author: PRENDERGAST, J.

text:
    COOLEY v. STATE.
    (No. 4987.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    1. Criminal Law <&wkey;1099(7) — Appeal — Statement op Pacts — Filins After. Adjournment.
    A statement of facts of the testimony of witnesses heard by the judge on defendant’s motion for new trial on the ground that continuance should have been granted on account of the absence of such witnesses, which statement was filed months after the adjournment of court, cannot be considered by the Court of Criminal Appeals.
    2. Criminal Law <&wkey;917 (2)' — Continuance-Absence of Witnesses.
    Whore defendant, charged with horse theft, , moved for continuance on account of the absence of witnesses to establish an alibi, and, on hearing of motion for new trial based on denial of” motion for continuance, the trial court heard three of such witnesses, who could not swear defendant was in their town on the particular date, the court’s action in denying motion for new trial would be held correct.
    3. Criminal Law <&wkey;1171(3) — Trial — Improper Argument.
    In a prosecution for horse theft, the district attorney’s remark in argument, “This alibi testimony is the-most unreliable testimony in the world, and is so known to be by all the lawyers and in all the books,” was not reversible _ error, though defendant relied on an alibi, which, as became apparent at hearing of motion for new trial, the testimony of his witnesses could not establish.
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Oil Cooley was convicted, of horse theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of horse theft, and assessed the lowest punishment.

The testimony was amply sufficient to show, and therefrom the jury were clearly authorized to find, that on the night of June 8, 1916, the horse of Jesse Cox was stolen off of his place. The next morning the horse was tracked from Cox’s place practically into Texarkana. The officers there were informed of the theft of the horse, and undertook to find it, and to locate and arrest the thief. A night or two later they were informed by some horse traders where the horse could likely be found. They thereupon went from Texarkana a few miles in the country, and found the horse tied near the road. No one was present with the horse at the time. Some of the officers then went past the horse and stationed themselves, the others went back toward where the horse was and passed it. In going back they saw appellant then on the horse going in the direction where the other officers had stopped. They tried to arrest him and catch the horse, but he ran, and ran into the officers stationed on the road. They tried to catch him and the horse, but he escaped from them, and ran back where the other officers were. They again tried to arrest him. Both sets of officers fired repeated shots for the purpose of arresting and making him stop, but he ran faster, and when the last officer fired at him he either fell or got off the horse, ran through a fence, and made his escape, at the time. They recovered the horse and restored it to the owner. Appellant went into Louisiana, and was finally traced down and arrested many, months after his said escape. He was positively identified by the officers who first attempted his arrest as stated. He is shown to have known said horse and been at his brother’s, who lived right near .where the owner lived, and saw it a short time before it was stolen. 1-Ie denied stealing the horse, and denied that he was the person the officers caught with the horse, attempted to arrest, and shot at, as stated. His claim was that he was in Paris, Lamar county, at the time the horse was stolen.

All the issues raised by the testimony were submitted by the court in an apt charge, to which no objection was made.

Appellant made a motion for a continuance on account of the absence of four witnesses who lived at Paris. He alleged that by them he expected to prove that he was at Paris when the horse was stolen. After his conviction he made a motion for a new trial because of the refusal of the court to grant the motion for a continuance, and attached thereto the affidavit of some of said Paris witnesses tending to show that they would swear that he was at Paris the night the horse was stolen. The state contested this motion. Three of these witnesses appeared and testified before the court when he heard the motion for new trial on this ground. One of the witnesses did not appear personally, but the state procured, filed, and introduced his affidavit, which was positively against appellant, and wa« the reverse in effect of what appellant alleged he would have testified to on trial. The judge in explanation of appellant’s bill on this subject states that he heard these witnesses testify when he heard said motion, and they would not swear that appellant was in Paris on June 8th; what they would swear was that some time during that month he was there, but they could not undertake to say when it was he was there. There is filed with ■ the statement of facts of the main trial a statement of facts of the testimony of these several witnesses so heard by the judge, but that statement of facts was not filed 'until months after the adjournment of the court, hence it cannot be considered. Taking the record as we find it, we must conclude that the court’s action in denying the motion for new trial on the ground as stated was correct, and' that the testimony of these witnesses heard by him clearly justified his so holding.

On the main trial of the case appellant in substance testified that he could prove by said witnesses at Paris, if he could procure their attendance, that he was at Paris the night the horse was stolen a day or two before. and several days continuously thereafter. ' He had his attorney to also in substance testify that appellant furnished him just a day before the trial began the names of these witnesses, and what they would testify, and his attempts to procure their attendance.

Appellant has some very meager bills to this remark made in argument by the district attorney, viz.:

“This alibi testimony is the most unreliable testimony in the world, and is so known to be by all the lawyers and in all the books.”

The state contends that these bills are too defective and incomplete to authorize their consideration by the court. And he claims they do not exclude the idea that the remark of the district attorney was in reply to appellant’s counsel argument. We will give one of the bills in full; after the style of the cause, the court and -term, it is:

“Be it remembered that on the trial of the above entitled and numbered cause the distinct attorney in his closing argument in referring to witnesses desired -by the defendant, but who were absent, and who would have given testimony tending to establish an alibi for the defendant, used the following language: ‘This alibi testimony is the most unreliable testimony in the world, and is so known to be by all the lawyers and in all the law books.’ To which remarks and language of the district attorney the defendant then and there objected, and, the objection being overruled, the defendant excepted, and here tenders his 'bill of exceptions No. 3, and asks that same be approved and filed as a part of the record of this cause.”

This is signed by the appellant’s attorney and approved by the judge. It is most reasonable to conclude from the testimony of appellant and his attorney about the absence of said Paris witnesses, and what he expected to prove by them, that appellant’s attorney in argument to the jury discussed said absent witnesses, and what he expected to prove by them, and that they would have given testimony tending to establish an alibi for him, and that it was in reply to this argument that the district attorney made the remark he did about the unreliability of alibi testimony. Whether the remark as to the unreliability of alibi testimony by the district attorney as a general proposition was true or not, It turned, out that in this instance the claimed testimony of appellant’s said absent witnesses clearly bore out said remark by the district attorney, for when they were produced and testified before the judge, as stated by him, they would not testify to a state of facts that would have’ established or tended to establish an alibi for appellant in this instance. But in all events said remark by the district attorney, complained of in appellant’s bill, would not justify this court to reverse this case. Appellant was assessed the lowest punishment.

The judgment is affirmed.


source: Caselaw Access Project

author: MORROW, J. DAVIDSON, P. J. MORROW, J. DAVIDSON, P. J.

license: Public Domain

text:
    SPANNELL v. STATE.
    (No. 4660.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.
    On Motion for Rehearing, May 8, 1918. Concurring Opinion, May 10, 1918.)
    1. Homicide <&wkey;17 — Murder — Malice — -Involuntary Killing of Another.
    If defendant with malice shot at another and unintentionally killed his own wife, he is guilty of her murder.
    2. Homicide <&wkey;125 — Excusable oe Justifiable Homicide — Accident.
    If one killed his assailant in lawful self-defense, and in doing so accidentally killed his own wife, he is not guilty of the murder of either.
    3. Criminal Law &wkey;>200(l) — Formes Jeopardy.
    Where defendant in shooting man whom he killed, accidentally killed his own wife of whose murder he was acquitted, he cannot he prosecuted under a separate indictment for the murder of the other, for, since both resulted from the same act, there could be but one offense.
    4. CeimiNal Law @=739(4) — Murder—Killing or Owe While Shooting at Another —Single Act — Proof.
    Where two persons were killed in one transaction, the fact that more than one shot was fired does not, as a matter -of law, render it insusceptible of proof that both were killed by one act, in one case intentional and in the other accidental, since a series, of shots may be fired with one volition.
    5. Criminal Law @=330 — Former Jeopardy —Evidence—Burden or Proof.
    The burden is upon the accused to prove his defense of former jeopardy.
    6. Criminal Law @=739(4) — Former Jeopardy — Evidence—Identity or Act — Question for Jury.
    The question whether accused, who had been acquitted of murdering his own wife, had killed her accidentally while shooting in self-defense at another, or whether the killings were separate acts, held sufficiently raised by accused’s testimony to require submission to the jury.
    7. Criminal Law &wkey;295 — Evidence — Former Jeopardy — Identity or Offenses.
    Where one on trial for murder alleged the killing was in self-defense, that while so defending himself he accidentally killed his own wife, of whose murder he was acquitted, evidence that both offenses were the result of a single act and volition was admissible.
    8. Homicide @=163 — Character of Deceased — Evidence—Admissibility.
    Accused’s .attempt to prove the character of deceased, for whose murder he was being tried, by evidence of certain vile remarks by deceased concerning women, was improper; evidence of particular acts being inadmissible for that purpose.
    9. Criminal Law @=36d(1) — Former Jeopardy — Evidence—Admissibility.
    Where defendant pleaded former jeopardy, in that in killing deceased he had accidentally killed bis own wife, for whose murder be was acquitted, proof of the homicide of his wife, which was a part of the res gesta?, was essential under the plea, and not to be excluded under the rule rejecting evidence of other crimes.
    10(. Homicide &wkey;169(3j — Evidence—Admissibility,
    While the conclusion of deceased’s wife that defendant’s wife went upstairs for a specific purpose was not admissible without evidence of defendant’s knowledge thereof, yet what then took place upstairs, being the basis of defendant’s charge of misconduct of deceased toward his wife, and which led to the trouble and homicide, was admissible.
    On Motion for liehearing.
    11. Criminal Law <&wkey;295 — Former Jeop-' ardy — Bes Judicata — Evidence of Identity of the Crime.
    Upon plea of former jeopardy, the record of the former trial does not control to the extent that it is res judicata as a question of law, hut parol evidence should be heard to show identity of the offenses.
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    H. J. Spannell was convicted of murder, and appeals.
    Reversed.
    Anderson & Upton, of San Angelo, L. A. Dale, of El Paso, Williams & Williams, of Waco, and Critz & Woodward, of Coleman, for appellant. Wright & Harris, of San Angelo, Snodgrass, Dibrell & Snodgrass, and J. K. Baker, all of Coleman, Walter U. Early, of Brownwood, W. Van 'Sickle, of Alpine, and E. B. Hendricks, Asst. Atty. Gen.; for the State.
   MORROW, J.

