source: Caselaw Access Project

author: I PRENDERGAST, P. J.

license: Public Domain

text:
    TERRELL v. STATE.
    (No. 3462.)
    (Court of Criminal Appeals of Texas.
    March 10, 1915.
    On Motion for Rehearing, April 7, 1915.)
    1. Robbery <&wkey;17 — Indictment — Sufficiency.
    Code Cr. Proc. 1911, arts, 458, 468, providing that a general description in an indictment of any property by name, kind, quality, number, and ownership is sufficient, and that, in an indictment for theft of money, it is sufficient to describe it as money, an indictment for robbery, which describes the money stolen as $70 in gold, current money of the United States, and $160 in bank notes, current money of the United States; is sufficient, though the prosecutor can give a full description of both the gold and the bank notes by stating the denominations thereof.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. &wkey;3l7.]
    2. Criminal Law <&wkey;1030 — Questions Reviewable — Objections in Trial Court.
    The court on appeal and accused are bound by objections made in the trial court at the time of trial, and any additional objections cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619-2621, 2632, 2653: Dec. Dig. <&wkey;>1030.]
    3. Criminal Law <@=»784^Circumstantial Evidence — Instructions.
    Where, on a trial for robbery, prosecutor under direct examination positively stated that he saw, knew, and identified accused as the person who robbed him, and the cross-examination tended only to impair his positive testimony, the state’s case did not depend on circumstantial evidence, and a charge on circumstantial evidence need not be given.
    [Ed. Note. — For other cases, see Criminal .Law, Cent. Dig. §§ 1883-1888,1922, 1960; Dec. Dig. (&wkey;>784J
    4. Criminal Law <&wkey;>784 — Instructions Favorable to Accused — Right to Complain.
    Where, on a trial for robbery, prosecutor testified positively that he saw, knew, and identified accused as the person who robbed him, and the cross-examination merely tended to impair his positive testimony, accused could not complain of a charge that, if the jury believed that prosecutor did not see accused, the state would rely wholly on' circumstantial evidence for a conviction followed by a correct statement on the law of circumstantial evidence, for the charge was in accused’s favor and left the whole question to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1S88, 1922, 1960; Dec. Dig. &wkey;784.]
    5. Criminal Law <&wkey;llll — Bill of Exceptions — MO DIKICAT IONS.
    Accused accepting a bill of exceptions, as qualified by the trial court, is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S94-2896; Dec. Dig. <&wkey; 1111.]
    . On Motion for Rehearing.
    6. Criminal Law <&wkey;763, 764 — Instructions —Weight of Evidence.
    An instruction that if the jury believed from the evidence that prosecutor did not see accused at the time of commission of the offense, as testified to by prosecutor, or if the jury had a reasonable doubt thereof, the state must rely on circumstantial evidence to convict, was not a charge on the weight of the evidence, within the inhibition of Code Cr. Proc. 1911, art. 735.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. &wkey;703, 764.]
    7. Criminal Law <&wkey;822 — Instructions — Construction.
    The whole charge must be considered when any particular paragraph thereof is attacked.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 315S; Dec. Dig. &wkey;822.]
    8. Criminal Law <&wkey;1172 — Instructions — Prejudicial Error. *
    Where the court charged on alibi, and that the burden of proof was on the state, that accused was presumed to be innocent until his guilt was established beyond a reasonable doubt, and that the jury were the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony, any error in a charge that if the jury believed that prosecutor did not see accused commit the offense, as testified to by him, the state must rely on circumstantial evidence to convict, construed as a charge on the weight of the evidence, was not reversible.
    [Ed. Note. — For other cases, see Criminal lLaw, Cent. Dig. §§ 312S, 3154^-3157, 3159-3163, |31G9; Dec. Dig. &wkey;1172.]
    Appeal from District Court, Kinney County ; W. C. Douglas, Judge.
    Will Terrell was convicted of robbery, and lie
    Affirmed, and motion for re-|iearing overruled.
    Jones & Thurmond, of Del Rio, for ap-lellant. C. C. McDonald, Asst. Atty. Gen., lor the State.
   I PRENDERGAST, P. J.

Appellant was toileted for the robbery of William Van Burén money, and his punishment assessed at years in the penitentiary.

The indictment describes the money as lllows:

‘‘Seventy dollars in gold, current money of the |nited States of America, of the value of seven-dollars; one hundred and sixty dollars in Ink notes, current money of the United States I America, of the value of one hundred and |:ty dollars, a better description of the mon-T being to the grand jury unknown.”

⅛ the trial of the case said Van Burén ■ve a full description of both the gold and the bank notes, telling the denominations of the gold pieces and of the bank notes, and because of this appellant claims there is a fatal variance between the allegations and proof. Under the statute and many decisions of this court, the money as described was amply sufficient. Articles 458 and 468, C. C. P.; Ferrell v. State, 152 S. W. 901; Sims v. State, 64 Tex. Cr. R. 435, 142 S. W. 572; McAdams v. State, 172 S. W. 792, and cases cited in these.

The evidence was ample to show and justified the jury to believe, beyond a reasonable doubt: That said Van Burén, the alleged robbed party, lived alone and had for several years in a one-room hut at the outer edge of the town of Brackett, about a half mile from the town, or hotel of appellant’s mother in said town. That in some way in the course of a number of years he had accumulated several hundred dollars in money which he carried in two purses on his person. In one was gold, in the other currency. Van Burén and appellant had both lived in Brackett for some 12 or 15 years. Van Burén was a white man about 70 years old, having, in his younger days, been a soldier. Appellant was a negro man who worked for his mother in the hotel she ran. Van Burén had known appellant for all these years and ever since he was a boy. On the evening of June 14, 1913, before the alleged robbery that night, Van Burén and appellant were in the saloon of Mr. Rivers, in Brackett. Van Bu-rén had, shortly prior thereto, ordered a pair of pants, and they had been sent to Rivers, the saloon keeper, for him. While in the saloon on this occasion Rivers told him that his pants had come, and to look at them, which Van Burén did, was pleased with them, and proposed to pay for them. Rivers informed him that the pants cost $4.50. Van Burén told him he did not have the change, but gave him a government check from the paymaster for $45, out of which Rivers took the $4.50 and delivered to Van Burén at the time $40 in gold in change — four $10 gold pieces — which he placed in the purse where he carried his gold. As stated, appellant was in the room at the time and doubtless saw and heard all this. Van Burén, after returning to his shack, removed his clout, in the pockets of which he kept his said money, threw it under his bunk, and proceeded to prepare and eat his supper. After eating, just before night, while sitting in his yard at his door, he swore appellant came up to him, accompanied by another negro man, whom he did not recognize at the time. That he did recognize appellant. That appellant asked him for a match, and he handed him a match. Appellant at the time had a “big stick, a big long stick, looks like a paling.” That after the robbery Van Burén found this stick in his house, and he identified it, and it was introduced in evidence on the trial. That as soon as he got the match he and his companion left, going in the direction of another house. That appellant, in some minutes thereafter, returned to Van Burén’s and asked him where a certain Mexican lived. Van Burén pointed out the Mexican’s house to him and gave him directions as to how to get there. Appellant then again left him. It seems he returned a second time and told him that the Mexican for whom he inquired was not at home, and Van Burén told him that he thought the Mexican was in town at a show or circus. That appellant again left him. That, after waiting around some time and attending to a call of nature, he prepared to go to bed. That, as he was at his door in the act or intending to go in he was grabbed by some one who was within his shack, jerked into his shack, knocked down, the door closed, when some large man got on top of him, jerked a blanket off of his bed and threw it over his head and face and held him down. That there was no light in the room, and with the door closed it was quite dark. That at the time he was dragged in and knocked down, while he knew there were two persons, he did not know who either was. That, while being held down by one of them, the other struck a match and attempted to light his lantern. That by the light of the match he saw and recognized the party with the match and lantern as Sam Jefferson, and that while, the match was lighted he managed to get the blanket from over his eyes so that he could see and did see that the man who was on him holding him down was the appellant. That Jefferson then procured the clout, took both purses of his money, and that the two then fled. That the blow which felled him stunned him. That as soon as they turned him loose and he could he got up, attempted to get his gun and find the parties. That he could not find his gun. That it turned out that they had also, taken the gun;' he finding the stock thereof in his yard the next morning and the barrels in the chaparral near the house. That the parties went out the door on one side, and, in attempting to pursue them, he ran out the other, and that, while he could hear them running and getting away, he could not apprehend them. That as soon as he got up he got his clout where they had thrown it on the floor and saw that they had robbed him of all his money, which, as stated, was about $70 in gold and the other in currency. The exact time of this alleged robbery was not fixed, though Van Burén testified, as we understand, that it was about or after 9 o’clock at night.

In the trial appellant insisted that the court should give a charge on circumstantial evidence, and asked such special charge in writing — his No. 3. It starts out with this statement, “You are instructed that in this case the state relies for a conviction on circumstantial evidence alone,” and then proceeds with such charge as is usually given when circumstantial evidence alone is relied upon. Instead of giving such charge as appellant requested and urged should be given, the court, in paragraph 10, charged the jury as follows:

“(10) If you believe from the evidence that the witness William Van Burén did not see defendant Will Terrell on the inside of his (Van Bu-ren’s) house at the time of the commission of the alleged offense, as testified to by said Van Burén, or if you have a reasonable doubt thereof, then you are charged that the state would rely and depend wholly upon circumstantial evidence to convict the defendant, and in this connection you are charged.”

