author: FLX, C. J.

text:
    BUCHANAN & GILDER v. GIBBS.
    (Court of Civil Appeals of Texas. San Antonio.
    May 7, 1913.)
    1. Contracts (§ 284)—Building Contracts —Decision of Architect.
    A.building contract providing that the decision of the architect, on any disputed point, shall he final and conclusive as to matters relating to the construction, his action is binding on the parties, in the absence of fraud or gross mistake, necessarily implying bad faith or a failure to exercise an honest judgment.
    [Ed. Note.—Eor other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.]
    2. Contracts (§ 284)—Building Contracts —Materials Required.
    The provision of the specifications, made part of a building contract, “wainscoting, pilasters, etc., in all corridors, * * * all lavatories and all stairs where shown” to be of marble, can well be construed by the architect to require marble wainscoting in the basement.
    [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.]
    3. Contracts (§ 284)—Building Contracts —Materials to be Furnished.
    The provisions of specifications, made part of a building contract: “Wash basins: Throughout the building to be * * * complete as shown * * * these basins to be set in all lavatories and in first floor and basement where shown, but only roughed in for wherever shown in offices from second floor up. * * * There are 20 basins in this contract to be located in offices designated by the owner during construction of the building, and in making bids on the work the contractor shall stipulate how much he will put in the extra basins for in these places”—justifies' the ruling of the architect that the 20 basins were to be furnished by the contractor as included in the contract price for the building.
    [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344^1346, 1350, 1351; Dec. Dig. § 284.]

      4. Contracts (§ 284) — Building Contracts — Details as to Materials — Supplying by Architect.
    The provision of a building contract that, if the plans and specifications have omitted any of the details necessary to completion of the building, they shall be worked out and furnished by the architect, and the contractor shall complete the work accordingly, as if such details had been actually set out, authorizes the architect to decide as to the material of a wainscoting, if that detail was omitted.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310,1312-1316, 1326-1338, 1340-1342, 1344r-1346, 1350, 1351; Dec. Dig. § 284.]
    5. Contracts (§ 199) — Building Contracts —Provision as to Materials.
    The provision of a building contract, after one that wainscoting and certain other things shall be of marble, that “in fact wherever marked ‘marble’ in plans, details,. elevations or sections’’ a certain kind of marble shall be used, does not mean that if wainscot-ig is not marked “marble” that material shall not be used, but is an addition to the enumerated parts that are to be of marble.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 884-889; Dec. Dig. § 199.]
    Appeal from District Court, Bexar County; Claude V. Birkhead, Judge.
    Action by Buchanan & Gilder against O. C. Gibbs. Judgment for defendant. Plaintiffs appeal.
    Affirmed.
    D. A. MeAskill and Theodore E. Simmang, both of San Antonio, for appellants. Denman, Franklin & McGown, of San Antonio, for appellee.

      For other cases 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 Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLX, C. J.

Appellants sought to recover of appellee the sum of $1,800, alleged to be due for extra work performed and certain marble basins placed in a certain building at the corner of Houston street and Avenue D, in the city of San Antonio, which appellants had contracted to erect for appellee. Appellee denied that the work was extra or that the basins were not included in the contract, and alleged that the full contract price of the building had been paid to appellants by appellee. It was further alleged that, if there should be any doubt as to the work and material being included in the contract, the doubt had been resolved in favor of ap-pellee, and that by the terms of the contract the award of the architects was made final and conclusive. It was claimed, in a supplemental petition and a trial amendment filed by appellants, that the award of the architects was unjust, unfair, and fraudulent.

The evidence shows that appellants contracted to erect a certain office building for appellee in San Antonio for the sum of $214,000, and appellee paid appellants that sum. During the erection of the building a difference arose between appellants and appellee as to whether marble wainscoting in the toilet room of the basement and 20 marble wash basins were included in or contemplated by the contract, and the architects were called upon by the parties to decide the matter, and the architects decided that the wainscoting and marble basins were included in the contract, plans, and specifications and that appellants were not entitled to extra compensation therefor. Appellants then performed the work and furnished the marble wainscoting and basins, but protested against it. Appellants, by the terms of the contract, bound themselves to furnish all the labor, material, and other things necessary to build the house, and to complete and turn it over to appellee strictly according to the true intent and meaning of the plans and specifications and on the approval of the architects, and that “in the event of any doubt or question arising respecting the true meaning of any of the drawings or specifications in this contract mentioned, reference shall be made to said architects, whose decision thereon shall be final and conclusive.” The specifications, which were made a part of the 'contract, contained the following clause: “Should it appear that the work hereby intended to be done, or any of the matters relative thereto, are not sufficiently detailed, or explained on the drawings or in the specifications, the contractor shall apply to the architect for such further drawings or explanations as may be necessary, allowing a reasonable time for the architects to supply same, and the contractor shall conform to same as a part of the contract, in so far as they may be consistent with the original drawings; in the event of any doubt or question arising respecting the true meaning of the drawings or specifications, reference shall be made to the architects, whose decision thereon shall be final and conclusive. No alleged or oral admission, condonation, or inadvertent neglect on the part of the architects will be accepted as an excuse for bad work.” The architects in other parts of 'the specifications are given the power of interpretation of all parts of the contract, plans, and specifications, to order necessary changes “and define the true intent and meaning of the drawings and specifications.” The use of marble in the building is thus shown in the specifications: “Wainscoting, pilasters, etc., in all corridors, entrance hall, all lavatories and all stairs where shown, .and in fact wherever marked ‘marble’ in plans, details, elevations or sections to be best quality selected light ‘Creole’ Georgia marble, highly polished and of thickness shown in details, and to be secretly secured, perfectly plumb, straight and true and even with absolutely tight and close joints (joints approved by architects) and left in perfect condition.” “Risers for stairs to basement and from first to second story to be of polished Georgia marble, secured with brass bolts N. P. threads for all stairs to be of Georgia marble, 1]4 Inches thick, smooth sanded finish, with nosings to detail, all secured to iron work of satirs (stairs) as directed.” As to wash basins it was provided: “Wash Basins: Throughout the building to be similar Standard Sanitary Mfg. Co.’s plate P. 535, enameled all over and fitted with geillow cocks complete as shown and described in every respect, these basins to be set in all lavatories and in first floor and basement where shown, but only to be roughed in for wherever shown in offices from second story up, in these cases the supply, waste and vent pipes are to be made flush with the wall, neatly capped for future connection of basin when required. There are 20 basins in this contract to be located in offices designated by the owner during construction of the building, and in making bids on the work the contractor shall stipulate how much he will put in the extra basins for in these places. Where double basin is called for in basement use style similar to plate P 600, same hs Co.’s, but with separate waste and vent to each basin.” The plans did not call for marble in the two closets in the basement, but the details show marble.

When the parties to a contract have agreed that the decision of an architect or civil engineer, on any disputed point, shall be final and conclusive as to matters relating to the construction of a building or other structure, his action in the premises will be binding and conclusive upon the parties to the contract, in the absence of evidence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. Kettler Mfg. Co. v. O’Neil, 57 Tex. Civ. App. 568, 122 S. W. 900. That decision was approved by the Supreme Court of this state and is sustained by numerous decisions. Railway v. Henry, 65 Tex. 685; Boettler v. Tendick, 73 Tex. 493, 11 S. W. 497, 5 L. R. A. 270; Railway v. Perkins, 88 Tex. 67, 29 S. W. 1048; Jones v. Gilchrist, 88 Tex. 88, 30 S. W. 442; Jones v. Risley, 91 Tex. 1, 32 S. W. 1027; Kihlberg v. United States, 97 U. S. 398, 24 L. Ed. 1106; Railway v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255.

The fourth and fifth assignments state that the court erred in holding that the decision of the architects was final and conclusive although fraudulently made, and there would be foundation for vigorous complaint if the trial court had so held. No such ruling was made, howevér, for there was no evidence whatever of fraud, nor of gross mistake. On the other hand, there was sufficient ground and reason for the decision of the architects that the basement should be wainscoted in marble as were the other floors of the building, and that the basins should be furnished. It was provided, as hereinbefore shown, that the “wainscoting, pilasters, etc., in all corridors,” should be of marble, that all lavatories should be of marble, and that “all stairs where shown” should be of marble. The architects could well construe that clause to require the marble wainscoting in the basement.

The clause as to wash basins was ample to justify the ruling that they should be furnished by appellants. The reference to the 20 wash basins that were to be located in offices to be designated by the owner during construction of the building forms no basis for the contention that extra basins were contemplated which were to be paid for as extras over and above the amount bid, for it is required that they should be included in the amount bid, or, as recited in the specifications, “in making bids on the work the contractor shall stipulate how much he will put in extra basins for in these places.” It was never contemplated that the 20 wash basins should not be included in the contract price.