Appellant was convicted of the murder of M. C. Butler.

Appellant, his wife, and deceased were in an automobile together at night, and Major Butler and Mrs. Spannell were killed. Appellant claimed, and testified, that Major Butler assaulted him, and that several shots were fired by him at Major Butter with no intent to injure Mrs. Spannell. He was indicted in separate indictments for each of the homicides, was tried and acquitted for the murder of his wife, and filed in this case a plea of former acquittal based upon the proposition that the two homicides, resulting from a single act and volition, constituted but one offense. The court’s refusal to submit* the plea to the jury is made the basis of complaint.

If in shooting at Major Butler with malice appellant unintentionally killed his wife, he would be guilty and could be prosecuted for murdering her. Richards v. State, 35 Tex. Cr. R. 38, 30 S. W. 805; McCullough v. State, 62 Tex. Cr. R„ 128, 136 S. W. 1056, in which the court says:

“If appellant shot at Ollie Jamison with either his express or implied malice, and killed his wife without intending to kill her, his offense would be murder in the second degree.”

If in defending his life against an unlawful attack by Major Butler appellant accidentally killed his wife, he was guilty of no offense. Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165; Clark v. State, 19 Tex. App. 495; Vining v. State, 66 Tex. Cr. R. 316, 146 S. W. 912. From the Plumm6er Case, supra, we quote, as follows:

“We take the law to be that if the jury believed that the defendant found himself in a condition where he would have been justified in taking the life of Smelser in order to save himself from death or the infliction of great bodily harm, and, in so defending himself from such danger, he, by mistake or accident, shot Mrs. Smelser, then he would not only not be guilty of an assault with intent to murder Mrs. Smel-ser, but he would not be guilty of any offense whatever.”

See Lankster v. State, 41 Tex. Cr. R. 603, 56 S. W. 65.

If he shot at Butler and in the same act killed Mrs. Spannell unintentionally, his guilt or innocence of each of the homicides would depend on whether in shooting at Butler he acted with malice or in self-defense. Assuming that the shots were fired at Butler only, and killed Mrs. Spannell, appellant having no i.itent or volition to injure her, to determine whether he ivas guilty or innocent on his trial for her murder it was necessary to decide whether in shooting at Butler he acted in self-defense or with malice. On this state of facts the decision that he was innocent of the murder of Mrs. 'Spannell necessarily involves the finding that appellant’s act in firing at Butler was not such as to constitute murder.

It follows that, whether in shooting at Butler appellant acted with malice, or was justified, if in the same act, with no volition to injure his wife, he killed her, there could he but one offense, and the state, prosecuting under separate indictments for each of the bomb-cides, would be concluded as to both by the judgment rendered in one of them. Cook v. Stated 43 Tex. Cr. R. 185, 63 S. W. 872, 96 Am. St. Rep. 854; Rucker v. State, 7 Tex. App. 551; Sadberry v. State, 39 Tex. Cr. R. 466, 46 S. W. 639; Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943; Moore v. State, 33 Tex. Cr. R. 166, 25 S. W. 1120; Carson v. People, 4 Colo. App. 463, 36 Pac. 551; Cooper v. Commonwealth, 106 Ky. 909, 51 S. W. 789, 59 S. W. 524, 45 L. R. A. 216, 90 Am. St. Rep. 275; Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684; Scott v. State, 46 Tex. Cr. R. 310, 81 S. W. 950. In Rucker’s Case, supra, this court held that the rule inhibiting the indictment for two felonies in the same count did not render invalid an indictment which in a single count charged the accused with the murder of two persons by the same act, citing numerous authorities, among them Clem v. State, 42 Ind. 420, 13 Am. Rep. 369, quoting from it, as follows:

“If it be true, as we suppose it is, that the killing of two or more persons by the same act con stitntes but one crime, then it follows that the state cannot indict the guilty party for killing one of the persons, and after conviction or acquittal indict Mm for the killing of the other; for the state cannot divide that which constitutes but one crime, and make the different parts of it the bases of separate prosecutions.”

Where two persons are killed or injured in one transaction, the fact that more than. one shot was fired does not, as a matter of law, render it insusceptible of proof that they were both killed by one act. A series of shots may constitute one act, in a legal sense, where they are fired with one volition. In cases where two persons have been killed or wounded by a series of shots, and under the general issue of not guilty it is urged as a defense that one of the homicides or injuries resulted from shots aimed at one striking another, the issue of singleness of the act and intent bringing the double result has not been made to depend on the number of shots fired. This is illustrated in Lankster v. State, 41 Tex. Cr. R. 603, 56 S. W. 65, and in Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165, in each of which two shots were fired, and in the McCullough Case, 62 Tex. Cr. R. 128, 136 S. W. 1055, several shots were fired. In Cook v. State, 43 Tex. Cr. R. 185, 63 S. W. 872, 96 Am. St. Rep. 854, where the question of the identity of the act and volition resulting in two injuries was raised on plea of former acquittal, the court uses th'e following language:

“The evidence shows that two shots were fired. According to the evidence of the defense, both of these shots were fired at Goodman. According to the evidence of the state, one of the shots was fired at the deceased, Hargrove. Then it becomes a question of fact, and the court should have admitted the evidence under defendant’s plea, and then have charged the jury that if they believed from the evidence, beyond a reasonable doubt, that defendant shot at deceased, and_ not at Goodman, then they would find against appellant’s plea of former acquittal, and proceed to consider whether or not defendant was guilty of any offense under other portions of the charge. * * * Where there is one act, one intent, one volition, as is evidenced by the testimony of appellant in this case, then appellant cannot be convicted upon an act, intent, and volition for which he had been previously acquitted.”

We do not understand the Ashton Case, 31 Tex. Cr. R. 482, 21 S. W. 48, the Augustine Case, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765, and the Keaton Case, 41 Tex. Cr. R. 627, 57 S. W. 1125, as varying from this view. In each of them the plea was denied upon the ground that the two homicides were the result of separate acts, hut the principle controlling them is thus stated in the Ashton Case, supra:

“The true test in such cases must be that, if the intent to kill the one is an intention formed and existing distinct from and independent of the intention to kill the other, the two acts cannot constitute a single offense.”

Lillie’s Case, 79 Tex. Cr. R. 615, 187 S. W. 482, is apparently in conflict with the case of Cook v. State, supra, and other eases cited in connection therewith. In the Lillie Case, however, the point passed upon was the refusal of a charge submitting the issue of former conviction. While the facts raised the issue, there was not, as in this case, specific testimony of intent of the accused to injure hut one of the parties. If th'e Cook Case had been cited it is probable that the court would have held the charge proper. From the fact that it is nob- cited either in the brief or the opinion, we draw the inference that it was not the intention of the court to over-' rule it.

Counsel for the state are correct in stating that the burden was upon appellant to prove his plea. Fehr v. State, 36 Tex. Cr. R. 96, 35 S. W. 381, 650, and Bishop’s New Crim. Proe. p. 634, vol. 2, from which we quote as follows:

“The identity of the parties and of the offense, the defendant taking, as just said, the burden of proof, is shown by parol. It is so even though the two indictments are alike. A common method is to produce the testimony of persons who were present at the previous trial as to what was there investigated, and if it appears to be within the present indictment, a prima facie case is made, to be overcome only by proof from the other side of the diversity of the two offenses. Such witnesses need not be those of the former trial, the calling of whom is not indispensable even though they are' within reach of process.”

Major Butler and Mrs. Spannell were both killed by pistol shots. Persons reaching them immediately after the shooting found three wounds, apparently fired at close range, in the head of Mrs. Spannell, each of them from a 38 caliber pistol, and in tbe body of Butler they found two similar wounds and one fired from a 45 caliber pistol. Appellant claimed that while he was driving the automobile, sitting on the front seat, Major Butler and Mrs. Spannell sitting on the back seat, he was assaulted by Butler; that he got hold of the larger pistol which was in the car, and that in the struggle with Butler it was fired once, when he lost possession of it; that he was thrown out of the car, and fired at Butler several shots from the smaller pistol, having no desire or intent to shoot his wife.

