author: FLY, C. J.

text:
    CLARK v. HENDRICKS et ux.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.)
    1. A-pyre AT. AND ERROR (§ 1048) — HARMLESS Error — Admission of Evidence.
    Any error in permitting a question on plaintiffs cross-examination in habeas corpus proceedings for the custody of plaintiff’s infant child, as to what became of a cow he owned several years before, elicited to show plaintiffs thriftless character, was harmless, where plaintiff admitted that he was thriftless and never expected to have anything.
    [Ed. Note. — For other, cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.]
    2. Appeal and Error (§ 1051) — Harmless Error — Admission of Evidence.
    In habeas corpus for custody of plaintiff’s infant child, the admission of declarations by plaintiff’s first wife as to his drinking habits was harmless, where there was sufficient evidence without such declarations to show plaintiff’s unfitness to have such custody, and the findings as to plaintiff’s drinking were based on his reputation and not on such declarations, and plaintiff admitted that he drank.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    S. Evidence (§ 152) — Opinion Evidence — Reputation.
    Where the only reputation plaintiff had in any particular locality was formed in a certain county, evidence of his reputation there four or five years before trial was not incompetent, especially where there was nothing to indicate that his reputation had since changed for the better; the time elapsing since witnesses knew him there only going to the weight of their evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 441; Dec. Dig. § 152.]
    4. Appeal and Error (§ 1051) — Harmless Error — Admission of Evidence.
    Where plaintiff, in habeas corpus proceedings to procure custody of his child, admitted that he gambled, evidence as to what witnesses had been told as to plaintiffs gambling was not prejudicial to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    5. Witnesses (§ 274) — Cross-Examination. .
    “Reputation” as to character, etc., is founded on what people say about one’s actions and character, and reputation witnesses may be asked, on cross-examination, as to the Sources of their knowledge.
    [Ed. Note. — For other cases, see Witnesses,' Cent. Dig. §§ 965, 966; Dec. Dig. § 274.]
    6. Habeas Corpus (§ 99) — Custody—Right of Parent.
    While the parent is usually entitled to the custody of his child, the courts will consult the child’s best interest in awarding custody, especially where a parent has voluntarily parted with custody, and the child’s present surroundings are better than they would be if in the parent’s custody.
    l[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Habeas corpus by W. E. Clark against A. S. Hendricks and wife to procure the custody of a child. From a judgment awarding custody to defendants, .plaintiff appeals.
    Affirmed.
    Jones & Childers, of Sinton, for appellant. Dougherty & Dougherty and B. D. Tarlton, Jr., all of Beeville, for appellees.

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

   FLY, C. J.

Appellant applied for a writ of habeas corpus commanding appellees to bring his infant daughter, Winnie Josephine Clark,, before the court, and prayed for her care and custody. The writ was awarded, and appel-lees answered by general demurrer and general denial, and specially answered that they were the grandparents of the child, an infant, one year of age; that her mother, their daughter, had died when said infant was-only six days old, and she was given into their custody, by appellant, so long as the grandmother should live, and he promised to contribute to the support and maintenance of the child, but had failed and refused so to do, except in the sum of $7; that appellees had supported the child, and to some extent appellant also. They further alleged that appellant was not the proper person to have the care and custody of the child, that he was indolent and drank and gambled, and “his reputation is by no means the best,” and that ap-pellees were able to take care of the child and educate her. The custody of the child was awarded by the court to appellees. The evidence shows that Winnie Josephine was born on April 8, 1912, and that her mother died six days thereafter, on April 14, 1912. On the day of the burial of the mother appellant placed the infant in the custody of appellees. Appellant was shown to be thriftless, indolent, and unfit to have the custody of the-infant. The grandparents are thrifty, respectable people, and the grandmother is well fitted to rear the little girl, having reared 10-children. She has taken excellent care of the child, and it is in fine health. Appellant married again in about four months after the death of his first wife, and has contributed very little to the support of the child. He is 28 years old, and married a girl 20 years old, and was expecting an addition to the family in a few weeks from the time of the trial.. He was in debt when he married the present wife and has not paid off the debts. He testified as to his future prospects: “Judging from the success I have had in the past, if I have anything next year, it will be luck. If I expect to have anything that costs more than $1.50, I expect to have a streak of luck. If I have the luck that I have had in the past, I could not educate anything. I am not figuring on that luck.” Appellant is of a wandering disposition and has lived in many places. He has accumulated nothing, and he, as well as every one who knows him, feels confident that it would be a marvelous thing if he ever does accumulate any property. The appellees have a nice farm, and there are only four in the family, besides the infant. The family consists of appellees and a son and a daughter, twins, about 21 years of age. Appellees are very fond of the child.

The first assignment of error complains •of the action of the court in permitting appellant to be asked what became of a cow he owned in 1909, and his answer that he sold it. The question was asked on cross-examination, and the testimony was sought, along with •other matters, to show the thriftless character of appellant. If it did not tend to show •that, it was harmless, as is admitted by appellant.

The second assignment of error complains of the admission of the declarations of his first wife as to his drinking habits. The •cause was tried by the court, without a jury, ■and there was sufficient evidence outside of ■the declarations of the wife to show the utter unfitness of appellant to have charge of the •child. It was proved that his reputation for “industry, honesty, sobriety, and morality” was bad. lie admitted that he was in the habit of drinking, and admitted that he had nothing. The court, in his findings of fact, ■showed that he found, as to appellant’s drinking, on his reputation and not on what he found the deceased wife had said. Andrews v. Key, 77 Tex. 35, 13 S. W. 640.

Appellant was a rover from one community to another in and out of Texas. He had lived during his 28 years of life in at least three states, in at least five counties, and numerous communities. Since 1907 he had been moving from one place to another. If appellant had any reputation it was formed in Hill county, where he lived longer than in any other county, and the reputation he formed there four or five years before the trial was not incompetent, especially as there was nothing to indicate that there had been .any change for the better in his reputation. The time that had elapsed since the witnesses as to reputation knew him may have gone to the weight, but not to the admissibility of the evidence. Mynatt v. Hudson, 66 Tex. 66, 17 S. W. 396; Brown v. Perez, 89 Tex. 282, 34 S. W. 725; Rice v. Ward, 93 Tex. 532, 56 S. W. 747.

Appellant admitted that he had gambled, and we fail to see how the evidence of witnesses as to what had been told them as to his gambling could have injured him. The testimony of which complaint is made was elicited by appellant on the cross-examination of the witnesses as to their knowledge of the reputation of appellant. The witnesses told that they had heard that he gambled. Reputation is founded on what people say about a man’s actions and character, and, when cross-examined, witnesses as to reputation are authorized to give their source of knowledge.

The evidence sustains the conclusion of the trial court that the best interests of the infant will be subserved by returning it to the custody of its grandparents, to whom appellant had given its custody for the life of the grandmother. The parent is usually entitled to the custody of his or her child, but courts can and will consult the interest of the child above all other things, and when a parent has voluntarily parted with the care and custody of a child, and the surroundings of the child, morally and otherwise, are better in its present environments than they would be in the custody of the parent, the law will consult the interests of the child and place them above all other considerations. Legate v. Legate, 87 Tex. 248, 28 S. W. 281; White v. Richeson, 94 S. W. 203; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196; Schneider v. Schwabe, 143 S. W. 265; Ball v. Smith (Tex. Civ. App.) 156 S. W. 576.

The court was justified in concluding; “That W. E. Clark has failed to develop any capacity for supporting or maintaining a family, and, judging the future by the past, seems bent on pursuing his well-worn road of idleness and nonaceumulation of this world’s goods.” This could, with great propriety, be said of a man who has lived to be 28 years of age and has not acquired a dollar’s worth of property, who still owes for the medical services and funeral expenses of his first wife, who has no hope of ever having as much as $1.50, who is not supporting his second wife, but is living on the bounty of his second father and mother-in-law and whose child is being cared for by his first parents in law.

The judgment is affirmed.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    McADAMS v. WILSON.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1914.
    Rehearing Denied March 7, 1914.)
    1. Guardian and Ward (§ 8) — 'Guardian foe Part of Estate.
    Rev. St. 1911, art. 4113, requires the guardian. of a minor’s estate to return an inventory of all property of the estate. Article 4115 requires an affidavit that the inventory and list of claims are true and complete. Article 4116 requires property owned in common by the ward and others to be distinctly stated in the inventory. Article 4099 requires the guardian’s bond to be in double the estimated value of the property. Article 4083 requires the order of appointment to specify whether the guardian is for the person, for the estate or for both. Held, that a guardian could not be appointed for only part of the infant’s estate, as for one-half of the property belonging to the community estate of the ward’s mother, who devised all of her property, both community and separate, to the ward and another child.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 9, 13-18; Dee. Dig. § 8.]
    .2. Guardian and Ward (§ 15) — Amount of Bond.
    The bond given by the guardian of the estate of an infant, in order to be valid, must be double the estimated value of the infant’s estate, as expressly required by Rev. St. 1911, • art. 4099.
    [Ed. Note. — For other case's, see Guardian and Ward, Cent. Dig. §§ 56-64; Dec. Dig. § 15.]
    . 3. Executors and Administrators (§■ 26)— Probate — Independent Executor — Bond.
    The fact that a will appoints an independent executor will not deprive the probate court ■of jurisdiction of the administration of the estate, so that it may annul a provision of the will, or require such executor to give bond while he acts.
    [Ed. Note. — For other cases, see Executors ■ and Administrators, Cent. Dig. §§ 144-170; Dec. Dig. § 26.]
    •4. Guardian and Ward (§ 8) — Independent Executor — Minor’s Estate — Appointment of Guardian.
    The administration of a will by an independent executor does not deprive the probate ■court of jurisdiction of the estate of a minor ■devisee, and it may, when necessary, appoint a guardian to take charge of such estate.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 9, 13-18; Dec. Dig. § 8.]
    5. 'Executors and Administrators (§ 304)— Funds of Minor — Transfer to Guardian —Acquisition of Estate.
    The funds in the hands of an independent executor, which belonged to an infant devisee, were transferred by operation of law to him as guardian of the infant upon his appointment as ■such, so that no act was necessary to transfer them.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1243, 1244; Dec. Dig. § 304.]
    ■6. Guardian and Ward (§ 8) — Number of Guardians — Person and Estate.
    Under the express provisions of Rev. St. 1911, art. 4082, only one guardian can be appointed for the person or estate of a minor; but a separate guardian may be appointed for each.
    [Ed. Note. — For other cases, see and Ward, Cent. Dig. §§ 9, 13-18; “ 8.] Guardian Dec. Dig.
    Appeal from District Court, Sherman County; D. B. Hill, Judge.
    Application by J. R. Wilson for letters of guardianship against which W. J. McAdams filed a protest. From an order appointing applicant as guardian, and fixing his bond, etc., McAdams appeals.
    Reversed and remanded.
    M. Cammack, of Stratford, for appellant. Jno. H. H. Stahl, of Stratford, for appellee.

