source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. LONG.
    (No. 5428.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 17, 1915.)
    1.Railroads <£=>441 — Injury to Animals— Burden of Proof.
    Where plaintiff’s horse was killed by being struck by defendant’s train within the switch limits of a town, where the company was not required to fence, the burden was on plaintiff to show that the negligence of defendant’s servant operating the train was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. <®=441.J
    2. Railroads <@=443 — Injury to Animals on
    Track — Sufficiency of Evidence.
    In an action for value of a horse killed on defendant’s railroad track, evidence held sufficient to sustain a verdict for plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. <§=443. J
    3. Appeal and Error <©=>207 — Objection-Argument of Counsei>-Recjuest.
    The court on appeal will not consider whether remarks of counsel to the jury will cause reversal, where the court was not requested to instruct the jury either orally or in writing to disregard the remarks.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3500; Dec. Dig. <§=207.]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Action by J. H. Long against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. B. Storey, of San Antonio, and Jeffrey, Jeffrey & Fielder, of Lockhart, for appellant. E. B. Coopwood and Nye H. Clark, both of Lockhart, for appellee.
   JENKINS, J.

This is a suit for the value of a horse, alleged to have been killed by the negligence of appellant. The jury returned a verdict in favor of plaintiff, appellee herein, and judgment was entered accordingly. The horse was killed by being struck by appellant’s freight train within the switch limits of the town of Dale. The injury occurring a.t a place where the company was not required to fence its track, the burden was on appellee to show that the negligence of appellant’s servants operating the train was the proximate cause of the injury. The verdict of the jury implies such finding, and we think that the evidence was sufficient to sustain such verdict. The train was a special from the East and did not stop at Dale. A horse, which the evidence warranted the jury in finding was the one that was killed, was seen feeding within 4 to 6 feet of the track, with his head toward the track, when the engine pulling the train was some 400 yards east of the horse. The track is straight, and there is nothing to prevent the engineer from seeing him at the time, and from thence until he was struck. It was night, but the track was straight with no obstructions, and the light from the headlight was sufficient to enable two other parties, who were a short distance west of the horse, to see him plainly. These parties crossed the track and passed on, and did not see the engine strike the horse. The engineer testified that he did not see the horse until his engine was in some 25 or 30 feet of it, and that it was then on the track and he could not stop his engine after such discovery in time to prevent striking the horse. The evidence warranted the jury in believing that the engineer was negligent in not keeping a proper lookout. The evidence upon the part of appellee was that the train was running at a high rate of speed, and that the whistle was not blown and the bell was not rung, though the horse was killed near a public crossing. The facts of this case differ en-tinte it from Railway Co. v. Matthews, 158 S. W. 1048, and other cases of like character cited by appellant.

We do not think it probable that remarks of appellee’s attorney to the jury, even if improper (and we do not hold them so to have been), probably influenced the jury in finding their verdict. • Besides, it does not appear that the court was requested by appellant to instruct the jury, either orally or in writing, to disregard such remarks.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
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author: RICE, J.

text:
    NATIONAL LIVE STOCK INS. CO. v. GOMILLION.
    (No. 5482.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1915.)
    1. Appeal and Error <§=>759 — Briefs—Assignments of Erkob.
    Appellant’s brief, copying into the assignments of error words, phrases, and sentences not contained in his motion for a new trial, and omitting other words, etc., violated the rule requiring the assignments relied on to be copied in appellant’s brief, which does not permit appellant to reconstruct the assignment either in form or substance, since the appellee is entitled to have the case presented on appeal upon the same questions that were considered in the lower court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <§=>759.J
    2. Appeal and Ebeob <§=>742 — Assignments op Error — Statement.
    Statements in assignments which are not faithful to the record and which are incorrect in certain respects violate rule 31 for Courts of Civil Appeals (142 S. W. xiii), requiring that to each proposition there be subjoined a statement in substance of such proceedings or parts thereof contained in the record as are necessary and sufficient to explain and support the proposition, with a reference to the pages of the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=>742.]
    3. Appeal and Error <§=>767 — Briefs — Briefing Assignments Together.
    A brief, attempting to join and brief together several assignments each presenting different and distinct points of law, is not allowable under the rules, and an objection by the opposite party will justify striking out the particular assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3102; Dec. Dig. <§^767.]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Action between the National Live Stock Insurance Company and F. H. Gomillion. Judgment for Gomillion, and tbe company appeals. On motion to strike out appellant’s brief.
    Sustained.
    O. Ellis, Jr., S. R. Graves, and T. B. Monroe, all of Lockhart, for the motion.
   RICE, J.

Appellant has filed a brief herein which appellee claims is violative of rules Nos. 23, 24, 25, 29, 30, 31, 36, and 37.(142 S. W. xii, xiii) governing the preparation of briefs in this court, pointing out with great particularity in what respects such rules are infringed therein, to which appellant has filed no answer.

First. Upon comparing the assignments of error set out in the motion for new trial with the corresponding assignments in appellant’s brief, we find that, in many instances, words, phrases, and sometimes an entire sentence have been copied therein which are not contained in the assignments filed 'in the trial court. And then, again, there are omissions from said brief of words and phrases contained in said assignments. The rules require that the assignments relied on shall be copied in the brief filed by the appellant. This means a faithful adherence to the original, and it is not permissible to reconstruct an assignment, either in form or in substance. See Dees v. Thompson, 166 S. W. 56,"and authorities there cited. One of the chief reasons for this rule is that appellee is entitled to have the case presented in this court upon exactly the same questions that were passed on and considered in the lower court. See Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054; Edwards v. Young-blood, 160 S. W. 288; Overton v. Colored Knights of Pythias, 163 S. W. 1053.

Second. It is also urged by appellee that the statements under the first, third, seventh, eighth, ninth, tenth, and eleventh assignments are not faithful to the record, but are incorrect in many respects as therein pointed out. This charge we find partially sustained by the record. Rule 31 (142 S. W. xiii) requires that to each proposition there shall be subjoined a brief statement, in substance, of such proceedings or parts thereof contained in the record as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. A compliance with this rule is important, in that when faithfully made, as contemplated they should be, it relieves the court of much extra labor.

Third. The fourth assignment has no statement accompanying it, as required by rule 31.

Fourth. It is likewise urged by appel-lee that appellant attempts to join and brief together assignments Nos. 7, 8, 9, 10, and 11, and that this is not permissible, since each present different and distinct points of law, which is not allowable under the rules.

As heretofore suggested, the observance of all of these rules is important, in that it aids both the court and counsel in passing ■upon questions presented, and a failure to comply therewith, especially when objected to by the opposite side, will justify striking out the particular assignments or brief, as the case may be. See Dees v. Thompson, supra, and authorities therein cited. We therefore sustain this objection.

For the reasons urged and herein indicated, especially because appellant’s brief fails to correctly copy assignments Nos. 2 to 11, inclusive, and likewise fails to make proper statements under assignments 3, 4, 8, 9, 10, and 11, and fails entirely to make a statement under assignment No. 4, and undertakes to group and brief together assignments not germane to each other, its brief will be stricken out, and it will be allowed 20 days from this date in which to prepare and file a new brief in compliance with the rules of court.

As to the other objections, the motion will be overruled.

Motion sustained.
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author: KEY, C. J.

text:
    EATON v. KLEIN et al.
    (No. 5393.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 13, 1915.
    On Motion for Rehearing, Feb. 24, 1915.)
    1. Venue ©=>27 — Privilege to be Sued in County of Residence — Evidence—Question fob Jury.
    Where an action by an assignee against the assignor, guaranteeing payment, and the debtor, was brought in the county of the residence of the assignor, and the debtor pleaded the privilege to be sued in the county of his residence, and the assignor and assignee both testified that the assignment and guaranty were bona fide, but it appeared that the assignor’s interest in the claim sued on amounted to $270, while he sold it for $125, and guaranteed its payment in full, the question of making the assignment in bad faith to make the assignee the owner so that he could sue in the county of the residence of the assignor was for the jury.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 32; Dec. Dig. ©=>27.]
    2. Appeal and Erkok ©=3273 — Assignments of Error — Instructions—Exceptions.
    Where a party objected in general terms to a charge withdrawing from the jury an issue and requested a special charge submitting the issue, which was refused, and brought two bills of exception — one to the giving of the charge, and the other to the refusal of the requested charge — but without stating the reason of the objections to the giving and refusal of the charges, the court on appeal would consider the objections; it being apparent that the trial court understood the ground of objections relied on.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. ©=3273.)
    On Motion for Rehearing.
    3. Appeal and Error ©=>646 — Record — Statement of Facts — Modification by Consent of Parties.
    Parties to a suit cannot, by agreement without the approval of the presiding judge, make any material change in the statement of facts approved by the judge.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 2802; Dec. Dig. <⅜=>646.)
    4.Appeal and Error ©=>653 — Record—Correction — Jurisdiction.
    Appellate courts have no jurisdiction to make any correction in the record, and any application for correction must be made to the trial court and a proper transcript of the correction brought to the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2816-2818; Dec. Dig. ©=> 653.)
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by E. S. Klein against John H. Eaton and another. From a judgment for plaintiff, the defendant named appeals.
    Reversed and remanded.
    ■ See, also, 141 S. W. 828.
    S. E. Stratton, of Waco, for appellant. Scott & Ross, of Waco, for appellee.
   KEY, C. J.