He then followed this with paragraph 11, which would have been a correct charge, if circumstantial evidence alone had been introduced and the state had relied on that alone.

In addition to excepting to the court’s refusal to give his charge on circumstantial evidence, appellant excepted to that which the court did give, as follows:

“Defendant objects to that portion of paragraphs 10 and 11 of said charge wherein the court instructs the jury that the case of the state would depend upon circumstantial evidence alone only in the event that the jury believe from the evidence that William Van Burén did not see defendant, Will Terrell, on the inside of his (Van Buren’s) house at the time of the commission of the alleged offense, whereas the court should charge, upon circumstantial evidence, as is» requested in defendant’s special charge No. 3, and because said charge, as framed, is upon the weight of the evidence.”

Under the statute as it now is, this court, as well as the appellant, is bound by the objections made in the lower court at the time of the trial. Any additional objections that may be made in this or the lower court after the trial cannot be considered. So that we consider and pass upon the said objections made at the time.

There is and can be no doubt but that Van Burén, the state’s witness, in his direct examination, swore positively and unequivocally that he saw, knew, and identified appellant as the person who was in his house at the time he was robbed and was on him and held him down while appellant’s companion proceeded to actually get his money. He not only swore that, as stated, in his direct] examination, but in his cross-examination of him appellant had him to state again and again specifically, as in one instance: I

“It is true that I testified on direct examina-l tion that Bill Terrell (appellant) was the maul that held me down. Q. And that you saw himl by the match? A. Yes, I found out that he wasl the man that held me do'wn; yes, sir.” I

And at another time, in his cross-examina-l tion, he had him state: I

“I made the statement that there was a heav portly man sitting on top of me. I didn’t knov® who he was till the light showed him upB ⅜ * * Certainly, yes, I recognized him then.®

The appellant put said witness through A very lengthy, searching, and severe crosB examination, seeking by that, as contended bl appellant, to break down and discredit whaB he had so positively testified on direct amination; and to convince the jury and tri judge of the said -witness’ “willingness to swear to his beliefs and theories, vagaries, and imaginations as positive facts, not perhaps from a design to falsely testify, but because of the tendency of such minds to conceive as true that which is a mere impression or pure imagination.” As a part of said cross-examination, he would ask him over and over again if he did not testify on the examining trial, just a few days after the alleged robbery, to certain things which would tend to show that the witness did not identify the appellant at the time as one of the robbers, and, in impeachment of him, introduced the said several statements by appellant in his testimony on the examining trial. All this had more or less tendency to impair the said positive unequivocal testimony of Van Burén in his direct examination positively identifying appellant as1 the person who helped to rob him and who he said held him down while the other man got his money. Yet there can be no sort of doubt but that, taking all of the testimony, both direct and cross, the state’s case did not depend solely upon circumstantial evidence, and in our opinion no charge on circumstantial evidence should have been given. The trial judge ought to have refused outright appellant’s charge on that subject and should have given none himself, but should have submitted the case on this question on the theory of positive and not circumstantial evidence. It is evident to us from the court’s charge, and from this whole record, that the trial judge endeavored his utmost to be fair to the appellant and to give him the advantage of everything in his favor that he possibly could. Hence he gave said charge on circumstantial evidence preceded by said paragraph 10. We think there can be no question but that a charge on circumstantial evidence was in appellant’s favor and not against him. We also think that the said paragraph 10 was also in his favor and not against him. What the court said in said paragraph 10, we think, cannot be construed as on the weight of the evidence, but, if so, it was on the weight in favor of appellant- and not against him. As stated, there can be no shadow of doubt from this record but that said Van Burén on his direct examination did testify positively and unequivocally that appellant was on the inside of his house at the time he was robbed, and the whole drift of said cross-examination of him was to break him down on that point. So that the court in said paragraph 10 tells the jury “if you believe” (but did not tell them “if you believe beyond a reasonable doubt”) from the evidence that said Van Burén did not see appellant on the inside of his house at the time of the alleged robbery, “or if you have a reasonable doubt of it, then you are charged that the state would rely and depend wholly upon circumstantial evidence”; in every way by this charge charging in appellant’s favor and left the whole question to the jury, and did not charge on the weight of the evidence against appellant, but, if at all, in his favor.

Such being the ease, then what is the law applicable thereto? We think the law is settled against appellant, as shown by Judge White in section 807 of his Ann. O. O. P., which we quote as follows:

“Though there are decisions of this court holding that an erroneous charge, which inures to the benefit of the accused, if excepted to, constitutes, reversible error, a proper construction of articles 715, 716, and 723 (now articles 735, 736, and 743 by the Act of April 5,1913, p. 278) does not warrant such conclusion where the error excepted to is harmless or beneficial to the defendant. The contrary doctrine in Surrell v. State, 29 Tex. App. 321 [15 S. W. 816], White v. State, 28 Tex. App. 71 [12 S. W. 406], Jenkins v. State, 28 Tex. App. 86 [12 S. W. 411], and Habel v. State, 28 Tex. App. 58S [13 S. W. 1001], disapproved. Green v. State, 32 Tex. Or. R. 298 [22 S. W. 1094], A judgment of conviction will not be reversed for improper instructions given in favor of defendant. Wright v. State, 41 Tex. 246. On a trial for murder, where the evidence establishes murder in the first degree, defendant cannot be heard to complain that the court gave'him a change upon murder in the second degree. Briscoe v. State, 37 Tex. Cr. R. 464 [36 S. W. 281], A defendant who has been convicted of manslaughter cannot claim any possible injury from a charge on mutual combat, even if such charge be not required by the evidence, and a charge upon imperfect self-defense, though it may not have been called for by the evidence, can do no possible harm, where there is no self-defense in the case. Gonzales v. State, 35 Tex. Cr. R. 339 [33 S. W. 363, 60 Am. St. Rep. 51]. A specific portion Of the charge of the court may be erroneous; but, when it is more favorable to the accused than he was entitled to upon the particular questions indicated, the accused has no grounds to complain. Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Scruggs v. State, 35 Tex. Cr. R. 622 [34 S. W. 951]; Delgado v. State, 34 Tex. Cr. R. 157 |29 S. W. 1070; English v. State, 34 Tex. Cr. R. 190 [30 S. W. 233]; Daud v. State, 34 Tex. Cr. R. 460 [31 S. W. 376]; Loggins v. State, 32 Tex. Cr. R. 364 [24 S. W. 512]; Lujano v. State, 32 Tex. Cr. R. 414 [24 S. W. 97]; Boren v. State, 32 Tex. Cr. R. 637 [25 S. W. 775]; Green v. State, 32 Tex. Cr. R. 298 [22 S. W. 1094]; Kelley v. State, 31 Tex. Cr. R. 216 [20 S. W. 357]; Sutton v. State, 31 Tex. Cr. R. 297 [20 S. W. 564]; Massey v. State, 31 Tex. Cr. R. 371 [20 S. W. 758]; Wolfforth v. State, 31 Tex. Or. R. 387 [20 S. W. 741]; Gonzales v. State, 31 Tex. Cr. R. 508 [21 S. W. 253]; Weathersby v. State, 29 Tex. App. 278 [15 S. W. 823]; Surrell v. State, 29 Tex. App. 321 [15 S. W. 816]; Hawthorne v. State, 28 Tex. App. 212 [12 S. W. 603]; Walker v. State, 28 Tex. App. 503 [13 S. W. 860]; McOleavland v. State, 24 Tex. App. 202 [5 S. W. 664]; Carlisle v. State, 37 Tex. Cr. R. 108 [38 S. W. 991].”

In addition we cite Watson v. State, 28 Tex. App. 34, 12 S. W. 404; Jones v. State, 63 Tex. Cr. R. 394, 141 S. W. 953; Christian v. State, 71 Tex. Cr. R. 566, 161 S. W. 101; Coker v. State, 71 Tex. Cr. R. 504, 160 S. W, 368. It is needless to cite the many other cases to the same effect.

Appellant had some other objections to the court’s charge. We have examined them all. It is needless to state them. We think none of his objections are tenable.

The only other matter necessary to notice is shown by appellant’s tenth bill of exceptions. It is somewhat lengthy. We state the substance of it. It shows that his mother, Martha Terrell, upon direct examination, testified that on the night she afterwards learned the robbery charged in the indictment occurred, between 8 and 10 o’clock, appellant was at her hotel in company with her on the gallery, and that while there a soldier applied to her for lodging; that she sent the appellant with him to show him a room across the street kept by her for her patrons; that upon cross-examination the district attorney asked her if she had made any effort to procure the attendance of this soldier as a witness for her son. She answered that she had not; that she did not know the name of the soldier. Thereupon appellant offered in evidence an application made through his counsel for process to said county for one Corporal Stormer, describing him as a, corporal and a member of gun platoon, Fourteenth Cavalry United States Army, and his location at Pt. Clark, and also the subpoena issued for said witness on November 5, 1913, together with the return thereon showing the witness not to have been served. (This trial occurred in November, 1914.) Upon the objections of the district attorney to said application and subpoena on the ground that there was nothing to identify the man for whom the process was issued as the soldier testified about by Martha Terrell, the court excluded them. That, in the argument before the jury, the district attorney called attention to the fact as a circumstance that said soldier was not produced as a witness to corroborate the witness Terrell, appellant’s mother, and that, so far as the record showed, no effort was made to procure the attendance of that soldier as a witness. Whereupon appellant at the time again proposed to introduce in evidence said application and subpoena for said Corporal Stormer, which the court refused, to which appellant excepted. The court, in allowing this bill, did so, with this qualification and explanation:

“That I informed the defendant’s counsel at the time that I would permit the introduction of said testimony if testimony should be offered that the said Stormer was, or was supposed to be, the soldier who lodged at the Terrell Hotel on the night in question.”