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

   HUFF, C. J.

The appellee, J. R. Wilson, filed an application in the county court of Sherman county for letters of guardianship of the person and estate of Robert Roy Mc-Adams and Joseph John McAdams, alleging that they were minors, seven and five years old, and were without lawful guardian of either their person or estate, and that they were entitled to an estate, both real and personal, of the probable value of $5,000. Afterwards he amended his application, in which he stated the minors were entitled to real and personal property of the probable value of $4,500, devised by their mother, who was the daughter of petitioner, to said minors, and real estate of the probable value of $500, left by their father, who died intestate; that their mother died testate on the 2d day of February, 1913, leaving a will, in which petitioner was appointed one of two independent executors of her estate, and that by the will petitioner was appointed guardian of her minor children, and that the will had been probated; that the latter estate, $500, was subject to guardianship. W. J. McAdams filed a protest and contest, alleging that J. R. Wilson was not a suitable person to be appointed as such guardian, for the reason that he had permitted the property of the estate to be wasted, did not properly treat the mother and children before her death, and did not properly treat the children, and was indebted to the estate. On the 12th day of March, 1913, the county court appointed J. R. Wilson guardian of the person and estate of the minor children, finding they had no lawful guardian of either their person or estate, and fixing the bond of the guardian at $1,600, and appointed appraisers for the estate. From this order of the county court, W. J. McAdams appealed to the district court of Sherman county. On appeal the district court modified the order of the county court, appointing J. R. Wilson guardian of the person of the minors, and of the community estate belonging to said minors, fixing his bond at the sum of $1,929.60, and finding that the appellee was guardian under the will of the estate devised by the will. J. R. McAdams and Mattie Me-Adams were husband and wife. The fruits of the marriage were the two children, Rob Roy and Joseph John McAdams. Their father, J. R. McAdams, was the son of the contestant, W. J. McAdams, and Mattie E. McAdams the daughter of J. R. Wilson, the applicant for guardianship. The evidence shows that J. R. McAdams, the husband of Mattie E. McAdams, and the father of the minors, died, leaving a community estate, valued at $926. He carried an insurance policy on his life, which his wife, after his death, collected, and the proceeds of this policy is treated in this case as the separate property of Mrs. McAdams. The evidence shows that there remains in the estate of that sum at the time of Mrs. McAdams death the sum of $3,481.10, invested in property, and evidenced by notes due the estate. Before her death, Mrs. McAdams made a will, in which, after providing for the payment of debts, funeral expenses, etc., by clause II thereof, she provided:

“I give and bequeath all the rest and residue of my estate, after the payment of my debts, both real and personal, both in the state of Texas and elsewhere, to my beloved sons, Robert Roy McAdams and Joseph John McAdams, share and share alike; but in the event that either of my said sons should die before attaining majority, and without surviving issue of his body, then and in that event, the portion of the deceased one in this estate as bequeathed to him in this testament, shall pass to my surviving son, whichever of the two it may be,” etc.
“HI. J hereby appoint my beloved father, J. R. Wilson, and my brother, James Lee Wilson, sole and independent executors of this my last will and testament, without bond or security of any kind, with full authority in them and the survivors of them, to collect, sequester and preserve my said estate, and in all things to transact the business of the estate, necessary for the full preservation and benefit thereof, and without order of the court; and I further direct that no court procedure shall be had relative to my estate except to probate this will, appoint appraisers, receive inventory and appraisement of my estate and to receive and file the oath of executors, and to issue proper letters of authority to said executors or either of them, unless my father should die, resign, or become incapacitated to serve during the minority of my sons or either of them, or in case of both' of said executors should refuse or become incapacitated to serve or die before my sons or either of them obtain their majority; in either of which events the proper court may assume jurisdiction of my estate, and protect the same according to law, my desire being that should another executor need to be chosen to represent my estate at any time, within either of the above contingencies, one of my brothers or sisters should have the preference of so acting and qualifying over any stranger or outsider.
“IV. Should it become necessary, in the event of my decease before either or both of my sons attain the age of twenty-one years, or should it become advisable that guardian of the person or of the estate or both be appointed for either of said sons, I desire that my father be so appointed and in the event he be dead or cannot for any reason act, then my brother, James L. Wilson, shall be appointed, and if he be dead or in any way incapacitated from acting, then my surviving brothers and sisters shall choose one from among themselves to act,” etc.

The appellant in this case assigns error to the action of the court in rendering the judgment requiring appellee to give bond only for the community property, and in not making it double the entire estate. The will, in the third clause, appoints the father and brother of Mrs. McAdams independent executors to preserve, collect, and transact the business of the estate. Authority in that clause is only given over the estate devised. The guardianship of the children is not mentioned. In the fourth clause thereof the guardianship is mentioned in case it should become necessary. Under the will of Mrs. McAdams, she did not appoint her father guardian of the estate and person of the children without bond, but left that for future determination, and, should it become necessary, she expressed it as her desire that her father be appointed. There is no provision in the will appointing him such guardian, or, if appointed, that he act without bond.

The statute authorizes the appointment of a guardian for the person and estate of a minor. We know of no statute, and none has been cited, authorizing a guardian for a part only of the estate of the minor. The bond must be in double the value of the estate. We do not think the statutes make a distinction in property belonging to the estate. If derived from the community, or from the separate property of the mother, it is part of the estate, and from' whatever source derived, if part of the estate of the minor, it must be inventoried, and a bond executed in accordance with the statute.

Article 4113, R. S. 1911, requires the guardian, within 30 days after he takes the oath, to “return a true and perfect inventory of all property, real and personal, belonging to said estate, which has come to the knowledge of such guardian.”

Article 4115 requires an affidavit in substance that the inventory and list of claims are true and perfect lists of all property, real and personal, and a list of claims belonging, to the estate which has come to his knowledge.

Article 4116: Property which is owned in common by the ward and others shall be distinctly stated in the inventory and list of claims.

Article 4099 stipulates that the bond must be in double tbe estimated value of tbe property belonging to tbe estate.

Article 4083: Tbe order appointing tbe guardian must specify wbetber tbe guardianship is for tbe person, or for tbe person and estate. Tbe order in tbis case appointing a guardian for one-balf of tbe community belonging to tbe community estate, we do not think is in compliance with tbe statute.

Under such order tbe guardian cannot demand a distribution of tbe ward’s estate from tbe administrators or executors, or receive and bold tbe same. Tbe object of tbe law in appointing a guardian is to protect tbe interest of tbe minor, and an order which does not give the guardian tbe power to do so to tbe full extent of tbe estate does not comply with tbe statute. If there was no necessity for guardianship, no application should have been made. Tbe fact that appellee applied therefor, showing the necessity and the order of tbe court granting tbe application, established tbe necessity. Tbe order should be effective to give full security to “all” the estate. Tbe bond must be double its value, otherwise it is not a statutory bond. Moore v. Hanscon, 103 S. W. 665. Tbe contention appears to be in tbis case that, inasmuch as that part of tbe estate designated as tbe separate property of Mrs. McAdams passed under tbe will to tbe children, and was being administered by independent executors, tbe county court could not appoint a guardian to take charge of that part of tbe estate. Tbis proposition we do not think correct. A very full discussion of tbe effect of tbe statute <artiele 1995, old statute; article 3362, R. S. 1911) is discussed in connection with other articles relative to “estates of decedents,” and an exhaustive analysis of tbe various decisions and statutes on tbis question is given in tbe case of Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367, by Judge Brown. It is said therein: “In Prather v. McClelland, 76 Tex. 584 [13 S. W. 543], tbis court held that articles 1991-1994 [Rev. St. 1895], inclusive, are applicable alike to wills administered by independent executors and others, and that, after the probate of tbe will, tbe return of an inventory and list of claims, and tbe qualification of tbe executor, tbe probate court can exercise tbe power to annul a provision of a will, although it exempts tbe executor from tbe control of tbe court ‘in tbe settlement of tbe estate.’ ” Again, it is said by Judge Brown: “Tbe effect of tbe foregoing cases is to establish tbe proposition that, except in those articles which relate to acts to be done in tbe settlement of an estate, tbe term ‘executors,’ as used in our statutes, includes independent as well as other executors. Tbe Constitution and laws of tbis state confer upon county courts general jurisdiction of all estates of deceased persons, which attaches to tbe particular estate when proceedings for administration are begun in that court, and, having once attached, tbe jurisdiction will continue, except as limited by tbe terms of article 1995.”