E. S. Klein brought this suit against John H. Eaton and Geo. W. Witt, alleging, in substance, that he and the defendant Witt, as partners engaged in the real estate brokerage business, had earned -from Eaton, the other defendant, a commission of $540 by negotiating the sale of a tract of land belonging to Eaton; that the defendant Witt had assigned to the plaintiff Klein his half interest in the commission referred to, and had guaranteed the payment thereof. It was further alleged that the debt referred to had never been paid; that the defendant Eaton resided in the county of Tarrant and defendant Witt in the county of McLennan, where the suit was brought. The defendant Witt filed an answer, admitting the truth of all the allegations in the plaintiff’s petition, and joining in the plaintiff’s prayer therein. The defendant Eaton, in due time and form, filed a plea in abatement, asserting his right to be sued in Tarrant county, the county of his residence, in which plea he averred that the alleged transfer-and assignment from the defendant Witt to the plaintiff Klein, and the guaranty of the payment thereof was not made in good faith for the purpose of making Klein the owner of the claim, but was a transfer in form and appearance only, and was made for the purpose of conferring jurisdiction upon the court of McLennan county, and thereby depriving the defendant Eaton of his right to be sued in the county of his residence, and praying that the suit be transferred to Tarrant county. His answer contained other pleas, the particulars of which need not here be stated. There was a jury trial, which resulted in a verdict and judgment for the .plaintiff for the amount sued for, and the defendant Eaton has prosecuted an appeal.

Several questions are presented to this-court for decision; and, without discussing all of them, we announce our conclusions as follows:

1. We sustain the assignments which complain of-the charge of the trial court in not permitting the jury to pass upon the merits of appellant’s plea of privilege, and the refusal to give appellant’s requested instruction No. 2, which would have submitted that issue to the jury. It may he conceded that both Klein and Witt testified that the assignment by the latter to the former and the guaranty of payment was a bona fide transaction, and no one testified to the contrary ; but the fact that they were interested parties, that Witt’s interest in the claim amounted to $270, that he claims to have sold it for a cash consideration of $125 and guaranteed its payment for the full amount of $270, and stated in the written assignment, which was made after this suit was brougHt, first, that it was made without recourse on him, and, second, that he guaranteed its payment, was sufficient evidence of bad faith to entitle appellant to have that issue passed upon by the jury. As to how that issue should be decided we express no opinion, and merely hold that the evidence relating thereto was such as entitled appellant to have it submitted to the jury.

We note appellee’s contention to the effect that the question referred to has not been preserved in such manner as to entitle appellant to have it considered by this court. In support of that contention, counsel for ap-pellee Klein cite Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991, decided by the Court of Civil Appeals at Ft. Worth. In that case it was held that, although the appellant had preserved his exception to the action of the trial court in refusing to give a requested instruction, yet,, inasmuch as he had not objected to the court’s charge variant from the requested instruction, he must be held to have consented to the charge given and thereby waived his objection to the action of the trial eoui't in refusing to give his requested instruction. That case differs from this case in one important particular. In this case appellant objected in general terms to the charge of the trial court withdrawing from the jury consideration of the merits of his plea of privilege, and requested, and the court refused to give, a special instruction which would have submitted that issue to the jury; and he has brought up two bills of exception, one to the action of the trial court in giving the charge which he objected to, and the other to its action in refusing to give the special charge requested by him. It is true that neither of the bills referred to states the reason why appellant objected to the court’s charge in that respect, or to the refusal to give the requested instruction, but it is apparent that the only' reason that could have been stated would have been that the testimony entitled appellant to have that issue submitted to the jury; and no doubt the trial court so understood the matter. The only purpose of the rule requiring the litigant to state his reason for an objection is that the court and the opposite party may understand the particular question of law that is presented for decision, and therefore, whenever it is apparent that the objection presents but one question, the reason for the rule and the rule itself ceases to apply; and we therefore hold that the question of appellant’s right to have his plea of privilege submitted to the jury is properly presented to this court for decision.

2. In reference to appellant’s assignment of error which complains of the ruling of the trial court in not permitting the witness S. E. Stratton to testify to a conversation between himself and the plaintiff relating to the condition of the title to the land, it is sufficient to say that, as the objection sustained was that the testimony referred to was not offered at the proper time, it is not probable that that question will arise upon another trial.

3. Concerning the eighth assignment of error, which complains of the action of the trial court in excluding the answer of the witness R. W. Crowder to a certain interrogatory propounded to him, we deem it sufficient to say that if it is made to appear that the date referred to in the interrogatory was a clerical error, and that the conversation between the witness and Ridley, one of the proposed purchasers of the land, occurred while the alleged sale was being negotiated, the answer of the witness was admissible. The testimony referred to would have tended to show that Klein and Witt had not in fact procured purchasers ready and willing to purchase the land.

4. All the other questions presented in appellant’s brief are decided against him.

For the error pointed out, the judgment is reversed, and the cause remanded for another trial.

Reversed and remanded.

On Motion for Rehearing.

A motion for rehearing and an agreed motion to correct the statement of facts have been filed in this case by appellees. We have reached the conclusion that both motions should be overruled, and this opinion is written merely for the purpose of explaining why the agreed motion to correct the statement of facts has not been granted.

written assignment from Witt to Klein, as copied in the statement of facts, reads: “Without recourse on me and guaran-guaranthe payment thereof.” In the motion to correct the statement of facts, it is agreed that the assignment reads “with recourse,” instead of “without recourse.” The agree-agreeto change the statement of facts is not approved by the trial judge. In Sheldon v. Boyce, 20 Tex. 828, and Johnson v. Blount, 48 Tex. 38, our Supreme Court held 'that a statement of facts not approved by tbe presiding judge, tbougb agreed to by tbe parties, could not be considered on appeal. In tbe latter case the parties attempted to waive tbe approval of tbe trial judge, but tbe Supreme Court held that it could not be done, and declined to consider tbe alleged statement of facts. Of course, if the parties to a suit cannot by written agreement waive the approval of tbe presiding judge to a statement of facts, they cannot, without bis approval, make any material change in tbe statement of facts which he has approved; and therefore we feel compelled to overrule the agreed motion to change tbe statement of facts in this case.

Furthermore, it is well settled that appellate courts must dispose of cases upon tbe record sent up from tbe trial court, and therefore this court has no jurisdiction to make tbe correction asked for in this ease. We have no jurisdiction to alter the record of the court from which tbe appeal has come; and, if any correction at all is to be made, it must be done in that court and a proper transcript of the correction brought to this court. However, if the correction asked for were made, it would not change the result, because, in our opinion, there was other testimony submitted which would entitle the appellant to have his plea of privilege passed upon by the jury.

Both motions overruled.
      ©=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FRANKLIN v. INTERNATIONAL & G. N. RY. CO.
    (No. 5433.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 10, 1915.)
    1. Appeal and Error <&wkey;263 — -Review—Necessity op Exceptions — Instructions.
    Assignments of error with reference to the charge cannot be considered, no exceptions having been taken thereto.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <&wkey;>263.]
    2. Appeal and Error &wkey;>742 — Assignments op Error — Statements.
    Statements under assignments of error should not refer to bills of exceptions not appearing in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=»742.]
    3. Carriers &wkey;>317 — Injury to Passenger-Immaterial Evidence.
    Plaintiff’s excluded evidence, in a passenger’s action for injury in alighting, that the depot lights would not throw light 0⅛ the car steps, was immaterial, defendant not contending they were for, or served, that purpose, but contending the light from the cars and vestibule was sufficient.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. &wkey; 317.]
    4. Trial <&wkey;255 — Instructions — Necessity op Requests.
    The charge that plaintiff had the burden of making out her ease'cannot be complained of because not instructing that defendant, as to its allegation of contributory negligence, had the burden; a request for such further charge being necessary.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255.]
    5. Appeal and Error <&wkey;1069 — Harmless Error — Papers in Jury Room.
    Any error in allowing the jury to have in the jury room a written statement previously made by a witness for plaintiff, as we'll as by her. daughter, and proved up on her cross-examination, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4136, 4138, 4139; Dec. Dig. '&wkey;1069J
    Appeal from District Court, Milam County ; J. C. Scott, Judge.
    Action by Emma Franklin against the International & Great Northern Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    U. S. Hearrell, of Cameron, and Jesse Garrett, of Caldwell,, for appellant. Chambers & Baskin, of Cameron, Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellee.
   JENKINS, J.