The state claimed that the physical facts were such as to justify the court in deciding the issue raised by the plea against appellant without submitting it to the jury. They direct attention to the fact tk'at there was evidence that appellant got out of the car during the struggle and fired a number of shots thereafter; that some shots were fired before he got or was thrown out of the car; that some of the wounds on Mrs. Spannell bore evidence of powder burns; that the wound inflicted upon Butler with the big pistol would have disabled him so that he could not have continued to fight as appellant claims he did; that there was evidence that Mrs. Span-nell spoke to appellant after he was out of the car, from which the state draws the inference that she was killed after Butler was killed by a separate act and separate volition. We think that appellant’s testimony, in connection with the circumstances attending the transaction, was such as to require the court to submit his theory to the jury. In Wilson v. State, 70 Tex. Cr. R. 355, 156 S. W. 1185, the question of mistake of identity of the person killed was supported by appellant’s testimony alone, and a reversal resulted because it was ignored by the court. In McCullough v. State, 62 Tex. Cr. R. 128, 136 S. W. 1055, the issue as to whether appellant fired at another in self-defense when he killed his wife, as he claimed, unintentionally, was held raised by his testimony. In Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44, the opinion states that the state produced strong testimony to show an intent to kill on the part of appellant, who was charged with murder, and concludes with the following statement:

“He had a right to testify to his intention. He denies any such intention; hence we cannot assume that” it “was false.”

When, an accused avails himself of the privilege of testifying given by article 790, C. C. P., he becomes a witness, and his credibility is for the jury. Vernon’s O. O. P. p. 709. In Branch’s Ann. P. C. § 1884, is listed many cases holding that an accused may testify to his intent and motive. See Berry v. State, 30 Tex. App. 423, 17 S. W. 1080; Lewallen v. State, 33 Tex. Cr. R. 412, 26 S. W. 832; Kinnard v. State, 35 Tex. Cr. R. 276, 33 S. W. 234, 60 Am. St. Rep. 47; Matthews v. State, 42 S. W. 375; Turner v. State (Civ. App.) 51 S. W. 366; Murmutt v. State, 67 S. W. 509; Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; Money v. State, 97 S. W. 91. Mr. Wharton in his work on Evidence, vol. 1, § 431, lays down the same proposition.

We do not think that the distinction 'with reference-to carving, which is made with reference to the pleas of former jeopardy and former acquittal, and discussed in Wright v. State, 17 Tex. App. 158, justified the refusal Of the trial court to submit the issues raised by appellant’s plea to the jury. In Wright v. State, 37 Tex. Cr. R. 629, 40 S. W. 491, the authorities touching this distinction are reviewed and the rule recognized, as we understand it, that if the two alleged offenses are a result of a single act and volition the plea of former acquittal is available. The distinction mentioned was not considered by the court to render the plea presented in Cook’s Case supra, inoperative. That was a plea of former acquittal on the facts raising the same legal propositions that must control in this case.

If Major Butler killed Mrs. Spannell, or if appellant, with separate acts and volition, killed her, the offenses were not identical. The statute (article 572, O. C. P.) designates as the special pleas available former conviction, former - acquittal, which include former jeopardy. Powell v. State, 17 Tex. App. 345. We infer that the plea of res adjudicata, in so far as it is distinct from these, is not to be entertained. This per force of the statute (article 572), supra, which names as one of the two special pleas permitted, “that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.” It is the judgment of acquittal for the identical act and volition which will operate to sustain his plea, and the evidence, lack of evidence, or reasons which impelled the court to enter the judgment are not important further than as they bear on the issue of identity.

The doctor who examined the body of Mrs. Spannell immediately after the homicide went into details in the description of the wounds, which perhaps would not have been permissible except by reason of the issues raised by the plea of former acquittal on the question as to whether the homicides were the result of separate acts. The state was entitled to have the condition of the bodies and the wounds thereon accurately described. It relied, in part, upon the physical facts to which the doctor’s testimony related in part to rebut the appellant’s theory and evidence to the effect that the shots that killed Mrs. Spannell were fired at Butler with no intent to injure her.

Appellant’s attempt to prove certain vile remarks attributed to Major Butler concerning women was a means of proving character not sanctioned by the law as construed by the decisions of this court. Coffee v. State, 1 Tex. App. 550; Brownlee v. State, 13 Tex. App. 257; Holsey v. State, 24 Tex. App. 35, 5 S. W. 523.

The proof of the homicidé of Mrs. Span-nell was a part of the res gestee and not to be excluded under the rule rejecting proof of other crimes. It was an essential part of the evidence on the plea of jeopardy.

The conclusion of Mrs. Butler that shortly before the homicide Mrs. Spdnnell went upstairs to wash her hands on account of having handled a letter possibly infected with tuberculosis is not, we think, admissible against appellant in the absence of evidence of his knowledge of this purpose. What took place upstairs on the occasion mentioned was a part of the case, because appellant based his complaint of Major Butler, in part, upon his misconduct toward Mrs. Spannell upon that occasion, and it was the subject of the conversation which he claims took place in the automobile immediately preceding the homicide, and basis of a statement he claims his wife made to him immediately before he and Mrs. Spannell and Major Butler got into the automobile touching insulting con-, duct and words of Major Butler, which was the immediate cause of the difficulty which resulted in the homicide. It was therefore permissible for the state to prove by Mrs. Butler what, in fact, took place.

The failure of the court to admit evidence and submit to the jury the issues raised by the plea of former acquittal requires a reversal of the judgment, which is ordered.

DAVIDSON, P. J.

(concurring). I concur with Judge MORROW in reversing thb judgment. He places his decision upon that ground in the plea of former acquittal which pertains to the accused shooting at Butler and killing his wife in so shooting. I concur that, if the accused killed his wife lawfully or unlawfully in shooting at Butler, the plea of former acquittal should be sustained. This issue was passed on directly by the jury in the trial of appellant for shooting his wife and decided in his favor under appropriate instructions. The accused cannot be tried twice for the same offense, whether the verdict be guilty or not guilty. If the same facts adduced in the trial for killing Butler were introduced and relied upon by the state for the killing of the wife, and a conviction had been obtained under any phase of the testimony, there -would have been no doubt of his plea of former conviction. The jury having found in his favor, the state ought to be barred from further prosecution so far as those phases of the case are concerned on his plea of acquittal. Mr. Branch thus states the rule with reference to former conviction, and accurately:

“If evidence of more than one offense is admitted and a conviction for either could be had under the indictment or information and neither the state nor the court elects, a plea of former conviction is good upon a subsequent prosecution based upon one of said offenses; it being uncertain for which one the conviction was had. Deshazo v. State. 65 Ark. 38, 44 S. W. 453; Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899; Alexander v. State, 53 Tex. Cr. R. 553, 110 S. W. 918; Pears v. State, 77 Tex. Cr. R. 297, 178 S. W. 519.”

With reference to the plea of former acquittal found in Mr. Branch’s Ann. P. O. p. 321, § 632, he states the rule:

“If the case about to be tried is not based upon the identical indictment, information, or complaint upon which the former acquittal was had, the plea, to be sufficient, must set out the former indictment, information, or complaint and show the identity of the party acquitted and the identity of the two offenses alleged, so that the plea will show upon its face that the proof necessary to secure a legal conviction in the instant case would have sustained a legal conviction in the former and that the state is attempting to prosecute again for the same transaction. Boggess v. State, 43 Tex. 347; Williams v. State, 13 Tex. App. 288, 46 Am. Rep. 237; Jerue v. State, 57 Tex. Cr. R. 215, 123 S. W. 414.”

ITe further states in this connection:

“A plea of former acquittal is not good if the evidence necessary to support the second indictment, information, or complaint would not have been sufficient to sustain a legal conviction upon the first.”

In support of this he cites a great number of authorities. Por similar reasoning the plea ought to be good if he killed her intentionally.

There has been a recognized difference between the pleas of former conviction and former acquittal.- Some of the authorities hold that this is based upon the doctrine of carving. These are recognized and understood. Generally stated, the doctrine of carving would apply where the acts were different, or where evidence under one trial would not sustain a conviction under the indictment on which the party was tried, but I do not understand the rule to be that the doctrine of carving would apply in cases where the party could have been convicted under the indictment upon which he was first tried. The difference between the doctrine of former conviction and former acquittal was discussed in Simco v. State, 9 Tex. App. 338, and Wright v. State, 17 Tex. App. 158. Those cases lay down the rule that where a party may have taken several animals at one time from different owners, and was charged by separate indictments for these takings, an acquittal for taking one could not be pleaded in bar of a prosecution for talcing any of the other cattle. This grows out of the proposition that the two indictments could not be supported by the same facts. The taking may have been the same, but the intents may-have been different and the ownership different. But as we understand that rule, it does not impair the' other rule; that is, if the accused could have been convicted under the indictment under which he was acquitted for the taking of any of the other cattle, the plea of former jeopardy or former acquittal would be good. This would be true whether we apply the doctrine of jeopardy, former conviction, or acquittal, or the doctrine of res adjudicata. So it seems to me, not only from the adjudicated cases, hut from the Constitution and statutes as well, that, where an accused can be convicted under an indictment that involves the same facts that would justify his conviction under a second indictment, he cannot again be tried, whether he be acquitted or convicted on the first trial. That idea proceeds upon the theory that there was, or could have been, an adjudication of all' these matters under the first indictment, and the respective parties are bound by that adjudication and judgment.