It cannot be denied by appellants that they were bound to complete the basement with marble or some other material, and who was to decide the material? Evidently if that detail was omitted it was provided for in that part of the contract where it was “further understood and agreed that if said plans and specifications have omitted any of the details necessary to such completion of said building, such details are to be worked out and furnished by said architects, and first parties are to complete the work accordingly as if such additional details had been actually set out in the plans and specifications hereto attached.” If the detail as to the wainscoting was omitted in the plans and specifications, the architects had full authority to and did supply the detail. The contract is plain, and the architects acted within its provisions, and appellants are hound by their decision.

In the section of the contract providing that the wainscoting, pilasters, lavatories, and stairs where shown, should be of marble, it is provided in addition that “in fact wherever marked ‘marble’ in plans, details, elevations or sections” a certain kind of marble should be used. That provision did not, as contended by appellants, mean that if the wainscoting, pilasters, etc., were not marked ‘marble’ that material should not be used, but it is an addition to the enumerated parts of the building that were to be of marble.

There was no evidence whatever of gross mistake or fraud, or dishonest dealing upon the part of the architects, and the court did not err in instructing a verdict for appellee.

The judgment is affirmed.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    STRICKLAND v. WOFFORD.
    (Court of Civil Appeals of Texas. Dallas.)
    Justices of the Peace (§ 159) — Appeal in Forma Pauperis — Affidavit—Sufficiency.
    Where the affidavit of appellant desiring to appeal from a justice’s court in forma pau-peris complied with Rev. Civ. St. 1911, art. 2394, and was signed by him and actually sworn to before the justice who failed to sign his name to the jurat, the county court should permit the justice to- supply the omission by signing his name.
    [Ed. Note — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. § 159.]
    Appeal from Henderson County Court; J. S. Prince, Judge.
    Action by J. B. Wofford against John Strickland. From a judgment of the county court dismissing an appeal from an adverse judgment of a justice’s court, defendant appeals.
    Reversed and remanded.
    E. P. Miller, of Athens, for appellant. W. R. Bishop, of Athens, for appellee.

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

   RASBURY, J.

The single issue in this case is the sufficiency of an affidavit in forma pauperis by which the case was sought to be removed on appeal from the justice court of Precinct No. 1 of Henderson county to the county court thereof. Appellee had recovered a judgment in said justice court against appellant, who, desiring to appeal the case, had complied with all statutory requirements relating to appeals from justice to county court in forma pauperis. The justice of the peace, however, before whom the affidavit was made, and who certified the record to the county court, failed to sign his name to the jurat. When the case reached the county court, the appeal was dismissed by the county judge for the failure of the justice of the peace to attach his signature to the jurat. On the hearing of the motion to dismiss the appeal, both appellant and the justice of the peace testified that appellant did swear to the facts stated in the affidavit before said justice of the peace after having signed his name thereto, and the justice of the peace testified that he had omitted to attach his signature to the jurat for the reason that he thought his signature, which he attached to his certificate on the same sheet of paper certifying the ease to the county court, was sufficient for all purposes. Also on said hearing appellant requested permission of the county judge for the justice of the peace to then sign the affidavit, and the justice of the peace expressed his desire to do so, if permitted by the county judge. The request was refused, and the appeal dismissed. We think such refusal error.

The statute provides that appeals in forma pauperis may be taken in cases where parties are unable to pay costs or give security therefor, but that persons availing themselves of the statute shall make strict proof, etc. (article 2394, R. S. 1911); said proof to be made before the county judge or the court trying the case and to “consist” of the “affidavit” of the party taking the appeal within the prescribed period and containing certain recitations of fact. The affidavit in this case complies with the statute in all respects and is signed by appellant and was actually sworn to by him before the justice of the peace. In short, the appellant took every step he could take, and every step he was required to take, to secure the appeal. There was nothing remaining for him to do unless it was to see that the justice of the peace performed his duty by signing his name officially and correctly to the affidavit and forwarding all papers to the clerk of the county court. The performance of these acts was in no respect his duty. It may have been his duty, upon hearing of the motion to dismiss, to show the facts we have recited and to ask permission of the county judge for the justice of the peace to attach his signature nunc pro tunc. This he did. Having done so, it seems to us he should not lose or forfeit his right of appeal through the inadvertence of the officer or omission to observe a clerical detail which appellant could not control nor reasonably anticipate; and, since it is undisputed that the affidavit had been signed and sworn to by appellant, the justice of the peace should have been permitted to supply his omission by signing his name to the affidavit. Sims v. Redding, 20 Tex. 387; May v. Ferrill, 22 Tex. 340; Arnold v. Kreissler, 22 Tex. 580; Ryan v. Goldfrank, Frank & Co., 58 Tex. 356.

The judgment of the court below is reversed, and the cause remanded, with instructions to permit the justice of the peace to attach his signature to the jurat of the affidavit nunc pro tunc.


author: FLY, C. J.

text:
    PECK v. MORGAN et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 23, 1913.
    On Motion for Rehearing, May 21, 1913.)
    1. Appeal and Error (§ 742) — Assignments op Error — StATEMENTs.
    Where the statement under an assignment of error does not clearly show the matter referred to, the assignment cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Error (§ 743) — Assignments op Error — Reference to Motion por New Trial.
    An assignment of error which does not refer to the portion of the motion for new trial in which the error is complained of cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    3. Sales (§ 38) — Fraudulent Misrepresentations.
    Where a buyer of furniture bought after inspection, misstatements by the seller as to the cost of such furniture could not avoid the sale; the buyer having an opportunity to ascertain the true cost by a little diligence.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.]

      4 Appeal and Error (§ 204) — Objections in Lower Court — Secondary Evidence.
    Where, in an action on a note, defendant permits secondary evidence of its contents without objection, and there is no issue as to the existence of the note, and the note is not introduced in evidence, defendant cannot complain that there is nothing on which to 'base the judgment against him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. § 204.]
    5. Appeal and Error (§ 302) — Objections— Motion for N'ew Trial.
    Where, in an action on a note, defendant did not, in the motion for new trial, attempt to raise any issue as to the attorney’s fees therein provided, except that the note was not introduced in evidence, no other objection can be heard in the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 1744-1752; Dec.Dig. § 302.]
    6. Contracts (§ 278) — Breach.
    One who breaches his contract cannot complain of a subsequent breach by the other party.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1207-1213; Dec. Dig. § 278.]
    7. Husband and Wife (§ 93) — Sale op Furniture— Defense op Coverture.
    A woman conducting her own business, buying furniture with her separate property, at a time when she was permanently separated from her husband, and only two months before she was divorced from him, and who ratified the sale after divorce by payments thereon, cannot rely on coverture to defeat the sale.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 369; Dec. Dig. § 93.]
    8. Appeal and Error (§ 742) — Assignments op Error — Proposition.
    Where the proposition under an assignment of error to remarks of the judge does not contain the remarks, the assignment cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    9. Husband and Wipe (§ 232) — Contracts op Wipe — Evidence—Decree por Divorce.
    In an action on a note, in which defendant relied on coverture, a decree of divorce is admissible in evidence to show that she was a feme sole at the time of the suit, and had ratified the contract made while she was a feme covert.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 844-848, 981; Dec. Dig. § 232.]
    10. Trial (§ 260) — Request por Instructions.
    A refusal to submit a requested issue is not error where the same issue was fully submitted by the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    11. Appeal and Error (§ 742) — Assignment op Error — Statements.
    Assignments of error not followed by statements will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    On Motion for Rehearing.
    12. Appeal and Error (§ 763) — Briefs—Supplemental Briefs.
    There is no authority for filing a supplemental brief after the original brief has been assailed for failure to comply with the rules, so as to correct the errors in the original.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3098; Dec. Dig. § 763.]
    13. Appeal and Error (§ 748) — Assignments op Error — Qure by Supplemental Brief.
    Assignments of erroi' are not open to amendment in the appellate court, and hence cannot be cured by a supplemental brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. D'ig. §§ 3058^-3064; Dec. Dig. § 748.]
    14 Courts (§ 85) — Court Rules — Enforcement.
    The Court of Civil Appeals will enforce the Supreme Court rules, if they are not in conflict with the statutes.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 294, 296-301; Dec. Dig. § 85.]
    Appeal from District Court, Bexar County ; Claude V. Birkhead, Judge.
    Action by W. M. Morgan and others against F. M. Peck and another. From a judgment for plaintiffs, F. M. Peck appeals.
    Affirmed.
    C. A. Keller, of San Antonio, for appellant. McFarland & Lewright and T. H. Ridgeway, all of San Antonio, for appellees.

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

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

   FLY, C. J.

W. M. Morgan sued F. M. Peck and J. A. Peck for a balance on a promissory note executed by them to him for $3,000, and the foreclosure of a chattel mortgage on certain furniture. Stowers Furniture Company intervened in the suit, claiming to have a mortgage on the furniture to secure a part of the purchase price of the furniture due to them by Morgan. J. A. Peck did not answer, but F. M. Peck answered by pleas of coverture and the breach of certain warranties made by Morgan as to the cost of the furniture. The court submitted the cause on special issues, hut paid hut little regard to the answers of the jury in rendering judgment in favor of Morgan against F. M. Peck for $2,522.47, and a foreclosure, and against Morgan in favor of Stowers Furniture Company for $1,396.50. The cause was dismissed as to J. A. Peck, and this appeal is perfected by F. M. Peek alone. The evidence shows that appellant bought the goods, after examining them, and agreed to pay for them the amount claimed by Morgan.

