial— Newly Discovered Evidence.
    Affidavit showing that witness would have testified that accused did not work for him at the time another witness said he did, and at the time of the sale of the whisky, was not newly discovered testimony, as accused knew such facts at the time of the trial.
    Appeal from District Court, Coolie County; C. P. Spencer, Judge.
    Pump Coursey was convicted of violating-tlie local option law, and he appeals.
    Affirmed.
    J. L. Gettys, W. S. Moore, and Culp & Culp, all of Gainesville, for appellant. E. B. Hendricks, 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 indictment is attacked because of insufficiency in alleging the publication of the order declaring the result. The particular portion which is the subject of criticism is as follows:

“ * * * and thereupon the commissioners’ court of said county did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said county, and thereupon said order was published for the time and in the manner required by law, and thereafter on or about the 15th day of December, A. D. 1916,” etc., appellant sold intoxicating liquors.

Under the authority of Watson v. State, 52 Tex. Cr. R. 551, 107 S. W. 544, and Jones v. State, 52 Tex. Cr. R. 519, 107 S. W. 849, this allegation in the indictment seems to be sufficient. This indictment does not come within the rule laid down in the Smitham Case, 53 Tex. Cr. R. 173, 108 S. W. 1183. There are quite a number of cases preceding the Smitham Case, all to the same effect, but in those cases the indictment only alleged that the order was published by the commissioners’ court. A comparison of the Jones and Watson Oases, supra, with that line of cases, including the Smitham Case, supra, show that the court has drawn a distinction between the character of indictment here set out and those mentioned in the Smitham and preceding cases, sustaining both lines of cases and holding them not in conflict or incongruous. We are of opinion that under the authority of the cases of AVatson and Jones, supra, this indictment is sufficient.

It is contended that the evidence is not sufficient. Under a number of cases, which we deem unnecssary to cité, we are of opinion the state’s evidence justified the verdict.

There is an affidavit of Price attached to the motion for new trial which would indicate, had he been a witness, he would have testified that appellant did not work for him at the time that state’s purchasing witness testified he did, and at the time of the sale of the whisky. This was not newly discovered testimony. All those facts, if true, appellant knew at the time of and before the trial, and no attempt was made to secure the attendance of Price.

As this record is presented to us we are of opinion the judgment should be affirmed, and it is accordingly so ordered.


author: PRENDERGAST, J.

text:
    LEWIS v. STATE.
    (No. 4723.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    Rehearing Denied Jan. 16, 1918.)
    1. Criminal Law <§=>1124(4) — Appeai—Rec-ord — New Trial.
    Unless the evidence heard upon motion for new trial is preserved and filed with the appellate court, it cannot be passed upon, and the action of the trial judge in overruling the motion must be upheld.
    2. Criminal Law <§=>938(2) — Newly Discovered Evidence — Interviewing and Examining Witnesses.
    Testimony of a witness who heard the testimony of deceased’s wife at the examining trial, with which it is desired to impeach such wife’s testimony given at the regular trial, is not newly discovered evidence, warranting new trial, where defendant and his attorney wese not only present at the examining trial, but introduced such evidence as there given, in the regular trial, at which such witness under subpoena was also in attendance.
    3. Criminal Law <§=>942(1) — New Trial — Newly Discovered Evidence.
    A new trial will not be granted upon newly discovered evidence which would go solely to-wárd impeaching a witness.
    4. Criminal Law <§=>1156(3) — Review—New Trial — Newly Discovered Evidence.
    The question of granting a new trial on the ground of newly discovered evidence is largely left to the discretion of the trial judge, and will not be disturbed, except where appellant shows that the court abused its discretion.
    Appeal from District Court, Ellis County; P. L. Hawkins, Judge.
    Ike Lewis was convicted of murder, and he appeals.
    Affirmed.
    Tom AVhipple, of AA^axahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and assessed the lowest punishment.

The sole question is whether or not the court erred in refusing a new trial on the grounds of claimed newly discovered testimony. This claimed newly discovered testimony was that of Officer G. T. Miller to the effect that he was present at the examining trial of appellant and heard the wife of deceased testify therein; that upon being asked where her two grandsons- were when the shooting started, she replied that they were in the room where she was, and that when the shooting started they both ran out of the back door into the back yard, and that she did not know where they went.

The judgment of the court shows that in acting upon appellant’s motion for new trial the judge heard the evidence, and then overruled the motion. What that evidence was is in no way disclosed by the record herein. Doubtless it was amply sufficient of and within itself to show that the court’s action in overruling the motion was correct. It has all the time been held by this court that, where the record shows that the court heard evidence in ruling upon such motions as this, it is incumbent upon the appellant to preserve that evidence and have it filed during term time in order to authorize this court to pass upon whether the court’s action was correct or not. As none of the testimony so heard by the judge is in any way made to appear in this record, this of itself would clearly require this court to hold that the action of the lower court in overruling his' motion for new trial was correct. Eor the cases on this point see Guerra v. State, 189 S. W. 953; Ethridge v. State, 74 Tex. Cr. R. 638,169 S. W. 1152; Graham v. State, 73 Tex. Cr. R. 34, 163 S. W. 726; and many other cases.