In probating a will appointing an independent executor, tbe probate court has jurisdiction of that administration. Tbe executor has, by virtue of tbe trust reposed in him, tbe right to settle tbe estate, and do whatever the court could authorize to be done if tbe estate was under its entire control. Tbis provision does not deprive tbe probate court of jurisdiction to annul a provision of tbe will, or to require tbe executor to give bond while be continues to .act.

An administration on a will by an independent executor will not deprive tbe probate court of its jurisdiction over minors or their estates, and, when tbe necessity arises, tbe probate court has tbe power to appoint a guardian to take charge of tbe estate of tbe minor, even if it is in the hands of an independent executor. It is urged that an appointment of appellee as guardian did not oust him as independent executor; that tbe court, by appointing him guardian, did not defeat tbe administration under tbe will. It is held by tbe courts that an independent executor may resign as such, and tbe court would in such case have tbe right to appoint an administrator de bonis non. Tbe court said, in tbe case of McDonough v. Cross, 40 Tex. 281: “It is certainly within tbe authority conferred upon tbe executor, if no specific directions are contained in tbe will, whether tbe will is being administered under tbe supervision of tbe court or not, to determine when tbe devisees may take and bold tbe property, devised free from any claim of tbe executor thereto, for tbe purpose of administration. And if tbe executor, as the representative of tbe estate, acquiesces in tbe right of tbe devisee to tbe possession and enjoyment of tbe property devised, and tbe possession of it is delivered to them, it cannot be subsequently insisted that tbe devised property is still part of tbe estate of tbe testator in tbe bands of tbe executor.”

In tbe case of Parks v. Knox, 130 S. W. 203, cited by appellee, Mr. Justice Hodges, speaking for tbe court, said: “Tbe appellants rely upon tbe proposition that, when tbe representatives of tbe estate of tbe deceased, empowered to act independent of tbe probate court, make a distribution of any pdrtion of tbe estate, and deliver possession thereof to tbe heirs or devisees, such representatives lose all control or dominion over that portion, and cannot thereafter administer it for tbe benefit of creditors. Tbe following authorities to which we are referred we think sustain tbe proposition of law upon which tbe appellants rely: McDonough v. Cross, 40 Tex. 251; Allen v. Von Rosenberg (Sup.) 16 S. W. 1099; Henderson v. Lindley, 75 Tex. 185 [12 S. W. 979]; Fisk, v. Norvel, 9 Tex. 14 [58 Am. Dec. 128].”

In Parks v. Knox, supra, the independent executor agreed to a judgment which decreed certain land to the children of the testator. Subsequently the executors mortgaged this land, and then deeded it to secure and pay a debt due by the estate. In discussing the effect of these transactions, the court further said: “It is urgently insisted by the appel-lees that no such distribution and surrender was intended in this instance by the executors, and, as evidencing the absence of such intention, reference is made to subsequent acts of the executors in exercising their dominion over some portions of the estate which had been theretofore divided. * * * We are not to be governed by what the parties may have intended to do, but what they in legal effect did. When the law attaches certain consequences to the doing of particular acts, the actual intent of the actor must yield to the dictum of the law.”

In Karr v. Karr, 36 Ky. (6 Dana) 3, it is said: “If they [funds] had been in the hands of another administrator, it would have been his duty to have coerced a settlement of the estate so soon as the debts were paid, and to have received his ward’s portion, and invested it for his benefit. And as he himself was the administrator, and the funds in his own hands, they should be treated as held by him as guardian, as most beneficial for his ward, so soon as he took upon himself the latter character.”

In the case of State, to Use of Jacobs and Wife, v. Hearst, 12 Mo. 365, 51 Am. Dec. 167, it is held: “When, from the facts, an executor, who was also guardian, might be charged with the receipt of moneys either as executor or guardian, he must account in the latter character; for whatever funds he had in his hands as executor were by operation of law transferred to him as guardian.”

“Funds held by an administrator who is also guardian of the property entitled thereto upon the distribution after the time has expired in which to settle the estate are presumed to be in his hands as guardian, and the sureties on his administration bond are not liable therefor.” Johnson v. Johnson, 2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72; Carroll v. Bosly, 6 Yerg. (Tenn.) 220, 27 Am. Dec. 470; Jacobs v. Bull, 1 Watts (Pa.) 370, 26 Am. Dec. 72; Seegar v. State, 6 Har. & J. (Md.) 162, 14 Am. Dec. 265.

Upon the appointment of appellee as guardian, no act was necessary to transfer the funds in his hands as executor belonging to his wards. It was presumed transferred by operation of law.

If the judgment of the court and the contention of appellee in’this case are correct, that the will appointed the father and son guardian of the person and estate of the-minors, then the application for the guardianship of the person and estate of the minors by appellee in this proceeding would be-illegal, because the statute (article 4082) expressly provides only one guardian can be appointed of the person and estate, and to permit the appellee guardianship in this case, if he is correct in his interpretation of the will, would then result in two guardianships pending for the same children, which, we think, is clearly against the policy of the law, and in the face of the statute.

So soon as appellee shall qualify as guardian, or at least after the proper length of time, he may distribute the estate to his wards, or compel his coexecutor to do so, in a proper proceeding. We think, when the court appointed him guardian of the estate of his wards, the order should appoint him guardian of the entire estate, and that the bond should be in double the estimated value of his wards’ property, which should include that portion of the property which passed to them under the will, as well as that taken by inheritance from their father.

We think the court was in error in appointing appellee guardian of one-half of the community estate, and requiring only a bond covering its estimated value. The cause is reversed and remanded.


author: DAVIDSON, J.

