author: LANE, J.

text:
    WEST et al. v. CARLISLE.
    (No. 7466.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 3, 1917.
    On Motions for Rehearing, Dec. 20, 1917.)
    1. Railroads <§=315 — Sale on Stock —Liability on Seller eor Taxes and Unsettled Claims.
    Where the owner of all the stock and bonds of a railway and practically of all its property proposed to sell all of the stock and bonds and to deliver to the purchasers the control of the railway October 1,1912, free from all debts and incumbrances of every nature, except that of the mortgage given to secure the bonds sold, regardless as to whether such debts and incumbrances were ordinarily known as bills payable, it not being the purpose of the transaction to convey cash in bank or in the hands of the railway or anything other than the stock, bonds, and general control of the railway, the seller was chargeable with all taxes for 1912, and with the sum paid out by the buyer in settlement pending suits against the railway and other unsettled claims or demands against it.
    2. Evidence <§=3455 — Contracts—Intention oe Parties — Use oe Particular Words.
    The intention of the parties in using certain words in a contract controls all ordinary definitions, and, if the intention can be derived from the document as a whole, no evidence of the ordinary meaning of such words, dehors the instrument, is admissible.
    3. Railroads <§=>152 — Sale oe Bonds —Inclusion oe Interest Coupons in Exception oe Contract.
    Interest coupons attached to the bonds of a railway sold by the owner of all its stock and bonds and practically all its properties were not included in the exception to the contract of sale providing that the owner contracted that the railway should be delivered to the purchasers clear of debts or incumbrances, “except the first mortgage above referred to,” which was to secure the bonds taken in payment.
    4. Appeal and Error <§=31027 — Harmless Error.
    If a holding to such effect was erroneous, it was harmless to the purchasers, who, in their suit against the seller, were credited with the coupon interest.
    On Motions for Rehearing.
    5. Appeal and Error <§=>852 — Review—Theory oe Case Below.
    Where, in all the proceedings in suit by purchasers of railway securities against the seller, up to the time of filing of the purchasers’ motion for rehearing, certain money in banks was treated as collections from the operation of , the railway ,^jmd not as the proceeds of the sale of property, the Court of Civil' Appeals will decline to consider it in any other light than - that in which it has been treated.
    Appeal from District Court, Harris County, ; Henry J. Dannebaum, Judge.
    Suit by J. M. West and R. C. Duff against William Carlisle, who brought a cross-action. From judgment for defendant on his cross-action, plaintiffs appeal.
    Judgment reformed and affirmed;
    Baker, Botts, Parker & Garwood, of Houston, for appellants. Wilson, Dabney & King, of Houston, and E. A. Haid, of St. Louis, for appellee.
   LANE, J.

This suit was instituted by J. M. West and R. C. Duff against William Carlisle for an alleged breach of the terms of a contract which they (West and Duff) had entered into with- him for the purchase of certain securities which gave the control and practically the ownership of a line of railway, known as the Beaumont & Great Northern Railway. There was a cross-action by Carlisle, the parties disagreeing as to the meaning and construction of the fourth section of the contract, The cause was tried before the court without a jury, and judgment was rendered for Carlisle on his cross-action, and from.such judgment West and Duff have appealed.

The following statement is sufficient for the purpose of fairly presenting the issues involved in the litigation:

The Beaumont & Great Northern Railway was a line of railway located principally in Polk and Trinity counties, and incorporated under the statutes of this state. In 1912 the railroad had issued and outstanding 340 shares of capital stock of the par value of $34,000; it also had issued and outstanding 605 5 per cent, bonds, par value $605,000. William Carlisle was the owner of all of the stock and all of the bonds of said railroad, and through this ownership controlled and operated the railroad and dominat-the railroad corporation. On May 20, 1912, Carlisle entered into a contract with J. M. West and R. C. Duff for the sale to West and Duff of these stocks and bonds. The obvious purpose of the transaction was to transfer to West and Duff the control of said railroad property, with its rights, privileges, and appurtenances, etc., in so< far as Carlisle could do so. This contract is lengthy, but the following are the salient features:

(a) The contract recites that Carlisle is the owner of the stock and bonds of said railroad company, which stock and bonds are denominated “railroad securities,” and he agrees to sell these “railroad securities” to West and Duff for $778,000. If the sale is not consummated until after June 1, 1912, then there shall be added to the purchase price a sum equal to 6 per cent, per annum from June 1, 1912.

(b) They have the right to tender Carlisle this agreed price $778,000, with interest as aforesaid, and to acquire all of the “railroad securities” (except 100 shares of stock) at any time before noon, August 20,1912.

(c) As an alternative, Carlisle agrees to accept as part of the purchase price the guaranty of a solvent railway company of the principal and interest on his 605 bonds, and to accept (or retain) these 605 bonds guaranteed by some solvent railway company, in lieu of cash.

(d) Article IV of this contract of May 20, 1912, is the one out of which this litigation grows, and is as follows:

“Owner contracts and agrees that effective as of date on which the railroad securities are to be paid and delivered to the purchasers, or their assigns, the railroad shall be delivered to them dear of debt or any incumbrance, except the first'mortgage above referred .to, which is to say that the current bills and accounts receivable shall suffice to discharge the bills and accounts payable, and in the event of the failure to do so, the difference shall be made good by the owner, and if there is an excess of cash resulting therefrom, then such excess is to be retained by the owner.”

On June 15, 1912, the parties made a further supplemental contract, which stipulated :

“That whereas, the original contract bound Carlisle to accept 605 guaranteed bonds par value in lieu of cash and ás a credit upon the agreed purchase price, when guaranteed both as to principal and interest, that he- also agrees in this supplement to accept additional bonds to cover the entire purchase price at par, plus the aggregate ganount of interest accrued on such bonds up to the time of the consummation of this transaction.”

By a further supplement, dated the 21st day of September, 1912, Carlisle agreed to accept $778,000 for all of the stock and all of the bonds, with interest at 6 per cent, from June 1, 1912, the same to be paid in first mortgage gold bonds, of the Beaumont & Great Northern Railway Company, guaranteed by the Missouri, Kansas & Texas Railway Company; bonds to carry coupons beginning with the coupon maturing January 1, 1913, and to be accepted on the purchase price at par, plus portion of coupon matured to date of settlement. In addition to the bonds sold by Carlisle -to West and Duff for the sum of $778,000, Carlisle also sold to them the 100 shares of the stock retained by him in said contract between the parties for the sum of $5,000, which sum added to the $778,000 first mentioned, aggregated the sum of $783,000, which West and Duff agreed to pay Carlisle for all the bonds and all the stock of said railway company.

West and Duff contend: First, that the stipulation in article IV of the original contract by which it was agreed “that the railroad should be delivered to them clear of debt or any incumbrance, except the first mortgage above referred to,” did not include within the exception the interest coupons that had accrued on the first mortgage bonds of September 30, 1912, the day that the deal was consummated and the property turned over; that these coupons constituted a debt and incumbrance on the property not included within the exception “except said first mortgage above referred to.” The coupons accrued on that date aggregated $7,-562.50. These coupons were not due and .payable until January 1st following. The trial court disallowed this item, sustaining exceptions to the plaintiff’s petition wherein this claim was asserted. Second. They contend that suits for damages for personal injuries and other unliquidated demands, which suits were pending at the time the properties were turned over, and other claims against the railway company upon which no suit had at that time been brought, were incumbrances within the meaning of the contract, and they seek to take credit in the final accounting for attorney’s fees, court costs, and amounts paid in settlement of these suits and claims. The amounts involved under this claim aggregated $783.38. Carlisle disputes this contention. The trial trial court disallowed this item. Third. They contend that all taxes for the year 1912 upon the property were incumbrances within the meaning of the contract, and that they should have credit for the full amount of these taxes, they having paid them. Car-lisle disputes the contention. The total of these taxes is $3,648.29. The trial court allowed West and Duff $2,736.22 on account of these taxes, upon the theory that three-fourths of the year’s taxes had accrued when the sale was consummated, September 30, 1912, but declined to allow them a credit for the full amount of the year’s taxes, a difference of $912.07.

At the time the sale of the stock and bonds was made, and the property was turned over to West and Duff, on September 30, 1912, the Beaumont & Great Northern Railway Company had on hand, deposited to its credit in banks, $7,868.29 in cash collected upon accounts payable, and it had in the possession of its agents and in transit $598.-52, of all of which West and Duff took possession and now hold. Carlisle contends that this money was a bill receivable or account receivable within the meaning of clause IV in the contract, and that he is entitled to a judgment against West and Duff for this money, and he seeks to recover it in a cross-action. West and Duff dispute the contention and contend that such funds belong to the railway company. The trial court gave Carlisle judgment therefor. AVest and Duff further contend that this money was neither an account nor bill receivable within the meaning of the contract, and that in no event is Carlisle entitled to a judgment against them for this money.

It is alleged by plaintiffs West and Duff that a settlement was made between them and Carlisle as to purchase price of said bonds and stock purchased by them from Carlisle on the 11th day of October, 1912, as follows:

Purchase price of as date of June 1, 1912.. $778,000 00 100 shares of stock, par $10,000.00 (see agreement just above). 5,000 00
Total .$783,000 00
Interest from June 1, 1912, to date of settlement (Oct. 12, 1912). $ 17,118 43
Grand total . $800,118 43
Settled as follows: 605 bonds B. & G. N. Ry. guaranteed by the M., K. & T. Ry., par $1000 each . $605,000 00
Interest at 5 per cent, from July 1, 1912. 8,538 70 613,538 70
$186,579 73
Balance due and unpaid on Oct. 12, 1912.. $186,578 73 Less error. 22 93
$186,555 80

It was also alleged that said bonds and stock were delivered and credited. It is admitted by all parties that the balance due Carlisle of $186,555.80, shown in the above tabulated statement, was paid in the bonds of the Beaumont & Great Northern Railway Company subsequently issued with the consent of the state Railroad Commission, and guaranteed by the Missouri, Kansas & Texas Railway system as per the contract between the parties.