The law on the subject of newly discovered testimony is so well settled that it needs no discussion or citation specially to the authorities now. Even if we could consider this ground without knowing what the testimony was which the judge heard, the record clearly shows that one of appellant’s attorneys who tried this case was present and represented appellant in said examining trial. Of course, the appellant himself also was then present, and if deceased’s wife gave any such testimony therein as claimed, they both must have heard and known of it at the time; so that as a matter of fact it could not have been newly discovered testimony. Dobson v. State, 65 Tex. Cr. R. 639, 146 S. W. 546. Moreover, said Miller was subpoenaed and attended this trial as a witness. Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322; Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297; Williams v. State, 45 S. W. 572. In addition appellant produced and introduced on this trial the whole of the testimony of deceased’s wife given on said examining trial. Again, the purported newly discovered testimony, even if it could be held to be such, would go solely to the impeachment or contradiction of deceased’s wife. Wormley v. State, 65 Tex. Cr. R. 49, 143 S. W. 615, and cases there cited. And again the question of granting a new trial on this ground is left largely to the discretion of the trial.judge. At least this court will not reverse unless appellant shows that the trial court abused its discretion in not granting the new trial. Gray v. State, 65 Tex. Cr. R. 206, 144 S. W. 283, and cases cited.

Eor all of these reasons the action of the court in denying the new trial does not show any error. The rules regarding this subject and the authorities are stated by Judge White in his Ann. O. C. P. § 1149, and cases there cited, and in 1 Branch’s Ann. P. C., §§ 192-205, and it is unnecessary to now state or discuss them.

The judgment is affirmed.
      (§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    REYNOLDS v. STATE.
    (No. 4470.)
    (Court of Criminal Appeals of Texas.
    May 16, 1917.
    On Motions for Rehearing, June 20, 1917, and Jan. 16, 1918.)
    1. Bail <¾=>72 — Recognizance—Necessity— Dismissal.
    An appeal from a conviction for a misdemeanor will be dismissed where neither original nor additional recognizance is sufficient.
    On Motion for First Rehearing.
    2. Indictment and Information <@=>125(43) —Charging Offenses A&ainst Different Persons — Sufficiency.
    A complaint charging defendant with having taken part in an unlawful assembly with reference to two separate persons is not defective as charging separate and distinct offenses; unlawful assembly being one offense, though committed against two persons.
    3. Unlawful Assembly <@=>2 — Indictment-Sufficiency.
    An indictment charging defendant with having taken part in an unlawful assembly, in that he assembled with certain persons “with intent to aid each other by threats, intimidation, pulling off of trolleys, turning loose and overturning of street ears, throwing of missiles, rudely displaying pistols,” in order to deprive certain named persons of their right to labor, was not defective as charging actual violence instead of unlawful assembly.
    On Motion for Second Rehearing.
    4. Unlawful Assembly <@=>2 — Indictment— Sufficiency.
    Under Pen. Code 1911, art. 435, defining unlawful assembly, and article 445, providing that if the purpose of unlawful assembly be to prevent any person from pursuing any labor, occupation, or employment, or to intimidate any person from following his daily avocation, or to interfere in any manner with the labor or employment of another, the punishment shall be by tine, an indictment charging defendant with unlawfully assembling with other’s to prevent a conductor and motorman of a street car from pursuing their occupation, was not defective in failing to allege that the street car was being operated or run, or that it intended to be operated or run, by the company.
    5. Unlawful Assembly <S=>1 — Number of Participants — Acquittal.
    One charged with unlawful assembly may be convicted thereof, although others with whom he was alleged to have assembled were acquitted of the charge, so that less than the requisite number to constitute an unlawful assembly remained.

      Appeal from El Paso County Court; E. B. McClintock, Judge.
    A. J. Reynolds was convicted of a misdemeanor, and he appeals.
    Affirmed.
    M. W. Stanton, Hudspeth & Dale, and Hudspeth, Dale & Harper, all of El Paso, for appellant. E. B. Hendricks, Asst. Atty.. Gen., for the State.
   PRENDERGAST, J.

The conviction heroin was for a misdemeanor. The purported original recognizance was fatally defective. 2 Vernon’s Ann. Crim. Stats, p. 882. At his instance this court gave appellant leave to enter into a new recognizance in the terms required by the statute. Since then he has entered into another purported recognizance and now files it herein. It likewise is fatally defective. 2 Vernon’s Ann. Crim. Stats, p. 884.

As neither recognizance gives this court jurisdiction, the appeal is dismissed.

On Motion For First Rehearing.

Appellant in his second or third effort in the lower court to correct his record has shown that he entered into the proper recognizance prescribed by the statute, and also filed in this court a properly certified copy thereof, and also a correct copy in another matter which the original record did not show. His motion to reinstate is therefore granted, the order of dismissal heretofore entered set aside, and the cause now db-eided on its merits.

In the original motion of the Assistant Attorney General to dismiss this appeal because of insufficient recognizance, he also called attention to the fact that there was no order by the lower court, permitting the statement of facts and bills to be filed after term time, and tljat all of appellant’s purported bills and statement of facts were filed long after adjournment, and moved that they be struck out and not considered. In view of the fact that, in at least the two efforts by appellant to get the record below amended to show that he had entered into the proper recognizance, nothing appears whereby he attempted to show that any order permitting him to file the bills and statement of facts after term time was entered, it is_evident that no such order was made; hut even if it was, as it was not entered and does not appear in this record the Assistant Attorney General’s motion to strike out and not consider the bills and statement of facts must be sustained under the uniform and many decisions of this court.

Therefore the only question which can be reviewed is the sufficiency of the indictment. The indictment was in two counts. The second charged an unlawful riot. As the jury .found the appellant guilty only of unlawful assembly, and thereby acquitted him of the offense of riot, all questions pertaining to the riot charge passed out of the case.