text:
    FRANKLIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.
    Intoxicatino Liqtjobs (§ 236) — Offenses— Sufficiency of Evidence.
    Evidence, in a prosecution for unlawful sale of liquor, held sufficient to sustain a conviction.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Davidson, J„ dissenting.
    Appeal from Houston County Court; C. M. Ellis, Judge.
    Ben Franklin was convicted of an unlawful sale of liquor, and lie appeals.
    Affirmed.
    The following is the statement of facts referred to in. the opinion:
    “Anthony Bradley, being sworn, testified as follows: ‘My name is Anthony Bradley. I live at Weldon, Houston county, Tex., and I know Ben Franklin. He also lives near Weldon. One Saturday evening, about the Sth day of June, 1913, Jim Patton and myself came to Weldon, arriving there about 4 o’clock in the evening in my wagon. On the way to Weldon, Jim Patton and myself discussed the matter of trying to obtain some whisky while in town. After we had arrived at Weldon, we met the defendant, Ben Franklin, and Jim Patton asked him if he could get hold of any whisky, as we wanted to get some. Franklin stated that he did not know, but would see about it, and left us. Some time thereafter, Patton and I went down about the seedhouse, where we met Franklin again, and Patton asked him if he could get any whisky, and Franklin answered, “This is all I have,” pulling out a bottle containing about one-half quart of diluted alcohol, and handed it to me, and Jim Patton gave Franklin 65 cents in money. I took the bottle and took a drink from it, and Patton also took a drink, and put the bottle with the balance of its contents in my wagon. I put it in my wagon because Jim Patton told me to do this. I did not see Franklin in Weldon any more that afternoon. Very soon after I had placed the bottle in my wagon, the officers found it, and began inquiry about whose it was and where it had been gotten. The officers took Jim Patton and myself into the store of B. E. Goodrum and kept us there until' very near night before they let us go home. While on our way home and about one-half mile from town, in á western direction from town, we again saw Ben Franklin, who intercepted us, and asked us about what the officers wanted with us. We told him they were asking us about the whisky we had gotten. 'Thereupon Patton and Franklin walked oá from the wagon and talked together, but I did not hear what was said between them. Franklin was living almost in an eastern direction from Weldon at that time. This whisky -was sold to Jim Patton, and he paid 65 cents for it. I did not have any money that day, and could not have bought any, and did not buy any. The only reason I know why Franklin gave me the bottle was because Jim and myself were together at the time we first spoke for it, and were together at the time Jim bought it. He just handed me the bottle, and, wanting a drink, I took it. This occurred in Houston county, Tex., about the 8th day of June, 1913.’ Gross by defendant: T had a talk with Mr. Moore this evening immediately after I came to town. This conversation occurred while sitting on Mr. Wm. M. Patton’s front gallery. This conversation occurred in the presence of Ben Franklin and Jim Patton. It was not more •than an hour since. I did not state in such conversation that Ben Franklin gave this whisky to me for my wife on account of her being sick. I did not state in such conversation that I knew nothing about Franklin ever selling Patton any whisky. I did not state in such conversation that I had never seen Patton get any whisky from Franklin, nor that I never Saw Patton pay Franklin any money. If I had made any such statement as inquired about to Mr. Moore on the front of Mr. Patton’s store, it was false, and what I have told here is the truth. Jim Patton did not take any of this whisky .home with him, as we drank it all on our way home. Jim Patton, his boy, and myself drank it up. There is a case pending here against me for “bootlegging” which has never been tried. I do not know why it has not been tried. I have had no promise that this ease would be dismissed by any one.’
    “Jim Patton, being sworn, testified for the defendant: ‘My name is Jim Patton. I live near Weldon, in Houston county, Tex. About the 8th day of June, 1913, or within a very few days thereafter, I, in company with my little boy and Anthony Bradley, went in Bradley’s wagon to the town of Weldon. We got there early in the evening. While on the way we talked about trying to get a little whisky to drink. Bradley and myself met Franklin, and spoke to him about getting whisky, but were informed by him that he had none. Later in the evening near the cotton seedhouse I walked up to, or as I was walking up to where Bradley and Franklin were standing talking, I saw Franklin hand Bradley a bottle, and saw Bradley take a drink from it, and just as I reached them Bradley walked off in the direction of his wagon and left Franklin standing there. I then asked Franklin if he could get me any whisky, and he told me that he did not know, but would try and do so. I gave him 65 cents and asked him to get me that much if he could, and we separated. I did not see Franklin any more that evening in Weldon, but did see him on our way home. Very soon after Bradley had gotten this whisky, or rather alcohol diluted, the officers found it in the wagon, and began making inquiry about where it had been gotten and whose it was. I never bought any whisky from Ben Eranklin in my life, and neither did I ever pay him for any whisky, except, as stated, I gave him 65 cents with which to get me some whisky on the same evening, and he gave me this money back the same evening, saying he had failed to find any. This was on the way home, when he intercepted us in the wagon, and while in the wagon he stated he could not get the whisky and handed me the 65 cents. I did not get out of my wagon, or the wagon we were in, but Anthony Bradley did get out of the wagon, but do not know for what purpose. I never took any of this stuff home with me. Bradley, my boy, and myself drank it before.we got home. I heard a conversation this evening, about one hour since, between Mr. Moore and Anthony Bradley, while sitting on the front steps of Mr. Wm. M. Patton’s store. Anthony Bradley stated to Mr. Moore that he had never bought any whisky from Eranklin, and that he had never seen Eranklin sell any. Bnt that on the date inquired about, he had approached Eranklin to try and get a little whisky for his wife, who was sick, and that Eranklin had given him about a pint, which we drank; that he had neither paid or promised to pay Franklin anything for this whisky. He further stated that he had never seen Eranklin sell me any whisky.’ Cross: ‘After we had been taken before the officers, they questioned us about the whisky. There were present B. E. Goodrum, it being in his store, Clint Atkinson, deputy .sheriff, and others whose names I do not now remember. I do not remember being sworn by Mr. Goodrum, nor do I remember if I made any statement in writing. I do not remember whether I made the statement that I had gotten this whisky from Ben Eranklin at that time. Ben Eranklin did not give me the 65 cents until after they had had us before the officers, and until he met us that evening down the road'. When he met us down the road going home he asked us what they had us up about.’
    “Ben Franklin testified for himself: ‘My name is Ben Eranklin. I live at Weldon. I am the defendant on trial. About! an hour since, in company with Jim Patton, Anthony Bradley, on the steps of Mr. Patton’s store, I heard a conversation between Mr. Moore and Anthony Bradley. Anthony Bradley stated to Mr. Moore that he had never seen me give or sell Jim Patton any whisky or other intoxicating liquors." He further stated to Mr. Moore that, on the date inquired about, while in Weldon, he (Bradley) asked me for some whisky, and that I stated to him that I only had a little in a bottle, and Bradley stated that he wanted some for his wife, who was sick. That I then gave him what I had in a quart bottle, being only about a pint, and told him if his wife was sick he could take her that. That he (Bradley) took a drink and left in the direction of his wagon. That he did not pay me anything, nor did he promise me anything, for the whisky I gave him. He further stated that he had never seen me either give or sell Jim Patton any whisky in his life. I never sold or gave Jim Patton any whisky, or other intoxicating liquors. Neither did I sell this to Bradley, but gave it to him for his wife, whom he said was sick. After Bradley had gotten this whisky Jim Patton came to me and asked me if I could get him some whisky. I told him X did not know, but that I would try. He gave me 65 cents in money. I took this money and went down to the “quarters” and did not see him any more that evening until he and Bradley were on their way home, and I gave Patton back his money, as I did not get him any whisky. I never sold either Patton or Bradley any whisky, but did take Patton’s money in an effort to try and buy some for him, and, failing to get any, I returned him his money.’ Cross: ‘I never called on any person in an effort to get any whisky for Patton. I just went over in the quarters looking around to see who I could find there. I did not know when I took this money who I could get any whisky from. I did not ask any person if I could get any whisky from them, or who I might get any from. I did not give Jim Patton his money back until after I had heard the officers were after them— that is, Patton and Bradley — about the whis: ky. I did not call Patton off to one side to give him his money, but gave it to him while he was in the wagon. I stopped them, after crossing a field, to give him his money back, because I was going to a party, and did not want to spend another’s man’s money, and was afraid I might spend it if I kept it. I paid a fine last year on a charge of “bootlegging” here in Crockett. I pleaded guilty to that, because I was guilty, but at the time-I stated to the county attorney that I was. not guilty, although I was pleading guilty.’
    “John I. Moore testified for the defendant: ‘This afternoon, as I was coming from my dinner, and while passing a restaurant, I was called by the witnesses herein. I had never seen the indictment in this case, and did not know who the state’s witnesses were, but had a letter from Mr. Robinson, engaging me ■ to defendant Eranklin, and at his suggestion I had subpoena issued for witnesses Anthony Bradley and Jim Patton. The parties told me who they were, and we sat down on the-front steps of Wm. M. Patton’s store to talk about this case. Incidentally, I first asked Bradley what he knew about Eranklin selling whisky. He stated to me in presence of' Eranklin and Patton that he knew nothing whatever about such charge. That on the day inquired about while in Weldon he asked Eranklin for some whisky, for his wife, as. she was sick, and he (Franklin) took out a bottle having about a pint in it and gave it to witness Bradley. That he (Bradley) did not pay Franklin anything for the whisky, nor did he promise Franklin anything for the • whisky, but took it.as a gift. That be bad never seen Jim Patton get any wbisky from Franklin, and knew nothing about Patton paying Franklin any money or other thing of value for whisky or liquors. This statement was made to me voluntarily, willingly, and freely, only I simply asked that he tell me all he knew about this transaction, which he did as stated herein, in the presence of Ben Franklin and Jim Patton.’
    “Clint Atkinson testified in rebuttal for state: ‘My name is J. O. Atkinson. I am constable at Weldon, Tex., in justice precinct No. 8. I know Ben Franklin, Jim Patton, and Anthony Bradley. Some time about the 8th day of June, 1913, I found some whisky in the wagon of Anthony Bradley, or at least in the wagon in which Bradley and Jim Patton came to town. I took the whisky and summoned Bradley and Patton, and took them before Mr. B. E. Goodrum, a notary public, in the absence of the justice of the peace, and had him swear Jim Patton. After he was sworn, Patton stated that he had bought the whisky from Ben Franklin, and had paid him 65 cents for same,- and after-wards signed a written statement to the same effect.’
    “We, the undersigned attorneys representing the state and the attorney representing the defendant Ben Franklin, hereby agree, that the above and foregoing is a true, full, and correct statement of facts, and all the facts in evidence on the trial of the cause of the State of Texas, versus Ben Franklin, recently tried in the County Court of Houston county, Texas. B. F. Dent. County Attorney. John I. Moore, Attorney for Deft. Ben Franklin.
    “Examined and approved. C. M. Ellis, County Judge.
    “Filed Sept. 20,1913. O. C, Goodwin, County Clerk.”
    John I. Moore, of Crockett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State,

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

   DAVIDSON, J.

It is contended the evidence is not sufficient. The writer agrees with this contention. The witness Bradley testified that he saw Patton pay defendant 65 cents, and the defendant gave or handed him a bottle containing something like a pint of diluted alcohol to Bradley, who took a drink and placed the same in his (Bradley’s) wagon. The allegation as to the purchaser was Patton, and not Bradley. Bradley testified substantially that he and Patton were together, and Patton asked appellant if he could get him some whisky, or something to drink; that the defendant, Franklin, handed ■Bradley a pint of diluted alcohol, and he took a drink out of it and put it in his wagon, and Patton handed him 65 cents. Patton testified that he did not buy any whisky from appellant; that appellant handed Bradley the whisky as a gift to Bradley for Bradley’s sick wife; and that after this occurred he asked appellant to get him something to drink and gave him 65 cents for that purpose; that, failing to get this whisky or intoxicant, appellant subsequently handed the money back to Patton; that this money had nothing to do with the pint of diluted alcohol that Bradley got. Other witnesses testified to the effect that Bradley admitted to, among others, Mr. Moore, attorney for defendant, that-he (Patton) did not buy any intoxicant from appellant; and the statements of these witnesses in regard to what Bradley said to them corroborates and sustains the testimony of the witness Patton. Bradley is under indictment, he says, for-bootlegging. The writer is not willing to affirm a case on this character of testimony. It is too flimsy and uncertain, and is too thoroughly contradicted by the evidence of Patton and the statements of Bradley to other witnesses. From any viewpoint of this case, this judgment ought not to have been-rendered against appellant. But the majority of the court, after reading the statement of facts, are of the opinion the judgment should be affirmed. The reporter will copy the statement of facts in full.