This is a suit to recover damages for personal injuries alleged to have been received by appellant on account of negligence of appellee in failing to provide and maintain sufficient light to enable passengers to alight from its cars with safety at Milano Junction.

Assignments of error with reference to the charge of the court cannot be considered, for the reason that no exceptions were taken by appellant to the charge.

Statements under assignments of error Nos. 2 and 9 refer to bills of exception Nos. 2 and 8. No such bills appear in the record. These assignments are copies from the motion for new trial, and, presumably, bills of exception Nos. 2 and 8 were presented to the court but not allowed, or were unintentionally omitted by the clerk in making up the transcript. Under such circumstances, the appellant should not have included the reference to such bills in his statement under assignments. Attorneys are required under the rules to correctly state matters purporting to appear in'the record; and, as the record is made up before the brief is filed, such misstatements as above referred to ought not to occur.

Assignment of error No. 1 relates to the refusal of the court to permit a witness to testify as to the condition of the lights at the depot. The witness was not present at the time of the accident, but it was proposed to be proven by him that he was familiar with the depot lights for a period of two months covering the time of the accident, and that if shining at their brightest they would not throw light on the steps of the cars where the passengers descended. It was not contended by appellee that these lights were for, or that they served, that purpose; but the contention is that there was sufficient light from the cars and the vestibule to enable passengers to safely alight from the cars. The proposed testimony was immaterial.

Other assignments are to the effect that the court erred in giving special charges, in that the matters therein contained were sufficiently given in the general charge,. and that the charges given amounted to charges upon the weight of the evidence. We do not think the charges referred to are subject to this criticism.

Assignment of error No. 9 is that the court erred in charging the jury that the burden of proof was upon the plaintiff to make out her case in that said charge, did not also inform the jury that the burden of proof was upon the defendant to sustain its allegations of contributory negligence. The charge as given was correct and not excepted to; and, if appellant desired any further charge upon the subject, she should have requested the same.

Error is assigned upon the action of the court in permitting the jury, at their request, to have sent to their room a statement signed by Mrs. M. A. Hendricks and her daughter, Miss P. D. Hendricks, as to what they saw with reference to appellant’s falling as she was descending the steps of the car. This statement was taken by the claim agent soon after the accident. Mrs. Hendricks and Miss Hendricks were subpoenaed as witnesses in behalf of appellant, and Mrs. Hendricks testified. While upon the stand, this statement was proven up by her upon cross-examination as having been made by herself and her daughter, and no objection was made to such testimony. We do not think that the error, if any, in allowing the jury to have this statement in their room during their deliberations, was sufficiently material to require a reversal of this case:

The jury ¡returned a general verdict in behalf of appellee, no special issues having been submitted. This verdict is sustained by the evidence, whether the same was based upon lack of- negligence on the part of ap-pellee, or' that no injury was received by appellant.

Finding no error of record, the judgment of the trial court is áflirmed.

Affirmed.
      <g=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    HODGE v. TOYAH VALLEY IRR. CO. et al.
    (No. 377.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 28, 1915.
    On Rehearing, March 18, 1915.)
    Í. Trial <&wkey;139 — Direction of Verdict — Power of Court.
    Where there was sufficient evidence to require submission of the case to the jury upon all the issues raised by the pleadings, it was error to direct a verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. &wkey; 139.]
    2. Appeal and Error <&wkey;>694 — Proceedings Not in Record — Grounds of Review — Failure to Direct Verdict.
    In an action against an irrigation company for failure to furnish water, where there was nothing in the record to indicate that the plaintiff requested direction of verdict for damages, and that a decree holding the water contract valid be entered, error cannot be predicated upon the failure of the court so to direct.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2910, 2915; Dec. Dig. &wkey;> 694.]
    On Rehearing.
    3. Trial <&wkey;141 — Direction of Verdict — Wei&ht of Evidence.
    Where the evidence in the record was sufficient to sustain all the allegations in the petition, and there was no evidence to the contrary, there was nothing on which to base a judgment for defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. >§ 336; Dec. Dig. <&wkey;>141.]
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by H. T. Hodge against the Toyah Valley Irrigation Company and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Hefner & Cooke, of Pecos, for appellant. Ross & Hubbard, of Pecos, and Capps, Can-tey, Hanger & Short and Ocie Speer, all of Ft. Worth, for appellees.
   HARPER, C. J.

Appellant brought this suit against the Toyah Valley Irrigation Company and its receiver for damages alleged to have been suffered by reason of the failure of the defendants to furnish water to lands owned by him as it had contracted in writing to do, and for a formal decree of the court that the contract sued on is a valid and enforceable obligation. The defendant filed a general denial, and specifically alleged that the contract was not signed. A jury was impaneled and plaintiff’s evidence introduced, whereupon the court, upon his own motion, gave a peremptory instruction for defendant. Plaintiff excepted to this action of the court and it was noted in the judgment, entered. From the judgment entered for defendant, this appeal is perfected.

The appellee objects to a consideration of appellant’s assignments of error because there was no exception taken to the action of the court in giving a peremptory instruction. As stated above, the record shows that appellant excepted to the action of the court.

In appellant’s third assignment, he urges that the court erred in peremptorily instructing the jury on the ground recited, in the judgment that plaintiff had parted with his interest in the subject-matter of the suit, because all the evidence was to the effect that ■he owned the land and the crops thereon.

This assignment must be sustained for the reason given. There is evidence that plaintiff, at the time of the trial, was the owner of the property, and there is no evidence in the record to the contrary; and, there being sufficient evidence to require the case to be submitted to the jury upon all the issues raised by the pleadings, it was error to instruct a verdict.

The first and second assignments being a charge that the court erred in not instructing a verdict for plaintiff in each of the two matters prayed for, viz., damages, and a decree holding the water contract valid, must be overruled, because there is nothing in the record showing that such instructions were requested.

Eor the reason given above, the cause is reversed and remanded.

On Rehearing.

Appellee requests that this cause be certified to the Supreme Court, because our opinion is in conflict with those of other Courts of Civil Appeals heretofore rendered, in that we hold that it is not necessary to file bills of exceptions to the giving of special charges. The opinion is not subject to the criticism. The only objection urged here by appellee to a consideration of appellant’s assignments was that there was “no exception taken by appellant to the peremptory instruction given by the court.” We hold that the record discloses an exception taken.

Upon further consideration of the cause, we are of the opinion that there is another error apparent of record, which must reverse the cause.

The evidence in the record is sufficient to sustain all the allegations in the petition, and there is no evidence to the contrary. Therefore, there is no evidence upon which to base a judgment for appellee. Harper v. Dodd, 30 Tex. Civ. App. 287, 70 S. W. 223. The instruction should have been for appellant, instead of appellee, under the facts of this record.

The motion for rehearing is therefore overruled.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. KING.
    (No. 332.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 25, 1915.
    Rehearing Denied March 18, 1915.)
    1. Master and Servant <&wkey;ll — Regulation op Relation — Statutes—Validity.
    Blacklisting Law (Acts 31st Leg. c. 89), compelling a corporation to give a discharged employé a statement of the cause of discharge, is unconstitutional.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <&wkey;>ll.]
    2. Appeal and Error <&wkey;856 — Judgment-Validity — Theory op Case in Trial Court.
    A judgment for plaintiff predicated solely on an unconstitutional statute cannot be sustained on the theory that the petition showed a common-law right of recovery.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3406-3424, 3429-3434; Dec. Dig. &wkey;>856.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Frederick W. King against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Beall, Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Burges & Burges, of El Paso, for appellee.
   HIGGINS, J.