The first count charging unlawful assembly is as follows: It has the usual formal allegations, and then alleges that on or ábout August 11, 1916, in El Paso county, Tex.:

“One A. J. Reynolds did then and there unlawfully assemble and meet together with O. E. Smith, J. W. Cole, and E. L. Ligón, and divers other persons whose names are to the assistant county attorney unknown, with the intent and purpose to aid each other by threats, intimidation, pulling off of trolleys, turning loose and overturning of street car, throwing of missiles, to wit, stones, and by violence, to wit, rudely displaying pistols, to illegally prevent and deprive Albert Kuehme and H. E. Brown, and each of them, of his and their right and the right of each of them to labor, and to disturb him and them and each of them in the enjoyment of said right; that is, said Kuehme and Brown were each and both then *tnd there engaged in a lawful employment, to wit, pursuing the labor-, occupation, and employment of motorman and conductor respectively, being lawfully employed as such on a street car then and there owned by the El Paso Electric Railway Company, a corporation, and the purpose of said unlawful assembly and the intent of said A. J. Reynolds, G. E. Smith, J. W. Oole, and E. L. Ligón, and divers other persons whose names are to the assistant county attorney unknown, was then and there to prevent the said Kuehme and Brown, and each of them, from pursuing their and his respective labors, occupations, and employment, and to intimidate him and them from following his and their daily avocation, and to interfere, by the means aforesaid, with his and their labor and employment as motorman and conductor, the same being the usual and ordinary occupation and employment of said Kuehme and Brown respectively.”

Appellant’s grounds for quashing this were: (1) That it does not charge an offense against the law committed by him. (2) The allegation in charging “the said Kuehme and Brown were each and both then and there engaged in a lawful employment, to wit, pursuing the labor, occupation, and employment of motorman and' conductor,” is insufficient, in that it does not aver that they were lawfully pursuing the labor, etc., of conductor and motorman. The reverse of this is true as shown by the count above copied. It there specifically alleges that they were pursuing the labor, etc., “of motorman and conductor respectively.” (3) That this count attempted to charge two separate and distinct offenses: First, the unlawful assembly with reference to Kuehme; and, second, such assembly with reference to Brown. There is nothing in appellant’s contention on this point. The count in this particular was really in his favor and against the state, in that it charged unlawful assembly against both Kuehme and Brown. Either alone would have been sufficient. But by joining both of them it imposed a greater burden on the state than was necessary. However, the offense charged is only one offense and not two, for all the allegations show that everything that was done by appellant in order to make him guilty of the offense was done at the same time, at the same place, by the same persons, and against both Kuehme and Brown. So that it was but one offense, though committed against two persons. If the acts liad been charged to have been committed against one alone, and he had been tried on that, it would have put him in jeopardy a second time to have tried him on the same allegation against the other party for the reasons stated above. (4) Because the allegations show him, if guilty of anything, not of unlawful assembly, but of actual violence.

The information herein complies substantially with the forms laid down by Mr. Branch, Judge White, and Judge Wilson, and are strictly in accordance with the statute prescribing the offense. P. O. arts. 435 and 445. The court’s action in overruling appellant’s motio# to quash was correct.

The judgment is affirmed.

On Motion for Second Rehearing.

Appellant has at last got the record in this case complete, which shows that his bills of exception and statement of facts were filed in time. They have been duly read, and considered.

In his motion for rehearing he again contends that the information herein is fatally defective. In the recent case of Ligon v. State, 198 S. W. 787, in what may be regarded as a companion case, this court held the complaint and information therein were valid. The pleadings in that case were substantially the same as in this. It would be sufficient therefore to refer to that case as decisive against his contention. However, there is one objection he makes which we will discuss; that is, he claims that the information “nowhere alleges that the street car was being operated or run, or that it was intended to be operated or run.” He contends this allegation was necessary and cites and relies upon McGehee v. State, 23 Tex. App. 330, 5 S. W. 222; Follis v. State, 37 Tex. Cr. R. 535, 40 S. W. 277; Bradford v. State, 40 Tex. Cr. R. 632, 51 S. W. 379, and perhaps other claimed somewhat like cases.

The statute defining the offense herein is:

“An unlawful assembly is the meeting of three or more persons with intent to aid each other by violence *. * * illegally to deprive any person of any right, or to disturb him in the enjoyment thereof.” Art. 435, P. 0.

And article 445, P. 0., which is:

“If the purpose of the unlawful assembly be to prevent any person from pursuing any labor, occupation, or employment, or to intimidate any person from following his daily avocation, or to interfere in any manner with the labor or employment of another, the punishment shall be by fine not exceeding five hundred dollars.”

The information under which the conviction was had was quoted in the original opinion.

. A comparison of the pleading herein with that of the McGehee Case will show that it is in accordance therewith. The pleading in the McGehee Case was expressly held sufficient.

In' the Eollis Case, the indictment alleged simply that the appellants therein unlawfully met—

“together with intent to commit an offense against the laws of this state, to-wit: with the intent to aid each other, by violence and by force and intimidation, to deprive Elgin Sutton of Ms right, and disturb him in the enjoyment thereof, to wit, the right to have a social gathering and dance at his house.”

That indictment was held defective because it did not directly allege that Sutton had a house, and was giving or about to give or intended giving a social gathering and dance at his house.

In the Bradford Case the information alleged that appellant therein, with other persons named,

“with the intent to aid each other, by violence and intimidation, to illegally deprive L. H. Ernst from running and operating a certain farm in the county and state aforesaid, said farm being then and there the property of the said E. H. Ernst, by illegally depriving him, the said L. H. Ernst, of the right to employ and retain in his employ Mexicans as laborers upon his said farm, and to disturb him, the said L. H. Ernst, in the enjoyment of said right to employ and retain in his employ Mexicans as laborers upon his said farm, by violence and intimidation as aforesaid, it being then' and there the legal right of the said L. H. Ernst to employ and retain in his employ Mexicans as laborers.”

The information therein was held defective because there was no direct allegation that said Ernst then and there had in his employ, or was about to employ, certain Mexicans as laborers upon his farm. The court held:

“There should have been a direct averment that the said Ernst was engaged in running and operating a certain farm, and also that he then and there had in his employ certain Mexicans, or that he was about to employ certain Mexicans for the purpose of running and operating his said farm.”