From what has been said it is apparent that on the 80th day of September, 1912, at which time all of said bonds and stock were delivered to West and Duff, the absolute control of said railroad 'was also turned over to them, and at that time all parties had fully performed the terms of the contract, except such obligations as arose from the provisions of section IV thereof. There are no issues of fact presented by the record.

The court sustained Carlisle’s special demurrer to so much of the plaintiffs’ petition as sought to charge Carlisle with the accrued interest on the 605 bonds sold by him to plaintiffs; to so much of the same as sought to charge him with sums of money paid out by plaintiffs for damages involved in suits or claims pending against the Beaumont & Great Northern Railway at the time said railway was turned over to plaintiffs, on September 30, 1912, and refused to hear evidence offered by plaintiffs in support of their allegations with reference to such matters, and found: (1) That by the terms of the fourth section of the contract West and Duff assumed the payment of the mortgage mentioned in said section, together with interest due thereon, and therefore could not recover from Car-lisle the interest on the bonds; (2) that the contract did not bind Carlisle to pay costs and expenses amounting to $783.38 in settling suits and claims pending against the railway company at the time the railway was turned over to West and Duff; (3) that under the provisions of section IV of the contract Car-lisle was entitled to the $7,868.29 cash in bank to the credit of the Beaumont & Great Northern Railway Company, and to $598.52 cash in the hands of the agents of said company, aggregating $8,466.81; (4) that the contract did bind Carlisle to pay three-fourths of the taxes for the year 1912, amounting to $3,648.29.

From the undisputed and agreed facts the following facts are shown: (1) That the date of the turnover and settlement between West and Duff on the one part, and Carlisle on the other part, was October 1, 1912, but that the business was closed on September 30, 1912. (2) That the bonds were turned over by West and Duff to Carlisle in compliance with the contract and the purchase thereby completed subject to the adjustment of the accounts between the parties herein, mentioned in section IV of the contract. (3) That on September 20, 1912, the accrued interest on the bonded debt of the railroad company amounted to $7,562.50. (4) That the taxes on this property for the.year 1912 were $3,648.29, and that if these taxes were apportioned and treated as having accrued in proportion to the parts of the year expired and unexpired, that there would have accrued on the 30th day of September, 1912, $2,736.22. (5) That the bills and accounts payable at the end of the business, September 30, 1912, not including taxes or bond interest, and excluding attorney’s fees, court costs, and other expense in connection with and arising out of lawsuits then pending, and lawsuits subsequently filed, growing out of transactions pending on that date, aggregated $18,517.17. (6) That the bills and accounts receivable at the end of the business, September 30, 1912, not including money in transit or cash in bank, aggregated $18,195.82. (7) That West and Duff had paid out the sum of $783.38 in defending and settling suits and claims against the railway company, which sum included attorney’s fees, court costs, and other necessary expenses. (8) That Carlisle is indebted to West and Duff $250 on account of expenses incurred in connection with the issuance of certain bonds. (9) That at the close of business on September 30, 1912, there was in bank to the credit of the Beaumont & Great Northern Railway ■Company cash $7,868.29, and in the hands of agents and in transit on the same date, $598.52; the total amount of this cash being $8,466.81.

Upon the conclusion of the court’s findings above stated and the undisputed and agreed facts, the court rendered judgment in favor of Carlisle for the sum of 5,159.24, with 6 per cent, interest per annum thereon from the 31st day of December, 1914, to December 9th, the date of the judgment, aggregating a total sum of $5,759. The sum of $5,159.24 for which judgment was rendered for Carlisle was arrived at by the trial court in the following manner; West and Duff were charged with $18,195.82 for collections made by them upon what was called in the contract “bills and accounts receivable” belonging to the railway company, with the sum of $7,868.29 cash in bank, and $598.52 cash in the hands of agents of the railway company, both of which sums had been taken possession of by West and Duff, all aggregating the sum of $26,662.63. Carlisle was charged with the following sums: $17,517.17 due by the railway company, called in the contract “bills payable,” with $2,736.22, same being three-fourths of the taxes due on the property sold by him far the year 1912, and with the sum of $250, the amount which Carlisle agreed to pay upon expenses incurred in connection with the issuance of a certain bond issue, all aggregating $21,503.39, and by then subtracting the aggregate of the sums charged to West and Duff; the difference between the two said aggregate sums being $5,159.24.

We think the trial court erred in not charging Carlisle with the other one-fourth of the taxes for 1912, amounting to $912.07, and in not also charging him with $783.38, a sum paid out by West and Duff in settlement of pending suits, and other unsettled claims or demands against the railway company ; both sums aggregating $1,695.45. Had these two sums been charged to Carlisle, and deducted from the sums charged to West and Duff, it would have left a balance due by them to Carlisle on the 31st day of December, 1914, of $3,463.79, instead of $5,159.24, as adjudged by the trial court. Therefore the amount of the judgment which should have been rendered in favor of Carlisle against West and Duff is $3,463.79, with 6 per cent, interest per annum thereon from the 31st day of December, 1914, to December 9, 1916, the date of the judgment, or a total sum at that date of $3,867.90 instead of $5,759, the amount of the judgment rendered by the trial court.

Counsel for both parties, in their very able briefs, have at great length discussed the meaning of the words “debts,” “incumbranc-es,” “bills and accounts receivable,” and “bills and accounts payable.” We shall not undertake to follow counsel in such discussion, but have endeavored to apply the rules of common sense and the law of simplification in an effort to determine the sense in which those words are used, and were understood by the parties to be used in the contract at the time they were inserted therein. The intention of the parties controls all ordinary definitions, and if the intentions of the parties in the use of such words can be derived from the document as a whole, no evidence as to the ordinary meaning of such words, dehors the instrument, is admissible. A safe and accurate interpretation of words used in a contract may. be had by viewing the subject of contract as the mass of mankind would view it

In Burress v. Blair, 61 Mo. 133, 140, 141, it is said:

“It must be recollected that the meaning to be attached to words very frequently depends on the connection in. which they are used. * * * The object to be attained in construing a contract is to get at the intention of the parties. To do this, it will not do in all cases to take one or two words and construe them according to their popular meaning, without any regard to the connection in which they stand. Words are to be construed according to their strict and primary acceptation, unless, from the context of the instrument and the intent of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect. ⅛ ⅞ * In reference to the contract under consideration, we think, when taken as a whole, that it presents no latent ambiguity in its construction, or in its application to the subject-matter, which would justify the introduction of parol evidence. * * * It would be hard to resist the conclusion that the intention of the parties by this language was to give the most extended meaning to the words ‘accounts of the firm,’ and thereby include the account of the firm with the bank.”

In Latimer v. Veader, 20 App. Div. 418, 46 N. Y. Supp. 823, the court says:

“It is not necessary to multiply citations to show that, whore one of two meanings can be given to a word used in an instrument of this character, the court should consider the object for which the instrument was executed, to ascertain which of the two meanings the parties intended to use; and, looking at this case, it is apparent that it was the intention of all the parties that this mortgage should be given to secure all liabilities of Buxton arising out of his connection with the defalcation of this sum, and it was not intended to restrict it to the amount to which he could be said to be indebted to the bank upon a contract, or for money which he himself appropriated and used.”

It is unnecessary for us to cite other authorities to make clear our views as above expressed.

From the contract as a whole and the undisputed evidence it is made clear to us that Carlisle, the owner of all the stock and bonds, and practically of all the properties of the Beaumont & Great Northern Railway Company, proposed to sell all of said stock and bonds to West and Duff and deliver to them the control of the railroad on the 1st day of October, 1912, free from all debts and incumbrances of every nature whatsoever, except that evidenced by the mortgage given to secure the bonds sold by Carlisle to West and Duff, regardless as to whether such debts and incumbrances were ordinarily and commonly known as “bills payable” or not, for the sum of $7S3,000; that it was not the purpose of Carlisle to sell, nor of West and Duff to buy, cash in bank or in the hands of agents of the railway company, or anything other than the stock, bonds, and general control of the Beaumont & Great Northern Railway. We think it further clearly appears from the contract between the parties, as a whole, that it was understood and agreed between them that all obligations due to the railway company, and such earnings of the same as might accumulate prior to the date the said stock and bonds were to be delivered to West and Duff, were to be used in paying off and discharging all debts and incumbrances.then existing against said railroad.

The complaint by appellants of the action of the trial court in holding that the interest coupons attached to the bonds sold by Carlisle to them was included in the exception in section IV of the contract is without merit. We think the holding of the trial court is correct; but if such holding was error, it would not injuriously affect the rights of appellants, as it is very clearly shown by the allegations in appellants’ petition that they were credited with this coupon interest.

Having reached the conclusion as herein-before expressed, the judgment of the trial court in favor of William 'Carlisle for the sum of $5,159.24 is here reformed by deducting from such sum $1,695.45, the same being the aggregate sum of $912.07, the one-fourth of the taxes charged by the court to West and Duff, and the $783.38 paid out by West and Duff in settlement of suits and other unsettled claims against the Beaumont & Great Northern Railway Company, leaving a balance of $3,403.79, with 6 per cent, interest per annum thereon from December 31, 1914, to December 9, 1916, for which judgment is here rendered in favor of William Carlisle against J. M. West and R. C. Duff jointly and severally. What has been said sufficiently disposes of all of appellants’ assignments.

The judgment as here reformed is affirmed.

Reformed and affirmed.

Jn Motions for Rehearing.