The judgment is therefore affirmed.


author: HARPER, J.

text:
    Ex parte LATHAM.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    Habeas Coepus (§ 113) — Finding op Court Below — Conclusive ness.
    A finding on hearing on habeas corpus that one accused of murder was entitled to bail is binding on the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dee. Dig. § 113.J
    Appeal from District Court, Jones County; J. B. Thomas, Judge.
    Minnie Latham was arrested, charged with-murder, and sued out a writ of habeas corpus. From an order that she was entitled to bail, fixing her bail at $30,000, she appeals. Bail reduced to $10,000.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

The appellant was arrested, charged with murder, and sued out a writ of habeas corpus before Hon. J. B. Thomas, judge of the Thirty-Ninth judicial district. On the hearing Judge Thomas held that the relator was entitled to bail, and fixed her bond in the sum of $30,000, from which order-an appeal is prosecuted to this court.

After reading the transcript, had the learned trial judge refused bail, we would not feel' inclined to disturb such a finding; but he-saw the witnesses, and heard the testimony, and found that the applicant was entitled to-be admitted to bail, and such finding is binding on this court; and the only question upon which we are called to pass is the reasonableness of the amount of the bail, under the evidence. Our Constitution provides that excessive bail shall not be required, and it is held that in fixing the amount of bond we should be governed- by the pecuniary circumstances of the accused and the nature of the offense charged. The evidence would show that the appellant has virtually no property, yet she is related to those who are able and willing to give a reasonable bond for her appearance, such as their financial ability will admit of.

Viewing the matter from both the standpoint of ability to give bond and the character of crime charged, we are of the opinion that the amount as fixed is excessive, and would amount to a denial of bail. And this court is of the opinion that a $10,000 bond would be sufficient under all the circumstances. It is therefore ordered that the bond be fixed in the sum of $10,000, instead of $30,-000.

Bail reduced.


author: PRENDERGAST, P. J.

text:
    LANE v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.
    Rehearing Denied March 11, 1914.)
    1. Homicide (§ 166) — Evidence—Motive.
    In view of Code Or. Proc. 1911, art. 1, subd. 4, declaring it to be the object of the Code to bring to the investigation of each offense on trial all of the evidence tending to produce conviction or acquittal, evidence that defendant, accused of homicide, had committed adultery with the wife of deceased, had given her a con-drum, that they had been taken together flag-rante delicto, whereupon defendant offered witness two bits if he would not tell, and that defendant was the reputed father of one of her children, was admissible as tending to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    2.Criminal Law (§ 338) — Evidence—“Relevancy” — ‘ ‘Pertinent Hypothesis. ’ ’
    “Relevancy” is that which conduces to the proof of a “pertinent hypothesis,” which is an hypothesis which if sustained would logically influence the issue, so that it is relevant to put in evidence any circumstance tending to make the proposition at issue either more or less probable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dee. Dig. § 338.

    For other definitions, see Words and Phrases, vol. 7, p. 6062; vol. 6, p. 5368.]
    3.Witnesses (§ 414) — Corroborative Evidence.
    Where a witness for the state testified that, after he had seen defendant and deceased’s wife in flagrante delicto, he told a certain named person something like a week or two weeks afterwards, and the state offered no other witnesses to bolster up his testimony, the admission of his testimony was not error, although the state could not bolster up its witness by offering other witnesses to show that he had told them soon after the occurrence the same fact to which he was then testifying.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    4. Witnesses (§ 277) — Cross-Examination oe Accused — Impeachment—Conviction oe Crime.
    In a trial for homicide committed August 15, 1912, as the outcome of defendant’s illegal conduct with deceased’s wife begun some 18 months prior thereto and continued to the homicide, the admission of defendant’s testimony on cross-examination that he was convicted of an assault with intent to murder on August 12, 1903, for which he served a penitentiary term of two years, leaving about August, 1905, was proper for purposes of impeachment only.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    5. Criminal Law (§ 594) — Grounds for Continuance — Absence of Witnesses.
    A bill of exceptions to the overruling of accused’s motion for a continuance, showing that the case was set for trial a week or more before it was finally tried, that the state was then unable to go to trial because of illness in a witness’ family, whereupon the case was reset, that the court then notified the parties that if there was any witness unable to come because of sickness they could take their depositions, that the state offered to cross any interrogatories and waive time and permit them to be taken, that during the trial, lasting three or four days, both parties had opportunity to get such testimony if they wanted it, and that one of the witnesses mentioned in the application did testify, showed no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.]
    6. Criminal Law (§ 662) — Rights of Accused — Confronting Witnesses.
    An accused cannot be compelled to take depositions.
    [Ed. Note. — For other cases, see Criminal Law^Cent. Dig. §§ 3, 1538-1548; Dec. Dig. §
    7. Criminal Law (§ 665) — Appeal — Discretion of Trial Court — Conduct of Trial.
    In a trial for homicide, where the district attorney on his first appearance in the case stated that he desired one J., a witness summoned by defendant, to advise him about facts in the case, and would not use him as a witness for the state, and that if defendant desired to use him he might do so without objection, and where defendant said he did not expect to put J. on the stand, the court’s action in discharging him from the rule and allowing him to remain in court during the trial was not an abuse of its discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1549-1566%; Dec. Dig. § 665.]
    8. Homicide (§ 166) — Evidence as to Motive.
    In a trial for homicide growing out of the illegal relations of defendant with deceased’s wife, a letter written by him to her tending to show an intimacy between them was admissible on the issue of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dee. Dig. § 166.]
    9. Homicide (§ 340) —Appeal — Harmless Error — Instructions.
    In view of Code Cr. Proc. 1911, art. 743, prohibiting the Court of Criminal Appeals from reversing a case unless the error is calculated to injure the rights of the defendant, and the fact that defendant did not object or ask any charge, a charge in a trial for homicide that all testimony as to the relations of defendant with deceased’s wife was only to aid on the issue of defendant’s motive, if erroneous, did not authorize or require a reversal, where the court gave a full, complete, and unobjectionable charge properly submitting every question raised.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    George Lane was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Davis, Davis & Davis, of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted of murder in the -second degree, and his punishment assessed at ten years in the penitentiary.

We think it unnecessary to give any extended statement of the evidence. The preponderance of it, and that by disinterested witnesses, shows that appellant waylaid and assassinated deceased. Appellant claims self-defense and defense because of threats to kill him by deceased, claiming that deceased was undertaking at the time to execute his threats. Both of these matters were fully and completely submitted in his favor in every way that the evidence justified or suggested. He makes no complaint of the charge of the court in any of these particulars. Appellant concedes that the theory of the state was that he had for a long time previous to the killing sustained improper relations with the deceased’s wife, and that the killing grew out of such relations. We think the evidence establishes that the deceased made many threats to kill appellant, both to appellant and other persons, and that such threats to others were communicated to him. There is evidence in the record that the appellant likewise made threats to kill the deceased. The testimony clearly shows that a state of hostility existed between these parties for some time and up to the very time of the killing, and that each, from time to time, recently before the killing, went more or less armed, or had arms at different times with the view of killing the other. Appellant assigns several errors which are raised and presented by bills of exceptions, and they each are included in and made a ground of his motion for new trial.

By one bill appellant objected, for various reasons, to the testimony of the state’s witness Leon Cartwright “that at St. James Church on Friday night preceding the homicide, which occurred on the following Thursday, that the defendant gave to the wife of the deceased, Judie Redmon, a con-drum.” The court, in allowing this bill, qualified by stating: “It was the theory of the state in this case that- the defendant, George Lane, killed Ed Redmon on account of relations which defendant had with deceased’s - wife and to get possession of the woman; and, as a circumstance, the state offered to prove that shortly before the homicide, something like a week, at a church where all the parties were present, that the defendant gave Ed Redmon’s wife a con-drum, and had certain other conversations with her at the time, which are shown in the statement of facts. This testimony was admitted, over the objection of the defendant, because it was believed to be material and admissible as a circumstance tending to show the theory insisted upon by the state.”

By another bill appellant complained that the court permitted Leon Cartwright to testify that on Friday night preceding the homicide, which occurred on the following Thursday, that he saw appellant give Judie Red-mon, deceased’s wife, a condrum, and that Ed Redmon, deceased, afterwards on the same night asked him about it, and that when Ed Redmon asked him about the con-drum he told him about it and about appellant’s connection with it, and that he did not tell appellant of this conversation he had with Redmon concerning the condrum; that appellant asked him about it on Sunday morning before the killing Thursday, and he then told appellant that he had not told the deceased about it.

By another bill appellant complained of the court admitting testimony of the state’s witness R. P. Price, “that some time in 1911, about March, 1911, about 18 months prior to •the homicide in connection with which the defendant was on trial for murder, he came upon the defendant, George Lane, and Judie Redmon, the wife of the deceased, in flag-rante delicto; that George Lane was on top of Judie Redmon, and raised up off of her and told the witness he would give him two bits not to tell it; that they were lying down there, and George was on top of her.” The court approved this bill with the qualification that this testimony, circumstantially, like the other, tended to show the relations between the defendant and deceased’s wife as furnishing the motive for the killing.

By another bill appellant complains that the court permitted the state to inquire, and him to testify, over his objections, as follows: “I have heard it reported in the neighborhood that for some time preceding the killing Ed Redmon’s wife and I had been on intimate terms. It was reported that I am the father of one of her children. I have heard prior to the killing that it was the talk over the neighborhood that she and I were intimate, and that I was the father of one of her children.”