It was not necessary to the validity of the pleadings herein that it should allege that the street car was being operated or run, or intended to be, as contended for by appellant.

The pleading herein clearly met what was held defective in the Bradford and Eollis Gases. Succinctly stated, it alleged that said Kuehme and Brown were each and both then and there engaged in a lawful employment, to wit, pursuing the labor, occupation, and employment of motorman and conductor, respectively, being employed as such on a street car owned by a certain named company, a corporation; that appellant and three others named, and divers other unknown persons, did unlawfully assemble and meet together, with the intent and purpose to aid each other, by the means and with the things enumerated, to illegally prevent and deprive said Kuehme and Brown, and each of them, of his and their right and the right of each of them to labor, and to disturb them and each of them in the enjoyment of said right; and that it was the purpose of said unlawful assembly, and the intent of appellant and said others named and those unknown, to prevent said Kuehme and Brown, and each of them, from pursuing their and his respective labors, occupation, and employment, and to intimidate him ,and them from following his and their said avocations, and to interfere, by the means aforesaid, with his labor and employment as motorman and conductor, the same being the usual and ordinary occupation and employment of said Kuehme and Brown, respectively.

The pleading was complete and full under the statute and decisions. Possibly, under said Bradford and Follis Cases, if the information had charged that the unlawful assembly and intent, etc., was to prevent, etc., said street car company from operating its cars, such an allegation as appellant claims should have been -made herein might then have been proper or necessary.

Biot and unlawful assembly are both misdemeanors — neither is a felony. The statute (article 1013, sub. 3, P. C.), that the use of any dangerous weapon with the intent to alarm comes within the meaning of an assault, prescribes only a misdemeanor. And while article 1024a, 1 Vernon’s Crim. Stat., prescribes that the willful commission of an assault or battery with a pistol, while being unlawfully carried, may be a felony, neither of these statutes have any application whatever to this case. The pleading herein in no way, in either count, alleged a felony.

The witnesses identified only three, appellant, Smith, and Cole, of the many persons 'engaged in the unlawful assembly. They could not identify any of the others. Smith had previously been tried and acquitted in another ease — not in this case.

Appellant thereupon contends that .Smith could not be counted as one of the unlawful assembly, and without him, as the evidence identified only two others, appellant and Cole, the conviction cannot stand. He cites 39 Cyc. 834, and some cases from other jurisdictions, which, he claims, support and establish his contention. Cyc. says:

“In order to sustain a conviction for unlawful assembly, the number of persons required to constitute the offense must be indicted. So if, on the trial, less than the required number be found guilty, and the others charged be acquitted, the conviction cannot be sustained.”

Only one Indiana case is cited to support the text. Appellant, however, cites some decisions of other jurisdictions, which, he claims, support his contention.

The doctrine laid own by Cyc. quoted is not the law in our state, as has many times been held in principle by this court. There are also decisions of other states holding the reverse of appellant’s contention. Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207; Mercer v. State, 17 Tex. App. 464; Ledbetter v. State, 21 Tex. App. 346, 17 S. W. 427; Bell v. State, 33 Tex. Cr. B. 164, 25 S. W. 769; Solomon v. State, 39 Tex. Cr. R. 141, 45 S. W. 706; Minter v. State, 70 Tex. Cr. R. 660, 159 S. W. 286; State v. Eggleston, 45 Or. 353, 77 Pac. 738; Vought v. State, 135 Wis. 12, 114 N. W. 518, 646, 32 L. B. A. (N. S.) 234, 128 Am. St. Rep. 1008; People v. Barnes, 2 Idaho (Hasb.) 161, 9 Pac. 532; State v. Cutshall, 109 N. C. 768, 14 S. E. 107, 26 Am. St. Rep. 599; State v. Carroll, 30 S. C. 90, 8 S. E. 433, 14 Am. St. Rep. 883.

The fact that Smith, when previously tried in a case against him alone, in some way, not disclosed, secured his acquittal, would not prevent the state from showing, in a trial of the case against appellant alone, that Smith was one of the three or more who participated in the unlawful assembly when appellant did, and thereby prevent appellant’s conviction. Of course, Smith having been acquitted, he could not again be tried or convicted, whatever may have been the reason for his acquittal, or however secured. It was appellant, and not Smith, who was tried in this case.

In said Alonzo, Ledbetter, and Solomon Cases the man and woman were both jointly prosecuted for adultery, or fornication, as the case was. The woman in eaffh case was acquitted, or after jeopardy attached the case was dismissed as -to her, and in each case the man then convicted. The man contended that as the woman had been acquitted this inured to his benefit, and he could not therefore be convicted. This court in each instance held against him.

In the Mercer Case he was convicted of incest. He contended in appeal that he could not be convicted unless the woman was also guilty. This court held against him.

In the Bell Case, she, a white woman, was convicted of miscegenation, marrying a negro man. She contended as the man had been tried and acquitted she could not be convicted. This court held against her.

In the Vought Case the AVisconsin court held that, when three town officials were jointly indicted fon theft of town orders, the acquittal of two did not prevent the conviction of the other.

The motion is overruled.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BURLESON v. STATE.
    (No. 4534.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.
    Rehearing Denied, Jan. 16, 1918.)
    Cbiminal Law <&wkey;1092(6), 1099(5) — Appeal-Statement op Facts and Bill op Exceptions — Time op Filing.
    The statement of facts and bill of exceptions in a case tried in the county court, having been filed after term time without order allowing it, cannot be considered.
    Appeal from Leon County Court; C. D. Craig, Judge.
    J. A. Burleson was convicted, and appeals.
    Affirmed.