In our original opinion we said:

“At the time the sale of the stock and bonds was made, and the property was turned over to West and Duff, on .September 30, 1912, the Beaumont & Great Northern Railway Company had on hand, deposited to its credit in banks, $7,868.29 in cash collected upon- accounts payable:’

West and Duff have filed their motion for rehearing, and complain of so much of the above statement as states that the cash in banks was “collected upon accounts payable.” If it was their intention to complain of the use of the words “accounts payable” being used instead of the proper words “accounts receivable,” their complaint is justified, and we here make the change suggested, as the word “payable” was inadvertently used for the word “receivable”; but if the complaint is, as it seems to be, that we erred in finding that the cash in banks was collected upon accounts, as were intended to be included in the words “accounts receivable,” we overrule the complaint.

There is no merit in the contention of appellant that the money in banks may have been received from the sale of equipment, or from the sale of securities, made for the first time in his motion for rehearing filed in this court. In all the proceedings, so far as we are able to discover from the record, or the briefs of the parties to the suit, up to the time of filing appellant’s motion for rehearing, the money in banks was treated as collections from the operation of the railroad and not as the proceeds of the sale of property, and we at this late day decline to consider it in any other, light than that in which it has been treated throughout the entire proceedings.

Complaint is also made of what purports to be a copy of a paragraph of the original opinion, as follows:

“We think it further clearly appears from the contract between the parties as a whole that it was understood and agreed between them that all surplus due to the railroad company and such earnings of the same as might accumulate prior to the date the said stock and bonds were delivered to West and Duff were to be used in paying off and discharging all debts and incum-brances then existing against the railroad.”

The word “surplus” found in the purported copy is not to be found in the original. This word as inserted in the purported copy is substituted for the word “obligations” in the original.

Appellee has also filed his motion for rehearing, which we have examined, and which we have refused because we think it without merit. We see no reason to make any change in our original opinion except as above indicated. Both motions are refused.
      <§=3Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    BAKER v. COLLINS et al.
    (No. 5816.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 13, 1917.
    Rehearing Denied Jan. 4, 1918.)
    1. Railroads <§=329 — Injuries on Crossing —Negligence of Auto Driver.
    Where plaintiff’s decedent drove his automobile on a railroad crossing, when, if lie was not guilty of negligence, he must have seen the headlight of an approaching train, and known that the train was approaching, and that it was dangerous for him to attempt to cross, his negligence barred any right to recover, unless the negligence of the railroad caused him to place himself in such a perilous situation as to produce mental terror, incapacitating him from acting normally.
    2. Railroads <⅜=>351 (4) — Injury on Crossing-Instruction .
    In an action against a railroad for a death on its crossing, instruction that deceased had an equal right to travel with his automobile on a dirt road at its intersection with the railroad as the railroad had to run its trains on its track at the point, was improper as confusing and misleading, the case involving questions of negligence from two standpoints; negligence on the part of the railroad in approaching the crossing without giving statutory signals, and negligence on the part of the plaintiff’s decedent in driving his automobile on the crossing while the train was near by and approaching.
    3. Railroads <§=3301 — Injuries at Crossing —Right of Precedence.
    Common sense and the public welfare dictate that the right of precedence at a railroad crossing, as between a train and an automobile driver or other user of the intersecting highway, shall be accorded to the train.

      4. Trial <⅞^29&(4, 5) — Instructions Not Cured by Other Instruction.
    In an action against a railroad for death in collision of an automobile with train at crossing, a charge calculated to lead the jury to believe that on account of decedent’s equal right to travel across the crossing he would not bo guilty of contributory negligence in the exercise of that right, though he negligently placed himself in a place of danger, was reversible error, despite the main charge that if decedent failed to exercise reasonable care to avoid injury from trains, there could be no recovery.
    Error from District Court, McLennan CQunty; H. M. Richey, Special Judge.
    Action by Mrs. May Collins and others against James A. Baker, receiver of the International & Great Northern Railway Company. To review a judgment for plaintiffs, defendant brings error.
    Judgment reversed, and cause remanded for another trial.
    Wilson, Dabney & King, of Houston, and Neff & Taylor, of Waco, for plaintiff in error. Edgar Harold, Chas. Braun, and Williams & Williams, all of Waco, for defendants in error.
   KEY, C. J.

John E. Collins and another man by the name of Phillips were riding in on automobile on a public road near Waco in the nighttime. The road referred t.o crossed a railroad track, and the automobile which was being operated by Mr. Collins and a railroad train which was approaching reached an intersection where the railroad track and the public road crossed each other at grade at about the same time, and as a result both Mr. Phillips and Mr. Collins were killed. Thereafter Mr. Collins’ wife brought this statutory action to recover damages from James A. Baker, who was then operating the railroad in question' as receiver ; the recovery being sought for her minor children, as well as herself. There was a jury trial which resulted in a verdict and judgment for the plaintiffs, and the receiver Baker has brought the case to this court for a revision.

We sustain the assignments which complain of the action of the trial 'court in giving the plaintiffs’ second requested special instruction, and in not granting appellant a new trial on account of the insufficiency of the testimony to support the verdict. The undisputed proof shows that Collins drove his automobile upon the intersection of two roads when, if he was not guilty of negligence, he must have seen the headlight and known that the train was approaching the crossing, and that it was dangerous for him to attempt to cross in front of it. This being the case, the negligence of the deceased will bar any right of the plaintiffs to recover, unless the case comes within that class of cases where it is held that when the negligence of the defendant has caused the injured party to place himself in such a perilous situation as produces that degree of mental terror which incapacitates the injured party from acting as he otherwise would act, in which event the defense of contributory negligence is held not to apply. The trial court submitted that theory to the jury, but the evidence tending to support it is so meager as to amount to but little, if any, more than a scintilla. Neither upon this branch of the ease, nor in considering the charge above referred to, is it deemed necessary for this court to set out and discuss the testimony. Suffice it to say that we have given it careful consideration, with the result just stated. While we do not hold that a verdict should have been instructed for the defendant, we do hold that the great weight of the testimony is so preponderant against the verdict as to entitle him to a new trial.

The charge given by the court at the plaintiffs’ request, and held by us to constitute error, reads as follows:

“Gentlemen of the Jury: You are instructed that as a matter of law the deceased had an equal right to travel on the dirt road at the intersection with the railroad, as the railroad had to run its train on its track at that point.”

We sustain appellant’s contention that this charge was confusing and misleading, and [therefore the court erred in giving it. The case involved questions of negligence from two standpoints; one, negligence on the part of the defendant in approaching the crossing without giving statutory signals, and the other on the part of Mr. Collins in driving his automobile upon the crossing while the train was near by and approaching. The court in its main charge gave all the law that was necessary upon both of those questions.

In so far as the record shows, no one had charged that the deceased was a trespasser and had no right to travel the public road where it intersected and crossed the railroad track, and therefore it was unnecessary for the court to inform the jury of the deceased’s right in that respect. But the charge in question was not properly framed to give the jury correct and accurate knowledge upon that subject.

. As bearing upon the question of negligence charged against railroad companies in the operation of their trains, our Supreme Court has frequently said that railroads have no exclusive right to the use of their tracks where they cross public highways; that the public have the right to travel such highways, and in so doing to cross railroad tracks; and that the law imposes upon those operating railroad trains the duty of exercising due care to prevent injury to persons who may be so traveling. And in considering the question of negligence on the part of the railroad company, it is not improper to give such charge, if it is so framed as to limit it to that question.

The charge now under consideration was not restricted to a consideration of the question of the defendant’s negligence, and the jury had the right te consider it in determining the question of contributory negligence. And when so considered, and in view of the fact that it specifically declared that Mr; Collins had an equal right to travel on the dirt road at the intersection of the railroad as the railroad had to run its trains on its track at that point, the jury may have concluded that the charge meant that as Collins had such right, proof of the fact that he knowingly and willfully ran his automobile upon the track at a time, when he must have known that it was very dangerous to do so would not defeat the plaintiffs’ right to recover. It is not sufficient answer to say that in it's main charge the court instructed the jury otherwise, and therefore the requested charge was harmless. The point is that this charge when literally construed was in conflict with the main charge of the court, and therefore it was calculated to confuse and mislead the jury upon one of the most vital questions in the case. Of course, it is not true in either law or reason that when a person is traveling a public highway which crosses a railroad track, that such person and the railroad each have the right to pass the intersection at the same time. Under such circumstances, and in the very nature of things, one or the other must have the right of precedence, because they cannot both occupy the point of intersection at the same time.

Such right of precedence is not fixed by statute in this state, but, generally speaking, common sense and the public welfare dictate that it should be accorded to railroad trains; and it is a matter of'common knowledge that, as a general rule, the traveling public recognize and accord such right of precedence to approaching trains. We do not state this as a rule of law to be given in charge to juries, though the writer, speaking for himself only, believes that it should be. In H. & T. C. Ry. Co. v. Wilson, 60 Tex. 142 (a case cited by counsel for ap-pellees), this language is used in the opinion of the court:

“It is a mistake to suppose that railway companies have the exclusive right to public crossings. There the duties of the company and the public are reciprocal, and the rights of each restricted by public necessity and convenience. While the public, in the exercise of the right to pass the railway track at such points, must use proper precautions to avoid injury from passing trains, so also those operating trains are required to use proper precautions to avoid inflicting injury upon those crossing the track.”

We have italicized a portion of the language in that excerpt, because it indicates that the court had in mind the proposition that, as a general rule, approaching trains have the right of precedence over persons traveling intersecting highways, and therefore it was declared that such persons in the exercise of their right to pass over such intersections should use proper care to avoid injury from passing trains.