Having accepted the bill with this qualification, it shows no error. Surely, if Stormer was not said soldier or supposed to be, the fact that more than a year before this trial a subpoena had been issued for him and not served would not have been admissible for any purpose, and the court correctly excluded it.

We have carefully considered the record in this case in connection with appellant’s able attorneys’ oral argument and strong brief in this case, but we have reached the conclusion that there is no reversible error shown, and therefore,.the judgment must be affirmed.

On Motion for Rehearing.

Appellant presents but one question'in his motion for rehearing. That is, he contends that'paragraph 10 of the court’s charge, quoted in the original opinion, is on the weight of the evidence, which entitles him to a reversal. He presents the question from his viewpoint in an unusually clear and forcible way. Among other cases he cites Stephens v. State, 10 Tex. App. 120, and Owens v. State, 39 Tex. Cr. R. 391, 46 S. W. 240, claiming the first is peculiarly parallel to this case. Besides these, he cites other cases on the general proposition that, where a charge is upon the weight of the evidence, it is error. We have carefully considered these cases and the question again and are still of the opinion that, while said charge No. 10 should not have been given, giving it does not present reversible error.

At the time (in 1881) when the Stephens Case was decided, our statute (article 735,, C. C. P.). prescribed:

* * * The judge shall deliver to the jury a written charge, in which he shall distinctly' set forth the law applicable to the case; but he shall not express any opinion as to the-weight of evidence. * * ⅞ ”

Article 736 was:

“It is beyond the province of a judge * * *- to discuss the facts or use any argument in his charge calculated to rouse the sympathy or excite the passion of a jury. It is his duty to state plainly the law of the case.”

Both of these articles, in the respects quoted, are precisely the same now as they were then.

Article 743 then was as follows:

“Whenever it appears * * * • that any of the requirements in the eight preceding articles have been disregarded, the judgment shall be reversed,” provided the “error” is “excepted to at the time of the trial.”

The language and -substance of that article, as it now is, is the reverse practically of what it then was, for it now is that whenever either or both of said articles 735 and 736 “have been disregarded, the judgment, shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from' the record that the defendant has not had a fair and impartial trial,” and objection must also now be made at the time of the trial like the original article required.

So that, as the statute stood when the Stephens Case was decided, it said “the judgment shall be reversed.” It now says it “shall not be reversed, unless,” etc. At first, when the said article 743 as it was before 1897, this court in several cases (Surrell v. State, 29 Tex. App. 321,15 S. W. 816; White v. State, 28 Tex. App. 71, 12 S. W. 406; Jenkins. v. State, 28 Tex. App. 86, 12 S. W. 411, and Habel v. State, 28 Tex. App. 588, 13 S. W. 1001, and others) held that, where said articles 735, 736, or either, had been disregarded if timely excepted to, this court had. to reverse, notwithstanding the disregarding of said articles by the judge’s charge was harmless to appellant or in his favor. Soon after the amendment of said article 743 by the act of March 12, 1897, was made, this court disapproved the doctrine held in said eases and specifically held in Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094, that where said articles 735, 736, or either, had been disregarded, but the error by the court was harmless, or inured to the benefit of the accused, although excepted, to, no reversible error was presented. Since then this court has uniformly so held in many decisions unnecessary to collate. We cited and quoted Judge White on this subject in the original opinion.

The inhibition of article 735 is the “judge shall not express any opinion as to the weight of evidence.” And by article 736 he is inhibited “to discuss the facts or use any argument in his charge calculated to rouse the sympathy or excite the passion of the jury.” Appellant does not contend that the judge by giving charge No. 10 violated article 736, and he does not claim that the judge by that charge discussed the facts or used any argument in his charge calculated to rouse the sympathy or excite the passion of the jury. But he does claim that he violated article 735 in that he claims said charge, “as framed, is upon the weight of the evidence.” He did not “distinctly specify,” as the statute requires, how or wherein it was “upon the weight of the evidence.” Now, then, what did he tell the jury by this charge? He told them:

“If you believe (not that he believed or disbelieved) from the evidence that the witness William Van Burén did not see defendant on the inside of his (Van Buren’s) house, at the time of the commission of the alleged offense, as testified to by said Van Burén, or if you have a reasonable doubt thereof,” etc.

By this charge he neither expressly nor by implication told the jury that he believed said Van Buren’s testimony on this point. He left that exclusively for the jury. We think by no reasonable implication could the jury conclude that the judge believed Van Burén when he so testified. On the contrary, by implication the mere submission of the question to the jury would imply to them that he’ (the judge) did not believe Van Burén when he so testified. If the jury understood the judge to imply anything, it was that he (the judge) doubted the truthfulness of Van Buren’s testimony on this point; otherwise he would not, in any contingency, have given them a charge on circumstantial evidence. Suppose he had said to the jury in express language:

“I believe Van Burén is mistaken or testified falsely when he said appellant was in Ms bouse at the time he was robbed, but leave the question for you to decide.”

Clearly that would have been 'expressing his opinion of the testimony, but in appellant’s favor and not against him. In effect that is what he did tell the jury. This would give the state cause to complain, but not appellant.

But let us consider the Stephens Case, supra, which appellant claims is so directly in point in his favor. In that case the purported confessions were testified to by a witness whose character and reputation for truth and veracity were assailed by two witnesses and other facts. The judge charged:

“The confessions of the defendant are in evidence before you, and if, in your best judgment, you shall give no credit to the witness who professed to detail them, you will then look to the other testimony in the case, and apply to it the rules relating to circumstantial testimony.”

If the judge in his charge had stopped there, Judge White doubtless would have held that no error was committed, but he did not stop there. He went further and said as a continuation of the quotation just above:

“If you give credence to the witness who professed to detail the confessions, you need not apply to the evidence those rules as to circumstantial testimony.”

It is this latter part which in that case resulted in reversal; Judge White stating specifically the reasons as follows:

“It was in effect, if not in fact, tantamount to telling- the jury: ‘If you believe the testimony of the witness who has testified to defendant’s confessions, then you will not look to or consider the other evidence in the ease.’ This was, in the contingency mentioned, depriving the defendant of the benefit of any testimony offered by him, by requiring the jury not to look to or consider it.”

In this ease the court did not charge this latter part or anything like it, but instead:

“If you believe from the evidence that the witness Van Burén did not see defendant Will Terrell on the inside' of his (Van Buren’s) house at the time of the commission of the alleged offense, as testified to by said Van Burén, or if you have a reasonable doubt of it, then you are charged that the state would rely and depend wholly upon circumstantial evidence to convict the defendant, and in this connection you are charged ”

—then proceeded to give them a correct charge on circumstantial testimony. The judge in this case did not, as the judge in the Stephens Case did, tell the jury that, if they believed Van Burén, they need not apply to the evidence the rules as to circumstantial testimony, which makes quite a different thing. If the judge-in this case had told the jury as Judge White said was done in the Stephens Case:

“If you believe the testimony of Van Burén, when he testified he saw Will Terrell in his house, when he was robbed, then you will not look to nor consider the other evidence in the case”

—then this case would have been parallel to the Stephens Case.

A careful analysis of the Owens Case, supra, will show that there is an equally as marked difference between that and this case as we have shown exists between this and the Stephens Case.

Besides, it is elementary that the whole charge is to be considered when any_ particular paragraph of it, is attacked. Christian v. State, 71 Tex. Cr. R. 566, 161 S. W. 104.

Now the judge in this case correctly told the jury the law of robbery, and required the jury “to believe from the evidence (which means all the evidence), beyond a reasonable doubt,” every essential fact necessary to show that appellant was guilty of the offense charged in this case before they were authorized to convict, and only when they so believed this from all the evidence could they convict him. In addition, he charged alibi in appellant’s favor; further that the burden of proof was upon the state; that the defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and, in ease “you have a reasonable doubt as to his guilt, you will acquit him,” and further told them they were the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony. So that we still think charge No. 10 was not upon the weight of the evidence, but, if so, that it was upon it in appellant’s favor and not against him; and further that in no event does it present reversible error taken in‘connection with the whole charge of the court.