King sued the Galveston, Harrisburg & San Antonio Railway Company to recover damages for its alleged failure and refusal to issue to him a true statement of the reasons why he was discharged from appellant’s service, he having made demand therefor, under the provisions of chapter 89, Acts of 1909, commonly known as the “Blacklisting Law.” Plaintiff alleged: That he was a railway brakeman, and for a number of years had been in the service of the appellant as such, and up to March 12, 1912, upon which date he was discharged. That it was the duty and custom of defendant to keep a record of services rendered by its employes and a custom and duty of issuing certificates of service to employes when they quit or were discharged; such certificates to be based upon the character of service rendered, and the record thereof kept by the employer. That, under the law of this state and said custom, it was the duty of defendant to issue to him a true statement of the character of service performed by him and a true statement of the cause of his discharge. That it was the custom and practice of defendant and other railway companies to require applicants for positions to show service letters, and, where it appeared from the service letter or certificate of service that the applicant for a position had been discharged for adequate cause, of refusing to employ him. That he had been diligent and faithful in the discharge of his duties and had discharged all of his duties in a skillful, prudent, and careful manner. That on March 9, 1912, he was discharged from defendant’s employ, receiving certificate of service as follows: “Services generally unsatisfactory. Date of leaving service and cause: March 9th, 1912; services no longer required.” That thereafter, to wit, on July 1, 1912, he asked the superintendent of defendant for another certificate of service, which request was refused. That, since his discharge, he has sought employment as a railway brakeman from other railways, and, because of the statements made in his certificate of discharge, he was not able to secure employment on other roads. That the state-merits contained in the certificate were false and fraudulent, and issued to liim with the knowledge, and purpose on the part of defendant and his superintendent that it would prevent plaintiff from securing employment as a railway brakeman or trainman with other railway companies. That he notified defendant of the consequences of the issuance to him of said certificate in the form in which it was issued. That defendant had failed and refused to grant his request for another certificate showing or designating any particular wherein his services were unsatisfactory, as by law and custom the defendant was bound to do. That his request so denied by defendant was unlawful, deliberate, and with malicious intent on its part, and for the purpose of injuring and damaging him and to prevent him from securing employment in his chosen profession. Whereby he had been damaged in the sum of $18,-000, for which he prayed judgment.

The cause was tried before a jury and submitted under the provisions of the law above mentioned and resulted in verdict and judgment in King’s favor.

In the recent case of St. Louis & Southwestern Railway Co. of Texas v. Thomas A. Griffin, 171 S. W. 703, our Supreme Court has held that the act in question is unconstitutional, and, under the authority of that case, it becomes our duty to reverse and remand, since the charge of the court submitting to the jury the appellee’s right of recovery was predicated entirely upon the act mentioned.

It is insisted that the allegations of the petition show a common-law right of recovery. As to this, we express no opinion, as the question, is not now before us. If he has such right, it is but proper that the cause should be reversed and remanded for retrial, rather than rendered, and it will be so ordered.

Reversed and remanded.

WALTHALL, J., did not sit in this case.
      <g=5>For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    TEXAS MEXICAN RY. CO. v. KING.
    (No. 5431.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 24, 1915.)
    I. Cakriers <&wkey;219 — Carriage os Live Stock — Liability oe Initial Carrier.
    Though an interstate shipment of horses was accompanied by a caretaker, the initial carrier is, under the Carmack amendment (Act June 29, 1906, c. 3591, 34 Stat. 593, § 7, pars. II, 12 [U. S. Comp. St. 1913, § 8592]), liable for damages wholly caused by the fault of the connecting carriers) this being true despite the insolvency of the connecting carriers and the fact that the statute was passed so that shippers who did not accompany their shipment would be able to hold some one liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. <&wkey;219.]
    2. Carriers &wkey;>229 — Carriage oe Live Stock — Damages.
    The measure of damages for injuries to a shipment of horses is the difference in their value at the point of destination in the condition in which they arrived and the condition in which they should have arrived, had they been properly handled.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. &wkey;229.]
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Action by J. W. King against tbe Texas Mexican Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Greer & Hamilton, of Laredo, for appellant. Dougherty & Dougherty and H. S. Bonham, all of Beeville, for appellee.
   FLY, C. J.

This is a suit instituted by ap-pellee to recover damages to a car load of horses shipped by appellee from Hebbron-ville, Tex., to Monroe, La., over the lines of appellant and connecting carriers. The cause was tried by the court without a jury, and judgment was rendered for appellee for $330.

Appellant was the initial carrier, and the evidence showed that a caretaker accompanied the horses, and that none of the damages occurred on appellant’s line, but on the line of a connecting carrier. It is the contention by appellant that appellee should not recover, because his caretaker accompanied the horses and knew exactly where the damages were inflicted, and consequently, the reason for passing the Carmack amendment having failed, namely, the difficulty of the shipper in locating where the injury occurred, the law failed with it, or at least would not apply.

No doubt one of the strong reasons for the enactment of the Carmack amendment, which fixes liability on the initial carrier, was the difficulty of the shipper in ascertaining the line on which the negligence occurred; but no doubt, also, it was to protect shippers from the expense of instituting suits distant from their homes, perhaps in other states and in strange tribunals.

Whatever may have been the reasons actuating Congress in passing the law, it fixes absolutely the liability of the initial carrier, without regard to whether a caretaker accompanies the shipment or not, and regardless of the fact as to whether the shipper may know that the damages did not occur while the shipment was in the possession of the initial carrier. The law is as follows:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.”

Tlie law fixes absolute liability upon the initial carrier. The initial carrier is given a cause of action against its connecting carriers, and, if such carrier is insolvent, that misfortune cannot deprive the shipper of his cause of action against such initial carrier. The fact that the initial carrier might not be able to recover from the connecting line is unfortunate for the initial carrier, but cannot affect the validity of the statute.

“That there is some chance that this right of recoupment may not be always effective may be conceded, without invalidating the regulation.” Railway v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7.

The measure of damages was the difference in value of the horses at the point of destination in the condition in which they arrived and their value had they been properly handled. It was absolutely unnecessary for appellee to deny the allegations as to the caretaker, as to appellant’s carefúl handling of the horses, or as to its duty ceasing at the end of its line. It did not matter if appellant did handle the horses carefully, or that an agent of appellee accompanied them. Appellant was liable.

The judgment is affirmed, with 10 per cent, damages, as prayed for by appellee.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FT. WORTH & R. G. RY. CO. v. BALLOU.
    (No. 5444.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1915.)
    1. Baileoads <&wkey;265 — Injuries—Receivers— Liability oe Corporation.
    A corporation owning a railroad operated by a receiver appointed by a federal court is not liable for injuries caused by the receiver’s negligence.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 83S-853; Dec. Dig. &wkey;263.]
    2. Justices of the Peace <&wkey;17&wkey;AppEAL to County Couet — Pleadings —Amendments.
    A railroad company appealing to the county court from a justice’s judgment awarding damages for injuries to a shipment of live stock may amend its pleading in the county court and file a special plea, alleging that at the time of the injuries the railroad was operated by a receiver, though the statute forbids a plaintiff from setting up a new cause of action, and prohibits a defendant from setting up a counterclaim or set-off not pleaded in the justice’s court.
    [Ed. Note. — For other eases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. <&wkey; 174.]
    3. Baileoads <&wkey;26S — Liability of Boad UNDEE RECEIVERSHIP.
    A carrier may, when sued for injuries to a shipment of live stock, prove under a general denial that the injury occurred while its road was operated by a receiver.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 861-864; Dec. Dig. <J&wkey;268.]
    4. Baileoads <&wkey;273 — Receivership — DiEECTING VERDICT.
    Where, in an action against a carrier for injuries to live stock, the fact that the injuries occurred while the railroad was operated by a receiver was proved by uncontradicted evidence, the court must direct a verdict for the carrier.
    [Ed. Note. — For other cases, see Bailroads, Dec. Dig. &wkey;>273.]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    Action by Steve Ballou against the Ft. Worth & Bio Grande Railway Company and another. There was a judgment for the co-defendant and for plaintiff against the defendant named, and the latter appeals.
    Be-versed and rendered in part and affirmed in part.
    Marshall Ferguson, of Stephenville, for ap-lant. Eidson ■& Eidson, of Hamilton, for ap-pellee.
   KEY, C. J.

Appellee sued appellant and another railway company in a justice of the peace court to recover damages for injuries to a certain shipment of live stock, which occurred in November, 1913. He recovered a judgment against both defendants in the justice’s court, and the Ft. Worth & Bio Grande Railway Company appealed the case to the county court, where there was a trial de novo, and judgment rendered for one defendant and for the plaintiff against the other defendant, and that defendant has prosecuted an appeal.

In the county court appellant filed an amended answer, which embraced a general demurrer, a general denial, and a special plea alleging that at the time of the injuries complained of appellant was not operating the railroad, but that the same was being operated by receivers appointed by a federal court. The plaintiff filed an exception to the special plea referred to, upon the ground that no such plea had been presented in the justice’s court. The county court sustained that exception, and that ruling is assigned as error.