- These bills present kindred evidence, and we will discuss them together. Judge White says: “Facts tending to show a motive, though remote, are admissible in evidence. Dill v. State, 1 Tex. App. 278; Jones v. State, 4 Tex. App. 436; Rucker v. State, 7 Tex. App. 549.” Our statute (article 1, C. C. P.) says that the object the Code seeks is: “(4) To bring to the investigation of each offense on the trial all the evidence tending to produce conviction or acquittal.” White’s C. C. P. § 1072; Belcher v. State, 161 S. W. 463. Judge White also says: “ ‘Relevancy’ is defined to be that which conduces to the proof of a pertinent hypothesis; a ‘pertinent hypothesis’ being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable.” See other pertinent rules laid down by Judge White applicable to this question wherein he cites the cases in support thereof in his Ann. C. C. P. § 1070. In section 1231, p. 451, in his Ann. P. C., Judge White also says: “Defendant’s adultery with the wife of deceased may be shown to establish his motive for the killing. Ex parte Mosby, 31 Tex. 566 [98 Am. Dec. 547]; Spearman v. State, 34 Tex. Cr. R. 279 [30 S. W. 229].” Under these rules and the issues in this case, all this evidence objected to, was admissible.

By another bill appellant complains that the state was permitted to prove by its witness Price that, after he had caught the appellant in flagrante delicto with deceased’s wife, “I told Leon Cartwright something like a week or two weeks after that.” Appellant contends that this evidence was inadmissible because, as he had not impeached Price’s testimony, nor shown that he had made contradictory statements, that the state, could not bolster up Price’s testimony in this way, and he cites in support of his contention section 875 of Branch’s Crim. Law and the cases cited therein by Mr. Branch. We think these eases, and Mr. Branch’s text, are inapplicable to this question. The text of Mr. Branch and cases cited by him are to this effect: That the state would not be permitted to bolster up its witness by permitting it to introduce other witnesses to show that the witness who testified had told them soon after the occurrence, the same state of fact that he was then testifying on the stand, unless such witness were impeached or the appellant had shown that he made contradictory statements. In this case the state did not attempt to introduce any other witness to so bolster up said Price’s testimony. If the state had attempted to do so and the court had permitted it, then a material error would have been committed against appellant; but this bill presents no such question.

Appellant testified. On cross-examination to affect his credibility, the court permitted the state to ask him and required him to testify that he was convicted of an assault with intent to murder on August 12, 1903, sentenced to the penitentiary for two years, which he served. This was objected to because too remote. Appellant having served two years under said conviction, he would have been out of the penitentiary only since August 12, 1905. This offense was alleged and shown to have been committed August 15, 1912, and as contended by the state was-because of his illegal conduct with the deceased’s wife, begun some 18 months prior to this homicide and apparently kept up from-that day till the actual homicide. The court properly limited the effect of this testimony as for impeachment only. The evidence was properly admitted for that purpose. Oates v. State, 149 S. W. 1196.

By another bill appellant complains-that the court erred in overruling his motion for continuance. The motion for continuance is contained in this bill and is quite lengthy. It is unnecessary to copy it or state it. The court, in allowing the bill, qualified it by stating that this case “was set down for trial a week or ten days before it was finally tried. A witness for the state had a sick child, and the state was unable to go to trial .when the case was reset, the venire ordered back, the witnesses ordered back; and at that time the court notified the parties that if there was any sick witness or any witness that could not come by reason of sickness, in that case the parties could take their depositions, because he expected the case to be tried, it having been tried at a former term of the court, resulting in a mistrial. The state offered to cross any interrogatories and waive time and permit them to be taken; and when the case was called for trial, at the time at which it was tried, the defendant presented this application for continuance. The state notified the defendant that they would cross these interrogatories to the defendant’s wife and other witnesses and permit them to be taken at once. The trial lasted three or four days, and both parties were given opportunity to get this testimony if they wanted it. Further, the court believed that the testimony was cumulative and not material, and that no diligence had been used. The witness Maggie Fisher, one of the witnesses contained in the application, was present and did testify.” This bill shows no error under this qualification.

An accused cannot be compelled to take depositions.

By another bill of some length the appellant complains that the court permitted one Spart Jordan to remain in the courthouse during the trial, although he had been summoned by the defendant as a witness and the-rule invoked and enforced as to all other witnesses. In allowing this bill, the court qualified it by stating: “That after the witnesses, were sworn the defendant insisted that the-witness Spart Jordan should be excluded and put out of the courtroom and put under the rule. The state stated that they would not introduce Mr. Jordan as a witness;. but the district attorney then in charge of the case having been newly elected, and it being his first appearance in the case, the former •district attorney, who tried the case before, having retired, the district attorney stated that he desired the assistance of Mr. Jordan to advise with him and inform him about facts in the case, and would not use him as a witness introduced by the state, and that if the defendant desired to use him they might do so, without any objection upon the part of the state that he had not been under the rule. Under these circumstances, the court thought that it was proper and right to permit the state to have any -assistance that Mr. Jordan, as no other party, could suggest to the then district attorney. The court asked the defendant if they expected to put him on the stand, and they said they ■did not. Neither party desiring Mr. Jordan as a witness, he was discharged from the rule. Some of the matters stated in the bill •of exceptions with reference to Mr. Jordan’s connection and all are disapproved, as there was no testimony, whatever, to show that Mr. .Jordan had done anything improper in connection with the trial of the case.” Such matters, under our statutes and the decisions thereunder, are under the discretion of the court. The court, in this instance, clearly shows he did not abuse his discretion, and the bill presents no error. Section 767, White’s O. C. P., and cases there cited.

By another bill appellant complains of the action of the court in permitting the introduction by the state of a letter purporting to have been written by him to the deceased’s wife. If the letter was written by him to the deceased’s wife, it would have a tendency to show an undue intimacy and familiarity between appellant and deceased’s wife. Appellant denied that he wrote the letter, but there was considerable testimony as to his handwriting and that of the letter being the same, and other circumstances which justified the court to permit the letter in evidence as stated by him in his qualification of appellant’s bill. His qualification is: “That when this letter was offered in evidence by the state as a letter written by the defend.ant to the deceased’s wife as a circumstance tending to show their relation, and thereupon show a ground for motive for the homicide, there were certain witnesses who testified, by ■comparison, to the writing, and other circumstances in connection therewith; definitions •of the defendant to Ooleman; conversations by the defendant about the letter, and the absence of the deceased’s wife, at Center, a •different place from where the deceased lived. Under these facts and circumstances, the jury were instructed that if they believed the ■letter was written by the defendant that they would consider it, otherwise they would not; in other words, the question of the genuineness of the letter was left to the jury, with all the facts and circumstances offered in evidence, and this the court understood to be the rule.” Gonzales v. State, 31 Tex. Cr. R. 508, 21 S. W. 253; Hunt v. State, 33 Tex. Cr. R. 253, 26 S. W. 206; White’s Ann. P. C. § 1231, p. 452.

For various reasons appellant objected to this one paragraph of the court’s charge: “All testimony which has been admitted before you relating to the relations of defendant with deceased’s wife was admitted only for the purpose of enabling you the better to pass upon the issue of intent and motive of the defendant at the time of the killing, and for no other purpose, and you will so consider the same.” This is the only complaint of the whole charge of the court. The court gave a full, complete, and unobjectionable charge, submitting every question raised properly to the jury for a finding. He charged upon and submitted murder in the first degree, murder in the second degree, manslaughter, self-defense and also self-defense in connection with threats at the time of the homicide. He also charged reasonable doubt and the doubt between the different degrees of the homicide. No objection was made to this paragraph of the court’s charge when given. He asked no charge on the subject. Under the statute (article 743, O. O. P.) which prohibits this court from reversing a case unless an error was calculated to injure the rights of the defendant, the giving of this charge, under the facts and circumstances of this case, even if said paragraph should not have been given, does not present such error as would authorize or require this court to reverse.

The judgment will be affirmed.


author: DAYIDSON, J.

text:
    ARMSTRONG v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.
    Rehearing Denied March 11, 1914.)
    Criminal Law (§§ 1092, 1099) — Appeal-Bill op Exceptions and Statement op Facts — Time por Filing.
    Where a bill of exceptions and the statement of facts are not filed within the 90 days after adjournment allowed by statute, and there is no showing why it was not done, they cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Henry Armstrong was convicted of violating the local option law, and. he appeals.
    Affirmed.
    Stephenson & Stephenson, of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAYIDSON, J.

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

Court adjourned on September 6,1913. The record was certified by the district clerk on 20th of December, 1913, and filed in this court on 24th day of December, 1913. The statement of facts and bills of exception were filed in the trial court on December 22d. This was 2 days after the clerk had made out the transcript and forwarded it, and 2 days prior to its being filed in this court, and 116 days after the adjournment of court. Under the decisions, this statement of facts comes too late, and cannot be considered. There is nothing to show the failure to file the statement of facts arose from no fault of the defendant. The bills of exception were filed in the trial court on December 22d, which was also 116 days after adjournment of court. None of these papers were filed within the 90 days required by the statute, and no showing made why it was not done; therefore they cannot be considered. The record, in the absence of these matters, presents no reversible error, or none that can be considered.

Therefore the judgment will be affirmed.


text:
    LIEGOIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    1. Criminal Law (§ 507) — “Accomplice.”
    The term “accomplice” signifies a guilty associate in crime, and is strictly defined as one who is associated with others in the commission of a crime; the test being whether the alleged accomplice could be indicted and punished for the crime for which the accused is being tried.
    [Ed. Note. — Por other cases, see Criminal Law. Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.