The first assignment of error is as follows: “The court erred in rendering a judgment non obstante veredicto, after submitting the matter to the jury and receiving a verdict thereon.” The assignment is not followed by a statement that casts any light on the matter complained of. What were the two special issues spoken of in the purported statement, and what were the answers to them? There is nothing in the statement that shows. Reference to the transcript is not sufficient, as has been held many times. The second, third, fourth, and fifth assignments of error are open to the same criticism ; in fact, they refer to the first assignment for a statement. Neither of the assignments of error refers to the motion for new trial, a clear violation of rules 24 and 25 of the Courts of Civil Appeals (142 S. W. xii). The failure to make a succinct and clear statement considering the matter referred to, taken with the failure to refer to the portion of the motion for new trial in which the error is complained of, is such a serious violation of the rules that the assignments of error will not be considered. It may be said in connection with them, however, that the evidence of appellant offered no defense to the action of Morgan. There was no warranty of the furniture, and the representation, if made, that the furniture had cost a certain sum, although untrue, would not be sufficient to set aside the sale. Appellant could have ascertained the facts as to the cost of the furniture by a little diligence. She stated that she knew the value of furniture, and she did not swear that the furniture was not worth what she paid for it. She made no objection to the furniture nor objected to paying for it over a year after she began using it. There was no representation as to value, but merely, according to appellant, as to what the furniture cost Morgan. Bigelow on Fraud, p. 490 et seq. Mrs. Peck saw and examined the property, or could have examined it, before she bought it, and she should not have relied on Morgan’s representation as to what the original cost of the property may have been. Chrysler v. Canaday, 90 N. Y. 272, 43 Am. Rep. 166.

The sixth, seventh, eighth, and ninth assignments of error complain that the note sued on was not introduced in evidence, and therefore there was nothing upon which to base the judgment. Appellant in her answer admitted the sale of the property to her and the purchase price, that $2,000 in cash was paid, and “the execution by defendants of one certain promissory note as described in plaintiff’s petition.” The note is fully described in the petition. The evidence clearly showed the payments made on the note, and Morgan swore that he was the owner of the note. The note is fully described in a bill of sale to the property made by Morgan to F. M. Peck. There was no issue as to the existence of the note, and no objection was made to the evidence tending to show the contents of the note. Brown v. Lessing, 70 Tex. 544, 7 S. W. 783; Howard v. Britton, 71 Tex. 286, 9 S. W. 73; Mensing v. Cardwell, 33 Tex. Civ. App. 16, 75 S. W. 347; Long v. Garnett, 59 Tex. 229. Appellant did not deny that Morgan was the legal owner and holder of the note, and swore that he was the owner. The petition alleged that the note bore 8 per cent, interest and 10 per cent, attorney’s fees, and appellant in her answer admitted it. Appellant did not in the motion for new trial attempt to raise any issue as to the attorney’s fees, except that the note was not introduced in evidence, and no other objection can be heard in this court.

Appellant, having breached the contract, is in no position to complain of a breach by appellee, Morgan. Appellant did not cease paying on account of the failure of Morgan to pay over the money to interven-ers. She knew nothing about such failure, and swore that she breached the contract because she ascertained that Morgan charged her more for the furniture than it cost him. She will not be permitted to shift her position after a breach of the contract.

Appellant cannot evade her responsibility on the contract on the ground of coverture. She was not living with her husband at the time she bought the furniture, and two months afterwards obtained a divorce from him, and the property in question was declared to be her separate property. She had left her husband in February, 1910, and had for nine years been in business for herself, and conducted the business with her own money. Ullmann v. Jasper, 70 Tex. 446, 7 S. W. 763. She bought the furniture with her separate property, and after she was divorced she continued to make payments on the furniture. Finks v. Thompson, 11 Tex. Civ. App. 538, 32 S. W. 711. She and her erstwhile husband had permanently separated at the time of the purchase of the property, and she ratified the purchase by her acts after she became a feme sole, and she still occupied that, status, when the judgment was rendered against her.

The twelfth assignment of error is overruled. -In the proposition thereunder remarks made by the judge seem to be the subject of complaint, but no indication is given as to what the remarks were. The same is true of the thirteenth and fourteenth assignments of error; the statements under them failing to show what was contained in the statement of facts and decree of which complaint is made. We are unable to ascertain whether the evidence could have injured appellants. If reference is made to the decree of divorce, it was properly admitted to show that appellant was a feme sole, and had ratified the contract made while she was a feme covert.

The fifteenth assignment of error is not followed by such a statement as would indicate any error in the refusal of the court to allow appellant ‘ to prepare an application for continuance after they had announced ready for trial.

The refusal to submit the issue requested by appellant was not error. The same issue was fully submitted by the. court, and there was no necessity for repeating it.

Assignments of error from the seventeenth to the forty-sixth, inclusive, are not followed by statements, and are overruled.

The judgment is affirmed.

On Motion for Rehearing.

A typewritten paper, styled “Supplemental Brief of Appellant F. M. Peck,” was filed in this court on tlie day before tbe cause was submitted, and after the brief had been assailed by appellee on the ground of its failure to comply with the rules. We know of no authority for filing any such document, and, if such procedure is tolerated, amendments to cover disregard of the rules would cure every delinquency in briefing a ease, and the appellee be deprived of any benefit derived from such delinquency. However, this court was aware of the presence among the papers of the “supplemental brief,” but was of the opinion that it did not cure defects in assignments of error, which have never been held open to amendments in appellate courts. If the assignments of error do not “refer to that portion of the motion for a new trial in which the error is complained of,” it would seem clear that a “supplemental brief” could not supply the omission. That document amounts to nothing but a statement that the matters mentioned in the different assignments were called to the attention of the trial court in the motion for new trial. The Constitution gives authority to the Supreme Court to formulate rules for the government of the different courts of Texas, and in pursuance of that authority the rules have been adopted. With their wisdom and propriety we have nothing to do, but if they are not in conflict with the statutes, it is our duty to enforce them. With the expense of complying with them this court has nothing to do; but, in spite of the contention of appellant as to the expense connected with a compliance with them, we are constrained to the belief that compliance with the rules in the end will be less expensive than to ignore them.

Appellant fails to grasp the opinion of this court as to the note not being offered in evidence, but seems to think that the court held that it was offered in evidence. On the other hand, it was held that it was not necessary under the facts of this case to introduce the note in evidence, and ample authority was cited to sustain the proposition. There was no denial of the execution of the note mentioned in the petition which described it as “providing that in the default in the payment of said note at maturity, and same is placed in the hands of an attorney for collection after maturity, then the signer did agree to pay an additional ten per cent, of the principal and interest then due as attorney’s fees.” Mrs. Peck made no denial of that allegation, but admitted “the execution by defendants of one certain promissory note as described in plaintiff’s petition,” which rendered unnecessary putting the note in evidence. Bauman v. Chambers, 91 Tex. 108, 41 S. W. 471; Crosby v. Bonnowsky, 29 Tex. Civ. App. 455, 69 S. W. 212.

The motion for rehearing is overruled.


author: TALIAFERRO, J.

text:
    REID v. RAGLAND.
    (Court of Civil Appeals of Texas. San Antonio.
    May 7, 1913.)
    1. Pleading (§ 150) — Cboss-Petition—De-nial.
    Plaintiff's failure to deny allegations of partnership in defendant’s cross-petition is an admission thereof.
    [Ed. Note. — For other cases, see Pleading, Dec. Dig. § 150.]
    2. Evidence (§ 419) — Parol Evidence — Deed — Consideration.
    In an action upon a note given as part of the consideration for a conveyance, the grantee may set up as an affirmative defense or counterclaim the grantor’s failure to furnish him with goats in accordance with a contemporaneous parol agreement, it appearing that the grantee was without funds and that the maker agreed to supply him with stock so that he might be enabled to pay for the land, for evidence of such agreement does not violate the rule against the introduction of parol evidence to vary a written instrument, but falls within the exception admitting it to show the real consideration of a deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419; Bills and Notes, Cent. Dig. § 1738.]
    Appeal from District Court, Kimble County ; Clarence Martin, Judge.
    Action by G. R. Ragland against John F. Reid and another. From a judgment for plaintiff and denying recovery on a counterclaim, the named defendant appeals.
    Reversed and remanded.
    Horace E. Wilson, of Junction, for appellant.

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

   TALIAFERRO, J.