The motion is overruled.
      @=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, J.

text:
    COOK et al. v. SMITH.
    (No. 2409.)
    (Supreme Court of Texas.
    March 31, 1915.)
    1. Deeds <@=>25 — Natube oe Instrument — “Warranty Deed” — “Quitclaim Deed.”
    Whether a deed is a “warranty deed” or a “quitclaim deed” must be determined according to whether it assumes to convey the property described on its face, and has that effect, or merely assumes to convey the grantor’s title, and where it conveys the property itself, it is a “warranty deed,” while if it conveys only the title of the grantor, it is a “quitclaim deed.”
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <@=>25.
    Eor other definitions, see Words and Phrases, First Series, Warranty Deed; also First and Second Series, Quitclaim Deed.]
    2. Deeds <@=>25 — Nature or Instrument — Warranty Deed — Quitclaim Deed.
    The court, in determining whether a deed is a warranty deed or a quitclaim deed, must consider it as a whole, and where it shows a purpose to convey the property itself as distinguished from the mere title of the grantor, it must be given effect as a warranty deed, though some of its characteristics may be those of a quitclaim deed, and the mere use of the term “quitclaim” is not of itself conclusive of its character.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <@=>25.]
    3. Deeds <@=>25 — Nature oe Conveyance— Warranty Deed.
    A deed which recited that the grantor bargained, sold, released, and forever quitclaimed described lots “to have and to hold the said premises,” with their appurtenances, the grantee and his heirs and assigns forever, “and it is my [grantor’s] intention here now to convey * * * all ⅛6 real estate that I own in said town of ⅜ ⅜ ⅜ whether it is set out above or not,” was a warranty and not a quitclaim deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. | 49; Dee. Dig. <@=>25.]
    4. Vendor and Purchaser <@=>224 — Bona
    Fide Purchaser — Claimant under Grantee in Quitclaim Deed.
    Where a grantee in a quitclaim deed conveyed to a third person by warranty deed, the third person was not an innocent purchaser, where the record showed a conveyance by the grantor in the quitclaim deed before its execution.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. <@=>224.]
    5. Evidence <@=>448 — Deeds—Construction —Evidence.
    Where a deed is ambiguous, evidence of the attendant circumstances is admissible to determine its meaning.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. <&= 448.]
    6. Appeal and Error <@=>1094 — Findings— Conclusiveness.
    A finding of fact not disturbed by the Court of Civil Appeals, when reversing the judgment on a question of law, is conclusive on the Supreme Court on writ of error to review the judgment of the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. <⅛=> 1094.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Trespass to try title by J. M. Smith against H. P. Cook, in which defendant vouched in A. A. Neff as grantor on his warranty. There was a judgment of the Court of Civil Appeals (142 S. W. 26), reversing a judgment for defendant and rendering judgment for plaintiff against defendant, and reversing judgment on cross-bill, adjudging that defendant should take nothing thereon, and remanding for new trial, and defendant and A. A. Neff bring error.
    Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.
    R. D. Browne, of Paducah, O. T. Warlick, of Vernon, and Whatley & Hawkins, of Padu-cah, for plaintiffs in error. Fires & Diggs, of Childress, and Crosby & Hamilton, of Greenville, for defendant in error.
   PHILLIPS, J.

The suit was instituted by the defendant in error, J. M. Smith, against H. P. Cook, one of the plaintiffs in error, in trespass to try title, for the recovery of a lot in the town of Paducah. Cools answered with a plea of not guilty; that he was a bona fide purchaser of the lot, for value, without notice of any adverse claim; and improvements in good faith, vouching in A. A. Neff, the other plaintiff in error, his grantor, upon his warranty, and seeking recovery over against Neff on account of his improvements. Neff answered by a plea of not guilty, and that he was an innocent purchaser of the property from. R. Potts, the common source of title. The trial of the case before the court resulted in a judgment denying any recovery to Smith, quieting Cook’s title to the property, and denying the latter any relief on his cross-action against Neff. This judgment was reversed by the honorable Court of Civil Appeals, upon the ground that the deed from Potts to Neff was merely a quitclaim deed, and therefore incapable of sustaining the defense of an innocent purchase of the property, and judgment rendered in Smith’s favor for the lot and the recovery of a certain amount as rents, the cause being remanded for trial as between Cook and Neff upon the issues arising on the former’s cross-bill.

R. Potts duly conveyed the lot to Smith • by warranty deed, dated September 21, 1906, but not recorded until September 29, 1909. The deed from Potts to Neff was of date August 31, 1909, and recorded the same day. Cook holds under that deed by subsequent conveyance-from Neff, by deed of date September 3, 1909, recorded the same day. The case turns upon the legal effect of the deed from Potts to Neff, since if that was merely a quitclaim deed, Cook’s plea of innocent purchaser failed, and Smith was accordingly entitled to recover the property. Omitting the description, the deed from Potts to Neff was in the following terms:

“State of Texas, County of Cottle.

“Know all men by these presents, that I, R. Potts, a single man, of the county of Cottle and state of Texas, for and in consideration of the sum of $2,500.00 to me cash in hand paid, by A. A. Neff, of San Bernardino county, state of California, the receipt whereof is hereby duly acknowledged and confessed, have bargained, sold, released and forever quitclaimed, and by these presents do hereby bargain, sell, release and forever quitclaim, unto the said A. A. Neff, of San Bernardino county, state of California, and his heirs and assigns, ail my right, title and interest in and to that certain tracts or parcels of land lying and being situated in the county of Cottle, and state of Texas, and known and described as follows, to wit:
“[Here follows description by bloek and number of a large number of lots, including the lot in controversy; also several small tracts by metes and bounds.] and all other real estate that I now own and am possessed of in the town of Paducah, in Cottle county, Texas. All of the above town property is situated in the town of Paducah, in Cottle county, Texas, as shown by the original recorded plat of said town, of record in vol. 5. page 81, in the deed records of Cottle county, Texas; and it is my intention here now to convey to the said A. A. Neff all the real estate that I own in said town of Paducah in Cottle county, Texas, whether it is set out above or not.
“To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging to the said A. A. Neff and his heirs and assigns forever, so that neither I, the said R. Potts, nor my heirs nor any person or persons claiming under me, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof.
“Witness my hand at Paducah, Texas, on this the 31st day of August A. D. 1909.
“[Signed] R. Potts.”

The character of an instrument, as constituting a deed to land or merely a quitclaim deed, is to be determined according to whether it assumes to convey the property described and upon its face has that effect, or merely professes to convey the grantor’s title to the property. If, according to the face of the instrument, its operation is to convey the property itself, it is a deed. If, on the other hand, it purports to convey no more than the title of the grantor, it is only a quitclaim deed. Richardson v. Levi, 67 Tex. 364, 3 S. W. 444; Threadgill v. Bicker-staff, 87 Tex. 520, 29 S. W. 757.

The intention of the instrument is to be confined, of course, to that which its terms reveal; but it should be considered in its entirety, and if, taken as a whole, it discloses a purpose to convey the property itself, as distinguished from the mere title of the grantor, such as it may be, it should be given the effect of a deed, although some of its characteristics may be those of a quitclaim deed. The use of the term “quitclaim” is not, of itself, a conclusive test of its character. It may make use of that term and yet have the effect of a conveyance of the property. Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850; Richardson v. Levi, supra.

The granting clause of the deed from Potts to Neff, “have bargained, sold, released and forever quitclaimed, and by these presents do hereby bargain, sell, release and forever quitclaim, unto the said A. A. Neff * * * all my right, title and interest in and to that certain tracts or parcels of land,” and the habendum clause, as well, “To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging to the said A. A. Neff and his heirs and assigns forever, so that neither I, the said R. Potts, nor my heirs nor any person or persons claiming under me, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof,” are essentially in the terms of a quitclaim deed. If the character of the instrument were dependent, alone, upon the construction of these parts of it, there could be no doubt, under the authority of Threadgill v. Bicker-staff, supra, and Hunter v. Eastham, 95 Tex. 648, 69 S. W. 66, of its being simply a quitclaim deed, since these clauses are in substantially the same terms as the granting and habendum clauses of the respective instruments reviewed in those decisions and there held to be quitclaim deeds.

Furthermore, if the deed from Potts to Neff was only a quitclaim deed, Cook’s title, deraigned through that deed and resting upon it, was not such, under the rule of decision in this state, as would sustain the defense of an innocent purchase of the property, though the deed from Neff to himself was a general warranty; for in such ease the record, or apparent, title to the property was clearly only such as Potts possessed, which, because of his previous conveyance to Smith, was no title at all. Taylor v. Harrison, 47 Tex'. 460, 26 Am. Rep. 304; Garrett v. Christopher, and Threadgill v. Bickerstaff, supra.

But the presence in the deed from Potts to Neff of the clause, “and it is my intention here now to convey to the said A. A. Neff all the real estate that I own in said town of Paducah, whether it is set out above or not,” cannot' be overlooked. It discloses very plainly, we think, that the grantor’s intention in the execution of the instrument was to convey all of the property situated in the town previously described, and any other property there owned by him which was not described.

It is very earnestly insisted by the defendant in error that this clause is not to be construed as a declaration of the grantor’s intention to convey any of the property described wMch he did not own, but it should be held to have reference only to such real estate in the town of Paducah as he actually owned, notwithstanding his inclusion in the instrument of specific property by express description. According to this contention, the clause should be construed as though it read, “and it is my intention here now to convey to the said A. A. Neff only such real estate as I own in said town of Paducah, although I have included herein certain specific real estate there situated.” But the clause is not so written, and such is not, in our opinion, its natural sense. To give it that meaning requires a complete change in the form of its expression. Such a construction would give it all the force of a clause of limitation or restriction, when plainly that was not its intended operation. Its manifest purpose was to enlarge both the granting clause of the instrument and the preceding terms of description. This is shown by the use of its ampler phrase. The instrument had previously dealt with only the grantor’s title to particular property. But to make plain that it had a larger purpose than merely to release the grantor’s title to the particular property in the town which had been described, it is distinctly announced in this clause that the grantor’s intention in the execution of the instrument was to ooiwey all the real estate that he owned in the town, whether specifically described or not. This could mean nothing less than an intention to convey all the town property described; for the expression in the clause, “whether set out above or not,” carries the evident implication that the grantor owned, or treated as owned, the particular town property “set' out,’’ and it was therefore intended to be conveyed. As has been indicated, the test of the character of the instrument is not whether it was in fact effectual to convey any property, but whether it purported to convey this property. If its terms upon their face had the legal effect to convey the lot, that determines its character as a deed to the lot, and ends the present inquiry.- If upon its face it amounted to a deed to the lot, its actual operation was dependent upon its right to prevail against the rival conveyance — another question, governed by other rules of law and the facts of the case upon that issue. There is an obvious distinction between the meaning of the clause in this instrument, declaring, “and it is my intention to here now convey to the said A. A. Neff all the real estate that I own in the said town of Paducah in Cottle county, Texas, whether it is set out above or not,” and one following a description of particular property in a town which says that the intention of the grantor “is to here now convey only such property in said town as he owns, notwithstanding the description of particular property.” The difference is that while both clauses would express an intention to convey only such property as the grantor owned, the first, as before stated, carries the further equally plain profession that he owned the property in the town which he had described, and therefore intended to convey it. This clause in the instrument clearly assumed to convey this lot; and the instrument should accordingly be construed as a deed to the lot. If there were any doubt as to the purport of the deed being that this lot was “oioned” by the grantor, it is relieved by the clause immediately following the description, “and all other real estate that I own and am possessed of in the town of Paducah,” which amounts to an affirmation that he owned the town property before described.

