text:
    BIVENS v. STATE.
    (No. 4715.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    1. Homicide <⅜=300(3) — Self-Defense — Appearance of Danger — Viewpoint — Instructions. „ . .
    „ . . Instructions on self-defense held to sufficiently present the idea that appearances of danger were to be considered from defendant’s standpoint.
    2. Criminal Law <$=>730(12) — Argument of Prosecuting Attorney — Reference to Character.
    Any error from prosecuting attorney, by inference, referring to defendant, in argument, as a bad man, when he had not placed his character or reputation in issue — defendant’s attorney in argument speaking of deceased as a bad man, and that defendant should be congratulated on ridding society of such a member, and prosecuting attorney replying, “You have been told deceased was a bad man, and defendant should be congratulated for having killed him, when you bring in your verdict, I want to be able to congratulate you, ⅜ *. * and by this means we will get rid of two” — was unimportant, the court having reprimanded and instructed that it be not considered, and there being evidence that defendant did not act in self-defense, but was the aggressor.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Hiram Bivens was convicted, and appeals.
    Affirmed.
    T. W. Davidson and W. T. Caven, both of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, the jury assessing his punishment at three years’ confinement in the penitentiary.

Appellant complains of -error in the court’s charge with reference to self-defense, and his refusal to give special requested instructions with reference to the same matter, and also complains of the remarks of the prosecuting attorney. Following appellant’s brief, we find that his first, second, and third propositions are presented together and stated in a general form. The special charges which were refused perhaps more aptly present the law of self-defense than did the instructions given by the court. The requested instructions were to the éffect that the jury should be more affirmatively instructed that they should look at the facts and circumstances of the homicide from the standpoint of the defendant in considering his defensive matters, and these charges were predicated upon the theory that the court’s charge did not aptly and correctly present these issues of self-defense. This involved mainly the appearances of danger viewed from the defendant’s standpoint. We are of opinion however that the charge given by the court sufficiently presented this matter.

The thirteenth and fourteenth paragraphs of the charge are both criticized, and in order to present the matter clearly we deem it necessary to quote the charges given to which exceptions are reserved. The thirteenth is as follows:

“In order to justify a homicide the attack must be such as produces reasonable expectation of fear of death or some serious bodily injury. It is not necessary in the right of self-defense that the danger should in fact exist, but if it reasonably appears from -the circumstances of the case that the danger exists, such person threatened with such apparent danger has the same right to defend against it and to the same extent that he would have if the danger were real, and to determine whether or not there was reason to believe that danger did exist, the appearances must be viewed from the standpoint of the person who acted upon them, and from no other standpoint.”

The fourteenth reads:

“Now. bearing in mind the foregoing instructions, if you believe beyond a reasonable doubt the defendant killed Albert Ector, but you further believe from the evidence that at the time of so doing the said Albert Ector was making or in the act of making an attack upon the defendant with a knife, which from the manner and character of its use, caused him to have a reasonable expectation of fear of death or serious bodily injury at the hands of Albert Ector, viewing it from the defendant’s standpoint alone and that acting under such reasonable expectation of fear of death or serious bodily injury, the defendant killed the said Albert Ector, then you should acquit him, and if Albert Ector was armed with a knife at the time he was killed, and was making an attack upon the defendant, and at the time considering the manner of its use was reasonably calculated to produce death or- serious bodily injury, then the law presumes that Albert Ector intended to murder or intended to inflict serious bodily injury upon the defendant.”

These are the charges at which the criticisms are aimed. Also in this connection subdivision 16 of the charge may be quoted:

“Again, if you believe from the evidence that the defendant believed his life was in danger or that serious bodily injury would be inflicted upon him, such fear being caused by the hostile act on the part of the deceased, if any, and that at the time he fired the fatal shot it reasonably appeared to him from all the circumstances, viewed from the standpoint of the defendant alone, that Albert Ector was about to inflict death upon him or serious bodily injury upon him by cutting him with a knife, then if you so believe you will acquit him.”

The court also gave in subdivision 16 a charge to the effect that if they entertained a reasonable doubt as to whether defendant was acting in self-defense at the time he killed Albert Ector they must give him the benefit of the reasonable doubt and acquit him.

It occurs to us the jury could not have been misled with reference to the matters urged by appellant. In three subdivisions of the court’s charge the particular matter was rather stressed and the jury was informed in all of them that the self-defense theory must he viewed from the facts and circumstances as believed by the defendant, and from no other * standpoint. These charges taken together, we think, guarded appellant’s self-defense propositions ; at least if they did not, the errors are of such small moment as not to require a reversal from that viewpoint. These charges sufficiently informed the jury they could view the danger only from defendant’s standpoint. The charge as a whole must be looked to in passing upon such matters.

There is some criticism in the record also with reference to the charge on manslaughter, but inasmuch as appellant has not urged this in his brief we have not thought it necessary to discuss that phase of the case. However, we are of opinion there is not sufficient merit in this question to be of any serious moment.