      Jas. T. Ryan, of Centerville, for appellant. E. B. I-Iendricks, Asst. 'Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted for threatening to take human life, his punishment being assessed at a fine of $100.

There is a statement of facts and. bill of exceptions in the record, but having been filed after term time without an order allowing time in which to file these papers, they cannot be considered. The court adjourned on the 21st of April; the statement of facts was filed on the 11th day of May, and the bill of exceptions on the 17th day of May. This case being tried in the county court, it was necessary, in order to file statement of facts and bills of exception in vacation, to have an order entered for that .purpose. None is found in the record, and the bill of exceptions, had there been a 20-day order, was filed more than'20 days after court adjourned. The other matters eomplained'of in the record cannot be considered or intelligently revised in the absence of a statement of facts.

The judgment will be affirmed.
      ©saFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RENFRO v. STATE.
    '(No. 4734.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1917.
    On Motion for Rehearing, Jan. 23, 1918.)
    1. Criminal Daw <&wkey; 1091(4) — Appeal—Bills oe Exceptions — Sueeicienct.
    Bills of exceptions merely setting out the questions objected to, the answers, and defendant’s objections were insufficient to require consideration.
    2. Criminal Daw <&wkey;364(3), 368(1) — Eviden oe — Res Gestae.
    On a trial for remaining in a place where a game was being played with dice, evidence that all those present except defendant were playing on the floor, that defendant left the room at a time specified, and that a witness heard some one say that he would shoot so much, was admissible as res geste, since all that was said or done, or which occurred, at the time of a transaction, tending in the slightest degree to explain the transaction or the conduct or motive of the parties, is admissible.
    3. Criminal Daw <&wkey;1170(l) — Harmless Error-Exclusion oe Evidence.
    On a trial for remaining in a place where a g'ame was being played with dice, assuming that the court erred in excluding the testimony of the players on the ground that they were principals, accomplices, or accessories, the exclusion of their testimony was harmless, where defendant himself swore that he was present and remained where the game was being played, and such witnesses would have testified to the same thing in substance, although they would also have testified that defendant did not remain as long as the sheriff and the deputy sheriff testified he did, and that he sat upon a machine and not on the bed, and that the game was played on the bed and not on the floor as testified by witnesses for the state.
    On Motion for Rehearing.
    4. Gaming <&wkey;72(6) — Oeeenses — Place as Element oe Oeeense.
    Pen. Code 1911, art. 557, makes it an offense to bet or wager anything at any of the games therein specified or at any game of any character that can be played with cards, dice, or dominoes, provided that no person shall be indicted thereunder for playing such games with dominoes of cards at a private residence occupied by a family, unless commonly resorted to for the purpose of gaming. Article 563 makes it an offense to go into or remain in any gambling house, or to remain in any place where any of the games prohibited by that act are being played. Held, that while it is not an offense to play cards and gamble in a game with cards at any private residence occupied by a family unless such private residence is commonly resorted to for the purpose, it is an offense to bet at any game played with dice anywhere, or to remain in any place where any such game is played, whether in a private residence occupied by a family or not.
    Appeal from Cottle County Court; W. O. Jones, Judge. ■
    Dick Renfro was convicted of an offense, and he appeals.
    Affirmed.
    C. C. Renfro and J. M. Hawkins, both of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Article 557,' P. C., makes it an offense for any person to bet at any game played with dice anywhere. Bowles v. State, 67 Tex. Cr. R. 578, 150 S. W. 626; Knowles v. State, 67 Tex. Cr. R. 600, 150 S. W. 777; Scott v. State, 69 Tex. Cr. R. 615, 616, 155 S. W. 226 (2 cases). Article 563, P. C., makes it an offense for any person to remain in any place where any such game with dice is played. Appellant was convicted of this offense, and his punishment assessed at the lowest prescribed by law.

Mr. Combest, the sheriff, and Mr. Bebout, his deputy, both swore that they caught Elmo Barron, Dr. Nugent, Mr. Harris, Paul Huff, and Jack Jones gambling with dice, playing craps in a certain room in the Padu-cah Hotel, in Paducah, Cottle county, Tex., on May 10, 1917, at about 10:30 o’clock at night, and that these persons gambled with dice for from 30 minutes to about an hour; that these persons played on the floor; that appellant was in the room and remained therein practically, all of the time this gambling was going on. They swore he sat on the bed during the time; that he did not himself play in the game.

Appellant himself swore, in substance, that he was in that room, and remained therein while said gambling was carried on from 10 to 20 minutes; that the game was begun after he went into the room. He swore:

“I stayed 10, 15, or 20 minutes after the game started; may have been longer than that but didn’t stay long.”

He swore that said five persons named were all in the game, but that he did not sit on the bed but on a machine in the room, and that the gambling with the dice was on the bed and not on the floor.

Appellant has one bill of exceptions to this question asked by the county attorney, “What position were the men in on the floor?” and the answer, “All the men were playing on the floor except defendant.” This is the whole of the bill except his objections that it was not shown that appellant was on the floor or playing. He has another bill to this question by the county attorney, ‘When did you see the defendant come out of the room?” and his answer, “It was about five minutes before 12 o’clock when the defendant came out of the room.” He objected to this because it was immaterial, irrelevant, etc. This is the full substance of the bill. He has another to this question asked by the county attorney, “What did you hear?” and the answer, “I heard some one say that he would shoot so much.” Appellant objected to this because it was not shown that appellant made the remark nor that he was in the room at the time. ’

Neither of these bills are sufficient to require their consideration. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Best v. State, 72 Tex. Cr. R. 204, 164 S. W. 996, and authorities cited. But, even considering them in the light of the record, they are clearly the res gestae or facts and circumstances hovering around and immediately connected with the transaction occurring at the time and place of the main fact. It has all the time been held, as stated by Judge White in his Ann. P. C. §1236, as follows:

“All which was said or done, or that which occurred, at the time of the homicide [transaction] tending in the slightest degree to explain the transaction or conduct or motive of the parties is admissible.”