If the result of the use of this clause was to render the instrument ambiguous — • and it was not capable of producing a more favorable effect for the defendant in error— permitting the introduction of proof of the attendant circumstances for the purpose of determining the true meaning of the instrument (Harrison v. Boring, 44 Tex. 255; Threadgill v. Bickerstaff, supra) the record contains sufficient evidence to support the conclusion that a conveyance of the town property described was in fact intended in the execution of the deed. It was accordingly capable of sustaining the defense of an innocent purchaser, interposed by both Neff and Cook, as held by the trial court.

Cook was clearly a bona fide purchaser for value. Whether he had notice of Smith’s claim before he paid the consideration for the lot was a question of fact which, in the state of the record, is concluded by the judgment of the trial court.

It is proper that we should call attention to the manifest conflict between the holding in Garrett v. Christopher, that notwithstanding the other features of the instrument may be those peculiar to a quitclaim deed, the use of the term “premises” in the habendum clause will enlarge the effect of the instrument into that of a deed, and the later decisions of the court in Threadgill v. Bicker-staff and Dunham v. Eastham; since in neither of those cases is it recognized that the mere use of that term in such connection has, of itself, any such force. Garrett v. Christopher is not referred to in either opinion, hut it cannot he otherwise regarded than as distinctly qualified by the ruling announced in each of these later cases.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed.
      <@=>lTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOLT v. GORDON.
    (No. 2386.)
    (Supreme Court of Texas.
    April 7, 1915.)
    Evidence <©=5444 — Parol Evidence Affecting Writings.
    In an action by the original payee on notes for the purchase price of land, where the deeds had been delivered directly to the grantee, not in escrow, parol evidence was inadmissible that the transaction was conditional; for, while it may be shown by parol that an ordinary instrument was executed under agreement that it should not become effective except upon conditions, that principle has never been applied to a deed where delivery was made to the grantee, not in escrow to a third person.
    IEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. <©=> 444.]
    Certified Questions from Court of Civil Appeals, Second Supreme Judicial District.
    Action by R. T. Holt against P. J. Gordon. Judgment for defendant, and plaintiff appeals. On certified questions from Court of Civil Appeals. Questions answered.
    J. C. George, of Brownsville, and M. E. Martin, of Stephenville, for appellant. J. B. Keith, of Stephenville, for appellee.
   PHILLIPS, J.

The certificate of the honorable Court of Civil Appeals, which contains the question propounded for determination, is as follows:

“In the above-entitled cause plaintiff, R. T. Holt, sued to recover judgment against defendant, P. J. Gordon, on three promissory notes executed by defendant in plaintiffs favor. According t'o allegations in plaintiff’s petition, two of the notes were for the principal sum of $750 each, dated September 28, 1906, and executed contemporaneously with a deed from plaintiff to defendant to 60 acres of land upon which a vendor’s lien was retained to secure payment of said two notes. The third note was for the principal sum of $1,300, dated November 1, 1906, given in part consideration for said sale of the 60-acre tract, and to cover the amount which had been falsely recited in the deed as a cash consideration paid by defendant. This $1,300 note was further secured by a deed of trust executed by defendant on another tract' of land of 212 acres owned by defendant. Plaintiff alleged the liens mentioned above, and prayed for foreclosure of the same.
“In reply to the petition, the defendant alleged that at the time of the execution to him of the deed to the 60 acres there was a parol agreement between the parties that neither the deed nor the notes then executed should become effective and binding upon the respective parties, unless the defendant should thereafter succeed in procuring a loan of $1,300 upon the 212-acre tract with which to pay the item of $1,300 recited in the deed as cash paid; that he was unable to secure such a loan; that thereafter he abandoned 'possession of the 60-aere tract and tendered to plaintiff a deed reconveying the same to him, together with possession thereof, and also made the same tenders in his answer; and that by reason of these facts neither the notes nor the deed nor the deed of trust ever became effective and binding upon the respective parties executing them. There was evidence to support this plea which was submitted in the court’s charge, and which was sustained by the jury, and final judgment was rendered in defendant’s favor. Plaintiff appealed from the judgment, and on a former day of the present term this court held that the trial court erred in admitting such testimony over plaintiff’s objection that its effect was to vary the terms of the written instruments; and upon that ruling we reversed the judgment of the trial court and remanded tRe cause. An amplified statement of the proceedings referred to and of the question determined, together with the reasons advanced to sustain our decision, will be found in our written opinion, which accompanies this certificate as a part hereof. It appears that our decision upon the issue stated is in conflict with the decision of the honorable Court of Civil Appeals for the Third Supreme Judicial District in Pope v. Taliaferro, reported in 51 Tex. Civ. App. 217, 115 S. W. 309. Appellee has filed a motion for rehearing and to certify the question decided. We, therefore, submit for your determination whether or not we were correct in the conclusion noted.”

It is our opinion that the Court of Civil Appeals correctly ruled the evidence to be inadmissible. It may he shown by parol testimony that an ordinary written instrument was executed under an agreement that it was not to become effective except upon certain conditions. Loving v. Dixon, 56 Tex. 75; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; Blewitt v. Boorum, 142 N. Y. 357, 37 N. E. 119, 40 Am. St. Rep. 600; Merchants’ National Bank v. McAnulty, 31 S. W. 1091. But that principle has never been recognized by this court as applicable to a deed to land, or a deed of trust affecting the land, where the delivery of the instrument was made to the grantee, and not to a third person. It has, upon the contrary, been distinctly held that a deed or deed of trust cannot be an escrow where it is delivered to the grantee in the instrument. In Heffron v. Cunningham, 76 Tex. 313, 13 S. W. 260, Heffron purchased certain property in Galveston from Mrs. Wicks, giving his three notes in payment, and executing a trust deed to secure their payment. He received the deed to the property from Mrs. Wicks, and made delivery of the deed of trust. Heffron contended that there was a verbal agreement, at the time he executed the notes, that if the title to the property was not cleared within a certain time, the trade was not to be considered as binding. In passing upon the question whether evidence of such an agreement was admissible to defeat the suit upon the notes, it was held, in the opinion of Chief Justice Stayton:

“At the time that indorsement was made appellant executed the notes and deed of trust to secure the purchase money, and received a deed from Mrs. Wicks. These were all delivered, and none of them evidenced other than a completed contract, whereby without condition appellant promised to pay the purchase money, and Mrs. Wicks conveyed the property. The deed was delivered t'o appellant, and there can be no claim that he held it as an escrow, to take effect on condition not expressed in its face, as might have been shown to be the case had it been delivered to a stranger. Having been delivered to appellant, the grantee, it became an absolut'e conveyance, on which could not be ingrafted by parol evidence any condition inconsistent with its terms. In absence of fraud or mistake it cannot be shown by parol evidence that the contract evidenced by it was not to have effect in case the title was not cleared within 90 days. The notes and deed of trust are in the same condition.”

That ruling cannot be regarded other than as decisive of this question. Holt’s deed was delivered to Gordon, the grantee named in it, and, accordingly, immediately took effect. The notes were executed as a part of the transaction, and, with the deed effective, they were equally binding.