Coming to the instant case, two propositions are relied upon to sustain the jeopardy plea: First, that appellant did not shoot his wife intentionally and by an independent act; and, second, that if he shot her at all he did so in shooting at Butler. The state relied for a conviction, and prosecuted the accused vigorously for killing his wife upon two propositions: First, that the accused killed his wife intentionally; and, second, that if he did not he killed her in an unlawful assault upon Butler. As before stated, I do not care to discuss the last proposition, and so far as that viewpoint is concerned it is immaterial whether the killing of Butler was lawful or unlawful. Judge MORROW concurs in this view. This is the basis of his opinion.

As to the other proposition, the general rule is that where two or more offenses are committed in the same transaction, but were distinct in point of time and action so as to constitute different acts and intents, and the proof so shows, a plea of former conviction or acquittal can neither be sustained. But the other rule is as well and successfully established as that quoted; that is, that where evidence of more than one offense growing out of the transaction is admitted, and a conviction for either could be sustained or had under the indictment or pleading, then a plea of former conviction or acquittal can be successfully pleaded. The state’s theory of the two transactions and the right to prosecute for both is based upon their proposition and the state’s evidence to the effect that appellant killed his wife and then turned upon Butler and killed him, or killed Butler and turned upon his wife and killed her. This under the general rule would make two different intents and purposes, well recognized by the authorities. If the matter stopped here, that phase of the case ought not to be presented to the jury under the plea of jeopardy, but this case does not stop here. It comes within the other rule stated; that is, under the indictment for killing his wife, he could have been convicted for killing her either intentionally or by accident in shooting unlawfully at Butler. The state relied upon both theories, and the court submitted both issues to the jury. They could have found him guilty under either proposition under the other indictment, and their verdict would have been sustained, so far as that theory of the case is concerned ; but they acquitted. Under the doctrine of former acquittal, this phase of the plea of jeopardy ought to be held good.

Applying the rule laid down in Sínico and Wright Oases, supra, it would sustain the above' statement of the law. Under the indictment in the Wright Case, for instance, if Wright could have been convicted for taking the other cattle not charged in the indictment under which he was tried, then his plea of former acquittal would have been good. Suppose the indictment in the case of killing Mrs. Spannell had contained two counts, and the state had gone to trial upon both, the first charging an intentional killing of his wife, and the second the killing the wife in an unlawful assault upon Butler, the state would not have been required to elect. It could have sustained the conviction under proper evidence under either count. But suppose in such case the state, or the court for the state, after the trial begun, appellant’s plea entered, and the jury sworn, and at some subsequent stage of that trial, had dismissed as to one of the counts, or the court finally only submitted one of the counts, it would not be debatable that appellant was in jeopardy on both counts, and never could be tried again on the dismissed count whatever the verdict might have been on that submitted to the jury, whether guilty or not guilty; and the same might be said had the indictment for killing Butler, from which this appeal is predicated, so-charged. There would be no question of the fact that jeopardy would then apply. Here the only count in the former indictment necessarily embodied the unlawful killing of the wife in the unlawful shooting at -Butler, and the verdict passed that out of the case, whether by the trial and acquittal, as effectually as by dismissing one of the counts, had such been in the indictment as before stated. The state relied as strongly, and properly, upon the facts to show the unlawful killing from both standpoints as if there had been two counts in the indictment. It relied as strongly on one theory as on the other, and either would have supported a' conviction on the first trial. The facts necessarily grew out of the tragedy in which Butler and Mrs. ’Span-nell lost their lives. They were necessary to a decision of the case on both issufes alike at the hands of the jury, because both cases are the same on these issues. The state elected and relied upon both theories in the first case, and cannot now be heard to discount what was done in that case. The state cannot thus obtain a new trial, for it is interdicted by law. The state has neither the right to ask for a new trial nor take an appeal. If the state could indirectly secure a new trial in this way against the verdict of the jury in the former case, it could with equal propriety, cogency, and legality have asked for a new trial against that verdict directly in that case. This circumlocution would not have been necessary, and cannot he upheld.

Therefore I concur with Judge MORROW on the phase of the jeopardy he discusses. I am fully persuaded that the other ground is as fully and as legally correct as that discussed. I believe the plea of jeopardy should be sustained on both propositions.

On Motion for Rehearing.

MORROW, J.

The original opinion was rendered after careful investigation and mature thought. A review of the subject leaves the writer convinced that, so far as he is able to judge, the conclusion reached was right. The subject is one upon which the courts are not in complete harmony. Prom Van Fleet’s Former Adjudication, vol. 2, § 022, we quote as follows:

“If several persons are injured in person or property by the same act, it is held in Connecticut, Georgia, Illinois, Indiana, Iowa, Missouri, New York, Texas, Vermont, and England, that there is but one offense; but the contrary is ruled in Arkansas, California, Kentucky, New York, South Carolina, and Virginia; while in Massachusetts it is decided that the state may elect to prosecute for one or for several offenses.”

See, also, People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 92 Am. St. Rep. 120, and note.

In the decisions of the courts mentioned we find but meager discussion of the procedure to be followed when a plea like that in this case is filed. Appellant’s counsel insist that upon such plea the record on the former trial should control, and the practice of res judicata follow. The writer is not able to agree with this contention. Res judicata, generally speaking, is applicable to ciyil eases. The principles touching it, in a sense, obtain in criminal pleas of former jeopardy. From Van Fleet’s work, cited above, section 594, we take the following:

“There is but little similarity between the rules which govern the doctrine of res judicata in civil and criminal cases.”

At section 628 the author indicates that the principles of res judicata might be applied to a criminal case. The procedure, however, in determining the identity of the offense charged on pleas of this character is not made clear. In Peoples v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 92 Am. St. Rep. 121, and note, are listed numerous cases illustrating the fact that on a plea of this kind parol evidence is heard to show the identity of the offenses, and that is in accord with the rule adduced from the numerous authorities cited by Mr. Bishop in his work on Criminal Procedure, p. 034, vol. 2, quoted in the original opinion, and in Van Fleet’s work, supra, section 661, discussing the subject, the author says:

“But when the former record showing those facts is introduced, the court cannot, as a question of law, rule the two offenses are identical; that must be left to the jury.”

See, also, section 663.

It appears to be the rule followed by this court in the case of Benton v. State, 52 Tex. Cr. R. 422, 107 S. W. 837, and while the procedure is not discussed in several of the cases in this state involving the plea of former jeopardy where there was a double injury from one assault, a reading of the cases indicate that the procedure followed was to determine the identity of the offenses by parol evidence. See Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125; Ashton v. State, 31 Tex. Cr. R. 482, 21 S. W. 48; Sadberry v. State, 39 Tex. Cr. R. 466, 46 S. W. 630, and other cases cited in the original opinion.

Our Legislature, cognizant of the miles of res judicata referred to, passed the statute mentioned in the original opinion. While the statute as held in Powell v. State, 17 Tex. App. 345, and as indicated in some other instances, both by decisions and statutes, does not in fact include all of the special pleas that may be filed, it does, however, we think, indicate the legislative intent to provide a form of procedure in pleas of this character. We do not think the evidence heard upon they trial as to Mrs. Spannell is conclusive either as to the state or the defendant as to the identity of the offenses. If there was hut one .offense committed, the acquittal in the trial for the murder of Mrs. Spannell would operate as a complete discharge of appellant, although there had been no evidence introduced upon the trial of that case. Bnder the statute as we construe it, it is the acquittal of the same offense which discharges him. He is now charged with the murder of Major Butler. He claims in his plea that the killing of Major Butler and Mrs Spannell was hut one offense; that by the same act that he killed Major Butler he killed Mrs. Span-nell with no intent or volition to injure her, and that he has been tried and acquitted for her murder. 1-Ie assumes the burden of proof to sustain his plea. The procedure to be followed in making this proof is that laid down by this court in the leading case of Cook v. State, 43 Tex. Cr. R. 387, 63 S. W. 873, 96 Am. St. Rep. 854, which is relied on by appellant, and from which we take the following quotation:

‘ “The evidence shows that two shots were fired. According to the evidence of the defense, both of-tíi^e shots were fired at Goodman. According to the evidence of the state, one of the shots was fired at the deceased, Hargrove.. Then it becomes a question of fact, and the court should have admitted the evidence under defendant’s plea, and then have charged the jury that if they believed from the evidence, beyond a reasonable doubt, that defendant shot at deceased, and not at Goodman, then they would find against appellant’s plea of former acquittal, and proceed to consider whether or not defendant was guilty of any offense under other portions of the charge.”

The fact that appellant had been indicted and acquitted for the murder of Chrlstabel Spannell was provable by the indictment and judgment. The fact that Ohristabel Spannell, for whose murder he was tried, was the same person he killed in the transaction in which Butler lost his life, and the alleged fact that she was killed by shots fired at Butler, and that appellant had no intent or volition to kill her, were facts lying in parol which, when testified to, would make a prima facie case which the state by parol evidence might rebut by any evidence, circumstantial or direct, relevant under the rules of evidence to solve the controverted issue of the identity of the offenses.

On the issues arising out of the plea of former acquittal, the evidence of the doctor who described the wounds upon Mrs. Spannell was admissible, except perhaps that part where he makes the comparison to an egg shell might, on specific objection, be regarded .as argumentative.