This was a suit by G. R. Ragland against J. F. Reid and R. A. Pickens to recover upon a promissory note for $500 with interest and attorney’s fees. The note was made payable to the order of G. R. Ragland and W. R. Richardson, and Ragland asserted ownership of the whole note by assignment from Richardson. Upon prayer of the appellant, W. R. Richardson was made a party to the suit. Appellant answered by general denial and verified plea of failure of consideration, alleging that the note in question was executed by him as principal and his codefendant, Pickens, as surety, as a part of the purchase price of a tract of land purchased by him from G. R. Ragland and W. R. Richardson, and that the said note was to represent the cash payment for the land; the whole consideration being $2,500, and the balance thereof to be paid in four equal annual installments. The deed did not recite the execution of the note sued upon, nor reserve a lien for its security, but recited the execution of the other four notes and retained a vendor’s lien upon the land to secure their payment. Appellant alleged: That Ragland and Richardson were partners and that his dealings were with Rag-land as such partner. That he told Ragland that he could not buy the property because he would have no money to stock it or to pay for it when the notes came due, and that thereupon, as an inducement to purchase the land, and as a part of the consideration, Bag-land, for himself and Richardson, agreed to purchase in the market 600 head of mutton goats of a certain quality and turn them oyer to appellant to be left in his care and custody and maintained on the property for the mutual profit of appellant and appellees. And that as an additional consideration he upon his part agreed to improve the fence around the land by adding three additional wires thereto. That relying upon appellee’s agreement to furnish said goats as the main inducement and consideration for the trade, he executed the notes and delivered them, to Ragland and Richardson and entered into possession of the land. That although he complied with his agreement with reference to the fence, the appellees failed to comply with their agreement to provide him with 600 goats, but represented to appellant that they were unable to obtain that number of goats of the kind specified in their contract, and induced him to modify the contract and agree to accept 300 goats of a different class. That although he agreed to such a modification of the contract and appellees promised anew to furnish him 300 goats of the kind specified, they failed to do so and furnished him only 100 goats. He alleged that from the 100 goats provided he realized in cash on the Mohair $101, and that the yield of kids was worth $172, and that if he had received the 300 goats which appellees agreed to furnish him his profits upon them would have been equal in proportion to the profits on the others and states his damages at $546. It is further alleged that the agreements and promises made by appellees to him were fraudulently made for the purpose of inducing him to buy, and that Rag-land is not the bona fide holder of the said note, but fictitiously claims to own same for purposes of this suit. To the defendant’s special answer the plaintiff interposed general demurrer and special exceptions which were sustained. Judgment was rendered for appellee Ragland in accordance with his prayer.

Appellee has filed no brief in this court. The appellant’s allegation that appellee and W. B. Richardson were partners is not denied, and it must be assumed that such was their relation.

Appellant’s first assignment of error is as follows: “The court erred in sustaining plaintiff’s general demurrer to defendant’s first amended answer and cross-action, because the said answer presented a legal cause of action that should have been heard upon its merits, and if the allegations in said answer were sustained by proof would have entitled the defendant to an offset against the note sued upon by plaintiff in this ease.” The court in ruling on the pleadings of the parties made a general order sustaining all demurrers and exceptions urged by the plaintiff to the defendant’s answer. Besides the general demurrer, there were various special exceptions, and the record furnishes us no light as to the ground or grounds upon which the court reached the conclusion that the pleading was insufficient. If the defendant’s answer set up a prima facie cause of action, it was error to sustain a general demurrer, and the judgment must be reversed.

No rule of law is better settled than that which prohibits the introduction of parol evidence to vary the terms of a contract in writing; but the exceptions to the rule are equally well recognized, and perhaps emphasized by the certainty of the general principle. One of the exceptions to the rule, which is as well established as the rule itself, is that parol evidence is admissible to show the real consideration of a deed, and in actions between the parties the recitals in the deed with reference to the consideration are not conclusive. Johnson v. Elmen, 24 Tex. Civ. App. 43, 59 S. W. 605, and cases there cited (s. c., 94 Tex. 168, 59 S. W. 253, 52 L. R. A. 162, 86 Am. St. Rep. 845); Springman v. Hawkins, 52 Tex. Civ. App. 249, 113 S. W. 966; Syler v. Culp, 138 S. W. 175; Pope v. Taliaferro, 51 Tex. Civ. App. 217, 115 S. W. 309; Lanier v. Foust, 81 Tex. 187, 16 S. W. 994; Taylor v. Merrill, 64 Tex. 496; Womack v. Wamble, 7 Tex. Civ. App. 273, 27 S. W. 154. It remains then only to determine on the questions of the general demurrer, whether the matter set up in appellant’s amended answer falls within this exception. We think it does.

The allegations in appellant’s answer, if true, show that his reluctance to enter into the debt sued upon was overcome by the alluring promises of assistance from the owners of the land. I-Ie informed them that he was without means and could not hope to be able to meet the payments they would require of him, but upon their promise to furnish him 600 goats to run on the place he was reassured and met their conditions. From the 100 goats that were furnished to him he alleges that he realized a profit of $273. If this were proven, it would be strong evidence that his expectation that he could pay for the land out of the profits on 600 goats was well founded and a convincing circumstance in favor of his contention that this promise was the main consideration which induced him to make the purchase. The agreements and promises which appellant alleges were made by appellees,-if made, furnished an inducement to the appellant to enter into the trade which he alleges was absent until those promises and agreements were made. Such agreements of inducement when pleaded as a defense or offset can be shown by parol testimony, when not inconsistent with the express terms of the contract. Downey v. Hatter, 48 S. W. 32; N. Y. Life Ins. Co. v. Thomas, 47 Tex. Civ. App. 149, 104 S. W. 1074; Martin v. Rotan Grocery Co., 66 S. W. 212; 1 Greenleaf on Ev. § 284; Wharton on Ev. § 1037; Pishkos v. Wortek, 18 S. W. 788; Hansen v. Yturria, 48 S. W. 795.

We conclude, therefore, that the court erred in sustaining appellee’s general demurrer to appellant’s amended original petition.

Appellant’s second, third, fourth, fifth, and sixth assignments of error assail the action of the court in sustaining the plaintiff’s special exceptions to his amended answer. We have examined these special exceptions and find that they attack the substance of appellant’s cause of action and do not in any manner relate to the form of the pleading or the manner of stating the cause. They are in fact only general demurrers directed at special portions of the appellant’s pleading and as such were no doubt treated by the trial court Donnell v. Currie, 131 S. W. 88; Parker v. Naylor, 151 S. W. 1096; Cheek v. Herndon, 82 Tex. 146, 17 S. W. 763; Railway v. McElmurry, 33 S. W. 249.

We conclude that it was error to sustain exceptions to appellant’s pleadings, and the judgment of the lower court will therefore be reversed and the cause remanded.


author: TALBOT, J.

text:
    HOUSTON & T. C. RY. CO. v. POX et al.
    (Court of Civil Appeals of Texas. Dallas.
    April 26, 1913.
    Rehearing Denied May 17, 1913.)
    1. Damages (§ 166) — Evidence—Admissibility — Injuries to Passengers.
    In an action against a railroad company for damages for injuries to female passenger who claimed that, because of defendant’s negligence, she fell and injured her back, which injury continued latent for a long time and at last wholly undermined her health, evidence of the possibility that such an injury would not show itself immediately is competent, where the carrier insisted that her present condition was caused by some later injury or illness and that she was not hurt by the shock.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.]
    2. Evidence (§ 527) — Opinion Evidence— Expert.
    Ordinarily even an expert witness cannot state what in his opinion might possibly ensue from a given state of facts, but is confined to those.things which are reasonably probable.
    [Ed. Note.- — For other cases, see Evidence, Cent. Dig. §§ 2334, 2335; Dee. Dig. § 527.]
    3. Evidence (§ ,558) — Opinion Evidence— Cross-Examination of experts.
    In an action against a railway company for injuries to a female plaintiff, whom the carrier claimed was not hurt by a fall induced by the sudden stopping and starting of the train, but was suffering from some later ailment or injury, where a physician testified for the defense that after the accident he examined her for life insurance and did not notice any ailments and none were spoken of, he may properly be cross-examined as to whether the injuries could not have continued latent for a long time and then developed; such questions being proper to test his skill and knowledge.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2377, 2379; Dec. Dig. § 558; Witnesses, Cent. Dig. § 932.]
    4. Trial (§ 62) — Reception of Evidence-Rebuttal — Declarations.
    In an action against a railroad company for damages for injuries to a female plaintiff, whom the company claimed was not injured by a fall caused by the sudden stopping and starting of the train, but was suffering from a subsequent ailment, where evidence was given that she had not complained of any injuries at the time or shortly after the accident, evidence of her declarations to the contrary is competent in rebuttal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 148-150-; Dec. Dig. § 62; Carriers, Cent. Dig. § 1306.]
    5. Carriers (§ 318) — Injuries to Passengers — Actions—Evidence—Sufficiency.
    In an action against a carrier for damages for injuries received by female plaintiff, evidence held sufficient to support the verdict for plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.]
    Appeal from,District Court, Hunt County; R. L. Porter, Judge.
    Action by R. L. Fox against the Houston & Texas Central Railway Company and. another. From a judgment against the named defendant, it appeals.
    Affirmed.
    Dinsmore, McMahan & Dinsmore, of Green-ville, for appellant. Evans & Carpenter, of Greenville, for appellees.