Other illustrative authorities upon the question are McClendon v. Brockett, 32 Tex. Civ. App. 150, 73 S. W. 855; East Texas Fire Insurance Co. v. Clarke, 1 Tex. Civ. App. 238, 21 S. W. 277; Devlin on Deeds, § 314; 3 Wash. Real Property, § 584.
      <©=5For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & P. RY. CO. v. MATKIN.
    (No. 2383.)
    (Supreme Court of Texas.
    April 7, 1915.)
    1. Master and Servant <§=>297 — Injuries to Servant — Negligence.
    In an action for personal injuries to a brakeman, where the petition alleged negligence of the road in equipping a locomotive with a dangerous type of air brake, and in the conduct of defendant’s servants in applying the brake, a finding supported by evidence on both points would sustain a general verdict for plaintiff, since the allegations were not necessarily repugnant, the allegation of negligence in supplying a dangerous type of brake being general, and it not being charged that the brake could produce only a violent and sudden stop, so that the mere fact of its use would negative any finding of negligence on the part of the engineer in the manner of its use.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. <®=>297.]
    2. Master and Servant <§=>278 — Injuries to Servant — Negligence oe Master — Sufficiency oe Evidence.
    In an action for personal injuries to a brakeman, evidence held sufficient to support a finding for the plaintiff on the allegation of the petition that his employer had been negligent in equipping its locomotive with a dangerous type of air brake.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §1 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. <§=>27&]
    3. Master and Servant <§=>278 — Injuries to Servant — Negligence oe Agents oe Master— Sufficiency oe Evidence.
    In an action for personal injuries by a brakeman against his employing railroad, evidence held sufficient to support finding for plaintiff on the allegation of the petition that defendant’s servants had been negligent in applying the brake too violently and suddenly.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. <§=>278.]
    4. Master and 'Servant <§=>293 — Injuries to Servant — Negligence oe Master — Appliances — Instructions.
    In an action by a brakeman for personal injuries, where the charge, on the point of defendant’s liability for negligence in having equipped its locomotive only with a straight air brake, stated that defendant was liable for sending out the locomotive with only such brake working, provided that the particular brake was able to produce only one character of stop, and that only by the application of its full power, that such a stop was made on the occasion of the brakeman’s injury, causing the train to be stopped with unnecessary violence, and that such brake was dangerous to the trainmen working with the cars in switching, such instruction did not contravene the rule that a master performs the whole of his duty to his servant when, in the exercise of ordinary care, he provides a customary appliance, even though there may be other appliances which may be regarded as better, but whose superiority is a mere matter of opinion, since the charge did not permit a finding of negligence against the railroad on the mere ground that it used a defective air brake, but only upon other and independent grounds.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 114S-1156, 1158-1160; Dec. Dig. <§=>293J
    5. Appeal and Error <§=>1066 — Harmless Error — Instructions.
    In an action by a brakeman for personal injuries, the incorporation in an instruction of the statement that negligence of the road might be predicated on its furnishing its locomotive with a straight air brake, where the evidence did not justify the submission of such element to the jury, was harmless where the other elements of the instruction, with ample support in evidence, were sufficient alone to justify a verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; 'Dec. Dig. <§=>1066. ]l
    6. Master and Servant <§=>297 — Injuries to Servant — Instructions — Inconsistency.
    In an action by a brakeman for personal injuries, where the petition alleged negligence of the road in equipping its locomotive with a straight air brake, and also negligence on the part of the road’s servants in operating the brake, instructions being given, on the two points that were inconsistent, but not in the alternative, one predicating recovery on the assumption that the use of the “straight” air brake had occasioned the sudden stoppage that caused the injury, the other on the assumption that the negligent manner in which the engineer operated the brake was the cause, since the defendant road was responsible in either event, the act, the sharp stoppage of the train when plaintiff was between two cars, uncoupling them, being necessarily negligent, the inconsistency was not such as to render a general verdict for plaintiff improper as based on findings irreconcilably in conflict and so nullifying each other.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. <§=>297.]
    7. Trial <§=>233 — Instructions—Inconsistent Grounds oe Recovery.
    A plaintiff may rely upon inconsistent grounds of recovery, and, where he may prevail upon either, it is his right to have both submitted to the jury; but the instructions embodying such submission should be in the alternative, rendering it plain that a recovery may be had upon only one, since a general verdict for the plaintiff rendered upon inconsistent instructions conjunctively submitted results in irreconcilable conflict in the findings of the jury nullifying the formal verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. <®=>233.]
    8. Trial <®^>296 — Instructions—Construction Together.
    In an action against a railroad for personal injuries received by a brakeman while between two cars of a train uncoupling them, an instruction that the plaintiff, in order to recover, in taking up such a position must have “acted as a brakeman ordinarily and customarily did under such circumstances,” was not an instruction that if such was the ease he was not guilty of contributory negligence, since the jury was told, later that he had been guilty of such negligence if in taking up his position he did not act as a person of ordinary prudence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. <⅜=> 296.]
    9. Master and Servant <®=p28S — Injury to Servant —Assumption of Risk —Knowledge of Servant.
    In an action for personal injuries by a brakeman, where the accident was caused by the sudden stoppage of the train, through use of a “straight” air brake, which threw the plaintiff beneath the wheels, there being no evidence that the plaintiff knew that the brake could be applied only with its full power and could produce only a sudden stop, the issue of assumption of risk was npt raised, and a peremptory instruction for the plaintiff that he had assumed no risk arising from any negligence on the part of the engineer, in his application of the brake, was proper.
    [Ed. Note. — For other cases, see Master and Servant. Cent. Dig. §§ 1068-1088; Dec. Dig. ⅞⅛>288.]
    Error to Court of Civil Appeals of Fifth. Supreme Judicial District.
    Action by W. A. Matkin against the Texas & Pacific Railway Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (142 S. W. 604), and defendant brings error.
    Affirmed.
    Williams & Stedman, of Austin, F. H. Prendergast, of Marshall, and W. L. Hall, of Dallas, for plaintiff in error. Johnson & Edwards, of Tyler, for defendant in error.
   PHILLIPS, J.

The suit was brought against the railway company by W. A. Mat-kin for damages on account of personal injuries resulting in the amputation of both his legs, sustained by him while in its service. He recovered a judgment in the sum of $35,000, which was affirmed by the honorable Court of Civil Appeals.

The injuries were caused Matkin while he was attempting to uncouple two cars at Min-eóla in some switching, after the train, upon which he was head brakeman, reached that point. At the time, a string of nine or ten cars was backing in response to a signal given by Matkin to the engineer upon the engine, for the purpose of “kicking” the rear car, a box car, in upon the track. Matkin had run along by the side of the car, endeavoring to uncouple it from the next ear, a coal car, by means of the pin lifter, operated from its side. The pin lifter would npt work, requiring him to go between the moving cars in order to lift the pin. He took a station on the car nearer the engine, seated on the narrow ledge at its end, holding to its gate with one hand, and with the other lifted the pin, which detached the cars. Just as this was done, the train suddenly stopped. The shock of the stop threw Matkin from the coal ear, and in its rebound it ran over him upon the track, crushing both of his legs. The signal for a stop was given the engineer by another brakeman, upon his seeing that Matkin had uncoupled the cars. The signal, however, was for the usual stop, not a sudden or violent one; whereas, the stop actually made was an “emergency stop,” and appears to have been practically instantaneous. The engineer had observed Matkin’s failure to uncouple the cars from the side, saw him disappear between them, and knew he was between them when the stop was made.

Aside from certain allegations as to the condition of the coupling apparatus upon the two cars, the petition of the plaintiff charged two distinct phases of negligence as responsible for the accident; one, in regard to the brake equipment of-the engine, and the other in respect to the engineer’s application of the brake with which the engine was equipped. Both of these issues were submitted in the court’s charge to the jury, in the manner hereafter stated.

After stating that the automatic air brakes on the cars constituting the train at the time were not in use, and that the braking equipment of the engine was the only means at hand for controlling a stopping movement of the train, the allegations with reference to the braking device in use upon the engine, in substance, were: That it was an appliance known as the “straight air” brake, and, as the defendant knew, was dangerous to trainmen ; that, when applied as it was by the defendant’s servants in charge of the engine at the time of Matkin’s injury, it was more violent, dangerous, and sudden in its operation than an automatic air brake, producing a very sudden stop, as it did on that occasion, whereas the ordinary operation of an automatic air brake was a gradual and even stop; that the latter was the braking appliance in general use by the defendant upon its engines, and by other railway companies, and this engine was equipped with it, but it was out of repair and not in operation or available for use at the time, as was or could have been known by the defendant; that, if it had been in repair, it could have been used by a “service application,” with safety to the plaintiff; and that the defendant was guilty of negligence in using the engine on the particular occasion with its automatic air brake out of service, and with the “straight air” brake as the sole braking equipment of the engine.

The allegations of the petition in respect to the application of the brake upon the engine, in substance, were: That the servants of the defendant in charge of the engine negligently, and with great and unnecessary force and suddenness, applied the air brake with which the engine was equipped, causing the sudden and violent stop of the train, and the fall of Matkin to the track and his resulting injury; whereas, by the exercise of ordinary care, they could have applied it gradually and moderately, sufficiently checking the train, but without suddenness or violence, and avoiding the accident.

It thus appears that, while the petition charges that the railway company was guilty of negligence in having the engine equipped with a violent and therefore a dangerous brake, it further charges that the particular brake was capable of safe yet efficient use, and that there was negligence in its operation. The petition is not open to the construction that the brake was incapable of any other use than such as would produce a sudden and violent stop of the train. A favorable finding by the jury for the plaintiff upon either ground of negligence, upon sufficient evidence, would support a verdict in his behalf. Furthermore, a favorable finding upon both grounds would equally sustain such a verdict, since they are not necessarily repugnant.

There was sufficient evidence to support a finding for the plaintiff upon either, and therefore upon both grounds of negligence in the form alleged in the petition. Petty, the engineer in charge of the engine at the time, testified, as a witness for the defendant, that he applied the brake upon the engine with its full braking power, and such an application of the brake in backing a train of the length of the one he was handling would give the last car a violent jerk. He further testified that the brake could only be applied with its full power, and that there was but one kind of stop that could be made with it. At another place in his testimony it is shown that the brake could have been applied with moderate power, but that was probably a difficult and tedious operation. -Other testimony was to the effect that the brake was such that its power was under the full control of the engineer, and that it was capable of ready and efficient use by only, a moderate application of its power, so as to produce a gradual stop of the train. It appears to have been undisputed that the result of Petty’s application of the brake was to stop the ear on which Matkin was working with great force and suddenness. This is demonstrated by the fact that the stop caused the coal car to rebound so as to run ;over him.

In this state of the proof, the issues of negligence arising upon the engineer’s application of the brake in stopping the train, and the brake equipment of the engine, were submitted in the fourth and seventh paragraphs of the charge, respectively, as follows:

“(4) Now, if you find from the evidence that while the car in question was being kicked the plaintiff attempted to uncouple it from the other car by means of the pin-lifter, but that the same would not work, and he was unable to uncouple it in that manner-, and that he then went between the cars and sat down on the fend of the coal car to lift the pin with his hand in order to uncouple the cars, and that in doing so he acted as brakemen ordinarily and customarily did under such circumstances, and that he was in the discharge of his duty at the time, and if you further find that while plaintiff was so situated the engineer knew, or by exercising ordinary care would have known, of plaintiff’s situation, and that he stopped the engine and cars with unnecessary and groat suddenness and violence and kick of the car, and if you find that the engineer could have stopped the engine without suddenness and violence and without danger to plaintiff, and that by reason of such sudden and violent stop, if any, the plaintiff was, as the direct and proximate result of suddenly stopping the train, if it was, jerked or thrown from the car and run over by the wheels of the car and injured, and if you find that the engineer in stopping the cars as he did was guilty of negligence, as that term has been defined, then the defendant, in such case, would be liable, and you will find for the plaintiff; but, unless you so find as explained, you will find for the defendant upon this issue of the case.”
“(7) Again, if you find from the evidence that the defendant company sent the engine in question out on the road and furnished the same to be operated by its trainmen with the automatic air brake ‘cut out’ on the engine, or so arranged that it would not operate on the engine, and that the engine had only straight air working on it with which to stop or control the movements of the engine and cars while switching; and if you find that only one character of stop could be made with the straight air brake on the engine in question, and that such stop was made- by applying all the air and all the braking power on the engine, and that the same made and did cause the engine and cars to be stopped with unnecessary and great and sudden violence, and that the same was dangerous to the trainmen working with the cars in the performance of their duties in switching; and if you find that with the automatic air brake, if the same had been working on the engine, a service application of the air on the engine could have been made, and that such application of the air would have caused the engine and cars to stop slowly or gradually and without a sudden or violent stop or jerk, and without danger to the brakemen performing their duties in switching; and if you find that the defendant company was guilty of negligence in so sending out the engine and furnishing the same to be used by its trainmen in such condition, if it was in such condition; and if you find that the engineer stopped the engine and cars by applying the full power of the straight air brake, and that thereby the cars were stopped suddenly and violently and with a dangerous jerk; and if you further find that the defendant company should reasonably have foreseen that some one of its train crew would likely be injured, as the plaintiff was, by reason of such condition of the air brake appliances on the engine; and if you find that the plaintiff was thrown from the car by reason of the violent and sudden stopping of the cars, if any, and was injured — then the defendant company would be liable, and if you so find you will find for the plaintiff, unless you find that he assumed, the risk, if any, from the engine being equipped -witli only the straight air brake and not with the automatic air brake.”

One complaint made by the railway company against the seventh paragraph of the charge is that it submitted, as an issue of negligence the mere failure upon its part to equip the engine with an automatic air brake available for use, and its equipment of the engine with a straight air brake, instead. In this connection, it is urged that the proof was undisputed 'that it was a common practice of railway companies to equip their engines for switching purposes with only a straight air brake instead of the automatic, and that the former was both a customary and safe appliance. It accordingly invoked the rule that the master performs the full measure of his duty to the servant when in the exercise of ordinary care he provides a customary appliance for the particular purpose, regarded by experts as safe and fit for the use; and that negligence cannot be predicated upon his mere failure to furnish another kind of appliance which others may regard as a better one, but whose superiority over that furnished is a mere matter of opinion. This contention assumes that the charge authorized or permitted the jury to find that the ebmpany was guilty of negligence because of a mere failure to provide the engine with an automatic air brake available for use, and its having equipped it with a straight air brake. But it is apparent that such is not the effect of the charge. It does submit, as an element of the issue presented, the defendant’s failure to have an automatic air brake in operation upon the engine; but the jury were not told that merely such failure and the provision of a straight air brake, instead, would warrant a finding of negligence against the defendant. But, before such a finding was authorized under the charge, the jury was instructed that not only must it be found that the automatic air brake was not in service, and that the engine was equipped with only a straight air brake, but that the particular straight air brake upon the engine was such as to produce only one character of stop, and that by the application of its full braking power; and further that such a stop was made on the occasion of Matkin’s injury and did cause the engine and cars to be stopped with unnecessary and great and sudden violence, and, also, that the straight air brake in question was dangerous to the trainmen working with the cars in the performance of their duties in switching. This is a very different matter from the submission of the question of negligence as determined simply by a failure to provide one kind of brake for the engine and its being equipped with another. Under the charge, in order for the company to be held guilty of negligence, it was required that the jury find the existence of other conditions, besides those above stated; but this statement of the features of the instruction is sufficient to demonstrate that it did not purport to authorize a recovery for the plaintiff merely on account of a failure by the defendant to equip the engine with an automatic air brake, or simply because the brake with which it was equipped was a straight air brake. If it is admitted that the evidence did not justify the submission of an issue of negligence arising upon a failure to equip the engine with a serviceable automatic air brake — a question which it is unnecessary to determine — it must be conceded that the evidence did warrant the presentation of every other feature of the instruction to which w'e have called attention. As has been stated, the engineer, Petty, himself testified that the straight air brake upon the engine was capable of producing only one kind of stop; that it was necessary to apply its full power in order to effectively operate it; and that upon that occasion he applied it with its full power. That the train was caused to stop, as the result of the engineer’s use of the brake, with great force and suddenness, appears to be an undisputed fact; and that the brake was dangerous to trainmen engaged in switching, if it admitted of use only with its full power and could produce only a sudden and violent stop of the train, is manifest. It is equally plain that a favorable finding for the plaintiff upon all of these issues embodied in the instruction, independent of any finding in respect to a failure to provide the engine with an automatic brake, was required before the jury was authorized to conclude that the defendant was negligent; and that the existence of such facts, if found by the jury, would warrant the conclusion that the defendant was negligent, irrespective of that question. The inclusion of such issue in the charge, therefore, could not, under any view, have operated to the prejudice of the defendant. The charge, as a whole, was simply equivalent to an instruction of this nature:

“If you find that the engine, instead of being provided with a serviceable automatic air brake, was equipped for switching with only a straight air brake, and that only one character of stop could be made with the straight air brake with which the engine was equipped, and that such a stop was made by applying all the braking power on the engine, and that it caused the engine and cars to be stopped on the occasion in question with great, sudden, and unnecessary violence, and that the same was dangerous to the trainmen working with the cars in the performance of their duties while switching,” etc.

The reference, in such an instruction, to the failure to have an automatic brake upon the engine, could not place a defendant under any disadvantage in the submission of the case, even if it be admitted that negligence could not consist in its failure to so equip the engine, for the reason that the charge does not permit a finding of negligence against it upon that ground, but only upon other grounds clearly independent of it. Houston & Texas Central R. Co. v. Johnson, 103 Tex. 320, 127 S. W. 539.

In another assignment it is urged that the fourth and seventh paragraphs of the charge presented inconsistent theories of recovery against the railway company, in such a way that a favorable finding for the plaintiff under either necessarily negatived the existence of facts essential to a recovery under the other; and as the verdict returned for the plaintiff was a general one, and therefore does not reveal upon which of the two respective issues it was rested, it should be disregarded, under the rule announced in Baker v. Ashe, 80 Tex. 356, 16 S. W. 36, and Railway Co. v. McMillan, 100 Tex. 562, 102 S. W. 103. In other words, it is argued that if the jury found, under the seventh paragraph, as a finding for the plaintiff under that paragraph required, that only a sudden stop could be made with the brake upon the engine, the result was necessarily to acquit the engineer of negligence in the manner of his application of the brake, since he could not have been negligent in causing the sudden stop by the manner in which he applied the brake, if, however applied, it was incapable of producing any other kind of a stop; and, upon the other hand, a finding by the jury, under the fourth paragraph, that the sudden stopping of the cars was due to the engineer’s negligent application or handling of the brake, as was necessary under that paragraph for the return of a verdict for the plaintiff, was equivalent to a determination that if the brake had been applied with due care it would not have produced the sudden stop, and was therefore capable of producing a gradual stop, resulting, it is contended, in the defendant’s acquittal of negligence in respect to the character of brake with which the engine was equipped.

If the engineer was negligent in his application of the brake, it does' not follow from that, alone, that the defendant was not negligent in furnishing the particular brake. It may have been a violent, and therefore a dangerous, brake in its character, so difficult of safe use as to render the defendant guilty of negligence in providing it as the only braking power upon the engine, but nevertheless admitting of safe use by careful handling, and therefore authorizing the conclusion that the sudden stop of the cars was due to negligence on the part of the engineer in the manner in which he applied it.