These questions and answers objected to were admissible.

Appellant has another bill which recites that:

On the trial “defendant offered the witness Elmo Barron who was present at the time of the alleged offense, and is in a position to know, if anybody knows, the facts in this case.”

The bill further alleges that he expected to prove by said witness that he was present on said occasion with the four other persons named where the game of dice was engaged in by them, and that it was begun about 15 minutes before 12 o’clock; that shortly thereafter appellant got up and left the room; that the game was not played on the floor but on the bed; and that appellant during the time he was in the room sat upon a machine and not the bed. The county attorney objected to this witness testifying under article 791, O. O. P., which prescribes that persons charged as principals, accomplices, or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another — objecting that because he had been prosecuted, etc., for playing said game. The court sustained his objection and refused to permit the witness to testify. He has other bills showing that he offered the same testimony, in substance, by several of the other persons engaged in the game, but the court refused to permit any of them to testify. Appellant contends that the county attorney’s objections were mere objections, and not proof of facts which disqualified the witness. His contention may be conceded as well taken. If, as a matter of fact, said witnesses were principals, accomplices, or accessories to the offense charged against appellant, article 797, C. O. P., provides that after they had been tried and convicted and their punishment was fine only, they may testify after they have paid the fine and costs. As stated, it may be conceded that the witnesses were competent to testify, and that the court erred in not permitting them to testify; then the question is whether such error was material or harmless.

As stated, appellant himself swore that he was present and remained where the game was being played, as stated in his testimony above. Each of these excluded witnesses would have sworn the same thing, in substance. In other words, their testimony, as well as all the other, without question and without doubt, shows that appellant was present and remained a considerable period of time in the room where the game and gambling was carried on. The fact, if so, that he did not remain as long as the sheriff and deputy testified he did, or that he did not sit upon the bed but a machine, and that the game was not played by the said persons on the floor but on the bed, would not, and could not, have changed the result.

It is well established that a harmless error is not ground for reversal. Exclusion of the testimony of each of these witnesses was harmless, and does not require or authorize a reversal. The punishment assessed was the lowest prescribed by law.

No other questions are raised which require discussion.

The judgment is affirmed.

On Motion for Rehearing.

The sole ground of appellant’s contention in his motion for rehearing is that under the statute (art. 563, P. C.) it is not made an offense to go into and remain in any place where a game with dice is being played, unless such place is a gambling house, or is commonly resorted to for gaming. He cites and relies upon Walters v. State, 58 Tex. Cr. R. 240, 125 S. W. 11. The statutes applicable and prescribing this offense were cited and given in the original opinion. It is unnecessary to repeat them. As stated and shown by authorities there cited, it is an offense for any person to bet at any game played with dice anywhere, whether in a private residence occupied by aTamily or not, and article 563 makes it an offense for any person to remain in any place where any such game with dice is played. The Walters Case is not in point herein. In that case the charge was that appellant remained in Matilda Hagen’s house, where a game of cards was being played by certain persons. The uncontradicted proof in that case was that said house was the private residence of the woman alleged, and that it was not commonly resorted to for the purpose of gaming; that one game being the only game ever played therein, so far as the testimony showed. It is not an offense to play cards and gamble in a game therewith at any private residence occupied by a family, unless such private residence is commonly resorted to for that purpose.

In Purvis v. State, 62 Tex. Cr. R. 302, 137 S. W. 701, Ann. Cas. 1913C, 536, this court expressly overruled the cases of Singleton v. State, 53 Tex. Cr. R. 625, 111 S. W. 736, and Purvis v. State, 52 Tex. Cr. R. 342, 107 S. W. 55, wherein it was held by Judge Ramsey that it was an offense to bet at a game of cards played at a private residence, even where not commonly resorted to for that purpose; this court holding that it was no offense under the statute to play a game with cards at a private residence occupied by a family and bet thereon, unless such private residence was commonly resorted to for that purpose.

What Judge Ramsey said was meant by “any place” in said article 563 in said Walters’ Case is restricted to what was being decided in that case; that is, as to a game played with cards at a private residence occupied by a family which is not commonly resorted to for that purpose. It is not applicable to any place where a game with dice is played and betting thereon. It was obiter dictum as to any place where gambling is done with dice.

The motion is overruled.
      (§r=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WATSON v. STATE.
    (No. 4621.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    Rehearing Denied Jan. 16, 1918.)
    1. Forgeey &wkey;>14 — Delivery of Instrument.
    Where defendant forged a note with intent to defraud, the offense was complete, though the note was not delivered to the payee.
    2. Forgery &wkey;29(l) — Indictment —Setting Forth Forged Instruments — Allegation oe Corporation. ,
    An indictment which sets out the forged note by its tenor need not allege that the payee, a bank, is a corporation, the bank not being the injured party.
    3. Forgery <&wkey;7(l), 29(2) — Indictment—Setting out Extrinsic Facts.
    It is settled law that a forged instrument must be such as, if true, would create, increase, diminish, discharge or defeat a pecuniary obligation, or would transfer or in some manner affect property, and that it is legally of such character must appear either from the face of the instrument or by additional averments in the indictment of extrinsic facts necessary to charge forgery.
    4. Criminal Law <&wkey;858(3) — Evidence — Documents Taken to the Jury Room.
    Code Cr. Proe. 1911, art. 751, providing that the jury may take with them on retiring to consider verdict all the original papers in the cause and any papers used as evidence, is permissible, and not mandatory, and it is not error for the trial judge not to send out an alleged forged instrument when not called for by the jury.
    5. Criminal Law <&wkey;923(l) — New Trial — Disqualification of Juror — Householder or Freeholder.
    That defendant did not know that one of the jurors was not householder or freeholder, and thereby subject to challenge, at the time he was accepted, will not of itself require the granting of a new trial.
    6. Criminal Law <®=o923(2) — Rulings on Motion for New Trial — Review.
    That a juror upon his examination misled the defendant with reference to his being impartial without a showing that defendant learned of juror’s prejudice subsequent to his acceptance is insufficient for the granting of a new trial.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    J. E1. Watson was convicted of forgery, and be appeals.
    Affirmed.
    Boyd & Bell and Geppert & Wroe, all of Teague, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