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

   TALBOT, J.

Appellee, Fox, brought this suit against the Gulf, Colorado & Sante Fé Railway Company and the appellant, Houston & Texas Central Railway Company, to recover damages for personal injuries sustained by his wife, Mrs. Mary Fox, while she was a passenger en route from Celeste, Tex., to Bertram, Tex. Each of the defendants answered by general demurrer, general denial, and pleas of contributory negligence on the part of the appellee’s wife. A jury trial resulted in a verdict and judgment in favor of appellee against the appellant for the sum of $10,000, and in favor of the Gulf, Colorado, & Santa Fé Railway Company. From the judgment against it, the appellant appealed.

No question is raised about the pleadings and further statement of them is unnecessary. The evidence is sufficient to show that on or about the ,22d day of December, 1910, Mrs. Fox, appellee’s wife, bought a through ticket at Celeste, Tex., entitling her to passage from that place over the road of the Gulf, Colorado & Santa Fé Railway Company to Dallas, thence over appellant’s road to Hearne, Tex., where Mrs. Fox changed cars to continue her journey. As the train approached Hearne, which was about 2 o’clock in the night, the station was announced and the train stopped. Mrs. Fox, accompanied by her little boy about 10 or 11 years of age, arose from her seat and started to leave the train. After taking a step or two towards the ear door, the train was negligently moved with a sudden jerk or lunge forward and then backward, almost, at the same instant of time, which threw Mrs. Fox off her balance and to the floor of the car, seriously injuring her. She testified: “I was thrown down and I fell forward in kind of a careen. X lay there some little bit of time. I felt a severe pain strike me, especially in the small of my back, and it seemed to me like it run all over me, and it seemed to me like it hurt me all over; I lay there for some bit of time, kind of numb or something; at the same time I didn’t hardly realize what was going on for some little bit of time; my little boy came to me and he had hold of me the first thing I knew, and he says, ‘Ma, are you hurt?’ I told him * * * I was nearly killed.” Mrs. Fox further testified that her son helped her up and that they went out of the car and into the station house, where she stayed until about 11 o’clock forenoon of that same day, when she took another train and continued her journey to Bertram, still suffering from her injury. Mrs. Fox was 51 years of age at the time of the accident, and was a strong and vigorous woman for her age.

Appellant’s first, second, third, fourth, and fifth assignments of error raise the same question of law in different ways, and are presented in the brief together. They charge that the court permitted the plaintiff, over the objection of the defendant, to prove by the witness Dr. Pearson matters relating to injuries to plaintiff’s wife which were purely speculative and bare possibilities. We quote as fair samples of the questions asked and objected to the following:

(1) “Now this woman might have been suffering with a pain in her back right at the time you took those answers that might have resulted in the condition she is in, may it not, Doctor?” To which the witness replied, “There might be some pain.”

(2) “Isn’t it true, and isn’t it an accepted theory among doctors, and observation by all good physicians, that an injury to the spine might go along for months before it developed into a serious injury, practically unnoticed by the parties themselves, and then develop into a serious injury?” Answering this question, the witness said: “In a normal life and a healthy person it would be apt to go along a good while.” It seems that it was the theory of the plaintiff that his wife from the date of the accident suffered with her back and head intermittently, but on account of her strength and good general health the effects of the injury complained of were slow and gradual, resulting finally in the complete and permanent destruction of her health. On the other hand, the defendant’s theory seems to have been that Mrs. Fox in fact received no injury of any consequence at the time alleged; that the claim of injury at that time was an afterthought; that the emaciated and feeble condition of Mrs. Fox, apparent at the date of the trial, was due wholly to some cause arising shortly before or about the time of the institution of this suit other than the alleged sudden violent movement of defendant’s train at Hearne, and offered testimony in support of this theory.

In this connection Dr. Pearson, being called by the defendants, testified: “I made an examination last year of Mr. and Mrs. Fox, at their home, for life insurance; Mrs. Fox’s appearance then, as to health and strength, was good, normal, I /would think. I think it was about the middle of April of last year I made this examination. I had called and seen Mrs. Fox before this transaction; at that time there was no difference in her general appearance as to her health and strength and to what it had been before that time that I could see; at that time, while I was making the examination, Mrs. Fox nor Mr. Fox did not say anything about the injury which Mrs. Fox claimed to have received. In the conversation they said they were each in good health. They asked me if I thought they would pass, and I said they would; it is hard to remember just exactly what they said about the state of their health, but, in substance, one of them asked me if I thought they would pass, and I said, ‘Sure you will pass. Xou could carry any amount of insurance you are able to pay for, so far as your condition is concerned, if your age would allow.’ * * * At that time I did not observe myself any indication, from her appearance, of any disease or hurt and received no information from either at the time of any disease or hurt.” The testimony sought to be elicited by the questions under consideration was clearly competent in view of that offered by the defendants, and we do not understand that appellant contends that it was not.

The contention is that the form of the question is such as to elicit an answer concerning injuries to plaintiff’s wife which were “purely speculative and related to bare possibilities.” It is well settled in this state- and that ordinarily even an expert witness should not be permitted to state what, in his opinion, may possibly ensue from a given state of facts. He must be confined to those things which are reasonably probable. Railway Company v. Harriet, 80 Tex. 73, 15 S. W. 556; Railway Company v. Powers, 101 Tex. 161, 105 S. W. 491; Railway Company v. Garrett, 99 S. W. 162.

We are of opinion, however, that the questions here complained of fall within the rule announced in the eases hereinafter cited. Dr. Pearson, introduced as a witness by the defendants, had testified on direct examination that some three or four months after the accident to plaintiff’s wife he examined her for life insurance; that Mrs. Fox’s appearance then, as to health and strength, was good, normal; that while he was making the examination neither Mrs. Fox nor plaintiff said anything about the injury claimed to have been received by Mrs. Eox; that at the time of this examination he did not observe himself, from Mrs. Fox’s appearance, any disease or hurt, and received no information that she had been hurt or was suffering from any disease. The questions objected to'were propounded on cross-examination of an expert witness; they were pertinent to the issue made by the testimony of the witness on his direct examination, and, under several decisions of this court in which writs of error were denied, were proper to test the shill, knowledge, or accuracy of the witness. This seems to be true whether the opinion of the expert is based on an actual examination or a hypothetical question. Railway Company v. Johnson, 49 S. W. 265; Railway Company v. Dalton, 56 Tex. Civ. App. 82, 120 S. W. 243; Railway Company v. Farris, 126 S. W. 1174.

The sixth assignment of error, and others grouped in the brief with it, assert, in effect, that the court erred in permitting the plaintiff to prove by Mrs. Fox and other witnesses that she (Mrs. Fox), after the alleged injuries to her, stated that she was, -on the occasion in question, hurt by the movement of appellant’s train substantially as she testified she was on the trial. This testimony was objected to on the ground that it was self-serving, hearsay, and irrelevant. There was no error in the admission of this testimony. It was the theory of appellant that Mrs. Fox was not injured at the time and in the manner alleged by appellee, and evidence in support of this theory was offered prior to the introduction of the testimony complained of. Dr. Pearson had testified, in substance, that some three or four months subsequent to .the alleged accident he examined Mrs. Fox; that she then stated to him that she was in good health and he passed her as a safe risk for life insurance. Other witnesses said that after the accident in which Mrs. Fox claims to have been injured, .and up to a short time before the filing of this suit, she made no complaint whatever of having been injured while a passenger on appellant’s train. Under these circumstances, the declarations admitted were competent in rebuttal, as has been held by several of the decisions of the appellate courts of this state. Railway Company v. Patterson, 47 S. W. 686; Railway Company v. Hawk, 30 Tex. Civ. App. 142, 69 S. W. 1037; Davis v. Davis, 44 Tex. Civ. App. 238, 98 S. W. 198. What is here said disposes also of appellant’s fo'urteenth and fifteenth assignments of error.

The sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments disclose no material error, and will also be overruled.