We endeavored to make plain our view with reference to the testimony of Mrs. Butler when we stated in the original opinion the following: “It was therefore permissible for the state to prove by Mrs. Butler what in fact took place.” Supplementing what is stated in that opinion we will add that the part of Mrs. Butler’s testimony mentioned in the bill, which we think, should have been excluded, was that part of it in which she stated as her conclusion the purpose for which Mrs. Spannell went upstairs in the hotel.

The motion for rehearing is overruled.

PRENDEÍRGAST, J. I concur in the conclusions of Judge MORROW in his opinion.

DAVIDSON, P. J.

(concurring).

Adhering to what I stated in my concurring opinion on the original hearing, I wish to say, in connection with the majority opinion overruling the state’s motion for rehearing, that upon a careful review of the matters involved and decided I am convinced of the correctness of what I formerly wrote.

Two issues were presented and decided on the trial for killing his wife: First, that appellant killed his wife by an independent act and not in connection with shooting at Butler; second, that he killed her in killing Butler. There were two phases presented by the latter proposition; one by the state, that he illegally killed her in killing Butler, arid the other by defendant, that he killed her in killing Butler in self-defense. These issues were presented by the testimony and the charge, and were decided by a verdict favorable to appellant. It is not questioned that the jury had the right to and did pass upon (hese questions under the indictment charging him with killing his wife. Had the jury believed that he killed his wife independent of shooting at Butler, they certainly would have convicted, and were so instructed by the court. They therefore necessarily decided that he did not kill her by an independent act. This ought to eliminate the question of two separate and distinct killings toy separate and distinct motives. In regard to the second proposition, the jury decided under appropriate instructions from the court that he killed his wife accidentally in killing Butler in self-defense. Simco v. State, 9 Tex. App. 338, is authority for the proposition that if the accused can be convicted under the indictment of the subject-matter to be tried under the second indictment, his former acquittal plea is good. This was followed in Wright v. State, 17 Tex. App. 152, and in Hooper v. State, 30 Tex. App. 412, 17 S. W. 1060, 28 Am. St. Rep. 926.

It is legally a self-evident proposition that appellant’s guilt or innocence in killing his wife depended upon the legality of killing Butler. Both propositions were fully adjudicated, and necessarily so by the jury on appellant’s trial for killing his wife, followed by the adjudication of the court as the result of that verdict. The former jury could not have acquitted without necessarily deciding that he was legally justified in killing Butler. The issues were sharply drawn, squarely met, and emphatically decided and adjudicated. The state cannot try appellant again for such killing whether it be former acquittal, or former conviction, or res judicata. One trial on the law and the facts precludes a further prosecution by the state. Tire state cannot appeal from such adverse adjudication whether that appeal is sought to be made to the courts or the jury. The decision is a final determination of the case and involved issues. It is res judicata and final. This is well settled in this state. See Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Murff v. State, 76 Tex. Cr. R. 5, 24, 172 S. W. 238. Some of the cases are collated in the MurfC Case in the opinion on rehearing, which is found on page 24. The reasoning in these cases is sound and the conclusions reached are legally correct. The jury determined, and the court decided, on the trial for killing his wife: First, that he did not kill her by an independent act; that there were not two separate killings. This therefore eliminated the question of two distinct killings. Second, that he accidentally killed his wife in legally killing Butler. Necessarily both issues were decided, because they were raised by the facts, submitted in the charge of the court, and decided by the jury, and this was followed by the adjudication in the judgment

With reference to the question of res ju-dicata, in addition to the cases above cited see Cooper v. Commonwealth, 61 S. W. 784; Pettit v. Commonwealth (Ky.) 57 S. W. 14; United States v. Butler (D. C.) 38 Fed. 498; Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 24 L. Ed. 684; Shideler v. State, 129 Ind. 523, 28 N. E. 537, 29 N. E. 36, 16 L. R. A. 225, 28 Am. St. Rep. 206. See, also, Gelston v. Hoyt, 3 Wheat. 246, 4 L. Ed. 381; Rex v. Kingston, 20 How. St. Tr. 355-538. Judge Van Fleet says, in his treatise on the law of Former Adjudication, p. 1242, § 628:

' “If there is a contest between the state and defendant in a criminal case over an issue I know of no reason why it is not res judicata in another criminal case,” citing a number of American decisions in support of the text.

The state had its day in court on both issues, and lost by a legal adjudication on both questions. It would' seem to follow, therefore, necessarily, that further prosecution cannot .be had, but is barred from, any legal viewpoint, whether former acquittal, former conviction, or res judicata.

I concur in the reversal, but am of the opinion that the majority should have gone further and decided the questions I have above mentioned in their opinion. The plea in bar called for such decision favorable to such plea.
      ®=s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (&wkey;For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J. DUNICLIN, J. CONNER, C. J.,

text:
    COOPER GROCERY CO. v. NEBLETT et al.
    (No. 8779.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 26, 1918.
    On Rehearing, April 20, 1918.)
    1. Witnesses <&wkey;48(2) — Competency — Conviction oe “Infamous Crime.”
    In the absence of any statute changing the common-law rule for trial of civil cases, a conviction and imprisonment in a federal penitentiary for retailing liquor without paying the special tax would not render a person infamous so as to render him incompetent as a witness, although Pen. Code 1911, art. 55, renders an offense so punishable a felony.
    2. Witnesses &wkey;>345(l) — Impeachment — Conviction of Grime.
    Conviction of crime not infamous under the common law is not admissible to impeach testimony.
    3. AVitnesses <&wkey;140(19) —' Competency — Heirs — Conveyance of Interest.
    Testimony of an heir precluded by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, is not rendered admissible by a conveyance of the interest of the witness for the sole purpose of rendering him competent.
    4. Evidence &wkey;j433(6) — Parol—Mistake.
    Where it was alleged there was a mutual mistake as to part of guaranty contract creating liability in excess of $1,000, it was admissible to show that the president of plaintiff corporation and _its attorney had construed it as a guaranty fdr only $1,000, and had originally sued for such amount; the theory being that certain fine print had been overlooked by plaintiff’s agent and defendant.
    5. Evidence <@=y265(13) — Admissions — Explanations.
    Where mutual mistake was alleged in that certain fine print in a contract of guaranty was overlooked, admissions of officer of plaintiff showing that he had overlooked such fine print, and introduction of copy of an original petition of plaintiff for amount guarantor contended the contract covered, were not rendered inadmissible as admissions by an explanation by plaintiff that they were made under an erroneous impression.
    6. Trial <@=3352(1) — Special Issues — Repetition.
    A special issue as to whether defendant and plaintiff did not understand that a guaranty contract was only for $1,000 was not a repetition of an issue as to whether defendant relied on such a representation by plaintiff, both fraud and mutual mistake having been alleged.
    7. Reformation of Instruments <&wkey;19(l)— Mutual Mistake — Guaranty.
    If a guaranty was executed and accepted under a mistaken belief as to its amount, equity will reform the instrument.
    8. Guaranty &wkey;>54 — Discharge of Guarantor-Material Changes.
    A change in a contract of indebtedness, increasing interest from legal rate of 6 to 10 per cent, on past due interest, and a change making place of payment in a county other than debtor’s residence, were both material and would release a guarantor.
    9. Guaranty <&wkey;90 — Evidence — Materiality.
    In action on contract of guaranty, evidence of expenses incurred by guarantor in procuring a change of venue was immaterial, where the issues were as to the scope of the contract, which was in writing ahd unambiguous.
    10. Guaranty <&wkey;25(3) — Misrepresentations — Sufficiency of Evidence.
    That president and attorney of plaintiff corporation construed a contract of guaranty as being for only $1,000, and originally sued for such amount, was not alone sufficient to show that an agent represented it to cover only such amount, or that he misled the guarantor.
    11. Guaranty <&wkey;25(3) — Mutual Mistake-Sufficiency of Evidence.
    That president and attorney of corporation had originally construed a contract of guaranty to cover only $1,000, and had originally sued for such amount, was not alone sufficient to sustain a finding of mutual mistake between a corporation agent and defendant; the contract covering more than $1,000.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Suit by the Cooper Grocery Company against Frank Neblett and J. W. Neblett. The last-named defendant dying .after institution of suit, Mrs. E. A. Neblett, as his executrix, was substituted as a party defendant. From a judgment against the first defendant, but in favor of the executrix, plaintiff appeals.
    Affirmed.
    W. E. Spell, of Waco, A. P. Young, of Stephen ville, and Davis & Cocke, of Waco, for appellant. Chandler & Pannill, of Stephen-ville, for appellees.
   DUNKLIN, J.

The Cooper Grocery Company, a private corporation, instituted this suit against Frank Neblett and J. W. Neblett to recover the unpaid balance of four promissory notes given for groceries sold by plaintiff to Frank Neblett. Plaintiff sought to hold J. W. Neblett liable upon an alleged written guaranty of the debt. After the institution of the suit, J. W. Neblett died, and his widow, Mrs. E. A. Neblett, who was the independent executrix of his last will and testament, was made a party defendant; and from a judgment in her favor the plaintiff has prosecuted this appeal.

The disposition of a former appeal of this case is reported in 180 S. W. 1162. The trial from which that appeal was prosecuted resulted in a judgment in favor of Frank Neb-lett and against the executrix. Judgment in favor of Frank Neblett, of which no complaint was made, was left undisturbed, and therefore became final; but the judgment against the executrix was reversed, and the cause remanded for another trial of the issues between her and the plaintiff.