Appellant assigns what be denominates “fundamental error” based on the proposition that the indictment shows on its face the forged instrument is payable to the Farmers’ & Merchants’ State Bank of Teague, Tex., but it fails to allege that the note was delivered to that bank. This proposition is without merit. The name of R. L. King is the name forged to the note, which was payable to the Farmers’ & Merchants’ State Bank of Teague, Tex. The delivery of this note to that bank was not necessary to constitute forgery. It is not necessary to perpetrate the fraud in ord,er to constitute forgery. If appellant forged the note with intent to defraud, the offense was complete.

Another “fundamental” proposition asserted by appellant is that the note, being set out by its tenor, should have also alleged that bank was a partnership, joint-stock company, or a corporation; the contention being that extrinsic averments must be alleged where it appears that the forged instrument is not made payable to an individual. We do not understand such to be the law applicable to this character of forgery. The rule is it is not necessary in instruments of this character to charge that the bank was incorporated. The cases will be found collated in Mr. Branch’s Ann. P. O. at page 853. The bank is the payee, not the payer. It is not necessary to discuss what might be involved if the name of the bank had been forged. King’s name was forged, and the bank made the payee. See Lucas v. State, 39 Tex. Cr. R. 48, 44 S. W. 825; Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356; Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309; Whitaker v. State, 66 Tex. Cr. R. 541, 147 S. W. 509; Davis v. State, 70 Tex. Cr. R. 253, 156 S. W. 1171. Mr. Brancli, in his Annotated P. 0., thus states the rule in a very condensed and accurate form, as shown by the opinions of this court cited in support of this proposition:

“When the alleged forged instrument is an ordinary bank check, draft, promissory note, _ or other ordinary commercial instrument importing a pecuniary obligation on its face, it is not necessary to allege that the payee is a firm, partnership, or corporation.”

He also states this further rule which indirectly may be applicable:

“Where the check or draft alleged to be forged is drawn on a bank, it is not necessary to allege that the bank was incorporated or unincorporated, the bank not being the injured party”— citing quite a number of authorities.

It may also be stated that, where the forged instrument is not an ordinary commercial instrument, and the name purporting to be signed thereto is not applicable to a private person, there should be an extrinsic averment showing whether it was a corporation, joint-stock company, or a partnership. This was held in Lynch v. State, 41 Tex. Cr. R. 209, 53 S. W. 693. It is again asserted that, if the alleged forged instrument is an ordinary commercial instrument importing a pecuniary obligation on its face and is signed by a name applicable to a firm, it need only be set out by its tenor, and in such case it is not necessary to allege the names of the individual members or to allege that their names were unknown. Many cases are cited by Mr. Branch in support of this proposition.

It seems to be the settled law that in forgery the forged instrument must be such that, if true, it would create, increase, diminish, discharge, or defeat any pecuniary obligation, or would have transferred, or in any manner have affected, any property whatever, and it must appear that it is legally of such character, either from the face of the instrument itself, or, if that alone does not show it, then additional averments of such extrinsic facts must be alleged as to charge a forgery. Under none of these authorities can it be held to be the law that extrinsic averments would be necessary under a forged instrument like the one set out in this record.

Another contention of appellant is that the court erred in not permitting the jurors to take the alleged forged instrument with them into the jury room, it being a written instrument introduced in evidence before the jury. The bill recites that when the jury retired defendant requested the court to permit the jury to take with them in the jury room the note alleged to have been" forged by defendant. This was refused by the court. The trial judge explains this bill as follows:

“The note in question had been passed' around and carefully examined by the several members of the jury. None of them requested or intimated to the court that they desired further examination. Fearing that same might become lost, and being an important document designed for use by the district attorney in other pending cases, the court deemed it advisable to not send same to the jury roomj unless called for by the jury.”

This ruling of -the court is not erroneous. See Wragg v. State, 65 Tex. C. R. 136, 145 S. W. 342; Schultz v. State, 15 Tex. App. 258, 49 Am. Rep. 194. Article 751 of the Revised Code of Criminal Procedure provides that the jury may take with them on retiring to consider their verdict all the original papers in the cause and any papers used as evidence. This statute has been, at least as far back as Schultz v. State, supra, held to be permissible, and not mandatory and it is not error not to send the papers out unless called for. by the jury. The cases above cited support this proposition.

In the motion for new trial it is alleged, first, that one of the jurors was not a householder or freeholder, and therefore should not have sat on the jury. The idea conveyed is that appellant did not know at the time he accepted this juror that he came within that cause for challenge. That of itself will not require the granting of a motion for new trial. Leeper et al. v. State, 29 Tex. App. 63,14 S. W. 398; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721; Williamson v. State, 36 Tex. Cr. R. 225, 36 S. W. 444. This rule has also been laid down by the Supreme Court. Schuster v. La Londe, 57 Tex. 28.