The appellant offered in evidence a certified copy of a judgment or order of a United States District Court appointing Avery Turner and G. H. Schleyer receivers of the railroad and other property owned by appellant, which order was made July 5, 1913, prior to the shipment of live stock here involved. The appellee objected to that instrument as irrelevant and immaterial, and the trial court sustained that objection, which ruling is assigned as error.

Over the objection of appellant, the plaintiff was permitted to testify that at the trial of the ease in the justice’s court appellant offered no evidence, which ruling is assigned as error.

At the trial of the case it was proved by two witnesses, and there was no evidence to the contrary, that at the time of the shipment in question the Ft. Worth & Bio Grande Railway was in the hands of receivers and being operated by them; whereupon and for which reason the appellant requested the court to instruct the jury to return a verdict for the defendant, and the refusal of the court to give that instruction is also assigned as error.

We sustain all of the foregoing assignments of error, and hold that the ease must be reversed, and judgment rendered for appellant. It is a well-settled rule of law, and not denied by counsel for appellee, that, when a railroad is being operated by a receiver, the corporation which owns the railroad is not liable for injuries caused by the negligence of the receiver, or those who are acting for him in the operation of the railroad. M., K. & T. Ry. Co. v. McFadden, 89 Tex. 138, 33 S. W. 853, and authorities'there cited.

When a case is appealed from a justice’s court to the county court, the statute forbids a plaintiff to set up a new cause of action, and prohibits a defendant to set up a counterclaim or set-off, not pleaded in the justice’s court. With these exceptions, either party has the same right to amend that would exist if the case had originated in the county court, and we therefore hold that the court erred when it struck out appellant’s special plea. Railway Co. v. Denson, 26 S. W. 265; Gholston v. Ramey, 30 S. W. 713.

Furthermore, we are of opinion that the general denial filed by appellant was a sufficient plea to admit.proof of the receivership, because such proof showed that the injuries complained of were not committed by the defendant that was sued, but by some one else. Such proof is in direct rebuttal of the plaintiff’s cause of action, and therefore it was not necessary that it should be specially pleaded. Hence we hold that the court erred in not admitting in evidence the order of the federal court appointing receivers.

However, the fact of such receivership was proved by the testimony of two uncontra-dicted witnesses, and therefore we think the court should have instructed the jury, as requested by appellant, to return a verdict for the latter.

For the reasons pointed out, the judgment of the trial court as between appellant and appellee, Ballou, is reversed, and judgment here rendered for appellant; otherwise it is affirmed.

Reversed and rendered in part and affirmed in part.
      @=s>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    McCASKEY v. STATE.
    (No. 3431.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    1.Criminal Law &wkey;>177 — Former Jeopardy —Quashing op Prior Indictment.
    A judgment quashing- an indictment on motion of accused cannot be pleaded as former jeopardy to a subsequent indictment charging the same offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 313-319; Dec. Dig. <&wkey;> 177.].
    2. Robbery &wkey;>20 — Issues, Proof, and Variance.
    The variance between an indictment for robbery alleging that accused robbed prosecutor of one 10-cent piece, and the proof of the robbery of two 5-cent pieces, is fatal.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 27; Dec. Dig. <&wkey;>20.]
    3. Criminal Law <&wkey;195 — Former Jeopardy —Acquittal.
    An acquittal for robbing prosecutor of one 10-cent piece, as charged in the indictment, cannot be pleaded as former jeopardy to a subsequent indictment charging accused with robbing prosecutor of two 5-eent pieces; the two indictments being based on the same act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 382, 383; Dec. Dig. &wkey;» 195.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    E. J. McCaskey was convicted of robbery, and he appeals.
    Affirmed.
    J. L. Spiller, of Snyder, and V. M. Clark, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery, and his punishment assessed at 15 years in the penitentiary.

Appellant contends that the evidence is insufficient to sustain the verdict. We think it unnecessary to recite the evidence. That the robbery was committed by Pat Lynch and another man was proven beyond controversy. The only question as to the sufficiency of the evidence would be whether appellant was that other man, or whether it was some other. The man who was robbed identified and swore positively that it was Pat Lynch and appellant who robbed him. There were many circumstances tending to corroborate his testimony as to the identity of appellant as the other party with Pat Lynch who robbed him. Appellant and Pat Lynch both testified that it was not appellant, but another party. This was a question for the jury, and, as stated, the evidence was amply sufficient to sustain the finding that it was appellant, and not another party.

The only other question in the ease is whether or not appellant had been tried and acquitted of this offense under a previous indictment. Appellant plead that state of fact, but, in attaching a certified copy of the judgment of acquittal, attached instead a judgment showing that upon his motion to quash the previous indictment it was quashed, and that that was the disposition of the case. If that was true, of course, former jeopardy did not attach, but appellant claimed that that judgment was erroneous; that instead of his making a motion to quash the indictment that the case went regularly to trial, the witnesses were introduced, and it was discovered that the proof did not correspond with the allegations of the indictment, and thereupon the court permitted the state to dismiss that case, which he claimed was done. He made a motion to enter such an order nunc pro tunc and set aside the previous order showing that the indictment was quashed on his motion. The court, for some reason, refused this. It is unnecessary to go into the merits of this question, as we will now show.

The first indictment was found some time in the early part of the year 1914, the exact date not given, charging that on January 10, 1914, said Pat Lynch and appellant, by assault and by violence, with the other proper allegations, with a firearm, robbed C. G. Burton of “one ten-cent piece, commonly known as one dime, the same being then and there lawful current money of the United States of America of the value of ten cents.” Soon after this indictment and some time before April 18, 1914, that case went to trial, when the proof showed that Burton, instead of being robbed of a 10-cent piece, a dime, was in fact robbed, as charged in the indictment in this case, which was found April 18, 1914, of “two five-cent pieces of money, commonly known as nickels, the same being then and there lawful current money of the United States of America, of the value of five cents each and of the total value of ten cents.” This proof, of course, constituted a fatal variance. And it seems that, when this was discovered by the proof on the first trial, the state dismissed that case, and later the grand jury indicted Lynch and appellant for robbing Burton of the two nickels as shown above. An acquittal of appellant for robbing Burton of “one ten-cent piece, commonly known as one dime,” etc., as charged in said first indictment, could not and would not put him in jeopardy for robbing Burton of “two five-cent pieces of money, commonly known as nickels,” etc., as charged in the indictment in this ease. So that in no contingency did the court err in striking out appellant’s plea of former jeopardy which showed this difference between the two indictments. See Branch’s Grim. Law, § 398, and authorities there cited. We deem it unnecessary to discuss the question further.

The judgment is afiirmed.
      <gr^For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    BOWDEN v. STATE.
    (No. 3412.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    On Rehearing, March 10, 1915.)
    CRIMINAL Law <&wkey;>1038 — Appeal—Presenting Questions in Lower Court — Exceptions to Charge.
    A conviction will not be reversed for errors in the charge which were not called to the attention of the court before the charge was read to the jury, in the manner required by the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec.» Dig. <§=>1038.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    Jim Bowden was convicted of murder, and he appeals.
    Affirmed.
    M. E. Gates, of Huntsville, for appellant. L. C. Kemp, W. W. Meaehum, Jr., and McDonald Meachum, all of Houston, for appellant on rehearing. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at 40 years’ confinement in the penitentiary.

The record is before us without bills of exception. Some exceptions are noted in the motion for new trial to the charge of the court. These matters were not called to the attention of the court before the charge was read to the jury, and the errors assigned on the charge are not of a sufficient nature to require a reversal. Under the recent statute in order usually to have errors in the charge, or supposed errors, reviewed, proper steps must be taken to call these matters to the attention of the court before the charge is read to the jury. This is not claimed to have occurred. The evidence, we think, is sufficient to support the conviction; but we deem it unnecessary to recapitulate this testimony. It is of no particular value to the profession or to the courts.

The judgment is affirmed.

On Rehearing.

Majority of the court decides the case ought to be affirmed. I have followed their decisions in writing the original opinion. At some time I will write fully on the recent act of the Legislature with reference to charges, and what was intended by that act with reference to exceptions to the charge, their force and effect.


author: HARPER, J.

text:
    ABERNATHY v. STATE.
    (No. 3446.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    1. Rape <§=>43 — Admissibility op Evidence —Birth op Child.
    In a prosecution for rape of a girl under 15, evidence that prosecutrix had given birth to a child is admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. <&wkey;48.]
    2. Witnesses <&wkey;268 — Cross-examination-Repetition op Questions.
    Where prosecutrix had testified to her age, and stated that she had had her monthly sickness since she was 13, it was not error to exclude further cross-examination as to the time it began.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-94S, 959; Dec. Dig. <§=>268.]
    3. Rape <&wkey;40 — Admissibility op Evidence —Other Acts.
    In a prosecution for the rape of a 15 year old girl, evidence of other acts of intercourse between the parties is admissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;40.]

      Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Henry Abernathy was convicted of rape, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape on his stepdaughter, a girl under 15 years of age.

In the first bill it is stated that the state’s attorney asked the prosecuting witness if she had a child, to which question appellant objected, and the court sustained the objection, when state’s counsel insisted, in the presence of the jury, that he had a right to prove that she had given birth to a child. State’s counsel was correct. This would be conclusive proof that the child had had intercourse with some man, and was admissible. Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477. The court, in approving the bill, states he does not know why he first excluded the testimony, and shows that both sides went thoroughly into the matter; the defendant undertaking to prove that one Kerr was the father of the child.

The second bill shows that the defendant, on cross-examination of the prosecuting witness, asked her, “Had you been having your monthly sickness?” and, upon receiving an affirmative reply, he asked her how many years that had been going on, and she answered, “Ever since I was 13.” Theré was no error in sustaining the objections to the other questions in regard to the time she had been having her monthly sickness, for she had definitely fixed the time by swearing to her age, and that she began to have her monthly sickness when 13 years of age.

Appellant also complains that, as the witness had testified appellant used vaseline when having intercourse, it was error to permit the girl to testify as to the length of time he had been using the vaseline. As we have held, in this character of case, that other acts of intercourse are admissible, the bill presents no error, and the judgment is affirmed.
      <gn»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ARIAS v. STATE.
    (No. 3443.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    1. Criminal Law &wkey;949, 956 — New Trial — Newly Discovered Evidence — Affidavits.
    An application for new trial for newly discovered testimony must be sworn to and accompanied by the affidavits of the newly discovered witnesses, or cause must be shown why their affidavits are omitted.
    [Ed. Note. — For other. cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344, 2373-2391; Dec. Dig. <&wkey;949, 956.]
    2. Criminal Law <&wkey;938 — New Trial — Newly Discovered Evidence.
    Accused, who heard a witness testify to a fact at the preliminary examination held a year and a half before the trial, may not obtain a new trial on the ground of newly discovered evidence to contradict the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. <&wkey;938.]
    3.Intoxicating Liquors <&wkey;236 — Violation
    of Prohibition Law — Evidence — Sufficiency.
    Evidence held to sustain a conviction for pursuing the business of selling intoxicating liquor in prohibition territory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <&wkey; 236.]
    Appeal from District Court, Medina County; R. H. Burney, Judge.
    Ascención Arias was convicted of pursuing the business of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    Jno. T. Briscoe, of Devine, and V. H. Blocker, of Hondo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the business of selling intoxicating liquor in prohibition territory.

There are but two questions presented in the motion for new trial, one alleging newly discovered testimony, and the other claiming the testimony is insufficient to sustain the verdict.

As to the newly discovered testimony, Joe Cude testified on the trial that he saw appellant make sales of whisky to F. A. Schott; that he was standing by the wall and looked through a crack in the wall. Appellant alleges that he did not know Cude would so testify, and if given a new trial he can prove by several witnesses there is no crack in the wall. He does not attach the affidavit of either of the witnesses to the motion, stating they would so testify, and states no reason why he did not do so. It has always been the rule in this court that an application for a new trial to procure newly discovered testimony must be sworn to, and must be accompanied by the affidavit of the newly discovered witness or witnesses, or cause be shown why not so accompanied. Love v. State, 3 Tex. App. 501; Cotton v. State, 4 Tex. 260; Tuttle v. State, 6 Tex. App. 556. In addition to this, if we could waive the fact of the affidavit of the witnesses that they would so testify in contesting the motion, the district attorney shows the following facts:

“That the defendant, Ascención Arias, had an examining trial before Hon. D. S. Robertson, justice of the peace of precinct No. 5, of Medina county, Tex., on the charge contained in the indictment herein, at which examining trial he was bound over to await the action of the district court of Medina county, Tex., which examining trial was had on the 19th day of May, A. D. 1913; that at said examining trial the witness Joe Cude testified that on or about May 3, 1913, and on or 'about May 7, 1913, he looked through a crack in the wall of the building in which the defendant conducted his business, and on each occasion saw the defendant, Ascención Arias, sell to F. A. Schott whisky. That _ at said examining trial the defendant, Ascención Arias, and his eonnsel, Hon. John T. Briscoe, were present and heard said witness, Joe Cude, testify that he looked through a crack in the walls of the building occupied by defendant on said dates and on each occasion saw defendant sell and deliver whisky to P. A. Schott. That said witness, Joe Cude, testified to no other facts at this trial except what he testified to at said examining trial.”

It is thus seen that appellant heard the witness so testify at the examining trial on May 19, 1913, while his trial was not held until November 10, 1914, more than one year and six months thereafter, and he had ample time to secure the witnesses if they would so testify.

As to the other ground, the alleged insufficiency of the testimony, it is true that P. A. Schott testified that he never bought any whisky from appellant, but on cross-examination he testified:

“I got some whisky at the place of the defendant. I got it there more than once. I found some once in a scrap pile where I got some iron. Mr. Burns give me a right to get them railroad tools and some scrap iron, and in the box I found some whisky. Well, I knowed just like anybody else, whenever you get anything, see any whisky, and a man cares for it, he will pretty near come and take some. I took it. I did not leave any money there at that time. Then in the evening I needed another piece, and I went back there, and the box still set there, and I knowed whoever brought that there would like to have some money in it, and I just brought the money then and taken the two bottles whisky, but whose it was I don’t know. I don’t know anything about that. Afterwards I never went back to this any more. I didn’t find the box any more. I found some in a morral; that was in a different place; that was right on the side of the hill. It stood right like this about that far; the head was out, and I took a dram out of it, and I thought I just as well. I said, if the darn fool leaves it in that morral, I just as leave put it in my morral. I did not leave any money. I remember the examining trial of the defendant last May. My testimony is written down and signed by me. The testimony was given before Mr. Robertson, the justice of the peace. As to the correctness of the following statement purporting to be my testimony given at the examining trial of the defendant: ‘My name is P. A. Schott, I live at Devine, Tex. I know Ascen-ción Arias. I found whisky several times on Asccneion’s premises, and I know it had been left there for purpose of sale. I took some and left money in its place’ — that is not correct, I don’t know really if I stated it was left there for sale, I don’t think I did. He made a mistake putting it down. I couldn’t say he left it for sale, because I didn’t know. I think that part where the statement says it was left there for sale is a mistake. The other part where I found the whisky is correct, and that I left money in its place. I went for more whisky, and I noticed the money had been taken.”

Under such circumstances, it is not surprising that the jury believed the testimony of Joe Cude when he testified he saw appellant sell whisky on two occasions tó P. A. Schott. And on the issue of proving the business Tillman Jenkins testified:

“I have lived at Devine, I guess, about 13 years. I work in Williamson’s gin there. I have drank whisky there sometimes. I drink it when I can get it. I know this defendant, Ascención Arias. I have known him a good while. I can’t say how many years; I guess about five or six years, something like that. As to whether I ever bought anything from the defendant, I want to be square. I gave him money several times and got whisky, just like I told you before. I couldn’t tell you when it was. You know it’s been a good while ago. I guess it had been over a year ago. I couldn’t hardly tell you, because I haven’t kept any account of it. I did not testify at Devine in the examining trial, but I testified here in Hondo before the grand jury. That was a year ago. It was after I got the whisky from the defendant that I testified before the grand jury. As to how many times I got whisky from the defendant, I couldn’t tell you. It has been a dozen times or more. It is just about that way, a dozen times or more. I couldn’t swear how many times. It has been several times, you know. I never got any whis-ky from him during the last year, this year. As to how I got the whisky, he would bring it to me at Devine. As to just where, standing around the streets there, most anywhere, in different places. He would go and get it and bring it to me. I know where he had his fruit stand in Devine. After he left the fruit stand, he would bring the whisky to me. Sometimes I would be on the railroad, sometimes in town, and once down there close to Mr. Adams, you know. 1 gave him the money, and he would walk away, and after awhile he would bring back the whis-ky to me. He did that a dozen times or more.”