    Por other definitions, see Words and Phrases, vol. 1, pp. 75-79; vol. 8, p. 7561.]
    2. Criminal Law (§. 507) —■ Accomplice — Keeper op Disorderly House.
    Where accused was charged with knowingly permitting a house of which she was lessee to be disorderly, a prostitute to whom accused sub-rented a room, which the tenant used for prostitution, was not an accomplice, since such inmate could not have been convicted of the same crime of which accused was charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Mrs. J. B. Liegois was convicted as a lessee of a house which she knowingly permitted to be disorderly, and she appeals.
    Affirmed.
    W. P. Weeks, of Wichita Palls, for appellant. T. R. Boone, Co. Atty., of Wichita Palls, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted as a lessee of a house which she knowingly permitted to be kept as a bawdy-house.

The evidence would show that J. H. Weideman was the owner of what is known-as the Gem rooming house in Wichita Palls, and he leased it to appellant for 12 months at $45 per month, and then at $47.50 per month. Appellant furnished the rooming house, and let it to various tenants at the rate of $30 per week; one of her tenants being Miss Jessie Miller. The state used Miss Miller as a witness, and she testified to renting the place from appellant, and then by Miss Miller’s testimony and the testimony of other witnesses sought to prove that the house was run as a bawdyhouse during Mrs. Miller’s occupancy. Appellant insists that this made Mrs. Miller an accomplice in law, and the court erred in not so instructing the jury at his request. In the American & English Encyclopedia of Law, the rule is said to be: “The term ‘accomplice’ signifies in law a guilty associate in crime, and is strictly defined as one who is associated with others in the commission of a crime; all being guilty. The general test by which to determine whether one is an accomplice is the inquiry: Could such person be indicted and punished for the crime for which the accused is being tried? If he could be indicted and punished, he is an accomplice; otherwise he is not an accomplice.” Tested by this rule Mrs. Miller is not an accomplice of appellant, for she could not be prosecuted and convicted of the offense for which appellant was tried. A great number of cases are cited by the Encyclopedia, among which are Peeler v. State, 3 Tex. App. 533; Ham v. State, 4 Tex. App. 645; Watson v. State, 9 Tex. App. 237; Lawrence v. State, 35 Tex. Cr. R. 114, 32 S. W. 530; Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431; Parker v. State, 40 Tex. Cr. R. 119, 49 S. W. 80; Stone v. State, 47 Tex. Cr. R. 575, 85 S. W. 808—the case against Stone being a bawdy-house case, and this court holds in that case: “The testimony shows that the witness was an inmate of the house, and that appellant was the owner, * * * and the manager and the controller. * * * Hence the witness could not be an accomplice, since a prosecution would not lie against her under the indictment here presented.” It is true that Mrs. Miller might be prosecuted and convicted for keeping and running a disorderly or bawdyhouse; but this was not the offense for which appellant was being prosecuted. Appellant could not be convicted for keeping and running,the house; neither could Mrs. Miller have been convicted for the offense for which appellant was being prosecuted. They both, perhaps, committed offenses against the law, but separate and distinct offenses.

There are two bills of exception in the record in regard to the introduction of testimony; but they are so vague and indefinite we could not pass on the questions sought to be presented without turning to the statement of facts, and by so doing,we find the court committed no error. Mrs. Miller and Elizabeth Miller were inmates of the house in question, and any legitimate, testimony which tended to show that they were prostitutes, and appellant was aware of that fact, was properly admitted.

Special charge No. 1 was fully covered by the court’s main charge; while charge No. 2 is not the law, and should not have been given.

The judgment is affirmed.


text:
    RUTHERFORD v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    Homicide (§ 300) — Sele-Defense—Instruc-tions.
    Deceased and defendant had had difficulties from the fact that the deceased was trying to induce the woman with whom defendant was living as his wife to leave him. Deceased on different occasions had threatened defendant’s life, and on several occasions had assaulted defendant with a knife, and on one or more occasions was armed with a pistol as defendant believed when they had trouble. On the occasion of the homicide, they met on different sides of a screen door leading to a hotel, and defendant testified that, on account of the matters previously occurring and deceased’s threatening remark at the time, defendant thought deceased was either going to kill or inflict on defendant serious bodily injury, whereupon defendant shot him. Held, that such evidence required a charge on self-defense from the standpoint of apparent danger and also in the light of threats.
    [Ed. Note. — For other eases, see Homicide, Gent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Midland County; S. J. Isaaeks, Judge.
    Golden Rutherford was convicted of murder in the second degree, and he appeals.
    Reversed.
    Charles Gibbs, of Midland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

This conviction was for murder in the second degree, and the punishment was assessed at 25 years in the penitentiary.

Appellant sought a continuance, which was refused. By the absent witness he expected to prove threats against his life, made by the deceased. In view of the fact the case will be reversed upon another question, the motion for continuance is not discussed. The absent testimony may be had upon another trial.

The court failed to charge' self-defense. Appellant excepted and tendered a charge submitting that issue, which was refused. In this the court erred. The deceased and appellant had had previous difficulties, growing out of the fact that the deceased was trying to induce the woman with whom appellant was living as his wife to leave appellant. The appellant naturally demurred. The deceased, on different occasions, made serious threats against his life which were communicated to defendant and some of which were made directly to the defendant. The defendant further shows that on several occasions the deceased undertook to assault him with a knife, and on one or more occasions was armed with a pistol, as appellant believed, when they had trouble. Appellant ran from deceased on these previous difficulties. On the morning of the homicide, appellant was going down the stairway with a view of going across the street from the hotel where he was at work to secure tobacco. When he reached the bottom of the flight of steps, the deceased appeared at the door. A screen door intervened between them. When appellant reached to open the door, the deceased also reached for it. Without going into a detailed statement of what there occurred, appellant testified that on account of these matters occurring previously, and what he thought were demonstrations on the part of deceased, and this remark of deceased, “Now, God damn you,” etc., he thought deceased was going to do him violence, — either kill, or inflict upon him serious bodily injury, and he shot. After he fired this shot, or maybe the second shot, the deceased fled, and appellant followed, shooting a time or two after they got away from the door. It is evident from the circumstances and the testimony that the deceased was shot at the door and not after he left. We are of opinion that this evidence, without going into detail, suggested the view of self-defense, and the court erred in not giving it, and also erred in refusing to give the special requested instruction. The law of self-defense should not only have been given, from the standpoint of apparent danger, but also viewed in the light of threats. Both issues were raised by this testimony. This applies to the difficulty at the door. The subsequent part of the difficulty presents another question, but this was not charged upon by the court.

The judgment is reversed, and the cause remanded.


text:
    BARKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.
    Rehearing Denied March 11, 1914.)
    Criminad Law (§ 942) — New Trial — Newly Discovered Evidence.
    Accused was convicted of concealing stolen property taken from a burglarized store. The state’s evidence was given principally by H., an accomplice, who, with D., was arrested for the burglary. H. turned state’s evidence, and testified that D. was present and participated in the burglary. After accused was convicted, D. was discharged after trial, and accused’s motion for new trial contained a written statement by D. that he would testify that he was not present at the burglary, as testified by H., and had nothing to do with it. When accused was tried, D. was in jail, so that he could not then testify for accused under the statute. Held that, since D.’s testimony was material, and accused had no previous opportunity to procure it, it was error not to grant accused a new trial on that ground.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.
    Joe Barker was convicted of receiving and concealing stolen property, and appeals.
    Reversed and remanded.
    J. E. Taulbee, of Georgetown, and W. E. Ramsey and C. L. Black, both of Austin, for appellant. H. N. Graves, Co. Atty., of Georgetown, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of receiving and concealing stolen property; his punishment being assessed at two years’ confinement in the penitentiary.

The state’s case is shown by the testimony of a confessed accomplice, Hugh Davis. A house in Elgin, Bastrop county, was burglarized. The theory of the state was that Hugh Davis, John Davis, and some negroes committed the burglary, and appellant, living 10 or 12 miles away in Williamson county, received some or all of the goods taken from the house. There is no contention that appellant had anything to do with the burglary; that is, he was not present at the time and place the house was entered. The state’s theory was he knew of and consented to the burglary in advance of its perpetration, and subsequently received the stolen goods. The state’s case was made, as before stated, by the confessed accomplice, Hugh Davis, and such corroboration as could be adduced. The parties were arrested and carried to Bastrop county, and Hugh Davis turned state’s evidence, and one of these parties, named Dech-erd, was kept in jail in Bastrop.' This occurred in February. Appellant was convicted on the 27th of June, at which time Decherd was still in jail in Bastrop county. Hugh Davis’ testimony, and the state’s theory, was that Decherd was present, participating in the burglary. On the 1st of July, after appellant’s conviction in June, Decherd was discharged from custody in Bastrop county and relieved of prosecution. Appellant obtained his statement in writing, sworn to, and appended it to his motion for new trial. In this statement Decherd states that he would testify that he was not present at the burglary and had nothing to do with it. In other words, he would have contradicted Davis’ testimony at all points, so far as he (Decherd) was concerned.

This was a very important matter. It was necessary for the state to show the burglary at Elgin, and appellant’s subsequent connection with the goods taken from the house. Hugh Davis’ statement was the state’s case, as he was the only witness who testified to his own presence at the burglary and that of Decherd. Decherd could not testify at the time appellant was tried, because he was in jail under a charge for the burglary. Under the statute, therefore, he could not testify for the defendant. Appellant could not obtain a severance, but the first opportunity appellant had to avail himself of Decherd’s testimony was after the state had discharged him from custody. This testimony was material, and under our decisions entitled the defendant to a' new trial. The rule is laid down in the Rucker Case, 7 Tex. App. 549, as follows: “There can be no doubt at this day as to the rule, or the correctness of the rule in proper cases, as now established in this state, that where two are jointly indicted, and one is tried and convicted, and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where it appears that the new evidence is legal and competent and material to his defense.”