In addition to the plea of misjoinder of causes of action, which plea was overruled on the former appeal as shown in the opinion, Mrs. Neblett further pleaded that the signature of J. W. Neblett to the written guaranty alleged in-plaintiff’s petition was procured by false and fraudulent representations made to him by plaintiff’s agent, H. W. Carver, in that prior to the execution of the instrument it was orally agreed, by and between J. W. Neblett ánd Carver, representing plaintiff, that the former would execute an instrument in writing guaranteeing all of Frank Neblett’s past indebtedness, not exceeding the sum of $1,000; that, immediately after such oral agreement was reached, J. W. Neblett executed the instrument of guaranty, which was partly in writing and partly in print, and consisted of a printed form, with blanks filled out in writing by Carver, and contained a written guaranty of Frank Neblett’s indebtedness to the plaintiff already incurred, not to exceed the sum of $1,000; that Carver then represented to him, in effect, that that was the extent of the guaranty; that Neblett believed said representation, and relying thereon, executed the instrument without reading it; that said representation was false and fraudulently made, in that the instrument sued on was a guaranty of all indebtedness that might be incurred by Frank Neblett after the execution of the instrument, in addition to his prior indebtedness, and that by reason of such misrepresentation the instrument of guaranty was void and of no legal effect. The executrix alleged, further, that after the execution of the guaranty Frank Neb-lett’s contracts of indebtedness to the plaintiff were changed in material respects without the consent of J. W. Neblett, who was thereby released from his contract of guaranty. It was further alleged that, after the execution of the written guaranty Frank Neblett conveyed to the plaintiff certain notes and accounts due him, and at the same time executed to plaintiff his promissory notes sued on by plaintiff, and as a part of the consideration therefor the plaintiff agreed' with Frank Neblett to discharge J. W. Neblett from any liability upon the guaranty; that thereafter plaintiff collected more than $1,000 on the accounts so transferred to it; that by reason of those facts plaintiff could not recover against the executrix. As a further defense the executrix alleged, in substance, that prior to the execution of the guaranty it was the intention of J. W. Neb-lett and Carver, representing the plaintiff in procuring the execution of the instrument, that the guaranty of J. W. Neblett should not exceed $1,000 of Frank Neblett’s indebtedness; that both Carver and J. W. Neblett intended that the written guaranty should be so drawn, and both understood that it so stipulated, and such was the intention and understanding of both of them at the time the guaranty was executed and delivered by J. W. Neblett, and at the time it was executed it was the intention and understanding of both J. W. Neblett and Carver that the guaranty should cover indebtedness theretofore incurred by Frank Neblett, not exceeding the sum of $1,000, and that the guaranty should not be for any other amount.

All of those defenses were put in issue by appropriate pleadings filed by plaintiff. The written guaranty sued on and introduced in evidence was procured by H. W. Carver, representing the plaintiff, and is as follows:

“In consideration of the sale of any kind of merchandise by the Cooper Grocery Company to Frank Neblett, I, we, or either of us hereby guarantee to them and their assigns, unconditionally, the payment of any indebtedness of said Frank Neblett now existing from the said Frank Neblett to the said the Cooper Grocery Company, now residing and doing business in the city of Waco, county of McLennan, 'state of Texas, not exceeding the sum of one thous- and and no/100 dollars, and any indebtedness created on this day or hereafter, until notice in writing, and I, we, or either of us consent to any extension of payment made, or hereafter-made, and waive notice thereof, and waive the necessity of protest, notice, and suit in all-cases between said parties, and consent that the form of said indebtedness may be changed, from account to .note, bill, or other commercial paper; and I, we, or either of us agree to pay interest at the rate of ten per cent, per annum from date agreed upon by said purchasers, and 10 per cent, attorney’s fees if said debt is placed in the hands of an attorney for collection ; (and I, we, or either of us further guarantee that said indebtedness shall be paid in Steplienville, Eratll
•Wseoy-M-efeaaafee- county, Texas, and wo waive the right to bo sued elsewhere.) In testimony of which, I — we set my — our names at Stephen-ville, Texas, on the 19th day of July, 1910.
“Witnesses:
“J. W. Neblett.”

The guaranty was upon a xorinted form, and the erasure of the printed words “Waco,. McLennan” and interlineation “Stephenville, Erath” shown therein were made by J. W. Neblett prior to the execution of the instrument.

The trial was before a jury, who returned findings of fact in answer to special issues submitted by the court. Those findings were as follows: (1) At the time of the execution of the guaranty, H. W. Carver represented to J. W. Neblett that the guaranty was for only $1,000. (2) J. W. Neblett was induced to sign it by reason of said representation. (3) He read the instrument before he executed and delivered it to Carver. (4> At the time of the execution and delivery of tlie guaranty, both Neblett. and Carver agreed and understood that it would indemnify plaintiff for not inore than $1,000.

The fifth finding was adverse to the plea of the executrix that plaintiff agreed to discharge J. W. Neblett frotn his guaranty in consideration for the transfer to it of notes and accounts of Frank Neblett, and the effect of other findings was that the market value of- uncollected notes and accounts, held by plaintiff as collateral security of Frank Ncblett’s debts, was 44 per cent of their face; that plaintiff had collected on such collateral the sum of $1,354.07, and the reasonable expense of such collection was 20 l>er cent, of their face.

Frank Neblett was introduced as a witness by the executrix, and his testimony directly and positively supported the pleas of the executrix of fraudulent misrepresentations by Carver inducing the execution of the guaranty, and also the other special pleas sustained by the jury in the second and fourth findings; in fact, his testimony was the only testimony offered to sustain those defenses, except the fact that the guaranty of future indebtedness of Frank Neblett was in fine print, and was overlooked by plaintiff’s counsel in drawing the original petition in this suit, wherein he only sued for $1,000, and the substantial admission by plaintiff’s president, Hilain, according to the testimony of Frank Neblett, that $1,000 was the extent of J. W. Neblett’s liability.

Plaintiff urged several objections to the introduction of that testimony of Frank Neblett, and the action of the court in overruling them is made the basis of several assignments of error.

One of the grounds of objection was that Frank Neblett was not a competent witness, in that he had been convicted of a felony, and had served a term in the penitentiary; and, in connection with that objection, plaintiff offered a certified copy of an indictment filed in the United States District ■Court for the Northern District of Texas, on November 8, 1905, charging Frank Neblett ■on June 10, 1905, with unlawfully engaging in and carrying on the business of a retail liquor dealer without having paid the special tax therefor as required by the federal statutes; also a judgment of that court upon a verdict of a jury dated November 23, 1905, convicting Frank Neblett of that offense ; also a judgment of the same court of date November 24, 1905, sentencing Frank Neblett, as a punishment for that offense, at imprisonment at hard labor in the United States Penitentiary at Atlanta, Ga., for the period of one year and one day, and at a line of $100 in addition thereto; also the certificate of the clerk of that court to the effect that no writ of error was ever prosecuted from that judgment and sentence.

The plaintiff’s objection to the competency of the witness was based upon that judgment of conviction and sentence, the contention being that the same rendered the witness infamous. Texas Penal Code, art. 55, reads;

“Every offense * * * punishable by death or by imprisonment in the penitentiary, either absolutely or as an alternative, is a felony.”

In Webster v. Mann, 56 Tex. 123, 42 Am. Rep. 688, it was held that a conviction for forgery rendered; the defendant incompetent as a witness. In so deciding the court used the following language:

“Tlie offense of forgery is one which at common law was held to render the person guilty thereof infamous, and hence incompetent to testify. 1 Greenleaf on Ev. 373.”

In Greenleaf, Ev. § 373, the following is said: .

“It is a point of no small difficulty to determine precisely the • crimes which render the perpetrator thus infamous. The rule is justly stated to require that ‘the publicum judicium must be upon an offense implying such a dereliction of moral principle as carries.with it a conclusion of a total disregard to the obligation of an oath.’ But the difficulty lies in the specification of those offenses. The usual and more general enumeration is treason, felony, and the crimen falsi.”

Following that announcement, and after referring to numerous decisions upon the. subject, the author concludes the same paragraph of his work with the following;

“And from these decisions it may be deduced that the crimen falsi of the common law not only involves the charge of falsehood, but also is one which may injuriously affect the administration of justice by the introduction of falsehood and fraud. At least it may be said, in the language of Sir William Scott, ‘so far the law has gone, affirmatively; and it is not for me to say where it should stop, negatively.’ ”

Prof. Wigmore in his Treatise on Evidence, vol. 1, § 519, after giving the history and general policy of the rule of evidence which renders a person incompetent as a witness if he has been convicted of an infamous crime, and reviewing the early decisions thereon, uses the following language;

“Hence, as soon as the rule begins to be reasoned about, we find it placed upon the more plausible theory of actual moral turpitude, i. e., the person is to be excluded because from such a moral nature it is useless to expect the truth — a notion which at least avoided the fallacy of the punishment theory, and came finally to be put forward as the orthodox' one of the common law.”

In support of that announcement, he cites Chief Baron Gilbert, Ev. 139; Mr. Thomas Starkie, Ev. 83; Chief Jiustice Swift, Ev. 52. Continuing, the same author contends that there can be no justification for the disqualification of a witness by reason of conviction of crime, and cites in support of that announcement the reasoning of Mr. Jeremy Bentham in his “Rationale of Judicial Evidence.” And he adds that legislation recently enacted has in most jurisdictions abolished the common-law rule.