The evidence supports the verdict, and the judgment is affirmed.
      @^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    VASQUEZ v. STATE.
    (No. 3444.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    Criminad I.aw <&wkey;1090 — Appeal—Record.
    When there is no statement of facts or bill of exceptions in the record on appeal, there is nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey;>1090.]
    Appeal from District Court, El Paso County; Leigh Clark, Special Judge.
    I. Vasquez was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at 20 years in the penitentiary. The case was tried on June 6,1914, on which date the verdict was rendered. The motion for new trial was overruled, and notice of appeal given to this court on June 27, 1914. The record was not filed in this court until January 29, 1915 — 7 months and 2 days after the final judgment in the lower court. The record contains less than 18 typewritten pages. It should have been filed in this court within a very few days after the final judgment was rendered, and in no event later than September 25th. If it had been, the case would have been disposed of and the appellant in the penitentiary or the case reversed about 4 months ago. Instead of that, El Paso county lias been put to the expense of guarding and feeding this prisoner this extra time.

We have made it plain heretofore that this court will enforce the law and require the clerks of the' lower courts to have the records here within not less than the 90 days prescribed by law, or they will be made to suffer the consequences. Recently the records in several other cases have been thus delayed. This is but another warning to the clerks that, if they persist in violating the law in this way, it will be the duty of this court to impose the penalty of the law upon them for their neglect and failure. Most of the clerks comply with the law in this respect, we are glad to state. It is only occasionally here and there one does not.

There is neither a statement of facts nor bills of exceptions in this record. In the absence of these, no question is raised which can be reviewed. The judgment must therefore necessarily be affirmed.
      <fcs»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. HARPER, J. PRENDERGAST, P. J.

text:
    CHRISTMAN v. STATE.
    (No. 3450.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    1. Licenses <&=»40 — Failure to Pat Taxes— Violation of Obdinances.
    To constitute a violation of an ordinance punishing the refusal to pay a sanitary closet tax, a demand for payment must be made before trial.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 79-83; Dec. Dig. <&wkey;40.)
    2. Licenses <&wkey;4CL-FAiLURE to Pat Taxes— Violation of Obdinances — Owner or Occupant.
    A husband living apart from his wife and daughter, but visiting them every week and furnishing them with provisions, must, on demand, pay a sanitary closet tax on property occupied by the wife and daughter and purchased with the wife’s separate funds, and a failure to pay on demand is a violation of an ordinance punishing the owner or occupant refusing to pay the tax when subject thereto.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 79-83; Dec. Dig. <&wkey;40.] Davidson, J., dissenting.
    Appeal from Corporation Court, Kaufman County; W. P. Williams, Judge.
    J. Christman was convicted of violating a municipal ordinance, and he appeals.
    Reversed and remanded.
    A. H. Dashiell, of Terrell, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Christman was a man about 65 years of age, living in Dallas', and had been living in Dallas for 10 years. In 1898 his wife, with her separate funds, had purchased some property in the town of Terrell, Kaufman county, and occupied it with one of her children and another member of the family. Appellaut did not live on or occupy the property, and had not lived with his wife for 10 years. He would visit her occasionally, going to and returning from Terrell the same day, getting eggs, butter, etc. They had separated, but there had been no divorce granted.- The reasons assigned for not obtaining the divorce were he did not care to have the public comment and criticism that might arise from a divorce case. These facts are not controverted. In June or July, on a visit to Terrell, an officer called on him for payment of a sanitary closet tax. He declined to pay it, stating that his wife would do so. Subsequently, in September, about the 11th, she did pay the tax. The officer claimed the payment was for the quarter ending the 31st of August. She claimed it covered the month of September. The officer claimed that the tax for September had not been paid, though it seems to have been paid for October and November. However that may be, appellant did not occupy the place, and had no interest in it, unless it was such that a husband would have in his wife’s separate property when he was separated from, and not living with, her. He was charged with violating this ordinance levying the tax. This ordinance provides a punishment where the owner or occupant shall refuse to pay the tax when subject to such payment. The complaint against him charged that he failed and refused to pay it. The court charged the jury that if he fatted and refused to pay he would be liable. The jury convicted.

There was an attack made on the complaint, as well as that part of the instructions which charged a failure to pay and authorized a conviction for such failure; the contention being that the ordinance limited to a refusal to pay, and the charge authorized a conviction for failing to pay. We are of opinion this contention is correct. The charge authorized a conviction for a thing the ordinance did not define or make punishable. But, be that as it may, appellant was not called on to pay the tax for September, and it was for that he was convicted. Again appellant was not responsible for the tax, and he should not have been convicted. He had nothing to do with the closets, and had no interest in it. The ordinance provides that it is the occupant or owner of the property who shall pay. Appellant was not the owner, and was not the occupant, and the evidence-on this phase of it is uncontroverted.

The judgment is reversed, and the cause remanded.

HARPER, J.

I agree to the reversal of the case because no demand had been made on appellant before the trial of the case. Had demand been made, I think, under the facts of the case, he would be liable, as he visited his wife and daughter every week.

PRENDERGAST, P. J.

I agree with Judge HARPER. I do not concur with Judge DAVIDSON’S opinion on any other question stated by him. The complaint alleged appellant “failed and refused to pay,” etc., and in the charge the judge required the jury to believe beyond a reasonable doubt that appellant “failed and refused to pay,” etc. The complaint did not merely allege appellant “failed” to pay, nor did the charge authorize a conviction if he merely “failed” to pay.
      <gr^For omer cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, J. HARPER, J.

text:
    PARKER v. STATE.
    (No. 3448.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    Weapons <&wkey;9 — Unlawful Carrying op Weapons — What Constitutes.
    Where accused, having discovered that a neighbor whose land adjoined his own was shooting his hogs, armed himself and went to the creek which divided their property, and the neighbor left, accused was not guilty of violating the pistol law, because on returning to his residence he traveled part of the way on a public road.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 8; Dee. Dig. &wkey;>9.]
    Appeal from San Augustine County Court; Wm. McDonald, Special Judge.
    Walter Parker was convicted of violating the pistol law, and he appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of violating the pistol law; his punishment being assessed at 30 days’ imprisonment in the county jail.

Appellant and Roy Parker were adjoining tenants on the farm of Mr. Norwood. There was a creek that divided the lands from each other. There was a public road that ran along by the side of the land of both parties. There is a bridge on the creek where the public road crosses it. On the day appellant was seen with the pistol, Roy Parker was shooting appellant’s hogs, which had gotten in Parker’s place. Appellant got his gun and pistol" and went down to the creek. When he reached that point, Roy Parker had left. He stepped upon the bridge, and supposedly discovered that fact, and went back to his residence. In going back, he traveled this road, which ran along by the side of his land part of the way. It seems to be apparent that, if appellant violated the pistol law, it was either when he got on the bridge, or traveled the public road part of the way returning to his residence; his residence being close to the road. We are of opinion this does not constitute a violation of the law.

There are several questions raised for discussion on bills of exception, and especially with reference to the failure of the court to give certain requested instructions with reference to appellant having the right to go down to the place where they were shooting his hogs and carry his pistol. We deem it unnecessary to discuss those matters, because we believe the evidence does not justify this conviction.

The judgment is reversed, and the cause is remanded.

HARPER, J.

(concurring).

Inasmuch as the defendant got his weapons while Roy Parker was shooting his hogs, and started down to protect his property, and as soon as Roy Parker desisted shooting at his hogs, he returned to his home, even though he got off his premises in returning to his home, I do not think the facts justify a conviction, for a person has the right to protect his property.