The twenty-first and twenty-second assignments of error complain that the trial court erred in refusing to grant appellant a new trial because the verdict of the jury was against the great weight of the evidence, was against the law, and was excessive. Ir view of the evidence, as we see it, and numerous decisions of our appellate courts, we would not be justified in sustaining either of these contentions. Mrs. Fox testified; “During the first two months after I was hurt there was times that I suffered a good deal, and there was times I didn’t suffer so much, but gradually and gradually on I have gotten worse and have got so— the first two months I at times felt a good deal better than I did at other times, and at other times suffered very much, and at other times I would get to feeling a little better at -times; during that two months I suffered in my back, just a hurting in my back that almost made me sick, at times worse than others. When I started on the journey to see my sister the conditions of my health was awful fine; it was fine, good health; I weighed 158 pounds; I am 51 years old. Commencing then and going up to the present time, after I came home up to the present time, I just gradually, it seemed like, seemed like I began to go down, to keep on gradually, gradually going down, and it was my back. I suffered in my back up to the top of my head; my head now hurts so bad I cannot hardly stand it, and it goes plumb to the top of my head; I am so nervous now I do not know what to do; I am able to be up but a little of my time; I am not able to be up this evening; I weighed this morning 107Yz pounds; and when I went on this journey I weighed 157. From the time of the injury up to the present time, commencing when I got worse, I almost hate to tell it, I never have suffered as much in my life as I have since I have been in this condition I am in.” She further testified that after the first two months following the injury up to the time of the trial she had not been able to work any; that she was confined to the bed' most of the time; that Dr. Williams of Celeste and Dr. Smith of Greenville had been treating her. She further testified: “When I was first hurt my opinion was I was hurt very bad at the start and gradually after while at times I would revive up some and think maybe it would wear away, and that was one of the mainest reasons why I did not give myself a more attentive physician and treatment sooner .than I did. At times I felt like and hoped it might pass away; tried to be in hopes for a time, and it gradually and gradually dug along with me until I am where I am now; I am not able to do anything. I have lost now all hopes of ever getting over it, and I did for a while have slight hopes at times that I would recover, but I have not now got them sort of hopes. I have lost hopes as .my strength and condition is like it is.”

Dr. Eugene Williams, among other things, testified that he made an examination of Mrs. Fox on the 14th day of May, 1911-, and found tenderness upon pressure up and down the spinal column, “especially at the fifth lumbar sacral vertebra extending up to the eighth dorsal vertebra and found a lateral curvature of the spine to the right; that the last time he examined Mrs. Fox was the night before the day he gave his testimony, and that while examining her and making a pressure of the spine her pulse rate increased from 10 to 15 beats; that when he was first called to see Mrs. Fox she didn’t look like she was sick, looked like a tolerably fleshy woman of robust health, but that she did not look so well at the date of the trial; that the different times he had examined Mrs. Fox she complained of the same tenderness in the back and complained of a burning up in the top of the head”; that pressing upon a painful nerve would naturally make a person breathe a little faster and would make a reflex action of the heart; that a person cannot feign that condition; that he would call that symptom a subjective symptom. This witness further testified: “If a person was standing up and not expecting it and there should be a double movement of the— Say a person was standing on this table here and without expecting the table to move, and the table should be suddenly jerked forward or backward, and when the table jerked forward they tried to catch something, and when it jerked back the party is thrown to the floor and felt a severe pain at the time and then momentarily loses her mind, kinder stunned or addled or something, 'and then in a very short time the party gets up and they begin to suffer all over and the pain finally, settled in the back, and that condition continues on getting gradually a little worse, as to what would be the probable result of an accident of that kind with reference to producing injury to the nervous system, I would think it is very likely the accident would cause a deranged condition of the nervous system; that if he is given a history of an accident as above detailed, and if on the 14th day of May he found such person in the condition he found Mrs. Fox in on that date, and if he had nothing else except a history of this accident and the pain more than the suffering, he would say that it was due to the injury that she received ; that an injury of that character is sometimes rapid and sometimes slow in developing ; that he did not think there is anything unreasonable from the standpoint of a physician that a person receiving an injury like the one detailed on or about the 22d or 23d of December, 1910, should go along and not lose any great amount of flesh .until along in May of the following year; that he did not think it anything uncommon to find, in a person injured as indicated, the results found in Mrs. Fox; that his honest judgment was that, while Mrs. Fox’s condition would not kill, she would never get well; that he be- ■ lieved her condition permanent.” To the same practical effect is the testimony of Dr. Smith strongly corroborated in many particulars by the testimony of Dr. Gregory.

The jury were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, and no matter what might have been the views of this court in regard to the same as an original proposition, the fact remains that there is substantial testimony which tends to support the verdict. Manifestly there is not such a preponderance of evidence against the verdict, either as to the liability of appellant or the amount thereof, as to justify this court in saying that it is clearly wrong. So that, whether appellee’s wife was injured through the negligence of appellant substantially as alleged, and that appellee was damaged thereby in the amount awarded, were questions of fact for the determination of the jury. Many verdicts based upon no stronger testimony than that found in the record in this case, and for as large or larger amounts, have been upheld by the courts of this state. The testimony is sufficient to warrant the jury’s findings, as evidenced by their verdict, that Mrs. Fox, as a result of the injury inflicted upon her, is suffering with neurasthenia, a serious nervous disease; that she has and will continue to suffer much physical and mental pain; that before the injury she was a strong and healthy woman; that at the date of the trial of this case her weight had been reduced as a consequence of her injury from about 158 pounds to 107Y¡¡ pounds; that she was very feeble; and that her condition is permanent.

We believe it is our duty to affirm the judgment of the court below, and it is accordingly so ordered.


author: HARPER, J.

text:
    ASBECK v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    On Motion for Rehearing, May 21, 1913.)
    1. CrxmiNal Daw (§ 1090) — Special Venire —Necessity of Bill oe Exceptions.
    Assignments of error to the selection of a special venire cannot be considered, where no bills of exception were reserved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Homicide (§ 166) — Motive—Evidence— Remoteness.
    In a prosecution for wife murder, statements made by accused three months before the homicide that his wife would not live with him, and that he would see a woman in hell before he would stay with her if she would not sleep with him, held not too remote, but admissible to show motive, where on the night of the homicide he had returned after a three months’ absence, but was compelled to sleep in a separate room.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]

      3. Criminal Law (§ 398) — Evidence—Secondary Evidence.
    In a prosecution for wife murder, secondary evidence of a note which the evidence indicated to have been written by accused at the time of the homicide, addressed to_ his sister, and stating that he was going to hill his wife and himself, which note was destroyed by the husband of the sister after being read by himself and another to keep his wife from getting possession' of it, was admissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 398.]
    4. Homicide (§ 160) — Premeditation—Evidence.
    In a prosecution for wife murder, evidence of a conversation had with accused before the homicide, in which accused stated in reference to bloodhounds owned by the county that mu-riatic acid placed on the trail would prevent the dogs from trailing any one, together with the fact that accused procured a bottle of muriatic acid on the afternoon before the homicide, and when captured was attempting to use it, and that a half hour before the homicide accused procured a shotgun, was admissible to show premeditation.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 301; Dec. Dig. g 160.]
    5. Witnesses (§ 350) — Credibility—Indictment for Crime.
    A witness for the defense in a prosecution for murder may be asked to affect his credibility, if he was not under indictment charged with seduction.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    On Rehearing.
    6. Criminal Law (§ 1090) — Bill of Exceptions— Substitute — Recital in Judgment.
    A recitation in the judgment that accused excepted to the action of the court in refusing to quash a special venire is not sufficient to take the place of a bill of exception thereto.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    7. Jury (§ 58) — Special Venire — Drawing from Wheel.
    The provision of the Code requiring that a venire should be drawn from a wheel applies only to counties containing a city of more than 20,000 population.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. § 266; Dec. Dig. § 58.]
    Appeal from District Court, Victoria County ; John M. Green, Judge.
    Will Asbeck was convicted of murder, and he appeals.
    Affirmed.
    E. T. Rose, of Edna, and Dupree & Pool, of Victoria, for appellant. O. 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

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

   HARPER, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at -death.

The sole defense of appellant was that he was drunk at the time of the commission of the offense and insane from the use of intoxicants. This issue was fairly submitted by the court in his charge, and in a way that appellant does not complain. In fact, in the motion for new trial there is no complaint of the charge, and all the errors assigned relate to the introduction of testimony and the selection of the jury. As to those grounds, relating to the selection of the jury, no bills of exception were reserved, consequently these matters are not presented in a way we would be authorized to review the action of the court.

Without going into a detailed statement of the evidence, it appears that appellant was a shiftless person, who drank to excess, and on account of this conduct he and his wife had separated on more than one occasion. In talking to his friends he stated: “My wife won’t live with me as a wife; she won’t sleep with me, and I would see a woman in hell before I would stay with her if she would not sleep with me.” This testimony was objected to as being too remote. This remark had been made by appellant just before leaving home the last time, when he remained away for about three months. The night before the homicide he had returned and gone to his wife’s home again; he being compelled to sleep in a separate room. Just before he killed her he called her off in a room, had a talk with her, and then shot and killed her. What was said during this conversation no one knows, but under the circumstances the testimony above recited was admissible as tending to show motive. Just before the killing appellant had called for pencil and paper, and it was carried to him by his daughter. In a few moments was when he called for his wife. On the person of his wife was found the following note, addressed to appellant’s sister: “My Dear Sister: I have come home. I did not come to see you or go to see my mother as I could not face you under the circumstances of the crime that I am now about to commit. I hope that you and God Almighty will forgive me for the deed that I will commit. I am going to kill Susie and then myself and, if you ever see me any more, we will only meet in heaven.” Appellant’s -wife was named Susie Asbeck. Two witnesses who-read this note say it was in the handwriting of appellant, and all the circumstances in the case would indicate that, when he called for the pencil and paper just before the homicide, he then wrote the 'note, and gave it to her or placed it on his wife to create the impression that he had also killed himself, and thus prevent the search that otherwise might be instituted for him. James Power had married appellant’s sister, and this note when taken off the person of Mrs. Asbeck was delivered to him. He read it, as-did also Robert Power. James Power' then burned it to keep it from getting into the possession of his wife. As the note was burned, secondary evidence of its contents was admissible, and those bills present no error.

It appears that when Robert Wolf was testifying he told of a conversation he had with appellant some time before the homicide. They were talking of bloodhounds— the kind owned by Jackson county. In the conversation appellant said muriatic acid placed on the trail would prevent the dogs being able to trail any one. It appears on the afternoon of the day of the homicide appellant had secured a bottle of muriatic acid out of the shop of a Mr. Davenport, and after he had killed his wife he pulled off his shoes and fled. The dogs were placed on the trail, and when appellant was finally captured he had this bottle of muriatic acid open in his hand, seemingly trying to so use it as to prevent the dogs from trailing him. All this testimony was clearly admissible, as well as the fact that only two or three hours before the homicide he had secured this bottle of muriatic acid; that a half hour before the homicide he had secured a shotgun. It all tended strongly to show that the killing was premeditated, and appellant in writing the note, and by getting the bottle of muriatic add, expected to escape, and thus keep the dogs from trailing him. That the dogs being unable to follow his tracks when he escaped, the note would cause people to believe that he had gone off and killed himself, and thus escape final detection.

Oscar Gregory testified to facts which would tend to show that appellant was drinking on the evening of the homidde in support of his plea of insanity. On cross-examination he was. asked if he was not then under indictment charged with seduction, and if appellant was not a witness in his behalf in that cause, to both of which questions he- gave an affirmative answer. This was-admissible as affecting his credit as a witness.

These are all the bills contained in the record, and in our opinion none of them present error. The facts and circumstances in this cause satisfactorily show that the killing was premeditated; that he shot his. wife while she was screaming and calling for some one to come and help her to keep him from killing her. His whole acts show coolness and design, and we think the jury was justified in returning the verdict they did.

The judgment is affirmed.

On Motion for Rehearing.

This case on a former day of this term was affirmed, and appellant has filed a motion for rehearing, in which he claims that that part of the opinion in which it was held that, as no bill of exceptions had been reserved to the action of the court in refusing to quash the special venire, the question was not presented in a way we could review it, is erroneous, and that a recitation in the judgment that he excepted to the action of the court is sufficient. This question has been so often decided adversely to appellant’s contention we do not deem it necessary to again state the reasons for the rule, but merely refer him to some of the cases so holding. Nelson v. State, 1 Tex. App. 41; Swift v. State, 8 Tex. App. 614; Hollis v. State, 9 Tex. App. 643; Gaston v. State, 11 Tex. App. 143; Prator v. State, 15 Tex. App. 363. These earlier cases are cited to show this has always been the rule in this court, and it was the rule in criminal cases when our Supreme Cburt had both civil and criminal jurisdiction, as decided in Bowman v. State, 40 Tex. 9. However, as the death penalty was assessed in this case, we have carefully read the motion to see if any possible injury could have resulted to appellant, and we find the sole contention is that the venire should have been drawn from a wheel. This provision of the -Code applies only to counties containing a city of more than twenty thousand population, and as there is no contention that Victoria county contains such a city, if the matter was properly presented for review, the trial judge acted correctly in overruling the motion to quash the venire.

In the original opinion we passed on every other question in the case; and after carefully again reviewing the record we are convinced that the holding of the court was correct on each and every question presented. Appellant cites us to no authorities sustaining his contentions, and all we have been able to find are adverse to his contention.

The motion for rehearing is overruled.


text:
    SANDERS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1. Indictment and Information (§ 176)— Allegations — Date.
    The date laid in an information is immaterial, and the conviction may be had upon evidence showing the commission of the offense charged at any time within the period of limitations and prior to the filing of the information.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 548; Dec. Dig. § 176.]
    2. Indictment and Information (§ 132)— Separate Counts — Single Offense.
    Where an information charging the offense of keeping a disorderly house was intended to charge only one offense as having been committed in two different ways, only one punishment is authorized; but, if each count was intended to and did charge a separate and distinct offense, a conviction might be had under all and punishment assessed for each count.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-447, 449-453; Dec. Dig. § 132.]
    3. Criminal Law (§ 1099) — Appeal—Statement of Facts.
    Where a statement of facts was neither approved by the trial judge nor filed within the time required by law, it cannot be considered for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]

      4. Criminal Law (§ 1209) — Double Punishment — Separate Counts.
    Where an information consisted of two counts, the first charging defendant with keeping a disorderly house in which immoral women were permitted to reside, and the second charging the keeping of a disorderly house in which intoxicating liquors were sold without a license, and the jury found accused guilty, under each count, assessing a separate punishment, the judgment will be sustained; the information, instructions, and verdict showing that accused was found guilty of two distinct offenses and was not receiving double punishment for the same one.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§' 3296, 3297; Dec. Dig. § 1209.]
    Appeal from County Court, at Law, Dallas County; W. E. Whitehurst, Judge.
    ' Will Sanders was convicted of keeping a disorderly house, and he appeals.
    Affirmed.
    Walker & Williams, of Dallas, for appellant. O. 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 cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. lley-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted under a complaint and information containing two counts; the first charging him with keeping a disorderly house in that he did keep a house in which prostitutes were permitted to resort and reside; the second also charging the keeping of a disorderly house in that he did keep a house where spirituous, vinous, and malt liquors were sold and kept for sale without having obtained a license. Both counts were submitted in the court’s charge, and the jury found him guilty under each count and assessed his punishment at a fine of $200 and imprisonment in the county jail for 20 days on each count.

Appellant in his brief states: “Appellant has lately learned that the trial court in this cause, by having failed to either approve or disapprove appellant’s bills of exception herein, has to a certain extent hogtied defendant, so that defendant cannot lustily kick against this double punishment.” However, further in his brief he does attempt to “lustily kick,” and, if the complaint and charge of the court are subject to the construction that he places thereon, he would be justified in so doing.

In the information it is charged appellant kept a disorderly house in two different ways on the same date, on or about the 6th day of October. However, as has been frequently decided by this court, that as to the date named it was not material to prove that exact date, as the offense can be proven to have been committed at any time within the period of limitation, two years prior to the filing of the complaint; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160; Temple v. State, 15 Tex. App. 304, 49 Am. Rep. 200; Stichtd v. State, 25 Tex. App. 420, 8 S. W. 477, 8 Am. St. Rep. 444; Lucas v. State, 27 Tex. App. 322, 11 S. W. 443; Blake v. State, 3 Tex. App. 149; Collins v. State, 5 Tex. App. 37.

If it was intended to charge only one offense to have been committed in two different ways, of course only one punishment would be authorized. But if each count was intended to and did charge a separate and distinct offense, then he could be convicted under each count. This rule was announced in Hall v. State, 32 Tex. Cr. R. 474, 24.S. W. 407, and has been adhered to since that date. Dancey v. State, 35 Tex. Cr. R. 615, 34 S. W. 113, 938; Scales v. State, 46 Tex. Cr. R. 301, 81 S. W. 947, 66 L. R. A. 730, 108 Am. St. Rep. 1014; Witherspoon v. State, 39 Tex. Cr. R. 67, 44 S. W. 164, 1096; Gould v. State, 147 S. W. 247; Tucker v. State, 145 S. W. 611. In this case the pleader alleges two separate and distinct offenses in separate and distinct counts, one keeping a disorderly house by permitting prostitutes to resort and reside in such house, and the other keeping a disorderly house by keeping intoxicating liquors in a house under his control. The indictment does not seek in one count to charge the offense to have been' committed in one or both ways, and it may be that appellant had two separate and distinct houses, or the evidence may have shown the offense to have been committed on separate and distinct days within the period of limitation.