Appellant has cited many decisions to sustain the objection, such as Mackin v. Gallagher, 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; Cooley’s Const. Law, 29; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; U. S. v. Johannesen (C. C.) 35 Fed. 411; Cain v. State, 18 Tex. 387.

In the federal decisions cited it was held that crimes punishable by imprisonment in the penitentiary are infamous crimes, but the question involved in each of those decisions was not a question of the incompetency of witnesses to testify, but whether or not a prosecution would lie for the crime alleged; and in each case the rule is announced that whether or not a crime is infamous, requiring an indictment as a predicate for a prosecution therefor, will be determined ■ by the nature of the punishment inflicted, rather than by the nature of the offense; and that, as confinement in the penitentiary is an infamous punishment, prosecutions for all offenses so punished must be based on indictments by a grand jury, in view of article 5 of the amendments to the federal Constitution, which provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in active service in time of war or public danger.”

In Butler v. Wentworth, by the Supreme Court of Maine, reported in 84 Me. 25, 24 Atl. 456, 17 L. R. A. 764, there is an interesting discussion of the federal decisions, in which it is pointed out that according to the earlier of those decisions, rendered before the adoption of that amendment of the Constitution, the nature of the. crime as understood at common law, rather than the punishment inflicted determined whether or not the crime was infamous; and, if the character of the crime charged was not infamous in its character, the prosecution for its commission did not require an indictment, but that, according to later decisions rendered after the adoption of the constitutional amendment noted above, an indictment was necessary if the punishment for the ■ crime was infamous.

In the absence of any statute in this state changing the common-law rule for the trial of civil cases, we have reached the conclusion that the conviction -of Frank Neblett, mentioned already, was not a conviction for an infamous crime, within the meaning of the common law, since that crime did not involve such moral turpitude as necessarily to render the witness unworthy of belief in a court of justice.

And as the witness was not incompetent, his former conviction was not admissible t) impeach his testimony, as insisted by appellant in another assignment of error. Abilene & So. Ry. v. Burleson, 157 S. W. 1177, and authorities there cited, including, among others, M. K. & T. Ry. v. Creason, 101 Tex. 335, 107 S. W. 527. In the case last mentioned the following is said:

“At an early date in the history of this court it was settled that ‘in the impeachment of a witness the inquiry should be confined to his general reputation for truth, and that it should not extend to his general moral character.’ Boon v. Weathered, 23 Tex. 675; Ayres v. Duprey, 27 Tex. 594, 86 Am. Dec. 657; Kennedy v. Upshaw, 66 Tex. 452 [1 S. W. 308].”

It is true, as contended by appellant, that in Ry. v. Creason, supra, and in Ry. v. Burleson, supra, the record of conviction of the witness was not offered, but the offer was to show by the witness, on cross-examination, that he had been previously indicted for an offense. Appellant insists that the only method of such impeachment under the common-law rule would have been proof of a conviction, and that therefore those decisions were correct, because such proof was not offered. However, the decisions are not predicated upon that distinction, but upon the general rule, as announced in the quotation from our Supreme Court, that the only method of impeachment of a witness is by proof that his general reputation for truth and veracity is bad.

But we are of the opinion that another objection to the testimony of Frank Neblett should have been sustained. The record shows that the witness was made a beneficiary .of his father’s estate by the latter’s will, that the interest so bequeathed to him was worth $12,000 or $15,000, and that the executrix of the will is his mother. On the former appeal of this case we held, under the provisions of article 3690, Vernon’s Sayles’ Tex. Civ. Stats., that Frank Neblett was precluded from testifying to the transactions between plaintiff’s agent, II. W. Carver, and J. W. Neblett relative to the execution of the written guaranty by the latter, and upon which testimony the findings of the jury in answer to issues 1, 2, and 4 were-chiefly predicated. As said in our former-opinion, Frank Neblett was a party defendant in interest with his mother in the suit against her as executrix, since any judgment rendered against her would be binding upon his interest in the estate also, and therefore his .testimony was precluded by the statute.

The trial court admitted the testimony on the last trial by reason of the fact that it was shown that, after our former decision, Frank Neblett had executed to his mother a written transfer of all his interest in the-estate, and thus removed the statutory exclusion of his testimony, as against the objection now under discussion. But it was further shown by the testimony of Frank Neblett himself that the deed of conveyance-to his mother had never been recorded; that the only consideration recited therein was the payment of $1; -that his mother had paid that amount to him at his own suggestion ; and that the only purpose of the deed was to render him competent as a witness-upon the last trial of the ease. In answer-to the further question whether or not his interest in the estate would be reeonveyed to him after the trial of the suit, he said that he did not know whether that would be done or not. He further testified that he knew that under the law it was necessary for him to transfer his interest in the estate in order to enable him to testify, and . that the transfer was executed by him at his own suggestion. It cannot be seriously questioned that in order to remove the statutory inhibition of his testimony it was necessary that such a transfer should have been made in good faith, and that, if the transfer was a mere camouflage or pretext for the purpose of avoiding the force'of the statute, it could not have that effect. Under the testimony of Frank Neblett himself, referred to, it is clear that the transfer of his interest to his mother was not in good faith, but a subterfuge only, and executed for the sole purpose of evading the force of the statute. Under such circumstances the transfer could not render his testimony admissible, and the court erred in overruling appellant’s objection to such testimony based upon that statute. General Bonding & Casualty Ins. Co. v. McCurdy, 183 S. W. 799; 40 Cyc. 2292, and decisions there cited; Buck v. Haynes, 75 Mich. 397, 42 N. W. 949; De Roux v. Girard (C. C.) 90 Fed. 537.

We are of the opinion that there was no error shown in admitting the testimony of Charles Neblett to the effect that Mr. Milam, the president of the plaintiff company, admitted, in substance, that his company had only sued for $1,000 originally, and that that amount was the full amount of the guaranty* Nor do we think there was any error in admitting in evidence a copy of plaintiff’s original petition, in which only $1,000 was claimed as due upon the guaranty. While the explanation offered by appellant that the petition and the statement of Milam, testified to by Charles Neblett, were all under the erroneous impression that the guaranty was limited to $1,000, still such explanation would not be so conclusive as to exclude such testimony, and render it any the less in the nature of an admission against interest and admissible for that purpose. The printing of the guaranty was in small letters, and one of the theories advanced by the executrix was that that portion of the guaranty relating to future debts was overlooked by both Carver and J. W. Neblett, and, to substantiate that contention, the evidence last referred to was offered to show that, as plaintiff’s attorney and president had both overlooked that part of the guaranty, it was reasonably probable that Carver and J. W. Neblett made the same mistake.

We overrule appellant’s assignment to the effect that special issue No. 4, submitted to the jury, is a repetition, of issue No. 1. •

Appellant insists that, as the jury found in answer to issue No. 3 that J. W. Neblett read the instrument of guaranty before he signed it, he was bound thereby at all events, and that the findings of the jury upon issues 1, 2, and 4 were therefore immaterial ; in other words, that if he read the instrument, which is plain and unambiguous in its terms, he could not be heard to say thereafter that he was misled by Carver into believing that his liability thereon was limited to the sum of $1,000.

If, as found by the jury.in answer to issue 4, Neblett and Carver, at the time of the execution and delivery of the guaranty, both orally agreed and understood that £he guaranty was for not more than $1,000, and if the instrument was executed and delivered under the mistaken belief and with the intention that such should be and was its legal effect, and the instrument was executed and accepted under the mistaken belief by both that such was its lefeal effect, then a court of equity would so reform the instrument as to give it that effect. 1 Black on Rescission and Cancellation, § 149; also Kelley v. Ward, 58 S. W. 207; Zieschang v. Helmke, 84 S. W. 438.

In addition to the findings by the jury mentioned above, the trial judge filed findings of other facts- and conclusions of law, in part as follows:

“I find as a fact from the undisputed evidence of this case that J. W. Neblett guaranteed only to pay the debt of Frank Neblett to the Cooper Grocery Company, with ten per cent, interest thereon, and ten per cent, attorney’s fees, at Stephenville, Texas.
rtI find as a further fact that the notes and indebtedness sued on in this case by the Cooper Grocery Company, by agreement between it and Frank Neblett, and to which agreement J. W Neblett, the guarantor, did not assent, are payable a,t Waco, Texas, and draw 10 per cent, compound interest.
“I conclude as a matter of law from the foregoing facts that by agreement between the Cooper Grocery Company and Frank Neblett, made without the consent of the said J. W. Neblett, the contract of indebtedness, which Grocery Company, in behalf of Frank Neblett, has been materially altered, and that the said J. W. Neblett has been thereby released from any liability on his written guaranty.” .

Error has been assigned to those findings of fact and that conclusion of law.

The notes upon which the suit was instituted were executed by Frank Neblett subsequently to the date of the instrument of guaranty, each stipulating for the payment of interest annually on the principal from date until paid at the rate of 10 per cent, per annum, and for 10 per cent, additional for collection fees if sued on or placed in the hands of an attorney for collection. Each note is made payable at Waco, Tex., and further stipulates that past-due interest shall draw interest at the rate of 10 per cent, per annum. Plaintiff alleged in its petition that the notes were all executed by Frank Neblett in settlement of accounts for goods sold to him by plaintiff. The contention is made that authority to make the notes payable at Waco instead of at Stephen-ville, and to stipulate that past-due interest shall draw interest at the rate of 10 per cent, instead of the legal rate of 6 per cent., which would obtain in the absence of that stipulation, was within the contemplation of the parties to the contract of guaranty, and, in the alternative, that, at all events, such changes in the original implied contracts of indebtedness of Frank Neblett on open accounts were not so material as to work a release of the guarantor.