The charge here complained of contained no such qualification, and we think that when considered by itself it Was calculated to lead the jury to believe that on account of Collins’ equal right to travel across the intersection, he would not be guilty of contributory negligence in the exercise of that right, though he might negligently place himself in a place of danger. And while, as before said, the court in the main charge instructed the jury that if he failed to exercise reasonable care in order to avoid injury by the trains, the plaintiffs could not recover, .still the charge in question was in conflict with that charge which brings the case within the rule announced in Baker v. Ashe, 80 Tex. 356, 16 S. W. 36, where it was held that such conflict between charges constituted reversible error.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded for another trial.

Reversed and remanded.
      <g=3jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUNB, J.

text:
    SAN ANTONIO & A. P. RY. CO. et al. v. SUTHERLAND.
    (No. 5924.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1917.)
    1. Judgment <®=3256(7) — Conformity to Verdict — Interest.
    In an action for negligence in transporting cattle, interest was properly included in the judgment, though -the special verdict contained no finding respecting interest.
    2. Appeal and Error <®=oli71(4) — Trivial Errors — Amount op Recovery — Interest.
    Where plaintiff prayed for interest from April 1st, and the court allowed interest from March 31st, the error involved such a trivial amount that the maxim, “De minimis non curat lex,” applied.
    3. Costs 3=238(2) — On Appeal — Modification op Judgment.
    The correction of the judgment with respect to the amount of interest allowed would not prevent the taxing of the costs of appeal against appellant who failed to seek a correction in the trial court.
    4. Appeal and Error 3=1040(11) — Harmless Error — Overruling Exception to Petition.
    In an action for negligence in transporting a. shipment of cattle, the overruling of a special exception to an allegation not averring any fact, but stating the legal duties devolving upon the carriers by reason of their undertaking to transport the cattle, could not have harmed defendants.
    5. Appeal and Error 3=1062(1) — Trial <@= 352(5) — .Special Issues — Assumption op Facts — Harmless Error.
    In an action for negligence in transporting cattle, the court’s charge preceding the special issues defined negligence, and positively told the jury that plaintiff could not recover for an injury or damage, unless occasioned by defendant’s negligence. . A special issue was submitted as to whether defendants were guilty of negligence, and this issue was singled out and emphasized by an instruction not to answer any further questions if they answered such issue “No.” Issues were also submitted as to what the market value of cattle which died would have been at the time of the arrival of the shipment had they been transported with ordinary eare. Meld that, while objections to these last-mentioned issues should have been sustained because technically they assumed that the cattle were not transported with ordinary care, the wording of the issues was harmless.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Action by J. B. Sutherland against the San Antonio & Aransas Pass Railway Company and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    L. Broeter, of Alice, and Kleberg, Stayton & Picton and John S. McGampbell, all of Corpus Christi, for appellants. W. R. Perkins, of Alice, and H. S. Bonham, of Bee-ville, for appellee.
   MOURSUNB, J.

J. B. Sutherland, as the assignee of a chose in action, sued the San Antonio & Aransas Pass Railway Company and the Gulf, Colorado & Santa Pé Railway Company for alleged damages to a shipment of cattle. The cattle were loaded at a blind siding called Los Machos, Tex., on the line of the San Antonio & Aransas Pass Railway Company, and were destined for Wadsworth, Tex., a station on the Gulf, Colorado & Santa Pé Railway Company. The shipper was G. W. Sutherland, and the consignee, L. V. Le Tulle. While in transportation the destination of the cattle was changed to Bay City, Tex. The plaintiff pleaded: Negligence generally; negligent handling; delay; rough handling. Defendants pleaded general denial, and that cattle were physically unable to stand the trip, and that 80 head were received at shipper’s risk. The trial resulted in a verdict and judgment against the San Antonio & Aransas Pass Railway Company for $1,320, and against the Gulf, Colorado & Santa Pé Railway Company for $660.

In answer to special issues the jury found: (1) That the stock shipment was made as alleged by plaintiff; (2) that the stock were in such physical condition as to be able to stand shipping from Los Machos to Bay City, if handled with ordinary care, without damage other than that ordinarily incurred in transportation; (3) that defendants were negligent in the handling or transportation of the stock as pleaded by plaintiff; (4) that such negligence proximately caused injury or damage to the cattle which resulted in the death of some of them; (5) that 9 head of cattle died in transit as a result of the negligence of defendants; (6) that 35 head died after reaching destination as a result of the negligence of defendants; (7) that the market value of the 9 head at Bay City would have been $405 at the time of the arrival of the shipment at said place, had they been transported with ordinary care; (8) that the 35 head of cattle found in answer to question 6 were worthless in the condition in which they arrived at Bay City; (9) that the market value in Bay City of the 35 head, at the time of their arrival there, would have been $1,575 had they been transported with ordinary care; (10) that the amount of damages sustained by reason of negligence of the San Antonio & Aransas Pass Railway Company was $1,320, and the amount sustained by reason of the negligence of the Gulf, Colorado & Santa Pé Railway Company was $660; (11) that the loss complained of was not due solely to the fault of the shipper in shipping the cattle in the physical condition in which they were when delivered to the San Antonio & Aransas Pass Railway Company for transportation; (12) that the loss complained of was not due solely to the physical weakness of the animals themselves.

It is contended that the findings of the jury from 2 to 6, inclusive, above set out, are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust and erroneous. We conclude that the testimony is ample to sustain the findings and overrule the assignments relating thereto.

It is also contended that as the special verdict did not contain any finding with respect to interest, the court committed a fundamental error in awarding interest at 6 per cent, from March 21, 1916, on the amount of damages ascertained from the findings of the jury to have been suffered by plaintiffs. There is no merit in the contention. Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; T. & P. Ry. Co. v. Erwin, 180 S. W. 662; Hancock v. Haile, 171 S. W. 1053; M., K. & T. Ry. v. Gray, 160 S. W. 435.

Plaintiff prayed for interest from April 1, 1916, and the court allowed it from March 31,1916. This mistake would no doubt have been corrected had it been called to the attention of the court in the motion for new trial, and error involves such a trivial amount that the maxim, “De minimis non curat lex,” applies. Appellants have not asked for the correction of the judgment in regard to this trivial detail, but stand on the proposition that no interest should be allowed. If the mistake was of sufficient consequence to require correction appellants would nevertheless be taxed with the costs of appeal on account of having failed to seek a correction in the trial court. Davidson v. Wills, 56 Tex. Civ. App. 548, 121 S. W. 540.

The seventh assignment complains of the overruling of a special exception to the petition, which was directed at a brief statement of the legal duties devolving upon the carriers by reason of having undertaken to transport the cattle. The allegation contains no averments of fact, it is true, but no possible harm could have resulted to defendants from the failure to sustain the exception. The assignment is overruled.

Objections were duly presented to issues Nos. 7 and 9 relating to the value of cattle, based on the ground that in stating the measure of damages the language constituted an assumption that such cattle had not been transported with ordinary care. If the issues stood alone they would be subject to the construction contended for, but the charge must be considered as a whole. The charge of the court, preceding the issues, contained a definition of negligence, and a positive instruction that the plaintiff could not recover for any injury or damage to the stock, unless such injury or damage was occasioned by the negligence of defendants. Question No. 4, which followed the one submitting the issue whether defendants were guilty of negligence as alleged by plaintiff, contained the instruction that if they answered No. 8 “No,” they should not answer any further questions. Thus the issue, whether there was negligence, was singled out and emphasized, and we do not believe there is even a slight probability that the jury was led by the wording of issues 7 and 9 to think that the court believed the cattle had not been transported with ordinary care. The objections to the issues should have been sustained, because technically they were subject to the objections, but we do not believe that appellants suffered any injury by reason of the error complained of. In support of our conclusion, that the assignments complaining of the wording of said issues should be overruled, we cite G., C. & S. F. Ry. Co. v. Shults, 61 Tex. Civ. App. 93, 129 S. W. 845, Ft. Worth & R. G. Ry. Co. v. Montgomery, 141 S. W. 813, and M., K. & T. Ry. Co. v. Chittim, 24 Tex. Civ. App. 599, 60 S. W. 284.

The judgment is affirmed.
      <g=5Por other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: KING, J.

text:
    FORTENBERRY et al. v. CRUSE et al.
    (No. 276.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 26, 1917.)
    1. Deem @=338(1) — Description — Patent Ambiguity.
    A deed describing the land as “lying and being situated in Tyler county, said state, on the waters of Billums creek; beginning at the S. W. corner of William Pool land; thence east 1,220 varas to the Lewis league; thence south 1,050 varas to the beginning, containing 226 acres, more or less” — was not void for patent ambiguity, it showing an obvious omission of two calls which might be supplied with reasonable certainty by taking the two lines as given, recurring to the beginning point, running south a distance equal in length, and closing this third line and second line by a straight line, thus constructing a parallelogram containing the acreage called for.
    2. Evidence <§⅜3451 — Parol Evidence — Un-CEETAINTY IN DESCRIPTION.
    Where the defect in the description of a deed is patent on the face of the instrument and is such that the instrument does not convey any land described, the deed is void, and extrinsic proof cannot be resorted to make the description certain.
    3. Evidence <⅜=>452 — Parol Evidence — Inadequate Description.
    Where the description of a deed omitted two calls, but did not show on its face that the land could not be located by extrinsic proof, the court properly admitted extrinsic evidence in support of the description.
    4.. Acknowledgment ¡s=^3 — Certificate— Identity — Knowledge of Notary — Evidence.
    The court properly admitted in evidence a deed from husband and wife, the notary’s certificate to the wife’s acknowledgment failing to state that she was known to him, or that proof was made of her identity; the certificate in question having been made May 2, 1879, before the statute requiring certificates to state that the person acknowledging was known to the officer took effect.
    Appeal from District Court, Tyler Cbunty; W. R. Blacksbear, Judge.
    Suit by C. 'L. Fortenberry and others against R. A. Cruse and others. From a judgment for defendants, plaintiffs appeal.
    Judgment affirmed.
    Robt. A. Shivers, of Woodville, for appellants. W. A. Johnson and J. A. Mooney, both of Woodville, for appellees.
   KING, J.