The statement of facts in this case was not filed within the time permitted by law, and is not approved by the judge, consequently same cannot be considered for any purpose, but, if we could do so, E. S. Kingston and J. F. Murray tell of raiding the house owned and occupied by appellant on October 6th, and arresting 23 of the inmates, about one-half of whom were women, and whom they say were common prostitutes. J. B. Bonner tells of raiding a house occupied by appellant on July 21st, and says they found a refrigerator full of iced beer, a box of beer, and a barrel of beer, and a barrel of whisky on that occasion. So it would seem that the evidence would justify a conviction on both counts. And in the absence of a statement of facts and any bills of exception, if by any legitimate construction the judgment of the court can be sustained, it is our duty to do so, and we think it manifest when we read the information, the charge of the court, and the verdict of the jury, that appellant was found guilty of two separate and distinct offenses, and he is not receiving double punishment for the same offense.

une judgment is affirmed.


text:
    COLE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied May 14, 1913.)
    1. CRIMINAL Law (§ 598) — Continuance — Absence oe Witnesses — Diligence.
    One who relies on his sister’s word that she will attend court does not use due diligence to procure her attendance essential to justify a continuance on the‘ground of her absence.
    [Ed. Note. — For > other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; D'ee. Dig. § 598.]
    2. Criminal Law (§ 596) — Continuance-Absence of Witnesses — Impeaching Testimony.
    It is not error to refuse a continuance on the ground of the absence of a witness whose testimony is impeaching.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    3. Criminal Law (§ 683) — Reception of Evidence — Rebuttal—Admissibility.
    Where accused, on trial for seduction, showed, on the cross-examination of prosecutrix, that he had paid expenses incurred by her going away and having a child, the state could show that he had not paid all the expenses but that her father had paid part of them.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1615-1617; Dec. Dig. § 683.]
    4. Criminal Law (§ 1169) — Harmless Error —Evidence—Admissibility.
    Where the sole defense of accused, charged with seduction, was that there was no engagement of marriage, the admission of evidence as to when and where the father of prosecutrix learned of her pregnancy was not prejudicial to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dee. Dig. § 1169.]
    5.Seduction (§ 40) — Evidence—Admissibility. ■’
    On a trial for seduction, it was immaterial whether accused was present in a physician’s office when the money was given to prosecutrix to leave the county and go to a distant city; the payment being done with his knowledge, consent, and acquiescence.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dee. Dig. § 40.]
    6.Criminal Law (§ 511) — Testimony of Accomplice — Corroboration — Circumstantial Evidence.
    The testimony of an accomplice may be corroborated by circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. 511.]
    7. Criminal Law (§ 823) — Instructions — Accomplice’s Testimony.
    An instruction that prosecutrix, on a trial for seduction, is an accomplice and that accused cannot be convicted on her testimony alone unless there is other evidence tending to connect accused with the offense, is not erroneous for failing to charge on reasonable doubt covered by an instruction following.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    8. Criminal Law (§ 1144) — Appeal — Review— Instructions — Presumptions.
    Where a special charge is not marked “given” or “refused” and the bill of exceptions does not complain of its'refusal, the court on appeal will presume that it was given.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    9. Criminal Law (§ 829) — Instructions — Requests — Sufficiency of Instructions Given — “Seduction.”
    Where, on a trial for seduction, the only defense was that prosecutrix did not submit by reason of a promise of marriage, an instruction that seduction means to lead an unmarried female away from the path of virtue, and the promise of marriage by the man, and the yielding of her virtue in consideration thereof, constitute the gist of the offense, and that the offense is not complete until the female has been seduced, sufficiently charges that .there can be no seduction unless prosecutrix yielded her virtue alone on consideration of promise of marriage, and it was not error to refuse a requested charge on the subject.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.

    For other definitions, see Words and Phrases, vol. 7, pp. 6389-6393.]
    10. Criminal Law (§§ 687, 1153) — Trial-Reopening Case for Admission of Testimony-Discretion of Court.
    Whether a case shall be reopened after the testimony has closed is within the sound discretion of the court, and its action will not be disturbed unless the discretion has been abused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622,1625, 3061-3066; Dee. Dig. §§ 687, 1153.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Charles Cole was convicted of crime, and he appeals.
    Affirmed.
    Ei Q. Murphree, of Waco, and Eidson & Eidson, of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of seducing Anna Belle Bullington and Ms punishment assessed at two years’ confinement in the penitentiary.

That appellant had carnal intercourse with the prosecuting. witness is not denied; he testifying himself to several acts of intercourse. He, however, denies that he was engaged to marry the prosecutrix, and that she yielded her virtue to him in consideration of said promise. The prosecutrix by her testimony makes a case of seduction, and she is corroborated sufficiently by John Wright both as to the promise of marriage and intercourse and other circumstances to sustain the verdict.

There was no error, in overruling the motion to continue the case. Appellant was indicted and arrested in March, 1912. The ca'se was not tried until the following September. If he relied on his sister’s word that she would attend court, this would not be diligence in law. In addition to this, the testimony he stated he expected to prove by her would he impeaching in its nature, and this would be such testimony that we would not be authorized to hold the court erred in refusing to continue the case. • .

On cross-examination of the prosecutrix defendant proved by her that he and his brother had given her $278 to go to Ft. Worth and give birth to her child, and thus seek to conceal her shame, and in consideration of the money being furnished she had agreed to release him from all obligation to her. On redirect examination the state was allowed to show that defendant did not pay all the expense, but her father paid part of it. Under the circumstances, this was not such error as would call for a reversal of the case. Appellant was seeking to elicit the sympathy of the jury by showing that he had paid all these expenses, for this would be no defense to a prosecution for the offense, if committed, and, if he did not do so, it was permissible to so show. He seemed to succeed, however, for the jury gave him the lowest penalty authorized by law.

As to who informed J. D. Bullington of the condition of his daughter, and when he was so informed, would be immaterial in the condition of this record. Appellant does not deny that he had intercourse with the daughter, that she gave birth to a child; his sole contention being that it was under such circumstances as would not constitute seduction, therefore when and where the prosecutrix’s father learned of her condition could not injuriously affect appellant. The court, at the time witness testified he was informed by Dr. Boyer, verbally instructed the jury not to consider any statement of Dr. Boyer, unless the evidence would show that he was acting under the instructions and at the instance of defendant. Defendant objected to the court verbally instructing the jury. In approving the bill the court states: “(1) I thought then and now that what I said to the jury was in his (defendant’s) behalf and for his benefit, and was intended by me as a precaution for the proper protection of his rights before the jury. (2) The evidence of the defense as well as that of the state clearly shows that Dr. Boyer was the ‘go-between’ of prosecutrix and the defendant, and that he had been selected by them to conduct the negotiation going on between the prosecutrix and her father, and the defendant. (3) However, I left the question of Boyer’s authority to act for defendant to the jury in the instruction I gave to them in question.” As thus qualified, the bill presents no error.

It would have been immaterial whether or not appellant was present in Dr. Boyer’s office when the money was given to the prosecutrix to leave the county and go to Ft. Worth. It was being done with his knowledge, consent, and acquiescence, and he was furnishing the money; therefore the testimony he had to be persuaded by his brother to go would not be material to any issue in the ease.

The court instructed the jury: “You are instructed that under the law the witness Anna Belle Bullington is an accomplice; now you cannot convict the defendant upon her testimony alone, unless you first believe her testimony is true and that it shows the defendant is guilty of the offense charged in the indictment, and even then you cannot convict the defendant upon said testimony alone unless you further believe that there is other evidence tending to connect the defendant with the offense charged. In this connection, you are instructed that corroborative evidence need not be direct and positive independent of the testimony of Anna Belle Bul-lington, but proof of such facts and circumstances as tend to support her testimony, and which satisfy the jury that she is worthy of credit as to the facts essential to constitute the offense of seduction as herein before defined to you and which tend to connect the defendant with the commission of the offense charged, will fulfill the requirement of the law.” Defendant objects to that portion of the charge wherein the court instructs the jury that the accomplice may be corroborated by circumstantial evidence. We think this a correct rule, and any fact that may be proven in a case by positive testimony can also be proven by circumstantial evidence, if of sufficient probative force. In this case the witness was corroborated both as to the promise of marriage and intercourse by positive testimony. Nor was it necessary to in this paragraph instruct the jury in regard to reasonable doubt, for in the very next paragraph the court applied the doctrine of reasonable doubt to the whole case, instructing the jury: “The defendant in a criminal case is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and in this case if you have a reasonable doubt of the defendant’s guilt you will acquit him and say by your verdict not guilty.”

There are two special charges contained in the record, but they are neither marked “given” nor “refused,” and we are wholly unable to determine whether or not they were given, except as to charge No. 2. In a bill of exception it is shown this charge was refused, and, as no bill was reserved to the other, we must presume that it was given. This second charge we think sufficiently covered by the main charge under the facts in this ease. The intercourse was admitted by the defendant So the sole issue left for determination was: Did she submit by reason of his promise of marriage and seductive conduct? The court instructed the jury: “You are instructed that ‘seduction’ as used in the statute means to lead an unmarried female under the age of 25 years away from the path of virtue; to entice or persuade her by means of a promise of marriage, to surrender her chastity, and have carnal intercourse with the man making the promise. The promise of marriage by the man, and the yielding of her virtue in consideration of that promise, constitute the gist of the offense, and the evidence must show beyond a reasonable doubt that the female yielded her virtue alone upon the consideration of the promise to marry her made by the man to whom she does so yield. The offense is not complete until the female has been seduced, that is corrupted, deceived, drawn aside from the path of virtue which she was pursuing.” It is thus seen the court instructed the jury there could be “no seduction unless she yielded her . virtue alone upon consideration of a promise of marriage.”

As to whether a case will be reopened after the testimony has closed is a matter within the sound discretion of the court, and under the facts in this case we cannot say he abused his discretion in deciding not to permit the ease to be opened the morning after the testimony had closed. Nor could the testimony have been conducive to any different result if all the testimony admissible on the issue sought to be injected into the case had been adduced.

The judgment is affirmed.