text:
    SOLIS v. STATE.
    (No. 3390.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.
    On Motion for Rehearing, Feb. 17, 1915.)
    On Motion for Rehearing.
    1. Criminal Law <&wkey;llRL-AppEAL — Delay in Filing Statement of Facts anb Bills oe Exception.
    Where the failure to file the bills of exception and statement of facts within the time permitted by law was due to no negligence of accused, he was entitled to have the entire record considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. <&wkey;> 1114.]
    2. Homicide <&wkey;89 — Assault with Intent to Murder — Acts Constituting.
    Where accused applied opprobrious epithets to G., and, after G. had knocked him down, attacked G., he was guilty of assault to murder, if he applied such epithets with the intention of provoking a difficulty and killing G.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 115-118; Dec. Dig. <&wkey;89.]
    3. Assault and Battery &wkey;>54r — Aggravated Assault — Acts Constituting.
    If accused, when he “hollered” as he approached G., intended to bring on trouble with G., but had no intention of killing him, his attack on G., after G. had knocked him down, was no graver offense than aggravated assault.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. §§ 75-7S; Dec. Dig.
    54.]
    4. Assault and Battery <&wkey;54^-AGGRAVAT-ed Assault — Acts Constituting.
    If accused provoked a difficulty with G., with no intention of killing him, and after being knocked down by G. formed an intention to kill, he was only guilty of aggravated assault, if his mind was rendered incapable of cool reflection by G.’s blows.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 75-78; Dec. Dig. &wkey;> 54.]
    5. Homicide <&wkey;310 — Assault with Intent to Murder — Instructions — ‘ ‘Adequate Cause.”
    On a trial for assault to murder, the court, in charging on self-defense, should have told the jury that if accused provoked the difficulty, with no intention of killing, and was assaulted by the prosecuting witness, and driven to the necessity of cutting as a matter of self-preservation, he would be guilty of no higher offense than aggravated assault, if the blows and assault caused such pain as to produce anger, rage, or fear , to an extent rendering his mind incapable of cool reflection, as the statute provides that a blow causing pain is “adequate cause.”
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig <&wkey;>310.
    For other definitions, see Words and Phrases, First and Second Series, Adequate Cause.]
    6. Witnesses <&wkey;318 — Evidence to Sustain Chabactee of Witness.
    On a criminal trial, evidence that the reputation of the prosecuting witness as a peaceable, law-abiding citizen was good should not have been admitted, where accused had not attacked the reputation of such .witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. &wkey;318J
    7. Homicide &wkey;>310 —< INSTRUCTIONS— Evidence-Question fob Juey.
    Where, on a trial for assault to murder, the evidence showed beyond doubt that serious bodily injury was inflicted, the court properly refused to charge on simple assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dee. Dig. @=^>310.]
    Appeal from District Court, Aransas County; F. G. Chambliss, Judge.
    Baltazan Solis was convicted of assault to murder, and he appeals.
    Reversed and remanded on rehearing.
    E. Gordon. Gibson, of Rockport, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment was assessed by the jury at two years’ confinement in the state penitentiary.

The Assistant Attorney General makes a motion to strike out the statement of facts and bills of exception accompanying the record. As they were not filed within the time permitted under the law, the motion must be sustained; and without a statement of facts and bills of exception there is no ground in the motion for new trial we can review.

The judgment is affirmed.

On Motion for Rehearing.

In this case, at a former day of this term, we struck out the statement of facts and bills of exception, as they had been filed after the time permitted by law. At that time appellant gave no reason explaining the delay. However, attached to the motion for rehearing are affidavits showing that it was through no negligence of appellant that the bills of exception and statement of facts were not filed in time to authorize their consideration, and under such circumstances we are of the opinion he is entitled to have the entire record considered or reviewed, because he was deprived of statement of facts and bills of exception without fault or negligence on his part.

If we consider the record, it discloses that Luciano Gartica was badly cut at a dance. Gartica was standing outside, and he says appellant came out and applied to him very opprobrious epithets, when he knocked appellant down; that appellant and his brother then both attacked him, and in the fight he was very seriously cut. If appellant did apply to Gartica the opprobrious epithets with intention to provoke a difficulty, intending to kill him, he would be guilty of assault to murder. But he says, and the testimony introduced in his behalf would tend to show, that he applied to the prosecuting witness no epithets; that he did not know he was outside, but that he (appellant) was (jrunk, and when he came out of the room where they were dancing, he hollered, but he did not use the words “Chinga la madre”; that when he hollered Gartica knocked him down; that he got up and the prosecuting witness knocked him down again and got on him when he called his brother; that he (appellant) did not cut the prosecuting witness.

If appellant hollered, intending thereby to bring on trouble between himself and the prosecuting witness, and was knocked down by Gartica, and appellant and his brother, while acting together, cut the prosecuting witness, he, at the time he hollered, having no intention to kill the prosecuting witness, he would be guilty of no graver offense than aggravated assault. If he in fact had no knife or other weapon, as he swears, and there is no testimony that he did have, yet by his conduct was the provoking cause of the difficulty, it would seem to indicate that he had no intention to kill, and if at that time he had no such intention, yet, after being knocked down twice, if he then formed the intention, and his mind was rendered incapable of cool reflection by the blows, and he called his brother, and the wounds were then inflicted, he would only be guilty of aggravated assault.

The court submitted aggravated assault generally, “if from any cause his mind was influenced,” etc. Appellant objected to the charge as given, and asked a special charge instructing the jury that a blow causing pain would be adequate cause. The statute so provides, and the court in his charge, limiting his right of self-defense in case he provoked the difficulty, should have instructed the jury that if they found he provoked the difficulty, but had no intention to kill, and he was assaulted by the prosecuting witness, and driven to the necessity of cutting as a matter of self-preservation, he would be guilty of no higher grade of offense than aggravated assault, if the blows and assault caused such pain as to produce anger, rage, or fear to the extent that it rendered his mind incapable of cool reflection. Halsford v. State, 53 Tex. Cr. R. 45, 108 S. W. 381; Honeycutt v. State, 42 Tex. Cr. R. 129, 57 S. W. 806, 96 Am. St. Rep. 797; Young v. State, 41 Tex. Cr. R. 446, 55 S. W. 331; Jones v. State, 17 Tex. App. 611, and cases cited in Branch’s Crim. Law, & 464. In this section Mr. Branch correctly States the prevailing rule:

(1) “If one' provoked the difficulty or produced the occasion in order to have a pretext for killing, or with the intent of killing, his adversary, or doing him great bodily harm, the killing would be murder, no matter to what extremity he may have been reduced in the combat.”

The state’s evidence would make this that character of case; but the defendant’s evidence would present a different theory, and Mr. Branch correctly states:

(2) “If defendant provoked the difficulty with no intent to kill, or to inflict serious bodily injury, and thereby brought about the necessity of killing the deceased to save his own life or prevent serious bodily injury being inflicted on him by deceased, if it would not be murder, but manslaughter.”

The court should have correctly applied these principles of law, with instructions that a blow causing pain would be adequate cause to reduce the offense to manslaughter, if deceased provoked the difficulty with no intent to kill.

The court also permitted the state to introduce evidence that the reputation of the prosecuting witness as a peaceable, law-abiding citizen was good. Appellant had not attacked the reputation of the prosecuting witness, and appellant’s objection to this testimony ought to have befen sustained. Graves v. State, 14 Tex. App. 120; Keith v. State, 50 Tex. Cr. R. 65, 94 S. W. 1044; Miers v. State, 34 Tex. Cr. R. 188, 29 S. W. 1074, 53 Am. St. Rep. 705.

The evidence does not raise the issue of simple assault, and the court did not err in refusing such instructions. ■ The evidence shows beyond doubt that serious bodily injury was inflicted on the prosecuting witness.

There are other questions raised, but we are of the opinion none of them present error; but, on account of above errors, the judgment of affirmance is set aside, a rehearing is granted, and the case is now reversed, and the cause remanded.
      (gssFor other cases see same topic and KEY-NUMBER in all ICey-Numbered Digests and Indexes

      <§^For other eases see same topic and KEY-NUMBER in all Key-Numhered Digests 'and Indexes


text:
    CHUMLEY v. STATE.
    (No. 3440.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    Criminal Law <⅞=>1064½ — Appeal — Questions Presented for Review.
    Where defendant’s bill of exceptions to the overruling of his motion for new trial showed that one of the grounds of the motion was that the attorney who represented the state was one of the grand jury panel which found the indictment, but this was in no way substantiated other than by a ground of the motion, signed by defendant’s attorney and not sworn to by any one, no error was presented.
    (Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2676, 2887, 2948; Dec. Dig. &wkey;1064%.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Henry Oliumley was convicted of selling intoxicating liquors in prohibition territory, and appeals.
    Affirmed.
    See, also, 70 Tex. Cr. R. 50, 155 S. W. 534.
    C. C. McDonald, Asst. Atty. Gen, for the State.
   PRENDERGAST, P. J.

Appellant was convicted for making an illegal sale of intoxicating liquors in said county after prohibition was in force as a misdemeanor, and his punishment assessed at the lowest prescribed by law.

Appellant has a bill of exceptions to the overruling of his motion for a new trial. The motion was based on these grounds: Eirst. That the attorney who represented the state in this case was one of the grand jury panel which found the indictment against appellant. This is in no way substantiated other than by merely a ground of the motion for new trial signed by his attorney and not sworn to by any one. It presents no error. Second. He claims the verdict is contrary to' the law. Third. He claims the verdict is contrary to the evidence and not supported by it. And, fourth, he claims the defendant’s defense was that he acted as agent merely for the purchaser, and did not make the sale of intoxicating liquor. All these questions were properly submitted by a charge as favorable to him as the law would authorize, and the jury found against him. There is ample and positive testimony that he made the sale alleged, and the evidence is amply sufficient to sustain the verdict.

The judgment is therefore affirmed.