This rule has been followed in a great number of cases, some of which are collated in Cox v. State, 63 Tex. Cr. R. 498, 140 S. W. 445. In Gill v. State, 56 Tex. Cr. R. 202, 119 S. W. 684, 17 Ann. Cas. 1164, the same rule is followed. Quoting from that decision we find this language: -“He would have testified that neither of the persons engaged in the robbery of himself and Van Rooyen was appellant; that the voice of neither of these parties was the voice of appellant, or similar to the voice of appellant. The affidavit contains a full statement of the immediate facts touching the robbery, which would have strongly contradicted Van Rooyen’s testimony, and would have been distinctly favorable to appellant. After his acquittal, he would have been a competent witness in the case. Before acquittal, his testimony was unavailable. It is well settled that if, after the defendant is tried and convicted, his code-fendant is tried and acquitted, the testimony of the latter is held to be newly discovered. This is so thoroughly settled in this state as to no longer be debatable. Sanders v. State, 52 Tex. Cr. R. 465, 107 S. W. 839 [124 Am. St. Rep. 1101]; Lyles v. State, 41 Tex. 172 [19 Am. Rep. 38]; Rich v. State, 1 Tex. App. 206; Huebner v. State, 3 Tex. App. 458; Williams v. State, 4 Tex. App. 5; Gibbs v. State, 30 Tex. App. 581 [18 S. W. 88]; Helm v. State, 20 Tex. App. 41; Chumley v. State, 32 Tex. Cr. R. 255 [26 S. W. 406]; Howell v. State, 10 Tex. App. 298; Ellis v. State, 10 Tex. App. 540.” Many of the eases are also collated in Sanders v. State, 52 Tex. Cr. R. 465, 107 S. W. 839, 124 Am. St. Rep. 1101. These constitute a sufficient number of cases to show that this is the settled rule in Texas.

Decherd had not been tried nor convicted. He had been held as a party to the burglary; but the state, failing in its case in some way or other, discharged him from custody. He then became a competent witness. He could not be used by tbe defendant until after be was discharged. Tbis occurred on tbe 1st of July, after appellant's conviction on tbe 27th of June. He procured bis affidavit and made tbe showing at tbe earliest practicable moment. It would have been material testimony to tbe defendant, striking at tbe very heart of the testimony .of the accomplice, Davis. What tbe jury would have decided with tbis man’s testimony before it wo.uld be conjectural, of course; but it was material testimony, and tbis court could not decide that question, nor could tbe trial court. It was a matter for the jury. They may have believed him; and, if so, it would have been strongly persuasive towards an acquittal.

There is another question in the case, which we deem unnecessary to discuss, inasmuch as it will not occur upon another trial in tbe condition, as here presented. John Davis was connected with tbe burglary by tbe testimony of tbe accomplice Hugh Davis. Appellant filed an application for a continuance when tbis was developed on tbe trial of the case, and asked for a postponement or continuance. Upon another trial tbe testimony of tbis witness may be obtained. If be would testify as contended by appellant, it would be very material evidence — as much so as Decberd’s.

Tbe judgment is reversed, and tbe cause remanded.


author: LEVY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. GARNER.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 3, 1914.
    Rehearing Denied Feb. 19, 1914.)
    Railroads (§ 482

      ) — Actions foe Injuries by Fire — Sufficiency of Evidence.
    In an action against a railroad company for damages to property adjoining a railroad, caused by fire, evidence held to support findings that the lire spread from one set by defendant’s section foreman; that he was negligent in leaving smoldering ends of ties; and that such negligence proximately caused the damages sued for.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1730-1732, 1734-1736; Dec. Dig. § 482.]
    Appeal from District Court, Camp County; R. W. Simpson, Judge.
    Action by J. G. Garner against tbe St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant ap.peals.
    Affirmed.
    Tbe appellee sued for damages occasioned by fire to a portion of bis peach orchard through tbe alleged negligence of tbe appellant, while burning off grass and other combustible material allowed to accumulate upon its right of way, in failing to guard tbe fire to prevent its spreading to and injuring ap-pellee’s adjacent premises. Tbe appellant answered by general denial, and pleaded contributory negligence on appellee’s part in failing to take any steps to put tbe fire out after learning-that it was spreading to bis premises. Ip a trial to the court without a jury, judgment was entered for plaintiff.
    It is shown by tbe evidence that tbe appellant’s railway runs north and south. • The appellee is tbe owner of a tract of land adjoining and running parallel with the right of way of tbe railway company on tbe east, on which were growing and fruit-bearing peach trees. On Thursday just prior to Monday, November 11, 1912, appellant was having tbe grass upon its right of way cut down, and there lay on the right of way a pile of old cross-ties besides dry grass and weeds. On the east side of the roadbed there was a ditch about six feet wide covered with heavy grass, and down in the ditch were strewn several old cross-ties. There was much high dry grass in appellee’s orchard and around the peach trees, reaching to appellant’s right of way fence. It appears that on Thursday the section foreman, in order to clear the right of way, set fire to the pile of old ties on the roadbed near the track, and the evidence reasonably warrants the conclusion of fact, as involved in the findings of the court, that smouldering ends of old ties remaining on the ground were, on the following Monday ■ fanned by a brisk southwest wind into a' flame and communicated fire to the grass and ties in the ditch on the right of way, and from there fire rapidly spread into the grass in appellee’s orchard, killing 214 and injuring 50 peach trees. The evidence warrants the finding of fact, as made by the court, that the appellant was guilty of negligence proximately causing injury to appellee in failing to guard against and prevent the spread of fire set out by it on its right of way to appel-lee’s premises, as pleaded in the petition, and that appellee was not guilty of contributory negligence, and sustains the amount of damages awarded.
    Glass," Estes, King & Buford, of Texarka-na, J. M. Burford, of Mt. Pleasant, and E. B. Perkins, of Dallas, for appellant. M. M. Smith, of Pittsburg, for appellee.

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

   LEVY, J.

(after stating the facts as above). The first, second, and third assignments of error, presented together, challenge the sufficiency of the evidence to support the findings of fact, as made by the court, that (1) the fire which destroyed the orchard was set out by an employe of appellant’s, and (2) that appellant’s employés were negligent in not preventing the spread of fire beyond its right of way and to appellee’s premises. The evidence sufficiently discloses that on Thursday before the Monday that the injury complained of happened, a stack of old ties on the roadbed was burned in order to clear them from the right of way. And according to the testimony of Boise Cooper, an employs of appellant’s engaged in cutting down grass along the right of way, the stack of old ties on the right of way “were set on fire by the foreman” of the section crew. And from all the facts and circumstances the court was warranted in concluding that the burning of the orchard on Monday following originated in the fire started by the foreman in the burning of the stack of old ties. It appears that when the section crew left the place Thursday, and after the cross-ties were burned, there was left on the ground “a good bed of coals”; same being the ends of the burnt ties. And it appears that the grass on the east side of the track was not wholly burned off on Thursday, but “there was just a little spot left that had not burned on the east side.” And the inference of the record is that the spot of dry grass left led to the ditch from near the burnt ties. On Monday morning the witness Cooper, when at work on the right of way, saw grass and weeds on the right of way burning at the point where the old ties were burned, and sent his son to see about it. The witness in this respect testified, as material here, as follows: “I saw the fire when it first started. When I first saw it, it was burning on the right of way, right up on top of the right of way. I suppose, when I seen it, it was as far as from here oyer there to Mr. Morris’ bank from them ties, and the fire was going back north from the pile of ties. A place 100 yards .targe was burning, going north, before I paid any attention to the fire. * * * It was not in the orchard when I first saw it; it got in the orchard afterwards. I saw the right' of way first; then it got in the orchard.” There was high and dry grass and weeds in the ditch and extending to the right of way fence, and at and from the fence on appellee’s premises there was high, dry grass. There was a brisk wind at the time blowing from the southwest towards the orchard, and the weather was dry. The conclusion is warranted from the circumstances that there were smoldering ends of ties burned on Thursday remaining on the ground that were fanned into a flame that communicated fire to the combustibles in the ditch near by, and from there rapidly spread to the grass and to the fence of appellant and into the grass in the orchard. And there is shown affirmatively an absence of any fact or circumstance pointing to any other cause or origin of the fire. If there were reasonable danger, as it appears, of the communication of fire directly to the orchard of the appellee by igniting the grass and combustibles in the ditch on. the right of way, and then spreading to the orchard through the act of the foreman in setting the ties on fire and leaving smoldering ends there, and the consequences arising from such act could reasonably have been foreseen, as it appears, it could' not properly be said that there is a failure of evidence here to show negligence proximately causing the injury. As remarked in the case of Railway Co. v. Cusenberry 86 Tex. 525, 26 S. W. 43: “A man has a right to start a fire upon his own premises, just as he has a right to set in operation any other dangerous agency, provided the circumstances are such as to show that the act may be done with reasonable safety to the persons or- property of others. He must use, in every instance, care commensurate with the danger.”

In view of the inflammable grass on the right of way and also in appellee’s adjacent orchard, it might be said, in such circumstances, that a person of ordinary prudence would have seen to it that no fire was left in the chunks of cross-ties to be fanned by ordinary and usual wind into a flame and cause the combustibles adjacent to become ignited.

The sixth assignment practically presents the question of insufficiency of evidence to support negligence, and it is overruled.

The seventh assignment is to the point that the amount of $214 allowed by the court is excessive. We conclude that the assignment should be overruled.

The judgment is affirmed.