The view, however, that a finding under the seventh paragraph that the brake could produce only one kind of stop, and that a sudden stop, such as occasioned the injury to Matkin, would necessarily negative negligence on the.engineer’s part in the mere manner in which he applied it, must be granted as a logical one. If the brake was of that character, it does not result that the act of the engineer in applying it could not, under any circumstances, be regarded as negligent; for, under certain conditions, with his knowledge of the brake’s operation, it might amount to the grossest negligence for him to apply it at all. But the fourth paragraph of the .charge did not submit the question of whether his act in applying it constituted negligence, but only whether he -was negligent in the manner of its application. It is plain therefore that, as to the cause of the sudden stop in the operation of the brake, the charge, in these paragraphs, submitted theories which were inconsistent. This is not true, as we have already said, of the allegations of the petition, for it was not there charged that the stop was caused by the use of a brake capable of producing only that kind of a stop. The inclusion in the seventh paragraph of the issue as to whether the brake was of that character was no doubt due to the testimony of defendant’s witness Petty,, the engineer, that it could only be- applied with its full power and could only produce one kind of a stop. The effect of the instruction was to impose upon the plaintiff an extra and unwarranted burden upon the issue in respect to the character of the brake, for it was not essential to his recovery upon that issue, as pleaded by him, that it be found by the jury that the brake could only produce a sudden stop and could only be applied with full power. However that may be, the charge submitted the issue in that form; and whether the result was the submission of two inconsistent theories in respect to the cause of the sudden stop can be determined only by the charge itself.

A plaintiff may rely upon two wholly inconsistent grounds of recovery, and, where he may be entitled to prevail upon either, it is his right to have both of them submitted to the jury. But they should be always submitted in the alternative, and so as to make it plain that a recovery may be had upon only one of them. If, they are wholly inconsistent and are submitted conjunctively, the effect of a general verdict for the plaintiff is necessarily an irreconcilable conflict in the findings of the jury, which amounts to no verdict at all.

• Here the instructions were not, in the strict sense, given conjunctively. They were embodied in separate and detached paragraphs of the charge. There was no indication, however, in the charge that, while a verdict for the plaintiff was permissible under either instruction, a recovery could not be had under both. With the charge failing to qualify either, in any manner, the general verdict is incapable of interpretation as a finding upon only one of them.

But the question of the inconsistency of the instructions becomes a wholly immaterial one when the nature of the case is considered. At most, their inconsistency was only in relation to the cause of the sudden stop of the cars through the use of the brake— whether the character of the brake, or the manner in which the engineer applied it. It was one or the other which caused its use to produce the sudden stop, and the jury was bound to so find, since the entire’ evidence suggested no other explanation of its eharac-ter. The defendant was responsible for the cause of it, whether it was the character of the brake or the way in which the engineer used it. It was the character of the stop which directly occasioned the injury to the plaintiff. Under both instructions the jury was required to find, as the predicate for the return of a verdict for the plaintiff, that it was through the use of the brake that the stop was produced; that it was one of great violence and suddenness; and that it caused the injury to the plaintiff. Upon neither of these questions was there a'ny inconsistency in the instructions, and the effect of the verdict was a finding against the defendant upon all of them. In respect to the stopping of the cars with great violence and suddenness when the plaintiff was known to be between them engaged in his duties — a necessarily hazardous position — only one conclusion can be drawn, and that is, it was a negligent act. With this true, and the defendant responsible for the cause of the act, whether it was the condition of the brake or the manner of its use by the engineer, and with one or the other inevitably constituting its cause, what difference could it make that the court submitted in an inconsistent form the question as to which it was? The charge admitted of an inconsistent finding only upon that question. If under the evidence the defendant was responsible for the cause of the stop, whether it was one or the other of the two agencies which the question submitted, and one of them must necessarily have produced it, it is plainly immaterial that the form of the instruction was inconsistent.

A further contention of the plaintiff in error is that it was erroneous for the court to submit to the jury in the fourth paragraph of the charge, as one of the elements of the plaintiff’s right of recovery upon the issue therein submitted, whether in going between the cars, after he was unable to uncouple them with the pin lifter, and sitting down on ■the end of the coal car to lift the pin with his hand in order to uncouple them, he “acted as brakemen ordinarily and customarily did under such circumstances.” It seems to be urged that this amounted to an instruction that, if such was the nature of the plaintiff’s act, it would acquit him of contributory negligence. Such, however, is not the effect of the charge. It required the jury to find that, in taking such position between the cars, the plaintiff so acted, not as the test of whether he was guilty of contributory negligence — for it did not purport to relate the question to that issue — but as a condition of his right to recover. It was a superfluous instruction, for, if he was not guilty of contributory negligence in taking the position, it was immaterial whether he acted in accordance with the ordinary custom of brakemen under like circumstances. And in a succeeding paragraph the jury was plainly told that he would be guilty of contributory negligence, “if in going between the cars, or in sitting on the end of the car, or in taking the position which he did, or in anything that he did, he did not act as a person of ordinary prudence would have acted under the same circumstances; or if he failed to do anything for his safety which a person of ordinary prudence would have done under the same circumstances, and such conduct on his part concurred with some negligence of the defendant found by the jury under the charge.”

The court properly instructed the jury that the plaintiff assumed no risk arising from any negligence on the part of the engineer in his application of the brake. The question of his assumption of the risk proceeding from the operation of a brake which could only be applied with full power and capable of producing only a sudden stop was not, in our opinion, in the case, which renders unnecessary any discussion of the charge on assumed risk as applied to the conditio.n of the brake. There was no evidence that the plaintiff had any knowledge that the brake upon the engine could only be applied with its full power and could produce only a sudden stop, and therefore the issue of his having assumed the risk of the use of such a brake was not raised.

We have discussed those questions which we deem to be of importance in the case. We believe the judgments of the district court and the Court of Civil Appeals should be affirmed, and it is so ordered.
      cgruFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gu=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    KEETS v. STATE.
    (No. 3492.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    1. Jury <@=»82 — Venire—Motion to Quash.
    The fact that but 13 'of the original 36 veniremen answered to their names was no ground for quashing the venire.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 282, 307-309, 331, 332, 348, 359, 367, 380; Dec. Dig. <@=>82.)
    2. Criminal Law <@=>1091 — Motion eor Continuance-Bill of Exceptions.
    A bill of exceptions merely stating that appellant’s motion for a continuance was overruled and that he was forced to trial, in the absence of a material witness, not copying the motion or stating what his witness would testify, or the diligence used to procure him, or the reason why he had not been served, presented no question on appeal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, ■2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <@=1091.]
    3. Criminal Law <§=>598 — Continuance-Testimony of Absent Witness.
    A continuance was properly denied where defendant wholly failed to show any diligence to procure an absent witness, and his testimony would not have been so material as to authorize a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. <§=» 598.)

      4. Criminal Law <§=>566 — Sufficiency of Evidence — Identity.
    Where the prosecuting witness positively identified defendant, and there were many facts and circumstances shown by other witnesses strongly corroborating her, defendant was not •entitled to an acquittal on the ground that the evidence did not identify him as the party committing the offense.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 1273-1275; Dec. Dig. <§=> 566.)
    5. Witnesses <@= 350 — Cross-Examination op Accused — Incriminating Evidence.
    An accused, who testifies in his own behalf, •can he forced to testify that he has previously been convicted and served a term in the penitentiary, unless such conviction is so remote as to be inadmissible.
    [Ed. Note. — For other cases, see Witnesses, •Cent. Dig. §§ 1140-1149; Dec. Dig. <§=>350.]
    Appeal from District Court, Ft. Bend Coun-ty; Saro’l J. Styles, Judge.
    Jerdon Keets was convicted of statutory .rape, and he appeals.
    Affirmed.
    K. A. Bassett, of Richmond, for appellant. •C. C. McDonald, Asst. Atty. Gen., for the .State.
   PRENDERGAST, P. J.

From a conviction for rape of a child, assessing the life penalty, appellant prosecutes this appeal.

No useful purpose could be served by reciting or stating the testimony. We have carefully read it, and it is amply sufficient to sustain the verdict.

Appellant has some very imperfect .and meager bills of exception. In the first he complains that the court overruled his motion to quash the special venire upon the sole ground, as alleged therein, because but 13 of the original 36 veniremen answered to their names. This would be no ground to quash the venire, and the court did not err in overruling his motion. Taylor v. State, 14 Tex. App. 351; Hall v. State, 28 Tex. App. 146, 12 S. W. 739.

In appellant’s next bill he complains of the court overruling his motion for a continuance. He does not therein copy his motion, nor state what his witness would testify, the diligence used to procure him, nor the reason why he had not been served. I-Ie merely states therein that his application was overruled, and .that he was forced to trial in the absence of a material witness, naming him. If we could go to the record, it would be shown that he wholly fails to show any diligence to get this witness, and even if he had gotten the witness, and he had testified as his application states he would, it would not have been material to the extent to authorize a continuance.

His next bill complains that the court refused to give a peremptory instruction to acquit him, because he claims the evidence failed to identify him as the party who committed the rape, if any was committed. The reverse of his contention is true, as the record shows. The alleged raped girl swore positively, identifying him, and there were many facts and circumstances, shown by other' witnesses, strongly corroborating her.

I-Iis next bill complains that he was required to testify on cross-examination that he had been twice before in the penitentiary. The fact of when this was is in no way disclosed. It is the settled law of this state that, when an accused testifies in his own behalf, he can be forced to testify that he has previously been convicted and sent to the penitentiary, and served a term therein, unless such, conviction is so remote as to be inadmissible. The record in this case discloses nothing that would indicate his said testimony was inadmissible.

■His next bill is simply to the overruling of his motion for a new trial, and presents no error. No other question is raised requiring discussion.

The judgment is affirmed.