This suit was filed in the district court of Tyler county, Tex., by appellants, C. L. and J. E'. Fortenberry, against R. A. Cruse et al., in the form of trespass to try title, and for damages. All of the defendants answered by general demurrer, general denial, and pleas of not guilty. Defendants further answered that on March 5, 1877, the estate of Nancy Frazer was being administered in Tyler county, .and that J. T.' Fortenberry was adjusting all claims against said estate, he being the husiband of C. M. Fortenberry, the daughter of Nancy Frazer, the land in controversy being owned by Mrs. C. M. Fortenberry; that Johnson and Chapman, the attending physicians in the last sickness of Nancy Frazer, had approved claims against her estate aggregating $241.-50; and that J. T. and C. M. Fortenberry conveyed the land in controversy to Johnson and Chapman in consideration of the relinquishment of said claim and $25 in cash. The land so conveyed is alleged to be the following: “In Tyler County, Tex., on the waters of Billums creek, part of the H. Frazer league, and beginning at the southwest comer of William Pool’s land; thence east 1,220 varas to Lewis league; thence south 1,050 varas; thence 1,220 varas to the beginning, containing 226 acres of land.”

It is alleged further that the record of said deed was defective, and left out the last two calls. Defendants' further answered that at the time of said conveyance, May 21, 1879, the land conveyed was pointed out 'by them and ratified by all of the Frazer heirs. That said land was afterwards conveyed to appellant R. A. Cruse by Chapman and Johnson. Appellees further answered that since said conveyance by J. T. and C. M. Fortenberry no claim of assertion or claim of ownership has been made by them to said land, and no taxes paid by them, but that they have recognized the right, title, claim, and interest of defendant Cruse for more than 30 years, and that for these reasons they are estopped from asserting any claim’. Defendants further answered that the plaintiffs are not the owners of said land, nor asserting title thereto as purchasers in good faith for value; that they are the sons of J. T. and O. M. Fortenberry, and are being used by them in an effort to avoid a just and equitable claim of the defendants to the land sued for; that all the facts were well known to them as pleaded by defendants, or could have been, known .by the exercise of diligence and inquiry. Defendants prayed for judgment against the plaintiffs and defendants J. T. and C. M. Fortenberry for the title and possession of said land, and that their title be quieted. J. T. and O. M. Fortenberry answered with general demurrer, special exception, and general denial, specially denying certain allegations in defendants’ answer and plea.

The ease was tried before the court without a jury, and judgment was rendered for defendants.

Appellants’ first assignment of error is to the effect that the court erred in admitting in evidence the deed from J. T. and O. M. Fortenberry to Chapman and Johnson, for the reason that said deed is void, in that it does not describe any land, and the ambiguity is a patent one.

The deed so admitted is, as to description, as follows:

Lying and being situated in Tyler county, said state, on the waters of Billums creek: Beginning at the S. W. corner of William Pool land; thence east 1,220 varas to the Lewis league; thence south 1,050 varas to the beginning, containing 226 acres, more or loss.

Appellant contends that this is a patent ambiguity, in the description of the land, sufficient to render it void, and that, the same being a patent ambiguity on its face, no extrinsic evidence is admissible to cure the) defect in description.

We overrule said assignment of error. An inspection of the deed shows an obvious omission of two -calls which may be supplied with reasonable certainty. There are only two lines given in the recorded deed, one beginning at the southwest corner of William Pbol’s land, running east 1,220 varas to the Lewis league; thence south 1,050 varas — the two lines given forming a right angle at the corner. It would suggest itself to a reasonable mind that the land conveyed is included in the interior of the angle, rather than on the exterior. We are certain that more than one line is omitted, because to draw a line from the) beginning point to the end of the second line, formingl a triangle, would not give the acreage called for in the deed, giving only half of the acreage. This right angle triangle, as suggested, containing only one-half of the acreage called for, is convincing that the land conveyed in the deed is in the shape of a parallelogram, taking the two lines as given, recurring to the beginning point and running south a distance equal in length to the second line,, and closing this third line and second line by a straight line, and thus constructing a parallelogram containing exactly 226 acres called for in the deed.

We think the calls of description in question correct themselves, and show the land intended to be described, to a reasonable certainty. The number of acres called for can be obtained by constructing a narrow L-shaped strip of] land on the exterior of the angle formed by the two given lines; but, in order to do so, it will be necessary to supply four lines or more to get the acreage, besides having a very unusual and irregular shape. To obtain the acreage within the interior of the right angle, otherwise than by constructing a parallelogram, many lines would have to be supplied, or the lines would have to run in a zigzag shape.

In the case of Mansel v. Castles, 93 Tex. 414, 55 S. W. 559, a description quite similar was before the Supreme Court for consideration. The description by boundary lines, in that case read:

Beginning point S. 45 W. 906 varas; thence N. 45 W. 555 varas; thence S. 45 B. 550 varas to the place of beginning.

There were but three lines called for in that deed, and the third line, while it calls to run to the beginning, simply runs back on the second. The Supreme Court said:

“It thus becomes obvious that one or more calls have been inadvertently omitted. Running, then, the first two calls, we-get two lines at right angles to each other. Recurring then to the beginning point and establishing the last line by reversing the call for its course and by running- the distance called for, we get another line at right angles to the first and approximately of the same length as the second. By supplying another line running from the end of the second to the north end of that so established, we complete a parallelogram which contains a fraction of an acre over 87 ¾ acres— the number called for in the description. It is true that the requisite number of acres may be obtained by running three or more lines between the end of the second line and the beginning of the last; but, if such had been the case, it is highly improbable that they would all have been omitted; while the omission by mistake of thé calls for one line in a set of field notes is a matter of not infrequent occurrence. While therefore the proposition that the calls of the description in question correct themselves and show the land intended to be described is not capable of mathematical demonstration, yet that it is true is reasonably certain. Upon such certainty we act in all the highest concerns of life, and it is sufficient for the purposes of the law.”

Generally, the cases in which it has been held hy the courts that the description of land is insufficient are those in which the land, as given, is an unidentified number of acres out of a larger tract. In Norris v. Hunt, 51 Tex. 609, the defendant claimed title to the property under a sale made by Blocker, United States Marshal, on an execution against J. M. Norris, and the deed executed by Blocker to Carlton. The levy indorsed on the execution describes the land as 640 acres of the L. Dickerson league, Burleson county. The deed from Blocker to Carlton purported to convey all the interest of Norris in the 640 acres of land situated in said county of Burleson, and being part of the league of land originally granted to L. Dickerson. It was held in that, case that parol testimony could not he introduced to aid the description, it being a patent ambiguity.

We recognize the correctness of the rule that where the defect in the description is patent upon the face of the instrument, and is such as does not convey any land described, same is void, and that extrinsic proof cannot he resorted to in order to make certain that which appeareth uncertain from the instrument itself. In the words of Lord Bacon:

“To hold such instrument valid would in effect cause that to pass without deed which the ■law appointeth shall not pass but by deed.”

The deed in the instant ease does not purport to convey an undivided part of a larger tract of land, but an entire tract of 226 acres, giving the location as in Tyler county, on the waters of Billums creek, and it does not appear from the face of the deed itself that the land cannot be located by the description. Knowles v. Torbitt, 53 Tex. 557; Flanagan v. Boggess, 46 Tex. 330; Poitevent v. Scarborough, 117 S. W. 445; Anderson v. Casey Swasey Co., 120 S. W. 918; Carlisle Co. v. King, 122 S. W. 586, approved by Supreme Court in 103 Tex. 620, 133 S. W. 242; Wilson v. Smith, 50 Tex. 365.

In Wilson v. Smith, the defendants claimed as purchasers at a sheriff’s sale; the der seription reading: “160 acres of land being a part of the homestead tract of said James Bankston, exclusive of two hundred acres exempt by law.” The Supreme Court held that the deed could not be pronounced void upon mere inspection; that it did not appear from the face of the deed that the land conveyed could not be identified by the aid of extrinsic evidence, and authorized such evidence to make certain the description.

We have held that the description of the land corrects itself with reasonable certainty to identify the acreage conveyed by Mrs. Fortenberry to Johnson and Chapman. We are confident that the rule established in Hansel v. Castles, supra, is applicable to this case; but, at any rate, the deed does not show upon its face that the land cannot be located by extrinsic proof, and following the rule announced in Wilson v. Smith, above, we think that the court did not err in admitting extrinsic evidence in support of the description.

Appellants say that perhaps the description in the deed is sufficient, but that the land would be in a parallelogram north of the first line given; that, after running the first line east 1,220 varas, we should go to the beginning corner, and reverse the call of the second line, and run north 1,050 varas and construct the parallelogram based upon the first line and said line running1 north from the beginning point.

The Supreme Court has not established such a rule. It was merely coincident in the cases cited by appellant that it became necessary to go to the beginning point, and reverse the calls. The court, in these cases, simply supplied one of several conjectural lines, so as to conform, with reasonable certainty, to the description intended.

The evidence shows that Mrs. C. M. Fort-enberry’s father had conveyed to her 226 acres, with boundaries identical as herein when the two omitted lines are supplied.

Jim Goolsby testified that he knew the William Pool corner, and had run the corners of the tract claimed by Cruse, and ran the line up to the Lewis league, thence south 1,050 varas to the comer, and found the corner; that he found a line running west, parallel with the north line to a corner, and that he ran a line from the corner north to place of beginning; that same were plainly marked all around, and the survey contained 226 acres. He further testified that J. T. Fort-enberry, in 1913 or 1914, went with him and showed him these corners, and spoke of it as the Cruse land. It is also shown that the Fidelity Lumber Company had cut the timber in 1913, and the witness Lindsey testified that he was woods foreman for the company, and that the lines were plainly marked, and that the Fortenberrys made no objection to his cutting the same. J. T. and C. M. Forten-berry, the evidence discloses, made no claim to the land from 1879 until 1908, when they executed a deed to their sons, the appellants here.