We think it clear that a change in any contract of indebtedness, increasing the rate of interest from 6 per cent, to 10 per cent, per annum, is a material change. The stipulation in the notes sued on that they should be paid in Waco, McLennan county, gave the payee the right to sue on them in that county, even though the maker’s residence at the time of suit might be in another county, which would be the venue of the suit in the absence of that stipulation. As is often said, the right to be sued in the county of one’s residence is a valuable right. Plaintiff could not have sued Prank Neblett upon the accounts he owed in any county other than that of his residence, and the stipulation in the notes taken to cover those accounts that they were payable in McLennan county was likewise a material change in his contracts of indebtedness. In Lawrence v. McCalmont, 2 How. 426, 11 L. Ed. 335, the Supreme Court of the United States, speaking through Justice Story, in construing a contract of guaranty said:

“We have no difficulty whatsoever in saying that instruments of this sort ought to receive a liberal interpretation. By a liberal interpretation, we do not mean that the words should be forced out of their natural meaning, but simply that the words should receiveta fair and reasonable interpretation, so as to attain the objects for which the instrument is designed and the purposes to which it is applied.”

Many authorities might be added announcing the same rule of construction, including Gardner v. Watson, 76 Tex. 25, 13 S. W. 39, by our own Supreme Court. But it is equally as well settled that a guarantor cannot be held beyond the strict terms of his contract, and that any material change in the obligation guaranteed will release him. 12 R. C. L. 1083, and authorities there cited; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39, supra; Stafford v. Christian, 101 S. W. 876; 20 Cyc. 1436.

Hence we sustain the findings of fact by the trial judge, and his conclusion based thereon, that those changes in the contracts of indebtedness which were covered by the contract of guaranty, and were without the consent of the guarantor, operated as a discharge of the guarantor from liability therefor irrespective of the findings by the jury on other issues.

In this connection, however, we will add that there was error in the admission of the testimony of Charles Neblett to prove that J. W. Neblett had incurred traveling expenses and the expense of employing an attorney to procure a change of venue of the suit from McLennan county, since those facts were in no manner material to the issue of the scope of the guaranty, which was in writing and unambiguous in its terms.

We are of the opinion that the fact that plaintiff’s counsel, in drafting the original petition, through mistake in reading the contract of guaranty, supposed that the guarantor was bound only for past indebtedness of Frank Neblett, not to exceed the sum of $1,000, and drew the petition in accordance with that interpretation, coupled with the further fact, as testified by Charles Neblett, that Mr. Milam gave the same interpretation of the instrument, would not, without the aid of other evidence, be sufficient to support the findings of the jury upon the issues of misrepresentations by Carver inducing the execution of the guaranty, and the execution of it through mutual mistake of himself and the guarantor as to its legal import. And aside from those circumstances, the only .evidence introduced to support those defenses was the testimony of Frank Neblett, which we have held to be inadmissible.

Accordingly, .but for our conclusion that there was a material change in the indebtedness guaranteed which operated to release the guarantor, we would feel it our duty to reverse the judgment of the trial court, and here render judgment in favor of the appellant for the undisputed unpaid balance of its debt against Frank Neblett, as appellant insists should have been done.

As the erroneous rulings pointed out resulted in no harm to appellant upon the issue of the discharge of the guarantor, the judgment will be affirmed by reason of such discharge, irrespective of those errors.

Affirmed.

CONNER, C. J., not sitting. Serving on Writ of Error Committee at Austin.

On Rehearing.

DUNICLIN, J.

In further support of our conclusion that the conviction and sentence of Frank Neblett was not admissible to impeach or discredit his testimony in this suit, see M., K. & T. Ry. v. De Bord, 21 Tex. Civ. App. 691, 53 S. W. 587, and decisions there cited.

CONNER, C. J.,

who did not sit in the original hearing, concurs in the conclusion just stated, in the further conclusion reached on original hearing, that Frank Neblett was rendered incompetent as a witness by reason of the fact that he was a party in interest in the suit adverse to appellant, and therefore was precluded from testifying by reason of article 3690, Vernon’s Sayles’ Tex. Civ. Stats., as announced in the original opinion rendered. i

Upon the further question whether or not, under the common-law rules of evidence, the conviction and punishment of Prank Neblett rendered him infamous, and therefore incompetent as a witness, the Chief Justice has reached no conclusion, and therefore expresses no opinion, since the decision of that question becomes unnecessary.

But we all concur in overruling appellant’s motion for rehearing.

Motion overruled.
      <§=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    STATE ex rel. BOSTICK v. STARK et al.
    (No. 881.)
    (Court of Civil Appeals of Texas. El Paso.
    May 3, 1918.)
    PROHIBITION <S&wkey;9 — To Prevent Trial of Suit.
    Prohibition will not issue to prevent a lower court from entertaining a suit to set aside, for fraud and perjury, a judgment recovered by relator, on the ground that the allegations in the petition in the spit to set aside do not state a cause of action; for such petition is subject to amendment, and to so summarily dispose of the cause of action would be to pass upon its merits without giving the party his day in the trial court.
    Original application for writ of prohibition by the State, on the relation of P. O. Bostick, against T. O. Stark and others.
    Bill dismissed.
    J. M. Caldwell, of Midland, for relator. N. R. Morgan, of Seminole, and G. E. Lockhart, of Tahoka, for respondents.
   HARPER, C. J.

Relator seeks to have a writ of prohibition issued .to respondents, the county judge of Gaines county, Tex., N. R. Morgan, and G. E. Lockhart, attorneys, and Eubank, commanding them to desist from further interference with or hindrance to the enforcement of a judgment. Briefly stated, the case is simply this: Bostick recovered a judgment in the county court of Gaines county against Eubank in cause No. 42. After appeal and affirmance by this court, Eubank brought suit No. 58, in the nature of a bill in equity to set aside this judgment upon the ground of fraud and perjured testimony. A temporary writ of injunction was issued, and the latter cause is now pending for trial. The grounds alleged for the issuance of the writ are:

“That the bill [in cause No. 58] is without equity in this, that the same question raised by the bill in equity was raised in the original trial court, and in the Court of Civil Appeals when the 'case was heretofore brought to this court for consideration, and that there could exist in the same no issue which is untried, nor is it alleged anywhere in said petition and bill in equity that any other and further proof can be produced to controvert the evidence complained of than the evidence which was and has been heretofore produced upon the same issue in the former trial of this cause. * * * That therefore there is no equity in the bill, and it should have been dismissed upon demurrer and upon ■ the plea of res adjudieata.”

That the writ will issue in a proper case is settled. Cattlemen’s Trusts v. Willis, 179 S. W. 1115; Hovey v. Shepherd, 105 Tex. 287, 147 S. W. 224. In those cases the respondents had brought the second suit upon the same cause of action after judgment in the first was res adjudieata, whilst in the instant case the execution of the judgment is sought to be prohibited by a bill in equity to set the judgment itself aside, reopen the case for a new trial upon allegations of fraud and perjury in securing such judgment. That suits in the nature of a bill in equity for fraud and perjury may be maintained is well settled. Bell v. Walnitzch, 89 Tex. 132; Avocata v. Dell’ Ara, 84 S. W. 443; Hester v. Baskin, 184 S. 720.

This brings us to the question: Should the writ issue upon the showing — if we could properly so hold— that the allegations in the petition or bill made the basis for the action to set aside the judgment does not state a cause of action? Justice Neill in Avocata v. Dell’ Ara, supra, announced the law applicable here:

“We have referred to the equitable principle of relief, * * * not for the purpose of showing that the petition in this ease stated matters sufficient to entitle appellants to the relief sought, for the question of its sufficiency is not before us to pass on now, but to show that, even should it be conceded that the petition was bad, it would be subject to amendment.”

Also note the holding in Hester v. Baskin, supra:

“If by fraud, or mistake, a party has been prevented from prosecuting his suit, or making his defense, he can bring an equitable action upon its merits after the close of the term, to reopen the case and dispose of it upon its merits. This action so brought has all the incidents of a trial, and cannot be disposed of in a summary way, as would a motion for a new trial.”

If cause No. 58 were here upon appeal, and we should conclude that the petition stated no cause of action, we would not decide it upon the merits for that reason; but would reverse and remand that the parties might be given a chance to replead, unless they had been given the chance and refused. For to so summarily dispose of a cause of action would be to here pass upon its merits without giving the party his day in the trial court. So, in the instant case, to hold that respondent shall not prosecute his suit to judgment merely upon the ex parte application of the defendant relator, because, forsooth, the petition filed does not charge a cause of action, is to summarily dispose of the case before it is properly before us.

We therefore hold that the bill filed here by relator is insufficient to be the basis of the writ prayed for, therefore should be dismissed ; and it is so ordered.

WALTHALL, J., did not sit, being absent on committee of judges, assisting the Supreme Court.
      ^cxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes