text:
    BROWN v. STATE.
    (No. 3527.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    1. Rape. <§=>16 — Intent—Consent.
    The offense of assault with intent to rape may be committed with or without the consent of a girl under 15 years of age.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 15-19; Dec. Dig. <§=>16.]
    2. Witnesses <§=>40 — Competency—Infant.
    In a'prosecution for assault with intent to rape, the trial court’s allowance of the testimony of prosecutrix, a girl six years old, who stated that she knew what was meant when she took the oath, that “it means to take an oath to God to tell the truth,” that if she told a falsehood she would be punished, and who detailed the transaction very intelligently, was not an abuse of discretion.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. <@=340.]
    3. Rape <@=>35 — Indictment — Variance — Name.
    In a prosecution for an assault with intent to rape upon “Dorothy Cohen,” where her mother testified that her name was “Dorothy,” and it appeared that she went by that name, the fact that she spelled it “Dorthea” did not present a variance.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 42-45; Dec. Dig. <@=>35.]
    4. Rape <@=>39 — Prosecution—Evidence.
    The testimony of prosecutrix that defendant told her to take her pants down, and she would not do so, but he took hold of her and took the pants off, that she tried to keep him from doing so, but could not, and that he unbuttoned his pants, took out his privates, and pressed her to him, etc., when a woman interfered, was admissible on the issue of intent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 51; Dec. Dig. <@=>39.]
    5. Rape <§=>38 — Prosecution—Evidence.
    In such prosecution, the length of time the prosecuting witness had been acquainted with the woman who interfered was admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dee. Dig. <§=>38.]
    6. Criminal Daw <@=>954^-Motion por New Trial — Grounds.
    A motion for a new trial should always contain each ground relied upon, that the trial court may have the chance to correct its own error, if any has been committed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. <@=> 954.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    D. J. Brown was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State. ^
   HARPER, J.

Appellant was convicted of assault with intent to rape, and his punishment assessed at 25 years’ confinement in the penitentiary.

Appellant moved to quash the count in the indictment charging him with assault with intent to commit rape on the ground that said count does not negative the consent of the girl. As the girl is alleged to be under 15 years of age, it was not necessary to allege that the offense was committed without her consent. The offense may be committed with or without her consent; she being under 15 years of age. Mayo v. State, 7 Tex. App. 342; Gibson v. State, 17 Tex. App. 574; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077.

The little girl upon whom appellant is charged with having made the assault with the intent to commit the crime of rape was only six years old. She testified she knew what was meant when she took the oath; “it means to take an oath to God to tell the truth; that if she told a falsehood she would be punished.” The examination on this point is not very full, and as this is a matter which is left to the sound discretion of the trial judge, unless the record should demonstrate this discretion had been abused, we would not be authorized to review his finding on this issue. She details the transaction very intelligently. Hawkins v. State, 27 Tex. App. 285, 11 S. W. 409, and cases cited in section 854, Branch’s Crim. Law.

In the indictment the name of the little girl is spelled “Dorothy Cohen.” Her mother testified that her name was “Dorothy,” and the little girl answered to that name, yet, when she was asked to spell the name, she spelled it “Dorthea.” As her mother testified she had named her Dorothy, and it appears that she went by that name, . the fact the little girl spelled it as above does not present a variance.

The little girl testified that appellant told, her to take her pants down, and she would not do so, but appellant took hold of her and took the pants off; that she tried to keep him from doing so, but could not. It is true the question of force was not an issue in the case, but all of appellant’s acts on this occasion were admissible on the issue of what was his intent in taking off her underclothes, unbuttoning his pants, taking out his privates, and pressing her to him, etc.,, when Mrs. Shelling interfered.

The court states no such exception was reserved as is recited in bill No. 5, but, if it had been, the length of time the prosecuting witness had been acquainted with Mrs. Shelling (the lady who interfered) would be admissible. The evidence fully supports the verdict, and the court did not err in refusing, to instruct a verdict of not guilty.

To the bill objecting to remarks of the-county attorney, the court appends the following notation:

“This bill is not approved for the reason that no exception was taken at any time to the action of the county attorney in his remarks to the jury. Gounsel for defendant simply objected to-the remarks, and the court sustained the objection, and instructed the jury to disregard them, and state’s counsel withdrew them, and no bill was reserved.”

The remarks, we think, anyway were authorized under the facts stated, if exception, had been reserved.

We have discussed each bill contained in the record; yet in the motion for new-trial the trial court was only asked to grant a new trial, because the motion to quash the indictment should have been sustained, and that the evidence was insufficient to sustain-the verdict Counsel should always place in their motion for a new trial each ground relied upon that the trial court may have a chance to correct its own error, if any committed.

However, as before stated, we have passed on each bill of exceptions, and find no error was committed; and the judgment is affirmed.
      ®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    MOONEY v. STATE.
    (No. 3416.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.
    On Motion for Rehearing, May 12, 1915.)
    T. Ckiminal Law @=>112 — Venue—Statutory Pkovisions.
    Code Cr. Proc. 1911, art. 248, providing that the offense of receiving stolen property may be prosecuted in the county where the theft occurred, gives the court of the county where a theft occurred jurisdiction of the offense of receiving the stolen goods, though accused lived .and received and concealed the goods in another county.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 220-226, 230; Dec. Dig. @=> 112.]
    2. Ckiminal Law @=>1150 — Change of Venue — Rulings—Review.
    Denial of venue on the grounds specified in Code Cr. Proc. 1911, art. 628, will not be disturbed, where the grounds wore directly controverted by the state, unless the court abused its discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3044; Dec. Dig. @=31150.]
    3. Receiving Stolen Goods @=>8 — Evidence —Admissibility.
    On a trial for receiving stolen cattle, it was not error to permit witnesses to testify that the alleged stolen cattle belonged to them.
    [Ed. Noto. — Eor other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. ■@=>8.]
    4.Receiving Stolen Goods <S=^>7 — Indictment — Evidence.
    It is proper, if not necessary, to permit the state to prove the allegation, in an indictment for receiving stolen property, that the property was received by accused from a person to the grand jurors unknown, and the district attorney and grand jurors may testify to the efforts made to ascertain the identity of the unknown person.
    [Ed. Note. — Eor other eases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. <S=>7.]
    .5. Animals <§=>10 — Receiving Stolen Goods @=>8 — Evidence—Admissibility.
    On a trial for receiving stolen cattle, evidence of the brands on the cattle originally and of the subsequent burning of the brands was admissible to prove ownership and identity, though the original brands were not recorded, for, under Rev. St. 1911, art. 7160, as amended by Acts 33d Leg. c. 69, brands of cattle, whether recorded or not, may be proved to show ownership and identity.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. @=>10; Receiving Stolen Goods, Gent. Dig. §§ 15-18; Dec. Dig. @=38.]
    6.Ckiminal Law @=3547 — Evidence—Admissibility.
    The testimony of accused in another court may be proved by one hearing the testimony.
    [Ed. Note. — For other cases, see Criminal .Law, Cent. Dig. §§ 1237-1246; Dec. Dig. @=> 547.]
    7.Criminal Law @=31090 — Refusal of Instructions — Bill of Exceptions — Review.
    Refusal of requested charges is not reviewable, where accused took no bill of exceptions to the refusal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2053, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. @=>1090.]
    8.Receiving Stolen Goods @=>8 — Evidence —Sufficiency.
    Evidence held to sustain a conviction of receiving stolen cattle with knowledge that they were stolen.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. @=>S.]
    9. Criminal Law @=>1092 — Bill of Exceptions — Modification by Pkesiding Judge —Bill by Bystanders.
    Where the judge approves a bill of exceptions with a qualification, accused refusing to accept the qualification can only prove the facts as claimed by him by a bystander’s bill, properly sworn to as prescribed by statute.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. @=>1092.]
    10. Criminal Law @=>S28 — Instructions — Requests.
    Requested instructions must be in writing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2007; Dec. Dig. @=>S28.]
    11. Criminal Law @=31171 — Improper Argument by Prosecuting Attorney — Reversible Error.
    The court on appeal will not reverse a conviction because of improper argument of the prosecuting' attorney, unless it very clearly appears that the rights of accused were prejudiced thereby.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dee. Dig. @=> 1171.]
    12. Criminal Law @=31037 — Improper Argument by Prosecuting Attorney — Objections — Review.
    Where an objectionable statement is made in argument by the prosecuting attorney, accused must not only object thereto but must request, in writing, a charge requiring the jury to disregard it, or he cannot complain, unless the argument is obviously of a nature to impair his rights.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1091, 2645; Dec. Dig. @=> 1037.]
    13. Criminal Law @=>1171 — Improper Argument of Prosecuting Attorney — Prejudicial Error.
    Where the guilt of accused, charged with receiving stolen cattle with knowledge that they were stolen, was clearly established, the improper statement of the prosecuting attorney that the story of thievery, of which accused was the head, rivaled the stories of Robin Hood, that accused was the captain of cow thieves, and the head of an underground system from a pasture in one county down through another county, terminating in accused’s pasture, where the cattle were found, and that cattle stealing must be broken up, was not ground for reversal.
    [Ed. Note. — Eor other cases, see Criminal Lav/, Cent. Dig. §§ 3126, 3127; Dec. Dig. @=» 1171.]

      14. Receiving Stolen Goods — Elements — Evidence.
    To convict one of receiving stolen goods, the state must show the larceny of the goods and that accused knew that they were stolen.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Gent. Dig. §§ 15-18; Dec. Dig. <@=>S.]
    Appeal from District Court, Wheeler County; F. P. Greever, Judge.
    M. L. Mooney was convicted of receiving and selling stolen cattle, and he appeals.
    Affirmed, and motion for rehearing overruled.
    Geo. H. Culp, of Gainesville, C. C. Small and R. H. Templeton, both of Wellington, and Ramsey, Black & Ramsey, of Austin, for appellant. R. E. Taylor, of Henrietta, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for receiving and concealing stolen cattle, knowing they were stolen, and his punishment fixed at the lowest authorized by law. He was formerly convicted of the same offense, and his punishment fixed at the highest authorized by law, but under a different’ indictment. The former conviction was reversed because the indictment therein averred the theft, and receiving and concealing, both occurred in Wheeler county, when the charge of the court authorized his conviction if the. theft occurred in Wheeler, but the receiving, etc., occurred in Collingsworth, county. 164 S. W. 828. Whereupon this indictment was found, which avers the theft occurred in Wheeler, and the receiving and concealing in Collingsworth, county. The indictment follows the statute and the approved forms and is sufficient. The court properly overruled appellant’s motion to quash it. Mooney v. State, supra; sections 1524, 1525, Wh. Ann. P. C.; Wil. Cr. Forms (4th Ed.) p. 350; Branch, Cr. Daw, § SIS.

The statute'(C. C. P. art. 248) expressly enacts this offense may be prosecuted in the county where the theft occurred, and all the decisions are in accordance therewith. There can be no question but that Wheeler county had jurisdiction and venue of this case — the theft was committed therein — even though appellant lived and received and concealed the cattle in Collingsworth county. The court correctly overruled his motion in arrest of judgment.

Appellant made a motion to change the venue on both statutory grounds (C. C. P. art. 628), which was directly controverted by the state (C. C. P. art. 633). Thereupon the judge heard all the evidence thereon, which was properly preserved in a bill. We have carefully read all this evidence. We think it unnecessary to state it. The true rule is stated by this court in Tubb v. State, 55 Tex. Cr. R. 617, 117 S. W. 858, as follows:

“Of necessity, in respect to a question of this kind, much ought to be left to the discretion and sound judgment 'of the court trying the case, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue, unless it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise terms above 'stated by Judge Hurt in the case of Gaines v. State, 37 S. W. 331. See, also, Cox v. State, 8 Tex. App. 254 [34 Am. Rep. 746]; Bohannon v. State, 14 Tex. App. 271; Martin v. State, 21 Tex. App. 1 [17 S. W. 430]; Connell v. State [45 Tex. Cr. R. 142] 75 S. W. 512: Reeves v. State [47 Tex. Cr. R. 340] 83 S. W. 803; Earles v. State [47 Tex. Cr. R. 559] 85 S. W. 1; Adams v. State [48 Tex. Cr. R. 452] 93 S. W. 116.”

And, as was said in that case, so we say in this:

“After a careful inspection of the record, we do not believe that we could or would be justified, in view of the action of the trial court in conflicting evidence, in reversing the judgment on the failure of the court to grant a change of venue.”

There was no error in permitting the witnesses Champ and E. L. Davis each to testify the alleged stolen cattle belonged to them. This was held in the other appeal of this case. Both witnesses fully identified some of these cattle by flcshmarks.

The indictment alleged appellant received said cattle “from a person to the grand jurors unknown.” It was proper, if not necessary; that this should be proven. The testimony of the district attorney and grand jurors showing this allegation was true, and the efforts made by the grand jury to ascertain the identity of this unknown party was admissible. Section 1507, subd. 2, Wb. Ann. P. C., and cases there cited.

All evidence of the various witnesses objected to by appellant’s several bills, as to tbe brands on said cattle originally, and that these brands had been burned subsequently, was admissible. It all tended to show the identity of the cattle as those belonging to the alleged owners, and to show their condition both before and at the time appellant received them, so as to affect him or tend to do so with knowledge that they were stolen. By Act March 31, 1913, p. 129, article 7160 of our Revised Statutes was so changed as that brands on cattle now, whether recorded or not, are admissible to prove both ownership and identity. Turner v. State, 71 Tex. Cr. R. 477, 160 S. W. 358.

The court did not err in admitting the evidence by Mr. Davis as to what appellant swore at Amarillo in the federal court on a trial therein between the Davis brothers and appellant over the possession and ownership of said cattle, nor in overruling his motion to exclude this evidence. This was held admissible on said former appeal. 164 S. AV. 829. We will somewhat more fully state and discuss this evidence later herein. Appellant’s bill 13, to a question to and answer thereto of the witness Champ Davis, is too meager and insufficient to require review. But if it could be considered, in the light of the record, it would show no reversible error. No error is shown by bis bills 13 and 18 to questions and answers of the witness Worley, as to appellant’s condition at the time it was claimed be bought said stolen cattle and at the time he testified at Amarillo about them. Appellant had introduced some testimony tending to raise the issue of his sanity at both these times, and the testimony of Worley was in rebuttal on that issue.

There is a document in the record which is signed by appellant’s attorneys as objections to the court’s charge, and in some instances stating he asked certain designated charges to supply the omission and make corrections of the court’s charge. Some of these objections are very general — too general to point out any specific defect, if there had been any, in the court’s charge. This document; does not show to have ever been presented to or acted upon by the judge, for the judge makes no noting thereon that it was ever presented to or acted upon by him. Nor does the record show any bill of exceptions by appellant to the court’s refusal or failure to consider or comply with any of his said objections. There are also in the record some ten special charges apparently requested by him. The judge gave three of them and refused the others. When those refused were presented to the judge is in no way made to appear, further than they were filed on the same day the verdict was rendered. Appellant took no bill whatever to the court’s refusal to give either of those he refused to give. Hence, whatever complaints appellant has in reference to these matters are in no condition to be reviewed as uniformly held by both the Civil Courts of Appeal and this court. Ross v. State, 170 S. W. 305, and cases cited. However, we have gone over all these objections and special charges. The action of the court, even if we could properly review these matters, was correct. The court’s charge in connection with those special charges of appellant’s given correctly submitted every issue in the case necessary or proper to be submitted.

In order to properly discuss and decide appellant’s only other contentions — remarks of the prosecuting attorney to the jury in argument, after all evidence was in and the charge had been read to them — it will be necessary to succinctly state the material facts established by the evidence. We have carefully read, more than once, and studied, the statement of facts. It is remarkable and unusual in that most all the material criminating facts are testified to by several witnesses, who are in no way disputed or impeached; and, where any material criminating fact is testified to by one witness alone, he is in no way disputed or impeached, and the other undisputed proof practically demonstrates the truth of his testimony. We will therefore not detail the evidence of each witness, though occasionally we may state what some particular witness testified.

E. T. and Champ Davis, brothers and equal partners, were cattlemen in 1912-13, and had been for many years. They owned one large fenced ranch somewhat in the southeast corner of Wheeler county, on which Champ Davis lived, and on which, in the fall of 1912 and winter of 1912-13, they had and kept a large number of cattle — more than 2,000 head. They also had some smaller fenced ranches in Oklahoma, on one of which E. T. Davis lived. On some of these latter, during the same time, they had and kept some cattle, but nothing like the number as on their said large ranch. In the winter they fed their cattle. In about November, 1912, or before then, they placed the 12 head of cattle described in the indictment herein, with others, on their Wheeler county ranch and undertook to keep them there. Some time between the time they placed them on said ranch, and about March 1, 1913, 60 head, including said 12, were stolen therefrom. No one could tell, with certainty, whether the 60 head were all stolen at one time by one person, or different numbers at different times by another person or persons. There is evidence which would have authorized the jury to believe they were all stolen at one time, while other evidence would indicate they were stolen at different times. As soon as .the owners missed the 60 head from their ranch, about March 1, 1913, they began a search for them, but failed to find any of them anywhere about their ranches, and have never found but the said 12 head. Said Davi's Bros.’ brand was the figure 2 on the right shoulder and two stripes on the right leg. All these stolen cattle, and especially said 12 head, were thus branded before they were stolen.

Appellant was also' at said time a cattleman, and had been for many years. He then lived on a section of land he ownd near the center of Collingsworth county, and had several small pastures or ranches in said county, and also one in Oklahoma. Where he lived was about 30 miles from Davis Bros.’ Wheeler county ranch. There were many fences of others between them, and no direct road from one to the other place. In February or March, 1913, appellant leased from Mr. Mc-Claskey a pasture, telling him at the time he wanted to put about 45 head therein. About May 5, 1913, as soon as McClaskey could get this pasture ready, appellant did put 45 head of cattle therein, including the said 12 head described in the indictment. This McClaskey pasture was quite secluded, rough, and had deep canyons in it. It was fully a mile from any public road. The grass therein seems to have been in the canyons. McClaskey, appellant’s witness, said the grass would spring up in the spring earlier in the canyons than on top, and the cattle would most likely be in the canyons then. He also said there were some private roads running through his place used by fishermen and. hunters and by persons from a certain neighborhood when the river -was up, and “cattle riglit down in the canyons cannot be seen from any point on the road that goes through there.” The only running water for cattle in that pasture was in the canyons. He also said when appellant put these cattle in his pasture he also sent another hunch down to a ranch at Tex-ola.

In hunting for their 60 head of stolen cattle, E. T. Davis, in the spring and summer of 1913, went into appellant’s pasture, hut found none of them then therein. He, however, in the summer of 1913, did find said 12 head in said McClaskey pasture. He and many other witnesses clearly showed that said Davis Bros.’ said brands were on said cattle, but had been burned over, and the figure “2” had been changed to what the witnesses call a “balloon bar,” or “O bar.” That this was done by attempting to burn over the whole figure “2” so as to make the upper part an “O” and the lower part a bar thereunder. And the two stripes on the right leg had been burned over so as to make what the witnesses call a “lazy H.” On one or two of the cows the “2” had been burned over and made the figure “8.” These facts were thoroughly established by many witnesses, and in no way disputed. Besides, Davis Bros., by themselves and at least two other witnesses, clearly identified from 3 to 5 head of these cattle as theirs by fleshmarks, and as that many of their 60 head of stolen -cattle. Davis then went to appellant, told him of finding and identifying said 12 head, and about how the brands had been burned. Appellant, Mooney, then told Davis he had bought said cattle from a man by the name of Jackson; that he had bought 60 head from Jackson. Davis told him he wanted the cattle and the man who burned them, and asked him if he could get hold of Jackson. Mooney “said he could. He said he lived right off down there, and pointed east in the direction of Oklahoma.” He asked Mooney where the balance of the 60 head were. “He said the remainder of them were up on Sweetwater, in Oklahoma.” Mooney then had a ranch on Sweet-water, in Oklahoma. At this time, when Davis told Mooney the brands of the cattle had been burned, Mooney said, “They looked like burned cattle to him.” Mooney never produced said man Jackson — if there was such man — at any time, and the record in no way shows he ever attempted or tried to do so. Soon after this, Davis went to Mooney’s Sweetwater ranch and searched for the remainder of the 60 head, but Mooney had preceded him there, and Davis then found none of them there. Mooney afterwards claimed to Davis he had bought only 30 head from Jackson. He also later told him that Jackson lived in Childress county, which was in a different direction from where he at first told and pointed out to Davis where he lived.

Mooney refused to deliver said 12 head to Davis. Thereupon said Davis Bros, sued him in the federal court at Amarillo for, and sequestrated, them. In the trial of that civil case Mooney took the stand and testified for himself. Davis testified herein that on that civil trial, on cross-examination, Mooney swore “he knew that they were our cattle, and he put them down in the McClaskey pasture for the purpose of keeping them out of the way for fear we would claim them. He said they looked like the brands were burned to him. He said he cut those particular cattle out to put them in this particular pasture — McClaskey pasture.” Mooney, nor his attorneys could have been surprised at this testimony by Mr. Davis, for Davis so testified on the trial of Mooney for this same offense on the previous trial, and, if it had not been true, he could have so shown by the court stenographer, the judge, lawyers, and jurors of said federal court.

Mooney claimed he had bought said 60, or 30, or 12 head, as the case may be, from Jackson, and at times he claimed he only paid two horses and four mules for them. Soon after he was arrested and made bond for this offense in said first case, in the summer of 1913, he had a deliberate talk with Mr. Salmons about these cattle Davis was claiming. Salmons swore he said he had bought them. “I asked him who he bought them from, and he said a man by the name of Jackson. I asked him what Mr. Jackson’s initials was or name. He said: T don’t know. I gave him a check for them, and the check will show the initials.’ ” He said he gave $23.S0 per head for the cattle. He did not tell Salmons where Jackson lived, nor how many cattle he bought from him, nor what else other than the check he gave for them.

No such check was produced on the trial, nor any explanation made why it was not.

Mr. Albert Walker lived about 12 miles from said McClaskey pasture, not far off the line of road from that pasture to said Davis ranch in Wheeler county. He knew the brand of Davis Bros. About the last of February or 1st of March, 1913, he saw in his stalk field a cow and heifer belonging to said Davis Bros. The figure 2 on the cow had been burned into the figure 8, and on the heifer it had been burned into said balloon bar brand. These burned brands were then fresh. When Davis found said 12 head in the McClaskey pasture, Mr. Walker went down there with others to examine them and the brand, and identified said cow and heifer, which had been in his stalkfield, as two of the 12. Walker did not know how they got from his field to said pasture. Walker’s evidence was in no way disputed.

In his first trial for this offense Mr. Mooney did not claim insanity as a defense, and introduced no evidence whatever on that subject. That is shown in this case on this trial. On this trial, it is true, he pleaded not guilty, which would, of course, compel the state to prove his guilt beyond a reasonable doubt, but bis only defense was insanity. His defense was submitted in a proper charge which, was prepared by his own able attorneys, and the jury told if he was insane, or they had a reasonable doubt of it, to acquit him. The jury found 'against him. They could not properly have done otherwise, under the evidence. They assessed the lowest punishment authorized by law.

Omitting the usual heading and the signature of the attorneys and Judge, we will quote appellant’s sixteenth bill of exceptions in full. It is:

“While Newt. Willis, counsel for the state, was opening the case in behalf of the state, he used the following language in referring to defendant: ‘The story of .the thievery of which the defendant is the head rivals the stories of Robin Ilood of ancient days. He is the captain of cow thieves, and is at the head of an underground system leading from Davis Bros.’ pasture in Wheeler county down through Collingsworth county, terminating in defendant’s pasture, where these cattle were found. This system of cattle stealing must be broken up.’ To which remarks of counsel defendant duly excepted, because the defendant was not being prosecuted for stealing cattle, and the argument was prejudicial, and the language unwarranted by any testimony in the case, and was abusive, and held defendant up in an unfair and unjust light before the jury, and request that the same be withdrawn from the jury. Which objections were by the court overruled. To which ruling and action of the court defendant then and there in open court duly excepted, and here now tenders his bill of exception No. 16, and asks that the same be examined, approved, and ordered filed as part of the record in this case.”

The judge approved it with this qualification:

“No request was ever made on behalf of the defendant, either oral or written, that the court instruct the jury not to consider said remarks of counsel.”

Below the judge’s official signature is this, signed by appellant’s attorneys:

“Defendant refuses to accept the qualifications as made for the reason that both the objection was made and the request to withdraw from the jury.”

We cannot consider the attorneys’ statement for any purpose, but, as the matter appears, we, as well as they, are bound by the judge’s qualification. If they, and not the judge, were correct on the ijoint, they should have procured a bystanders’ bill properly sworn to as prescribed by the statute and decisions. Not having done so, we must and do conclude the judge was correct.

We regard, the matter, however, as unimportant, for it is certain that they requested no written charge. Charges by the judge and of attorneys too, when given, must be in writing.

Besides the able oral argument, and the first elaborate brief filed, when this case was submitted, at the instance of both sides, we gave additional time for them to brief and argue the one question presented by this bill. Both sides did so, and then still additional time was given appellant to reply to the state’s brief. So that we have three very able, earnest, and lengthy briefs on this question alone, to which we have given careful consideration.

Among other contentions, appellant claims that the remarks of Mr. Willis “was mere testimony given by counsel relating to facts of the most incriminating and prejudicial character,” and in effect caused the jury to find him guilty.

In,selecting juries the law (R. S. 5126) requires the commissioners to swear they will not knowingly select any man as a juror whom they believe to be unfit and not qualified, but are required to select persons free from all legal exceptions, of good moral character, of sound judgment, well informed, and who are able to read and write (R. S. art. 5135). When the commissioners have failed to select a sufficient number, and it becomes necessary for the sheriff to summon talesmen, the law requires, and he swears, he will select none but impartial, sensible, and sober men. R. S. 5170. Each juror.who serves in a criminal case solemnly swears that he will a true verdict render according to the law and the evidence. There is no intimation in this record that all these matters were not fully and completely carried out. The jurors in this case had absolute knowledge that Mr. Willis was not a witness and did not pretend to testify as a witness to any fact whatever in this case or in connection with it; that what he said was his mere speech and argument to them as an-attorney and not otherwise. The witnesses — those who did testify —the jurors saw and knew were sworn in their presence to testify the truth, the whole truth and nothing but the truth. And they were successively called by the attorneys for the one side or the other and placed upon the witness stand and were asked questions bythe respective attorneys and gave answers thereto as witnesses. The jurors also knew and had absolute knowledge that Mr. Willis sat before them as an attorney for the state with others and at no time gave any testimony whatever as a witness, but must have participated in the examination of the witnesses who did testify on the stand, and they, nor either of them, could have been misled, nor could they for one moment imagine that Mr. Willis’ speech was evidence in the case. The trial must have lasted for more than one day and perhaps as much as two full days. The statement of facts shows that 11 witnesses testified in behalf of the state and 5 for appellant. It took 63 typewritten pages to transcribe their testimony in narrative form, as shown by the statement of facts. The said language of Mr. Willis complained of is less than 7 typewritten lines. According to appellant’s contention, he would have this court reverse this case because of the utterance of this language 'by Mr. Willis, notwithstanding the real facts and evidence in this case, which are in no way impeached or disputed, establishes,, beyond the shadow of a doubt, appellant’s guilt of the crime with which he was charged aud convicted, and, too, notwithstanding the remarks of Mr. Willis could in no event have affected the jury as against appellant’s sole defense of insanity, and notwithstanding, too, that the verdict of the jury assessed the lowest penalty authorized by law.

The rules have been so long and so well established by the law applicable to this question that it would seem useless to here again state them; but, in view of appellant’s urgent and vigorous insistence, we will again state some of them and cite some of the authorities.

Bass v. State, 16 Tex. App. 69, was a rape ease with the death penalty assessed, and the case affirmed. This court, through Judge Hurt, said the argument for the state complained of “was not proper,” and “suppose we concede that the counsel for the state assumed as a fact and commented upon such fact, which was not in proof, this court would not reverse the judgment, unless such conduct was very clearly calculated to prejudice the rights of defendant. To reverse in all cases in which counsel did not confine themselves to the record would render trials farces. In fact, rare would be the case in which such irregularities would not occur.”

Pierson v. State, 18 Tex. App. 524, was a murder case, in which a verdict assessing penitentiary confinement for 30 years was affirmed. There seems to have been two bills to remarks in argument by the district attorney, or two distinct such remarks, objected to. The record does not disclose what the first was, but as to that the trial judge told the jury to pay no attention to it. However, as to those remarks this court (18 Tex. App. 563) said:

“AVe see nothing materially improper in the district attorney’s remarks.”

As to the other remarks this court (18 Tex. App. 564) said:

“AVe can perceive no impropriety in them. It was the duty of the district attorney, if he thought the evidence established the guilt of the defendant, to demand his conviction. He demanded a conviction in the name of the state, in the name of law, justice, and right, in the name of society, in the name of the widow and •children of the deceased. AVe see nothing wrong in this. If the defendant committed the murder, he had acted against the peace and dignity of the state; he had outraged law, justice, right, and society; he had clothed the wife in widow’s weeds, and had made fatherless the children of the deceased; and each and all of these consequences of his crime demanded his conviction and punishment. It has become quite common to except to the remarks of counsel for the state in their addresses to the jury. AVe find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. AVhile argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The state has rights in this respect as well as defendants. And, in view of the frequency of exceptions of this character, we will take occasion here to say that, before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us: (1) That the remarks were improper; and (2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.”

Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544, was a murder case, where all three defendants were convicted, 30 years in the penitentiary was assessed against two of them, W. H. and George Tweedle, and 25 years against the other, Martin, a little negro boy. The judgment was affirmed as to both Tweedles, but reversed as to the negro boy solely because the evidence was insufficient to show his guilt. Appellants objected to this language (page 591 of 29 Tex. App., page 545 of 16 S. W.):

“A man could breathe slander and circulate slanderous reports against a woman, but he was not half as bad as the man that whipped his wife”

■ — used by the district attorney in his opening argument. This court, through Judge Davidson, said:

“Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice. the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Tex. App. 227; Bass. v. State, 16 Tex. App. 62.”

In this Tweedle Case Judge Davidson further states: That appellants also complained of this argument by the district attorney:

“AVhy did not these defendants at the examining trial offer the same evidence in extenuation as they do now?”

That nearly all defendants’ witnesses attended the examining trial, but none of them testified. They did on final trial. That the Tweedles on the night and day subsequent to the killing made statements of the manner and cause of the killing antagonistic to their evidence on the final trial. To the sheriff they stated deceased came upon them armed and tried to kill them. On the final trial they testified they killed deceased because he had used insulting language concerning Mrs. Tweedle and had been guilty of other insulting conduct towards her. Judge Davidson says:

“The remark of the district attorney was a legitimate criticism upon the failure of the defendants to offer in evidence at the examining trial the conduct of the deceased toward Mrs. Tweedle, which was the principal defense on the final trial.”

In House v. State, 19 Tex. App. 227, House was prosecuted and convicted of cattle theft, and his punishment assessed at penitentiary confinement. Evidence was introduced that the brands of the alleged stolen cattle had been burned. House had three bills, 7, 8, and 9, to statements of the district attorney in argument to the jury.

In tlie seventh this was the language:

“Gentlemen: Myself and the county attorney, Mi\ Atkinson, have been attacked for our mode of prosecution. There is this difference between the prosecution and the defense: The counsel for the defense in this case are representing renegades, thieves, murderers, and cutthroats.”

In approving this bill the trial judge stated:

“The counsel for the defendant had, in their remarks, been very severe upon the state’s counsel, and in the opinion of the court the remarks of the district attorney were intended to refer to defendants generally and the class of clients on the criminal docket of the court.”

The language in the eighth was:

“The state of Texas might be raked over with a fine-toothed comb, and a more notorious character than the defendant John House could nowhere be found.”

The trial judge made no qualification of this bill.

The language in the ninth was:

“And the district attorney then stated further that no doubt the object of the defendant was to get the cattle back in his range, and then gather around him the thieves, cutthroats, and robbers with whom he associated, and defy the officers of the law when they attempted to take the stolen property from him; that the defendant would steal his neighbors’ cattle and then gather around him cutthroats, thieves, and robbers and defy the law.”-

As to this the trial judge said:

“ ‘The court is of the opinion that the remarks of the district attorney were intended as explaining or as drawing his conclusions from the evidence that the defendant had said if he could got the cattle back from Trammel, by d-n, he would like to see anybody take them from him,’ etc.”

In this bill House complained of this language also of the district attorney:

“Who is this Reinhardt Schneider that you have heard of in this case? He is a refugee from justice, and I might suppose that there is an oath of the defendant on file in this case in which he swears he wants a continuance to prove that he bought these stolen cattle from Reinhardt Schneider.”

When appellant objected to this last—

“the court directed the district attorney to confine himself to the evidence in the case, when he further remarked to the jury: ‘I did not say there was any affidavit on file. I only said I am going to suppose the fact. I do this to show what character of men are the associates of the defendant. I have proved by Gant. Jones, the sheriff of your county, that Reinhardt Schneider is a refugee from justice.’ ”

To this latter appellant again objected.

The report of this House Case clearly shows the trial judge in no way withdrew any of said statements from the jury but expressly let them all stand. Appellant therein contended vigorously this court should reverse because of each and all of said matters. But this court said:

“The most objectionable of which perhaps was that ‘the state of Texas might be raked over with a fine-tooth comb, and a more notorious character than the defendant John .House could nowhere be found.’ The objection to this remark, as stated in the bill, is that defendant’s character had not been put in issue by himself. Still, the charge against him and evidence which had been adduced to support it, were in their nature likely to reflect somewhat unfavorably upon his character, even if they did not put its notoriety throughout the state in issue. We construe the remark to be not so much evidence of a- desire to make use of foreign matter to the injury and prejudice of defendant as an impassioned expression, highly exaggerated it may be, but springing inadvertently from the heat of debate. If all such remarks were held reversible error, but few convictions would stand the test where the case had been hotly contested by able and zealous counsel in the courts below. The remarks set out specifically in the ninth bill of exceptions are rather deductions and arguments upon the evidence than mere opinions or independent statements by the district attorney. We cannot say they were entirely unwarranted by the evidence.”

And the opinion cites and quotes as the-law the Pierson Case, supra. A very large number of cases, even down to this very date, could be cited, citing and approving these cases and rules, but we deem it unnecessary to do so.

By many other decisions of this court this further rule is also well established: When an objectional statement is made in argument not authorized by the evidence, nor a deduction therefrom, merely objecting thereto will not present reversible error. In order to do so, the party must also request in writing a charge requiring the jury to disregard it. Hatchell v. State, 47 Tex. Cr. R. 385, 84 S. W. 234; Fielder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Kennedy v. State, 19 Tex. App. 634; Young v. State, 19 Tex. App. 543; Lancaster v. State, 36 Tex. Cr. R. 20, 35 S. W. 165; Dies v. State, 56 Tex. Cr. R. 36, 117 S. W. 979; Rahm v. State, 30 Tex. App. 313, 17 S. W. 416, 28 Am. St. Rep. 911; Garello v. State, 31 Tex. Cr. R. 61, 20 S. W. 179; Vann v. State, 48 Tex. Cr. R. 15, 85 S. W. 1064; Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004; Franklin v. State, 38 Tex. Cr. R. 347, 43 S. W. 85; Clayton v. State, 149 S. W. 122.

Mr. Branch in his Criminal Law, § 62, p. 32, states another rule:

“Unless the remarks of counsel are obviously of a nature to impair the rights of defendant, or prejudice his case before the jury, such remarks, though improper, will not be considered for reversal, unless a charge was asked and refused and exception reserved. Kennedy v. State, 19 Tex. App. 634; Young v. State, 19 Tex. App. 543; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Lancaster v. State, 36 Tex. Cr. R. 16, 35 S. W. 165; Dies v. State, 56 Tex. Cr. R. 36, 117 S. W. 979; Mason v. State, 15 Tex. App. 549; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Rahm v. State, 30 Tex. App. 313, 17 S. W. 416, 28 Am. St. Rep. 911; Hatchell v. State, 47 Tex. Cr. R. 385, 84 S. W. 234; Garello v. State, 31 Tex. Cr. R. 61, 20 S. W. 179; Vann v. State, 48 Tex. Cr. R. 15, 85 S. W. 1064; Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004; Franklin v. State, 38 Tex. Cr. R. 347, 43 S. W. 85.”

It is true this court has reversed some cases where even such charge was given. But they are exceptions, not a rule. Appellant cites some of them. Each case in this respect must rest on its own facts.

We will give a condensed statement of what the uncontradicted evidence establishes: (1) Davis Bros, were the owners of the alleged 12 head of stolen cattle. (2) Said 12 head and others, to the number of 60, were stolen from them in Wheeler county. (3) These 12 head, if not all the 60, were taken from Wheeler county when stolen, and delivered to appellant in Collings-worth county. (4) He knew they belonged to said Davis Bros., and had been stolen from them, (o) He knew the Davis Bros.’ brand on them had been burned, or he himself then burned and changed said brand. (6) He not only received these cattle with all this knowledge, but he also concealed them to keep said Davises from finding and getting them. (7) The McClaskey pasture where he concealed them was secluded, broken, rough, and had deep canyons in it. The cattle grazed and watered in these canyon and could not be seen from any other point. It was in Collingsworth county about 30 miles from said Davis ranch, in Wheeler county. (8) Appellant’s only defense on this trial was insanity. He made no such defense on his first trial. (9) The lowest penalty was assessed against him.

Now let us consider Mr. Willis’ speech. He said:

“The story of thievery, of which this defendant is the head, rivals the stories of Robin Hood of ancient days.”

Unquestionably this record establishes a “story of thievery.” It is true Mr. Mooney was not charged with theft. But in order to convict him, as charged, with “receiving and concealing” the stolen cattle, it was necessary to establish the theft and to show he knew they were stolen. So that he must have known and dealt with the thief, and we think it not inappropriate that he be designated “the head” of the thievery. The statement it “rivaled the Robin Hood stories” could not be material nor harmful. Nor can we see but that the statement, “he is the captain of cow thieves,” could well be said from the facts and inferences therefrom. He knowingly dealt with a cow thief when he bought these stolen cattle. This cow thief could not thrive without having some one as the head or captain to buy the stolen cattle from him and conceal them, and it is no stretch to call him “the captain.” The fanciful statement, “he is at the head of an underground system from Davis Bros.’ pasture in Wheeler county down through Collingsworth county, teminat-ing in defendant’s pasture, where these cattle were found,” might well be drawn from the facts of this case. As stated, the thief who stole these cattle might be said to have had appellant “at the head” — some one who would help him by buying and concealing the stolen cattle — and appellant proved to be that one. Evidently the “underground system” had reference to the deep underground canyons wherein appellant had concealed these cattle, and unqriestionably they had been taken from Davis Bros.’ pasture in Wheeler county to appellant’s said pasture in Collingsworth county, where they were actually found.

Surely no one ought or could properly object to the statement, “this cattle stealing must be broken up,” whether it correctly or incorrectly be designated “system.” But concede that each and all of the statements of Mr. Willis were wrong, and that the evidence furnished no basis therefor, still the language under the circumstances of this case, and the verdict of the jury, should not and ought not to result in a reversal. They were not of such a material nature as to impair his rights nor prejudice him, or his case, before the jury; nor did they do so. Nor were they “of such a grave character as to render it obviously injurious” to him, which would or could justify this court to reverse this case.

There was no material error committed in the trial of this case, and it should be affirmed ; and it is so ordered.

On Motion for Rehearing.

Everything made a ground for rehearing herein was thoroughly considered before the original opinion was handed down. Appellant, in effect, concedes this and that he can add nothing to what was urged before. It is altogether unnecessary to take up any of these matters and discuss them again. They were correctly disposed of in the original opinion.

There is a matter, however, called to our attention, which, in justice to appellant’s attorneys and ourselves, we desire to correct. In the original opinion we stated, in effect, that there was a document in the record signed by appellant’s attorneys as objections to the court’s charge, and as to this we stated:

“This document does not show to have ever been presented to or acted upon by the judge, for the judge makes no noting thereon that it was ever presented to or acted upon by him. Nor does the record show any bill of exceptions by appellant to the court’s refusal or failure to consider or' comply with any of his said objections.”

The record is quite voluminous. Evidently in dictating the opinion, we had before us the said document, as copied on pages 39 to 44, inclusive, of the record, and what is failed to be shown there is correctly stated by us. However, appellant in his motion for rehearing calls our attention to the fact that on pages 120 to 126, inclusive, said document is copied in his bill No. 2, with the proper heading, stating it was presented to the judge prior to the time he read his charge to the jury. It is further stated therein the judge “thereupon corrected his charge in part, but refused to conform same to the said objection as made,” and ordered said objections filed as a part of the record, to which he excepted, etc. The judge approved and ordered s/iid bill filed, and signed his name thereto officially. This bill was overlooked by us in the connection when we stated what we did about the document, as shown on pages 39 to 44. We make this correction cheerfully, because otherwise it might have a tendency to show that appellant’s attorneys in the trial court had omitted a material matter. Every one who knows them, and this court especially, knows that they are diligent in representing their clients and in taking every precaution to correctly preserve and present whatever errors they think are committed in the trial court. We regret that we failed to call attention to this in the original opinion.

It will be noticed, however, that we fully considered every objection that was made to the court’s charge and every special charge requested by appellant which was refused, as shown in the original opinion.

The motion for rehearing is overruled.
      ,@=>For. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§x^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILDSON, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. EDWARDS.
    (No. 1448.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1915.
    Rehearing Denied May 6, 1915.)

      1. Exchange of Property <@=33 — Consideration — Compromise—Good Faith.
    Where one who was sued in forcible entry and detainer by a railroad company for the possession of certain land in settlement of that suit leased the property from the company, but testified that she signed the lease under a misapprehension of its contents, and on the advice of an attorney that it could not be used to take her land away from her, the lease did not conclusively show that she made no claim in good faith to the property, so that a promise by the company to give her other land in exchange for that property was without consideration.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 3, 7; Dec. Dig. <@=>3.]
    2. Contracts <@=368 — Consideration — Compromise.
    A compromise of a claim made in good faith and with reasonable grounds is a good consideration for a promise, though the claim in fact could not be enforced in court.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 328-330; Dee. Dig. <@=368.]
    3. Exchange of Property (©^S-hActions— Petition — Charge of Deceit.
    A petition, which alleged that a railroad company presented to the owner of a lot a contract for the exchange of other property for that lot, as evidence of an oral agreement for the exchange previously made by the parties, that plaintiff executed the contract believing that the land described therein was the same as that which had been pointed out to her as the property she was to receive, but in fact it was other land of less value, sufficiently charged deceit on the part of the railroad company.'
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. <@=>
    Appeal from District Court, Grayson County; W. M. Peek, Judge.
    Action by Mary J. Edwards against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Head, Dillard, Smith, Maxey, & He.ad, of Slierman, for appellant. E. W. Neagle and J. H. Dawson, both of Sherman, for appel-lee.
   WILDSON, C. J.

In constructing that part of its line of railway described in the record as the “Dallas cut-off,” it became necessary for appellant to use B8/ioo of an acre of land which it claimed to own and to have leased to appellee, situated in the city of Denison. Appellee resided upon the land, denied that she held it as appellant’s lessee, and claimed, instead, that she owned it. Negotiations between the parties finally (on June 29, 1912) resulted in an arrangement whereby appellee in writing agreed to, and afterwards did, remove from the land and relinquish and release to appellant all claim she had in and to same, in consideration of appellant’s undertaking to move a house off of certain other land in said city, move another house on same, and then convey said other land to appellee by a quitclaim deed. Appellee’s contention was that appellant pointed out to her as the land it proposed to convey to her lot 6 in block 27 of Stephens’ addition to the city of Denison, but instead conveyed to her parts of lots 5 and 4 lying east of and adjoining said lot 6. Her suit against appellant was to cancel the contract between herself and appellant and the deed she made to appellant to the cs/:loo of an acre, or, in the alternative, for damages for deceit practiced upon her. Appellee alleged that at the times she executed the contract and deed in compliance with her undertaking thereunder she did not know that the land appellant pointed out to her as the land it proposed to convey to her was lot 6, but believed that the “property described in said contract,” to wit, part ■of lots 4 and 5, was the same property appellant had pointed out to and agreed to convey to her, “and, so believing, thereafter executed a deed,” conveying the 58/ioo of an acre to appellant. She further alleged that after she executed said contract and deed and received from appellant its deed to parts of said lots 4 and 5, “she learned for the first time that defendant had not deeded to her the lot which it pointed out to her, which she says was lot No. 6 in block No. 27 of said Stephens’ addition, but instead thereof had deeded to her a three-cornered piece of land, a part of lots 4 and 5, block 27, of Stephens’ addition aforesaid, which land so deeded to her is of practically no value.” Slie then alleged that appellant had “wrongfully and fraudulently represented to her” that it would deed to her the land she afterwards learned was lot 6, and “fraudulently induced” her to execute to it a deed conveying the B8/ioo of an acre, and “wrongfully and fraudulently obtained possession -thereof by the means herein alleged. That as soon as plaintiff was advised that the lot pointed out to her by defendant was not deeded to her, but that another and different lot was deeded to her, she at once repudiated the contract and deed alleged herein above, and. now repudiates same, and tenders back to defendant said contract and said deed.” The appeal is from a judgment in appellee’s favor for the sum of $250 as damages.

The trial court determined as a matter of law that appellee was not entitled to have instruments she had executed canceled, and submitted to the jury only a question as to her right to recover damages. He told them that “a false representation of a material fact which constitutes an inducement to a contract, on which the plaintiff has a right to rely, and which she believed to be true and by which she was misled, would entitle her to relief,” and instructed them to find for appellee if they believed: (1) She owned the E8/ioo of an acre at the time she agreed to remove therefrom and to relinquish and release same to appellant; (2) that she was induced to so agree and thereafterwards to remove from the land and convey her interest in same to appellant on the faith of its undertaking to convey her lot 6; (3) that appellant refused to comply with its undertaking, but instead conveyed her parts of lots 4 and 5; and (4) that within a reasonable time thereafterwards she “offered to disaf-firm said exchange of land and to cancel said conveyances.”

The assignments question the correctness of the action of the court in instructing the jury as stated and in refusing to instruct them as requested by appellant. The contention is that the testimony did not warrant the instructions given, and demanded the giving of those refused. The testimony was conflicting, but that relied upon by ap-pellee was sufficient to support findings: (1) That appellant and appellee both claimed to own the C8/ioo of an acre; (2) that appellee was in possession of same, occupying and using it as her home; (3) that to induce her to remove therefrom and to convey said land to it appellant orally offered to move a certain house onto other land it pointed out to appellee and to convey same to her; (4) that the other land so pointed out was lot 6; (5) that appellee orally accepted the offer; (6) that an instrument in writing, purporting to state the agreement between the parties, was prepared and executed by appellant and presented by it to appellee for execution; (7) that in this instrument the land appellant bound itself to convey to appellee was described as parts of lots 4 and 5 and by metes and bounds; (S) that appellee signed the instrument and delivered it to appellant and moved off of the 58/ioo of an acre, believing the land described in the instrument as stated to be the land appellant had pointed out and orally offered to convey to her, and that she afterwards released and relinquished her claim to said B8/ioo of an acre to appellant; and (9) that appellant failed to move said house onto lot 6, the land it had pointed out to appellee, and convey same to her, but instead moved the house onto parts of lots 4 and 5 and conveyed said parts to her. The testimony authorizing such findings, we think the objections made by appellant to the instructions given on the ground stated should be overruled, unless, as appellant contends was true, it conclusively appeared that there was no consideration for its undertaking to move the house and convey lot 6 to appellee. Guinn v. Ames, 36 Tex. Oiv. App. 613, 83 S. W. 232. The contention is based on proof made by appellant that on April 14, 1910, ap-pellee and her mother executed and delivered to it an instrument in writing whereby they leased the S8/ioo of an acre from it for a period of one year commencing on that day, “and subject to renewal and continuation” as provided in the instrument as follows:

“It is further understood and agreed by and between the parties hereto that this lease shall be deemed by consent of parties renewed and continued in force from year to year, unless one of the parties hereto shall immediately preceding' the end of any year give to the other-thirty days’ notice in writing of its or their intention to terminate the lease, and upon such notice being so given by either party the lease shall terminate at the close of such year, at which time said first party [appellant] shall be entitled to take full and exclusive possession of the premises hereby let. This provision, however, is not intended to impair or interfere with the reserved right of the railway company to terminate this lease at any time whenever in its judgment the possession of the grounds or any portion thereof hereby let are necessary in the operation of its railway upon giving the notice herein provided.”

And further proof made by appellant that appellee refused to pay the yearly rental stipulated for, and refused, after notice given to her as provided in the instrument, to remove from and give it possession of the premises. It seems from the record that appellee’s refusal, as stated, was based on a claim she made that.at the time the lease was executed she had been occupying the land as her home for about 12 years, that she owned it, and that she executed the lease in settlement of a forcible entry and detainer suit brought by appellant against her for the land, under a misapprehension as to its contents and legal effect and on assurance given her by a lawyer that it “didn’t amount to anything” and “could not be used to take the land away from her.” We do not think it should be said that it conclusively appeared that appellee’s claim that she owned the 3S/ioo of an acre was without any foundation and was not made by her in good faith, and therefore that her removal from the land and conveyance of it to appellant was not a sufficient consideration to support appellant’s-undertaking to move the house to and convey her lot 6. The law controlling such agreements is stated in 6 Ruling Case Daw, § 71, to be as follows:

“Analogous to the relinquishment of a right is the compromise of a disputed claim whereby the claim is extinguished. Regardless of whether suit is pending in regard to the claim, the settlement thereof is a sufficient consideration for a promise because of the detriment to the party consenting to the compromise’ arising from the alteration of his position. There is authority to the effect that a compromise cannot be a sufficient consideration for a promise where there has been no dispute between the parties, or where the disputed claim is legally groundless. If this statement is to be understood as requiring the actual existence of an enforceable liability, it would seem to be opposed to the weight of authority, according to which the claim need merely be a doubtful one. If it is, the actual rights of the parties, whatever they may be, do not affect the question. The fact that the promisor is mistaken in regard to his liability is immaterial. If there is a doubtful claim the courts will not investigate into the relative merits or demerits-of the claims of the parties. It is not a defense that the claim could not have been maintained if suit or action had been brought upon it, or that the parties were mistaken as to the law; for, if it is, it would follow that contracts by the parties settling their own disputes would at last be made to stand or fall according to the opinion of the court as to how the law would have determined it. If the compromise of the parties is made to depend on the question whether the parties have so settled the dispute as the law would have done, then it may be truly said that a compromise is an unavailing, idle act which questions even the power of the parties to bind themselves. But a claim which is utterly without foundation and known to be so is not a good consideration for a promise. The claimant must honestly suppose or believe that he has a cause of action. Accordingly, where the promise is extorted by threats to sue on a claim which the party knows is wholly unfounded and which he is making for the purpose of extorting money, the contract is utterly void. Some courts require that in addition to good faith, the claimant shall have reasonable grounds for asserting his claim. Under this view, the doubtful right compromised, to be a good consideration for a promise, must, upon reasonable grounds, be honestly entertained by the person proposing to assert it. It seems that even under this view, all that is necessary is that there should be a claim concerning which the parties may bona fide and upon reasonable grounds disagree. The compromise of such a claim in good faith is a good consideration to pay money in settlement thereof, and when an action is brought upon such promise, it is no defense to say that the claim was not in fact a valid one, and that the parties were mistaken either as to the law or the facts.”

The contention made that it did not appear from the allegations in appellee’s petition that she was induced to execute the contract whereby she undertook to remove from the 68/ioo of an acre and convey same to appellant as the result of fraud practiced upon her is, we think, not supported by the record. As we understand them, the allegations in effect were that appellant, when it presented the writing it had prepared as evidence of the agreement to appellee for execution, thereby represented that the land described therein as the land it was to convey to her was the land it had pointed out and orally agreed to convey to her, and that she executed the instrument so presented to her believing that the parts of lots 4 and 6 therein described as the land appellant bound itself to convey to her was the land it had pointed out to her, and in ignorance of the fact- that the land so described therein was other and different and less valuable land than that appellant had pointed out. These allegations, we think, sufficiently charged deceit on the part of appellant.

There is no error in the judgment, and it is affirmed.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    TEXAS & P. RY. CO. v. KEELER.
    (No. 1458.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 20, 1915.
    Rehearing Denied April 29, 1915.)
    Carriers <®=»320 — Injuries to Passenger— Abusive Language by Bmployé — Physical Injury.
    In an action for damages resulting from profane and abusive language used by the conductor and train auditor toward a passenger whom they accused of not having paid his fare, where there was evidence that the passenger was sick at the time, and that the language used toward him made him feel weak, though he did not know that it made him any weaker, or that it increased his temperature, it was for the jury to say whether there was any physical injury caused by the abuse for which recovery might be had.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. <S=o320.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by M. C. Keller against the Texas & Pacific Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Geo. Thompson, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. J. W. Fisher, of Whitesboro, and Wolfe & Wood, all of Sherman, for appellee.
   LEVY, J.

Appellee sues for damages for alleged abuse and mistreatment by the employes of appellant while he was a passenger on the train. The petition alleged, and there is evidence in support of the allegations, that appellee had given the train auditor his ticket, which showed that his fare from Paris was paid to Whitesboro, and that thereafter the train auditor waked him up and requested him to pay again, and upon appellee’s replying that he had already given his ticket to either the auditor or the conductor that the auditor and the conductor both used profane and abusive language to him. The petition further alleges that at the time appellee became a passenger he was sick, and was suffering from fever, and that the treatment and abuse caused him great mental pain and physical suffering. The appellant denied the allegations of abusive language and any mistreatment, and there was evidence offered in support of the denial. The conflict of evidence was determined by the jury in favor of appellee.

The second paragraph of the court’s charge reads as follows:

“If you further believe from the evidence that such language or threats to and concerning the plaintiff caused him shame, humiliation, or distress of mind, or physical suffering, and if you further believe from the evidence that such words and language, if any, used to and concerning plaintiff was of a nature reasonably calculated under the circumstances to produce shame, humiliation, and distress of mind, or physical suffering, then you will find for plaintiff.”

The appellant seasonably objected to the instruction as pertains to “physical suffering” as an element of damage, upon the ground that there was no evidence of any physical injury to appellee. A special charge was asked, and its refusal seasonably objected to, directing the jury not to allow anything for physical suffering. The evidence pointed out by appellee as relied upon to show physical injury reads:

“The way they cursed me did not make my fever any higher. I was still sick. I didn’t have any thermometer, and didn’t test my fever to see if it. was any higher or not. I felt weak over being abused. The way he cursed me made me feel weaker. It made me feel worse. I didn’t like to be treated that way. I don’t know as I was any sicker, but I felt worse. I felt a little weaker than I did.”

Under the circumstances, rather should it be left to the practical deliberation of the jury to disassociate mental from physical pain. If the physical condition of the ap-pellee was such as to cause him to suffer a depressing effect of weakness from the wrong, it might be regarded by the jury as a physical injury producing suffering to the body, rather than to the mind. And it is not thought that it can properly be said, as a matter of law, that there is no evidence warranting the issue of physical injury. The matter of extent of such injury is not involved.

The judgment is affirmed.
      <g^=>For other cases see same topic and KEY-NUMBER in All Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HOUSTON EAST & WEST TEXAS RY. CO. v. HOUSTON PACKING CO.
    (No. 447.)
    (Court of Civil Appeals of Texas. El Paso.
    April 22, 1915.
    Rehearing Denied May 13, 1915.)
    1. Appeal and Ebeor @=>1002 — Veedict — OONCLUSIVENESS.
    A verdict on conflicting evidence and sustained by evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. @=> 1002.].
    2. Appeal and Eeeob @=3544 — Questions Reviewable — Refusal of Insteuctions — Bill of Exceptions.
    In the absence of a bill of exceptions taken to the refusal of special charges as required by Acts 33d Leg. c. 59, assignments complaining of the refusal will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. @=i 544.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the Houston Packing Company against the Houston East & West Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Lane, Wolters & Storey and Baker, Botts, Parker & Garwood, all of Houston, for appellant. Hutcheson & Hutcheson, of Houston, for appellee.
   HIGGINS, J.

The Houston Packing Company brought this suit to recover of appellant damages arising out of the shipment of a car of meat from Houston, Tex., to Concord, N. H. The damage is alleged to have been due to delay in transit, negligent diversion, and insufficient re-icing. From a verdict and judgment in plaintiff’s favor, the railway company appeals.

Appellant was the initial carrier, and the bill of lading which it issued, among other things, provided that the shipment was to be properly re-iced when necessary while in transit. Appellee furnished the car containing the shipment.

It is assigned as error that the verdict is contrary to the evidence, it being contended in the supporting propositions that appellee failed to show a proper pre-cooling of the meat prior to its loading; that the car containing the shipment was improperly constructed as to insulation; and that the evidence disclosed the car had been properly re-iced while in transportation. No good purpose can be served by detailing and discussing the evidence. It is sufficient to support a finding adverse to appellant upon each of the issues presented in support of its assignments upon this phase of the case.

Those assignments complaining of the refusal of special charges are overruled, for the reason that no bill of exception was taken to their refusal as required by chapter 59, Acts 33d Legislature.

Affirmed.


text:
    GULF, C. & S. F. RY. CO. et al. v. GREEN.
    (No. 1463.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1915.
    Rehearing Denied May 6, 1915.)
    1. Carriers @=>230 — Carriage of Live Stock — Injury—Liability of Railroad.
    In an action against a carrier of live stock for injuries to a jack in transit, question whether the foundering was caused by defendant held for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. @=>230.]
    2. Trial @=>139 — Weight of Evidence — Question foe Jury.
    The weight of evidence is for the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. @=> 139.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by S. L. Green against the Gulf, Colorado & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.

      The action is by appellee to recover damages for injury to a jack shipped on the lines of appellants from Celeste to Ft. Worth, and from Ft. Worth back to Celeste, Tex. Appellants traversed the allegation of negligent handling. The case was submitted to the .jury on special issues, and, upon the findings that the injuries to the jack were caused by the alleged negligent handling in transit, the ■court entered judgment for appellee.
    On March 7, 1913, appellee tendered to the Gulf, Colorado & Santa Fé Railway Company at Celeste a jack to be shipped to Ft. Worth, Tex., for the purpose of exhibition and possible sale at the fat stock show in that city. In the same car in which the jack was shipped were two horses belonging to ■other persons. The jack arrived in Ft. Worth on the morning of March 8th and was unloaded and placed in a barn belonging to the Ft. Worth Horse & Mule Comj)any. There was some conflict in the testimony as to the jack’s condition at the time he was unloaded and during the time he remained at Ft. Worth. The jury found that he was only slightly sore from the effects of shipment. The evidence on the part of the ap-pellee goes to show that during the eight days he remained at Ft. Worth the jack was properly fed and watered and to the correct amount, and that the stall, the floor of which was made of concrete, he was put in was properly and well bedded with hay, and that his condition was good. Appellants’ contention was that the jack was fed in turns by five different persons; the feeding being done by whoever at the barn was in charge of the stock at feeding time. On the afternoon of March 15, 1913, the jack was delivered to the appellant railway company for reshipment to ■Celeste, and it was shown that, at the time of the delivery to appellant, his condition was good. At the time of the delivery for reshipment the appellee properly wrapped and tied a blanket on the jack, and he had it on him at the time of the delivery. It was proved that removal of the blanket from the jack while en route might cause the jack to cool off too quickly, and this would be calculated to cause laminitis or founder. On arrival at Celeste on March 17th the blanket was gone from off the jack and could not be found, and the animal was found to be suffering from a disease called laminitis, or road founder, which greatly reduced his value. Except for this ailment, the jack showed no evidence of having been bruised or skinned or of having suffered other external violence. It was also shown, by evidence authorizing the jury to so find, that the road founder was due to violence to the feet, and not to improper feeding or watering. The jury found the injury did not result necessarily from the ordinary movements of the train. The em-ployés of the train testified that there were no unusual delays and no rough or improper handling of the train from Ft. Worth to Celeste. But all the circumstances would authorize the inference, as found by the jury, that the injury to the animal was occasioned through some improper handling in transit of appellants. And, as there is evidence going to support the verdict of the jury as to alleged negligence in handling the jack and the amount of the verdict, their findings of fact are here adopted.
    Dinsmore, McMahon & Dinsmore, of Green-ville, Terry, Cavin ■& Mills, of Galveston, and Geo. Thompson, of Dallas, for appellants. W. A. Shields and Clark & Leddy, all of Greenville, for appellee.
   LEVY, J.

(after stating the facts as above).

The jury made the special finding that the ailment of road founder, which the jack was suffering from when he reached Celeste on March 17th was caused by appellants by “improper handling while in transit.” The first assignment, properly construed, assails this finding of fact upon the ground of the legal insufficiency of the evidence to support it. It is concluded that this court cannot sustain the assignment as a matter of law, and it therefore must be overruled. According to the evidence of the veterinary surgeon, the jack, at the time he arrived at Celeste, was suffering from what is commonly called road founder, which is caused only by violence to the feet. This veterinarian says that he could tell that the jack was not suffering from founder caused by improper feeding and watering, through the temperature and other symptoms of the animal. And there was evidence going to show that the jack was fed and watered regularly and to the correct amount, and properly and sufficiently bedded and attended in the stall, and his condition good for the several days at Ft. Worth before delivery to appellants for reshipment to Celeste. He was also delivered by appellee to appellants properly blanketed for the weather. It was further shown by the veterinarian that jacks are easier to become road foundered than horses, and hard movements of a freight train are calculated to founder a jack, owing to his care before he was loaded on the train. And from these circumstances, considered with all the evidence, it was for the jury to say, as in their province, whether or not the inferences to be drawn were that the ailment was caused through some condition while in the charge of appellants. And while there is evidence on the part of appellants that the train was, in the opinion of the employSs, operated carefully, the weight and force of all the evidence respecting its operation, as detailed, were matters for the consideration, of the jury. The jury made the finding from the evidence that the injury was not necessarily incident to the ordinary and usual movements of the cars in which the jack was transported. And if the jury may, from all the facts, have further concluded, as we think they could have done, that the injury was only'proximately caused by improper handling at some time in transit, amounting to a want of ordinary care, the court would not be warranted, it is thought, in disturbing the verdict.

It is thought that the remaining assignments do not afford ground for reversible error, and they should be overruled.

The judgment is affirmed.
      (@=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    TRAMEL et al. v. GUARANTY STATE BANK & TRUST CO.
    (No. 1456.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 15, 1915.)
    1. Partnership <@=219 — Actions against Dismissal as to Paktner Not Served — Ee-eect.
    Where an action against a partnership and the three members thereof was dismissed as to one partner for failure to procure service on him, no judgment could be rendered against the firm.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dec. Dig. <@= 219.]
    2. Appeal and Error <@=>733 — Assignment oe Error — Sufficiency.
    Assignments of error that the return on a citation showing service in a particular name will not support a judgment by default is a legal proposition, not an assignment of error, and will not be considered.
    [Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 8025-3027; Dec. Dig. <§= 733.]
    3. Appeal and Error <@=719 — Questions Presented eor Review — Necessity oe Assignment oe Error — Deeect in Service.
    A defect in the service of a citation is not fundamental, and will not be considered in the absence of an assignment of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2082, 3490; Dec. Dig. <@=719.]
    Error from District Court, Dallas County; Kenneth Eoree, Judge.
    Action by the Guaranty State Bank & Trust Company against Thomas Tramel and others. Judgment for the plaintiff by default, and Tramel and others bring error.
    Reformed and affirmed;
    Harry R. Bondies, of Sweetwater, for plaintiffs in error. Leake & Henry, of Dallas, for defendant in error.
   HODGES, J.

This appeal is from a judgment by default rendered in the court below in favor of the defendant in error against the plaintiffs in error Tramel, Mc-Caulley & Plaley, a partnership, and against Tramel and McCaulley personally. It appears that Haley was not served, and the plaintiff below dismissed as to him. Defendant in error concedes that by reason of this dismissal the court below was without authority to render a judgment against the partnership of which Haley was a member, and that the judgment should be reformed in that respect.

Defendant in error objects to the consideration of what are termed the second and third assignments of error presented in the brief of plaintiffs in error. The second assignment of error is as follows:

“The return on a citation showing service by delivering to R. L. McCaulley 10 a. m., Thomas Tramel 10:20 a. m., the within named defendants in person, a true copy of this writ, together with a certified copy of plaintiff’s original petition, will not support a judgment by default.”

The third assignment of error is similar in form to the above. It is contended that these are really not assignments of error, but mere legal propositions, and we think the contention is correct. They point, out no ruling of the trial court to which objection is made and which is to be reviewed by this court. Moore v. Chamberlain (Civ. App.) 152 S. W. 195; M., K. & T. Ry. Co. v. Gober (Civ. App.) 125 S. W. 383, and cases cited; McCormick v. Kampman (Civ. App.) 109 S. W. 492.

A defect in the service of the citation is not fundamental, and will not be considered in the absence of an assignment of error. Roy v. Bremond, 22 Tex. 626; Morrison v. Walker, 22 Tex. 18; Oar v. Davis, 105 Tex. 479. 151 S. W. 794.

The judgment will be reformed as indicated above, and, as reformed, will be affirmed.