Appellants’ second assignment of error complains of the action of the trial court in admitting in evidence the purported deed from J. T. and C. M. Fortenberry to Chapman and Johnson; for the reason that the acknowledgment of .Mrs. Fortenberry was not in compliance with law; it being shown by the statement under said assignment that the certificate of the notary to the deed in question failed to state that Mrs. C. M. Forten-berry was known to the officer or proof was made of her identity.

The certificate in question was made May 2, 1879, and the statute requiring certificates to state that the person acknowledging the instrument was known to the officer did not take effect until September 1, 1879; the law prior to that time not requiring the certificate to recite such facts.

Appellants’ third and fourth assignments of error are leveled at the action of the court in admitting the testimony of Jim Goolsby, as above quoted, and has been disposed of above.

There being no error in the record, and it appearing that justice has been done, the judgment of the trial court is affirmed.
      <©=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    HERRICK HARDWARE CO. v. BEARD et al.
    (No. 5825.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1917.
    Rehearing Denied Jan. 4, 1918.)

      • Appeal and Ebror <§=>404 — Failure op Record to Disclose Final Judgment — Dismissal.
    Where the record fails to disclose a final judgment, the Court of Appeals has no jurisdiction, and the appeal will be dismissed.
    Appeal from Milam County Court; John Watson, Judge.
    Suit between the Herrick Hardware Company and W. B. Beard and another. The former appeals.
    Appeal dismissed.
    E. A. Wallace, of Cameron, for appellant. J. W. Garner, of Rockdale, for appellees.
   RICE, J.

We have carefully examined the record, and fail to find a final judgment, in the absence of which the court has no jurisdiction. It therefore becomes our duty to dismiss this appeal; and it is so ordered.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McCORD.
    (No. 5955.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1917.
    Rehearing Denied Jan. 2, 1918.)
    Appeal and Error <§=>504(5) — Exceptions, Bill op <©=>43(2) — Time por Filing Bills op Exceptions.
    Statutes prescribing the time for filing bills of exception and statements of fact are mandatory, and it is no defense to motion to strike that the trial court and the attorneys were mistaken as to the time, or that the appellant was misled ,by the opposing counsel.
    Appeal from District Court, McLennan County; Ge<o. N. Denton, Judge.
    Suit by Florence Esther McCord against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Motion by plaintiff to strike out bills of exception and assignments of eeror.
    Granted as to bills of exceptions.
    W. L. Eason and W. B. Carrington, both of Waco, for the motion. Scott & Ross, of Waco, opposed.
   KEY, C. J.

In this case appellee has submitted a motion to strike out some of appellant’s bills of exception and certain assignments of error alleged by appellee to be based upon the bills of exception referred to. As to the bills of exception, the motion is based upon the fact that they were not filed within the time prescribed by law, nor within the additional time allowed by the trial court. The record shows that they were filed several days after the time allowed by the court’s order extending the time; but counsel for appellant make the contention that the bills should not be stricken out, tout should be considered, because of certain facts stated in the 1 affidavit of one of appellant’s attorneys, which facts, it is claimed, show that the respective attorneys and the trial judge believed that the time allowed for filing the bills extended 60 days from the time the court adjourned for the term, whereas, on account of the fact that the term of court lasted more than eight weeks, and that the appeal was perfected before the final adjournment of the court, the time expired several days before the bills were filed. In addition thereto it is contended that the affidavit referred to shows that appellant’s attorney was misled by certain conduct of one of appellee’s attorneys, and was thereby prevented from filing the bills within the time allowed.

The attorney last referred to has filed an affidavit controverting some of the facts stated in the affidavit of appellant’s attorney, but we deem, it unnecessary to decide that phase of the case, because it is now well-settled law in this state that the statute prescribing the time for filing bills of exception and statements of fact is mandatory, and therefore the party failing to comply with it cannot defeat a motion to strike out, unless he shows that such instruments were filed within the time allowed by an order of the trial court. Couturie v. Crespi, 103 Tex. 554, 131 S. W. 403. Hence we sustain that part of the motion which seeks to have certain bills of exception stricken out.

As to the assignments of error, we decline to sustain the motion to strike out, but will consider the objections made to them in the submission and decision of the appeal.


author: FLY, C. J.

text:
    ROSETTI v. CAMILLE.
    (No. 5921.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1917.
    Rehearing Denied . Dec. 19, 1917.)
    1. Evidence <§=>10(1) — Judicial Notice — Geographical Facts^-Policy op Spanish and Mexican Governments.
    The court judicially knows that the land in controversy in an action in trespass to try title, in Webb county, is in a dry and semiarid portion of the state, and that it was the policy of the Spanish and Mexican governments, in making grants, to give a front, if possible, on some stream or river.
    2. Navigable Waters <®=>44(3) — Land Added by Accretion — Title.
    Where the receding- of a river and the consequent accretion of land are gradual and slow, the added land becomes a part of the adjoining land.
    3. Boundaries <§=>14 — Designation op Homestead — Call oe Description as on River.
    Where a written designation of homestead gaye one call of the description as on the bank of á river, the designation called for the river wherever it was at the time, and the homesteader’s grantee of the remainder of the homesteader’s land obtained title only as to what remained after such designation.

      4. Boundaries <®=>3(3) — Conteol of Coubse and Distance by Calls fob Natural Objects.
    Course and distance in a survey of land yield to calls for natural and ascertained objects, such as a river, a spring, or even a marked line.
    5. Evidence <©=>390(3) — 'Varying Deed — Con-STBUCTION OF SURVEY OF HOMESTEAD BY ' Source of Title.
    In an action of trespass to try title, construction of the office survey of his homestead by the common source of title was properly ignored by the court.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by John T. Rosetti against Frank Camille. From a judgment for defendant, plaintiff appeals.
    Judgment affirmed.
    H. G. Dickinson, of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellee.
   FLY, C. J.

This is an action of trespass to try title to 107.2 acres of land in Webb county out of a tract known as the north half of porcion No. 14, instituted by appellant against appellee. The cause -was tried without the intervention of a jury, resulting in a judgment in favor of appellee.

The north or upper half of porcion No. 14, containing 2,657 acres of land, is a part of a tract of land patented by the state of Texas to Jose Guajardo on June 30, 1862, which patent recites that the land was granted to said Jose Guajardo in the year 1776 by the government of Spain. Juan Y. Benavides was the common source of title. It is admitted by the parties that he owned the north half of porcion 14, and that he conveyed the same to A. Winslow, trustee for appellant, to secure the payment of a promissory note given by him to appellant for the sum of $600. After-wards, on January 5, 1903, Juan Y. Bena-vides designated and set apart his homestead of 200 acres out of the porcion. In the written designation of the homestead, which was duly filed and recorded, the beginning point of the field notes was a stake on the bank of the Rio Grande, being the northwest corner of porcion 14 and southwest corner of porcion 13, the calls bring the land back to the river bank, and then calls are made for a line "along its meanders to the beginning.” That land was afterwards, on April 25, 1903, sold by Juan Y. Benavides and wife, Laura A. Benavides, to Amanda S. 'Allen, who, oh February 3, 1914, conveyed the land to appel-lee. In that deed after making all the calls substantially as in the preceding deeds, she added:

“And also all my right in and to the abutting bottom land to the edge of the river.”

Appellant claims the land in dispute, which is that situated between the bank or bluff and the actual waters of the Rio Grande, through a deed made by A. Winslow, trustee, to him, in which the land is described as follows:

“2,657 aeres of land in' porcion'Noi 14,' which said tract of land fronts 500 -varas on the Rio Grande and runs out and back from said river 30,000 varas in a northeasterly direction on a parallel' line with the north boundary of this porcion; the tract of land herein conveyed being the upper or north half of said porcion, containing 2,657 acres. However, it is expressly understood and agreed by and between the said Juan V. Benavides and the said John T. Rosetti that the homestead designation of the said Juan V. Benavides, dated the 5th of January, 1903, and duly recorded in the record of deeds of said Webb county in volume 37, pp. 491, 492, 493, not to exceed 200 acres of land, shall and the same is hereby excepted from and out of this conveyance.”

Appellant contends that the land in controversy was not comprised in the land designated as a homestead by Juan V. Bena-vides, and that he owns all the land in the porcion conveyed to him by the trustee except that described in the designation. There was no actual survey of the homestead when it was designated, but it was shown by the testimony of Juan V. Benavides that the land in dispute was intended to and did become a part of the homestead. He lived on the bluff, and always claimed the low land known as the “vega,” now in dispute, as a part of his homestead. It was about the only cultivable land' on the homestead tract, and Benavides made a farm of it. There was no water on the land if it did not extend to the river.

It is judically known to this court that the land in controversy is in a dry or semiarid portion of the state, and' that it was the policy of the Spanish and Mexican governments in making their grants to give a front if possible on some stream or river. This is a part of the history of the country. In this case porcion 14 is about 18 miles long and only about one-half a mile wide, and a call is made for the bank of the river, showing an evident intent and design to give the land a front, on the Rio Grande. This intention is conceded by appellant, for it is his contention thát the call for the “bank of the river” and “up the river” in the patent meant to and along the water’s edge. His claim to the land must be based upon that theory because if the porcion did not extend to the river’s brink, he has not established any right to the land, whether appel-lee owns it .or not. If, however, the beginning point described in the patent as “on the bank of river” means at the water’s edge, and “up the river 1,590 varas to the place of beginning” means along the brink of the ■river, it would seem the beginning point in the homestead designation described as “at a stake on the River Rio Grande bank the N. W. corner of said tract and S. W. corner of porcion No. 13,” would mean the edge of the water; and “to the river bank, thence along the river with its meanders to the place of beginning,” would mean a return to the water’s edge, and then with its meander-tags to the beginning point. If the description in the patent means the brink: of the river, undoubtedly the description in the homestead designation means the water’s edge. The language of the designation is clearer than that of the patent, for it calls for the meanderings of the stream. Those meanderings could not have been followed by running a line along a bluff a half mile from the river.