With reference to this same affidavit another ground of the motion for new trial alleges that the juror was prejudiced against him and had so expressed himself prior to being taken upon the jury. The motion for new trial contains the following:

That the said Baggett was not an impartial juror; that be was not acceptable to defendant because be was biased and prejudiced against him; that appellant was called upon to exercise his peremptory challenges when there were but nineteen jurors in the jury box, and at least nine of these were known to him to have their minds made up that he was guilty; that this appellant at the time exercised his right and excused nine jurors peremptorily, “and that he would have exercised another challenge against said juror O. A. Baggett, but, owing to the fact that there would only be four jurors left, he desired to retain one challenge for the balance of the jury, which had to be summoned by the sheriff to fill out the panel; that the said juror was not an impartial juror, and that he had made statements to others as is shown by the affidavits of B. Saunders and J. W. Newman hereto attached, and which clearly showed that he had a fixed and determined purpose in finding this defendant guilty should he become a member of the jury; that the said juror was prejudiced against this defendant, as is shown by said affidavits; that the said juror was also examined on his voir dire with reference to his impartiality, and stated that he was not prejudiced against this defendant; that the said juror misled the defendant, the court, and counsel with reference to his qualification to sit on the jury, and with reference to his impartiality; that the said juror Baggett was forced upon the defendant without his consent and by virtue of the said juror’s answer to the questions propounded to him on his voir dire, and by reason of the fact that he was forced to use all his peremptory challenges on other jurors who were equally objectionable as said juror Baggett.”

His contention is that the juror stands in the same relation as if be bad challenged him for cause and the challenge had been overruled. This is all that, is contained in the motion for new trial, which is sworn to by appellant.

It will be noticed that the defendant does not undertake to say that he was unaware of the prejudice or partiality of this- juror before'taking him on the jury. It is made to appear, on the contrary, that he thought this juror was prejudiced, and would have excused him, but was afraid more objectionable jurors would be summoned by the sheriff upon whom he expected or desired to exercise this challenge. Nowhere does he undertake to assert that the partiality 'of this juror was unknown to him, and, so far as the motion and his affidavit are concerned, it is entirely consistent with the fact that he did know as that he did not know of this “partiality.” There was no attempt to get rid of the juror by challenge, or that appellant had an objectionable juror forced upon him.

The attorneys in the case filad an affidavit to the effect that they did not know, that they were unaware of the fact, that the juror was prejudiced against defendant, and they did not learn of such disqualification until after they had filed defendant’s original motion for new trial. They say they were not negligent, but make no statement as to this matter or when they discovered that the juror had previously expressed himself, except a general statement that it was subsequent to the filing of the original motion for new trial. It is shown none of these matters were alluded to in the original motion. The conviction occurred on the 14th of the month. That is the day the record shows entry of conviction was made on the minutes. The original motion for new trial not being in the record, we suppose that they complied with the law and filed it within the requisite two days, which would have occurred not later than the 16th. The amended motion for new trial was filed on April 27th, the date that the original motion was set down for hearing. The affidavits were not brought to the attention of the court with reference to the juror Baggett except in connection with the filing of the motion for new trial. They were appended to that motion, and filed at the same time, and the judge certifies this was on' the day upon which the original motion was set down for disposition. All these matters were controverted by the district attorney, and the judge certifies further that when this motion was filed on the 27th of April the district attorney at once made an effort, to locate and have present at the hearing of the motion the attacked juror, but he could not be found. It will be noticed that no information is given in any of these statements at what time it was ascertained, except it was' after the 16th of the month; nor do they undertake to show or explain why these affidavits were not called earlier to the court’s attention than the day upon which they were filed. These affidavits were sworn to on the 26th, a day before they were filed and x day before the amended motion was filed. So far as the record is concerned, the matter rested on the affidavits, and the attack made by the state upon it by controverting the motion. The affiants were not placed upon the stand, and, so far as the record is concerned, there was no effort made to introduce any testimony, and the trial on these matters stood upon the face of the papers above mentioned. It occurs to us that this matter does not present itself in such manner as to require this court to reverse. Appellant should have made it appear to the court that this was discovered by him after the juror was taken on the jury. The motion for new trial is drawn with some degree of skill and attention, but it omits to state that the appellant was not aware of this juror’s íweju-dice, if he was prejudiced, and accepted him on the jury. His motion as sworn to by him indicates that he thought he was not a favorable juror; in other words, that he was unfavorable at the time he took him. It fails to show why he did not exercise a challenge for cause on the nine objectionable jurors, and did not call the court’s attention thereto. If they were as objectionable as contended, the court would doubtless have sustained the cause for challenge. It was appellant’s duty to call the court’s attention thereto. He did not do this.

The case of Dougherty v. State, 59 Tex. Cr. R. page 472, 128 S. W. 398, seems to be in point, except in the Dougherty Case it seems more favorably stated for defendant than in this case. The Dougherty Case discusses this matter at some length, and in the usual felicitous style in which Judge Ramsey wrote with reference to questions of importance. Under that authority and the cases cited we are of opinion the court did not err. There is a later case of Haggart v. State, 77 Tex. Cr. R. 270, 178 S. W. 328, that upon the face of the opinion might tend to sustain the contention of appellant, but upon an examination of that record it shows that the matters about which this record is deficient were entirely covered. That opinion, however, treats the matter rather generally, and does not go into detail in reference to the motion for new trial. The record, when investigated, which the writer has done, shows Haggart was unaware of the condition of the jurors or their prejudice against him, and this he set out fully in his motion for new trial. It was thoroughly sustained by the facts. We are of opinion, therefore, this question as presented would hardly authorize this court to set aside this conviction.

Exceptions to introduction of extraneous forgeries are too general to be discussed.

•The judgment is affirmed.
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