The witness, Frees, made a survey of the land in controversy and began at a stone on the bluff 1,015 varas from the water’s edge, and he assumed that it marked the northwest corner of poreion No. 14. There is no call for any such stone as is described by him, the call in the patent being for a mesquite, but if his survey be correct, then the land is not a part of poreion No. 14, and appellant has no right, title, or interest in the land, for if the beginning point of the por-ción was about one-half a mile from the river the west line of the poreion did not. touch the river at any point. The surveyor who testified for appellant, without knowing, assumed that a stone, not called for in the field notes of the poreion or any other field notes, was the northwest corner of the por-ción, and on that he based his whole survey. He stated that he did not know whether it was a line stone or corner stone. If the stone was the beginning corner of the poreion, the latter did not go within a half mile oM the water’s edge, and neither appellant nor appellee own it, and appellant properly failed in his suit.

The land is described in the patent as lying “on the east bank of the Rio Grande,” the beginning point is given as a mesquite “on the bank of the river,” and the line going back toward the river strikes it at “a stone mound on bank of river” and from there the closing line runs “up the river 1,590 varas to the place of 'beginning.” There is no testimony tending to show that the river has receded or changed its bed since the patent was granted. Eithet the river has changed its bed or the poreion runs to the water’s brink. It would be contrary to all understanding or interpretation to.entertain the idea that “on the bank of the river” means one-half a mile from the river. The only testimony on the subject of the receding of the river or accretions of land was that they are gradual and slow on the Rio Grande, and if so it would become a part of the adjoining land. Denny v. Cotton, 3 Tex. Civ. App. 634, 22 S. W. 122; Plummer v. Marshall, 59 Tex. Civ. App. 650, 126 S. W. 1162. But there was no proof of recession of the river or accretion of land as applied to this case, but, if there had been, we fail to see how it would have benefited appellant, for the designation of the homestead called for the river wherever it was at the time, and appellant obtained title only as to what remained after such designation. In the first case cited it is fully settled that a call for the river bank means that, and not a point a half mile distant. The court said:

“It is apparent that the survey calls for the river and its meanders as one of the boundaries of the tract. These calls negative any purpose upon the part of the locator to leave any vacant land fronting the river not appropriated by his location.”

This seems to be too clear for argument. The calls in that case were no- plainer nor stronger than in this.

The case of Fulton v. Frandolig, 63 Tex. 330, cited by appellant, has no bearing upon the facts of this case, and neither has the case of Howell v. Estes, 71 Tex. 691, 12 S. W. 62. The case of .St. Clair v. Lovingston, 90 U. S. (23 Wall.) 46, 23 L. Ed. 59, fully sustains the opinion of this court. It enunciates the well-established rule that course and distance in a survey of land yield to calls for natural and ascertained objects, and that:

“A call for a natural object, as a river, a spring or even a marked line, will control both course and distance.”

In the same case it is said under similar facts to the facts in this case:

“Where a survey and patent show a river to be one of the boundaries of the tract, it is a legal deduction that there is no vacant land left for appropriation between the river and the river boundary of such tract.”

The case is decidedly in point, and sustains the judgment of the trial court.

If Benavides told appellant before this suit was filed that the “vega” or low land was not a part of his homestead, which he positively denied, that could have no effect upon appellee’s title as evidenced by the conveyances. The evidence showed that he did not intend to leave it as a part of the land covered by the deed of trust to Wins-low, but reserved all rights in it as a part of- his homestead. His construction of the office survey of the homestead was properly ignored by the court. The testimony of Benavides as to his construction of certain instruments could not affect the title of ap-pellee to the land, and if it had amounted to anything it would not benefit appellant, but would show that the land belonged to the public domain, and appellant had no right to it. Appellant did not show title by limitations to the land.

The judgment is affirmed.
      <&^>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      <3=>For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    DUGAN v. STATE.
    (No. 4823.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Criminal Law <©=>704 — Right to Make Opening Statement.
    Under Code Cr. Proc. 1911, art. 717, subd. 6, providing that the nature of the defense relied upon shall be stated by counsel for the defendant and what are the facts expected to be proved in their support, there rests in the court a judicial discretion to control the opening statement and limit it to its proper scope; but when accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the privilege by commenting upon improper or inadmissible facts, converting it into argument or otherwise misusing such privilege, it should be accorded, and its denial cannot be sanctioned.
    2. Criminal Law <©=370A — Right to Make Opening Statement.
    That defendant’s motion for leave to make an opening statement was accompanied by a written, memorandum outlining his proposed statement did not militate against his right to make it, but, on the contrary, was appropriate in advising the trial court of its scope.
    3. Homicide <©=>269 — Questions for Jury-Intent and Character of Weapon Used— “Deadly Weapon.”
    Under Pen. Code 1911, art. 1147, providing that the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the offender, and that, if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears, a pocketknife, with which defendant stabbed deceased, was not per se a “deadly weapon,” and its character as such, and the intent of accused in using it, were questions of fact.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]’
    4. Homicide <©=>307(2) — Instructions — Aggravated Assault.
    Where a homicide apparently took place .in a sudden quarrel, and defendant claimed that he was defending his life against three assailants, and deceased was stabbed in two places with a pocketknife, one wound not being fatal and the other severing an artery, and there was evidence that both wounds were made from a position facing deceased, whom defendant claimed was ' attacking him with a chair, the court should have charged on the law of aggravated assault.
    5. Witnesses <©=3372(2) — Impeachment of Witness — Cross-Examination.
    Cross-examination of an important witness for defendant, to show that he had tried to get two of the state’s witnesses drunk and thereby to discredit them, was within the rule permitting cross-examination of an adverse witness, to show his bias and mental attitude and interest, and was not a violation of the rule excluding collateral matters not shown to have taken place with the knowledge of defendant,.
    6. Criminal Law <©=>404(4) — Demonstrative Evidence — Clothing Worn by Deceased.
    . On a trial for homicide, deceased’s bloody clothing is admissible, where same tends to solve some controverted issue, but not otherwise.
    7. Criminal Law <©=3404(4) — Demonstrative Evidence — Clothing Worn by Deceased.
    Where there was a controversy as to whether a homicide was committed on the gallery of a house, or in one of the rooms of the house, and there was evidence that there was little or no blood in the room in which the state claimed the stabbing took place, deceased’s bloody clothing was admissible to meet the inference, favorable to defendant, to be drawn from this evidence, by showing that the clothes absorbed the blood.
    8.Criminal Law <£=⅛715 — Argument — Exhibiting Bloody Clothing.
    Where deceased’s bloody clothing is admitted in evidence on a trial for homicide, same should not be used in the argument to inflame the minds of the jury.
    Appeal from District Court, Shelby County; Daniel Walker, Judge.
    Tom Dugan was convicted of murder, and he appeals.
    Reversed and remanded.
    Sanders & Sanders, of Center, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, and his punishment fixed at 20 years’ confinement in the state penitentiary. 1-Ie stabbed deceased witlra pocketknife, and the issues of self-defense and manslaughter, as well as murder, were raised by the evidence and submitted to the jury in the charge of the court.

When the state rested, and before the appellant introduced any evidence, he filed a written motion or request as follows:

“Here and now, in open court, presents this written motion, and asks the court for the permission, the privilege, and the right of stating to the jury, through his counsel, the nature of the defenses relied upon by the defendant, and the facts which the defendant expects to be proved in their support.”

This request was denied by the trial court. 'Exception was reserved, and in the bill there is embodied a recital of facts which the defendant says he would have stated to the jury through his counsel, had he been permitted. The court in his qualification certifies that the motion was presented in due time and overruled, and that attached tu it was a written statement, which we infer is the same as that mentioned above as embodying the facts which appellant desired to present to the jury. The court says that, after reading the motion and the written statement attached thereto, he overruled the motion. His further qualification is that, except that the motion and statement were presented and overruled, and excepted to, he does not verify the statements in the bill, further than to say that the respective theories of the state and the appellant, as developed by the evidence, were conflicting.

The practice of allowing a defendant in a criminal case, preliminary to introducing his evidence, to make, through his counsel, an opening statement outlining his defenses and the evidence thereof, appears to have been followed from time immemorial. Thompson on Trials, vol. 1, § 270, and notes; Bishop’s New Crim. Proc. vol. 2, § 968, p. 791. As said in 12 Oyc. 570:

“The proper function of the opening for the defendant is to enable him to inform the court and jury what he expects to prove.”

“The purpose of the opening,” said Mr. Bishop, “is to put the jury in position to understand and apply the evidence as delivered.” The adoption of this practice is in this state made statutory in article 717, O. G. P., subd. 6, from which we quote as follows:

“The nature of the defenses relied upon shall be stated by the counsel for the defendant, and what are the facts expected to be proved in their support.”

■ Subdivision 3 of the same article says:

“The district attorney * * * shall state to the jury the nature of the accusation and the facts which are expected to be proved by the state in support thereof.”

It has been held that this subdivision .does not require the district attorney to make the statement. In that sense it is. directory, rather than mandatory. Holsey v. State, 24 Tex. App. 35, 5 S. W. 523; Poole v. State, 45 Tex. Cr. R. 348, 76 S. W. 565; Bell v. State, 190 S. W. 732. The same is true of subdivision 5, supra. While it says that the statement “shall” be made, it is construed to mean that the accused has the privilege of doing so, bur it is not required that it be done. White v. State, 181 S. W. 193. The procedure by which a defendant in a criminal case may avail himself of this privilege is discussed in Owen v. State, 52 Tex. Cr. R. 65, 105 S. W. 513; Meyer v. State, 41 S. W. 632; White v. State, 181 S. W. 193; House v. State, 171 S. W. 206. The right to make an opening statement is founded upon the practice at common law, and even in the absence of the statute is recognized by the English and American courts as a privilege, not to be arbitrarily denied. Wiley v. State, 52 Ind. 421; State v. Bateman, 52 Iowa, 603, 3 N. W. 622; Meyer v. State, 41 S. W. 632; People v. Wilson, 55 Mich. 506. 21 N. W. 905; Thompson on Trials, vol. 1, art. 933; Bishop’s New Cr. P. vol. 2, § 968, and notes.

The correct view, we think, is that there rests in the court the judicial discretion to control the statement and limit it to its proper scope, and that when an accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse tho privilege by commenting upon improper or inadmissible facts, converting it into argument, or otherwise misusing it, it should be accorded, and when its denial, under these circumstances, is properly brought before this court for review, the denial will not be sanctioned. House v. State, 171 S. W. 206.

In this ease the appellant appears to have acted upon the suggestion contained -in the opinion of this court in White’s Case, 181 S. W. 193, and has brought before this court the fact that he sought to avail himself of the statute in a timely manner, that he was refused the privilege, that he advised the trial court of the scope of his proposed statement, calling attention to the fact that the issues in the case were such that it would aid the jury in understanding and applying the evidence, and this matter, including the substance of the proposed statement, is in the bill of exception. The fact that the motion made by appellant was accompanied by a written memorandum outlining his proposed statement did not militate against his right to make it, hut, on the contrary, was appropriate in advising the trial court of its scope. We have found nothing in it whicR condemns it as improper. The court, as above stated, was vested with the judicial discretion to pass upon the proposed statement and the relevancy of the matters of evidence therein suggested, but not with the discretion to deny the privilege of making a proper statement. Thompson on Trials, vol. 1, § 933. We cannot say that the proposed statement would not have been beneficial to appellant in enabling the jury to comprehend his defenses, and apply the evidence thereto.

The homicide appears to have taken place in a sudden quarrel. Appellant’s claim is that he was defending his life against three assailants. The deceased was stabbed in two places. One wound was not fatal; the other severed an artery. There is evidence that both were made from a position facing the deceased, whom appellant claims was attacking him with a chair. The pocketknife was not per se a deadly weapon. Its character as such and the intent of appellant were, under article 1147, P. C., questions of fact. The issues were such, we think, as did no-t justify the trial court in refusing appellant’s request to instruct the jury on the law of aggravated assault. Bolden v. State, 73 Tex. Cr. R. 577, 166 S. W. 503, and cases there cited; Huddleston v. State, 70 Tex. Cr. R. 260, 156 S. W. 1168; Polk v. State, 60 Tex. Cr. R. 150, 131 S. W. 580; Hightower v. State, 56 Tex. Cr. R. 248, 119 S. W. 691, 133 Am. St. Rep. 966.

A witness for the appellant gave important testimony in his behalf, and the state, on cross-examination, sought to show by him that he had manifested activity in trying to bring about a condition whereby two women, who were state witnesses, were to be gotten drunk, and thereby discredit them to the advantage of the appellant. It is insisted that the refusal of the court to exclude this evidence was error, invoking the rule that it is collateral, and not shown to have taken place with the knowledge of appellant, and therefore to be rejected — citing Michie’s Ency. Digest of Texas Crim. Reports, vol. 2, p. 598; also Branch’s Ann. Texas P. O. p. 92, and numerous cases there listed. The ruling of the court in permitting this cross-examination was, we think, not obnoxious to the rule laid down in the cases mentioned, but, on the contrary, was consistent with the rule that permits the cross-examination of an adverse' witness to show his Mas and mental attitude and interest in the case to enable the jury to give to his testimony the proper weight.. Mr. Branch, in section 163, p. 92, of his Annotated Penal Code, says:

“The motives which operate upon the mind of the witness when he testifies are never regarded as immaterial or collateral matters. The adverse party may prove declarations of a witness which tend to show bias, interest, prejudice, or any other mental state or status which, fairly construed, might tend to affect his credibility” — citing many cases, including Mason v. State, 7 Tex. App. 623; Latham v. State, 75 Tex. Cr. R. 575, 172 S. W. 808.

A late case on the subject is Burnaman v. State, 70 Tex. Cr. R. 361, 159 S. W. 244, which is also reported and elaborately annotated in 46 L. R. A. (N. S.) 1101, wherein it is stated that the rule is settled that in a criminal prosecution the state may show, for the purpose of impeacning a witness fot defendant, that said witness has attempted to influence a witness for the state in favor <of the defendant. Among the Texas Cases cited in the note ar§ Webb v. State, 58 S. W. 82; Pace v. State, 79 S. W. 531; Lowry v. State, 53 Tex. Cr. R. 562, 110 S. W. 911; Owens v. State, 96 S. W. 31; Irvin v. State, 67 Tex. Cr. R. 108, 148 S. W. 589; Barry v. State, 37 Tex. Cr. R. 302, 39 S. W. 692; Pearson v. State, 56 Tex. Cr. R 607, 120 S. W. 1004. Other cases in point are Brown v. State, 72 Tex. Cr. R 33, 160 S. W. 375; Sorell v. State, 74 Tex. Cr. R. 100, 167 S. W. 359; Moore v. State, 65 Tex. Cr. R. 453, 144 S. W. 598.

Complaint .of the refusal of the court to exclude the clothes worn by the deceased at the time of the homicide is urged. The rules of evidence exclude the bloody clothing where they tend to solve no controverted issue, but do not reject them where the contrary is true. Hubby v. State, 8 Tex. App. 605; Milo v. State, 59 Tex. Cr. R. 196, 127 S. W. 1028. Other cases are cited in Branch’s Crina. Law, § 436, subds. 1 and 2. The contention of appellant was • that the homicide took place out on a gallery of the house of Mrs. Lock, where he claims he was attacked by deceased and others; that of the state was that it took place in one of the rooms of the house. Upon these conflicting theories there was evidence pro and con. The deceased bled profusely; his clothes were saturated with blood. There jvas evidence that there was very little or no blood in the room in which the state claims the stabbing took place. To meet the inference favorable to the appellant to be drawn from this evidence, the state used the clothes as tending to show that they absorbed the blood and prevented its escape, and to thus account for its absence in the room. We cannot say that they did not shed light upon this question, which-was of importance in the case. We do not, therefore, think there was error in their introduction. They should not, on another trial, be used in argument to inflame the minds of the jury.

As presented in the record, and explained by the trial court, we do not find other bills showing error. Because of those pointed out, the judgment of the lower court is reversed, and the cause remanded.
      <cfc53For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    HERENZ v. STATE.
    (No. 4766.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    Criminal Law <s=^101 (4) — Transfer of Causes — Proceedings.
    Under Code Cr. Proe. 1911, arts. 483-485, providing that, upon the filing of any indictment in the district charging an offense over which such court has no jurisdiction, the judge shall transfer it to such inferior court as may have jurisdiction, and that the clerk shall deliver the indictments in all causes transferred, together with all papers relating thereto, to the proper court, and accompany each case with a certificate of all proceedings in the district court, the county court had no jurisdiction of a prosecution, where the transcript of the order from the district court, though showing that the district court inspected an indictment and reached the conclusion that such court did not have jurisdiction, because it was a misdemeanor, failed to show that any indictment against defendant was ever presented- in that court, but, on the contrary, showed the presentation of an indictment against another party.
    Appeal from Lee County .Court; John H. Tate, Judge.
    August Herenz was convicted of aggravated assault and battery, and he appeals.
    Reversed and remanded.
    August Herenz, in pro. per. E. B. Hendricks, Asst. Atty. Gen., for'the State.
   DAVIDSON, P. J.

Appellant was convicted in the county court of aggravated assault and battery; his punishment being assessed at a fine of $150 and 45 days’ imprisonment in the county jail.

A plea to the jurisdiction of the county court was interposed and overruled. We are of opinion that the exception to the transfer or attempted transfer from the district court to the county court is well taken. The transcript of the order from the district to the county court shows that there was begun and holden court in and for Lee county, which was in session at Giddings on the 23d of April, 1917; that on the 26th of April, 1917, the grand jury came into court and through their foreman delivered to the judge of the court the following indictment, to wit: “The State of Texas v. Lee Givins, Pile No. 1826” — and it was ordered by the court to be filed. On the same day an order was entered as follows:

“It appearing to the court, from an inspection of the indictment, that this court has not jurisdiction of this case, the same being a misdemeanor, and that the county court of Lee county, Tex., has jurisdiction - of the same, it is ordered that the said case be, and the same is, transferred to said county court of said county.”

This order was entered in the case styled “The State of Texas v. August Herenz.” Then follows the bill of costs and certificate of the clerk. These were all the orders entered. There nowhere appears that the grand jury ever presented an indictment against August Herenz in the district court. It does appear that the court inspected an indictment and reached the- conclusion that he did not have jurisdiction, because it was a misdemeanor; but the minutes fail to show that such' indictment was ever presented in that court. Under the authorities we are of opinion this motion is well taken. See articles 483, 484, and 485, O. O. P., and the authorities collated in Vernon’s O. C. P. under said articles. See, also, Bird v. State, 49 Tex. Cr. R. 205, 91 S. W. 791; Austin v. State, 38 Tex. Cr. R. 8, 40 S. W. 724; Brumley v. State, 11 Tex. App. 115. The exceptions should have been sustained.

The judgment will be reversed, and the cause remanded.
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