With reference to the argument of the prosecuting attorney we would say that under the circumstances it ought not to cause a reversal. The bill with reference to this matter recites that thebe was evidence introduced showing the bad character of deceased, Ector, and that he had broken into the house of appellant’s mother and had taken away whisky and money; that in his argument for defendant T. W. Davidson, one of appellant’s attorneys, spoke of the deceased as a bad man and as a robber, and that appellant did no more under the circumstances than any other good man would have done, and that he should be congratulated on ridding society of such a member rather than prosecuted. The county attorney, in closing the argument for the state, replying to the argument of defendant’s counsel, used substantially the following language;

“Gentlemen of the jury, you have been told that the deceased was a bad man and the defendant should be congratulated for having killed him. When' you bring in your verdict I want to be able to congratulate you and I want Judge Davidson to be able to congratulate you also, for I believe that your verdict will be guilty, and by this means we will get rid of two” (at the time holding up two fingers to the jury).

When this argument was made, Mr. Davidson objected to the statement and argument of the county attorney, and the court reprimanded the county attorney for making such argument, believing at the time that he was arguing to the jury in an indirect and improper way that the defendant was a bad man, when the defendant had not put his character in issue. The court also instructed the jury not to consider the argument for any purpose; that the argument was wrong and improper, and that the county attorney should not make it. Appellant’s counsel did not ask a special charge of any character, but excepted to the remarks upon the ground that they were improper and prejudicial, and. because they had not put defendant’s character in issue. We are of opinion under the circumstances, while the language was improper and the county attorney should not have -indulged same, yet, as shown by the bill, we think it is hardly of sufficient importance to require a reversal. It is only by inference, if at all, that the argument referred to the defendant as being a bad man, and it is also true that defendant did not place his character or reputation in issue before the jury, but the facts were before the jury, and state’s counsel would be permitted to argue such conclusion he may see proper from the facts introduced The facts might justify counsel in drawing the conclusion that appellant was not justified in killing deceased. With reference to this matter, it may be stated that the evidence shows deceased was one of two ne-groes who entered the home of appellant’s mother on the morning of, and shortly prior to, the homicide, and had taken $10 in money and several pints of whisky which had been sent her by her daughter from a.-distant town. Three bottles of this whisky were taken from one of these parties, who also at the time informed appellant that deceased had the other stolen property. Appellant did not reside with his mother, but resided at another place. Appellant, when informed of these matters, went in search of deceased with a view of making him return the property. After searching a while he met him and the trouble followed in which deceased lost his life. Defendant make out a case of self-defense from his view of the case.

The state’s case, however, was not in con-' formity with the views of defendant’s testimony. A witness testified that he was something like a block and a half distant from where the killing occurred, approaching in the direction of where the shooting took place, and he saw defendant shoot several times at deceased. He puts the appellant as the aggressor, and his testimony indicates that deceased was rather avoiding the difficulty and was approaching a telephone pole at the time that he was being shot at by appellant. The idea intended to be conveyed, we suppose by this testimony, was that deceased was seeking refuge behind this pole from the bullets of appellant's weapon. Appellant’s theory was to the effect that he was attacked, when he approached deceased with reference to the property taken from his mother’s house, with a knife, and he shot in self-defense. Taking the state’s theory about it, there is ground for state’s counsel’s argument to the effect' that the jury would be justified from these facts in convicting appellant, and that he was not a man of irreproachable character. Sometimes the facts are of such a character that argument may be based upon them showing the disposition and character of the parties from- the acts themselves attending the difficulty. One of the cases in point is House v. State, 19 Tex. App. 227. The writer is of the opinion that the House Case is rather on the outer verge of the law, yet it has been followed by quite a number of cases. Taking the matter as presented, we are of opinion that the error, if error, under all the circumstances stated, is not of sufficient importance to require a reversal of the judgment.

We therefore are of opinion that the judgment should be affirmed, and it is accordingly so ordered.
      <$sn>For other cases see same topic and KEY-NUMBER in all Key-Numoered'Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    WHITE v. STATE.
    (No. 4663.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    1. Indictment and Information <&wkey;167 — Unnecessary Allegations — Proof.
    Although it was not necessary to allege upon what street accused drove his automobile at an unlawful rate of speed, yet where a certain street was "alleged, it was necessary to prove it was on that particular street.
    2. Witnesses &wkey;372(2) — Cross-Examination.
    Where witness testified that accused drove his automobile at an unlawful rate of speed, the court erred in not allowing accused on cross-examination to show that the witness was paid a sum of money in case of conviction; it always being permissible to prove any material fact which would go to show bias, interest, prejudice or any other mental status of a witness which, fairly construed, might tend to affect his credibility or the weight of his testimony.
    3. Criminal Law <&wkey;419, 420(1) — Hearsay Evidence — Speedometer.
    Testimony as to rate of speed of one alleged to be unlawfully speeding with an automobile is not rendered hearsay by reliance upon a speedometer.
    4. Criminal Law <&wkey;304(12) — Judicial Notice — City Ordinances.
    The courts cannot take judicial notice that any city has any given ordinance.
    6. Criminal Law <®=^719(1), 761(2) — Trial —Instructions—Argument by Counsel.
    In a prosecution under a city ordinance it is necessary to prove the passage of the ordinance, and it was erroneous for the county attorney in his argument, or the court in his instructions, to state that the ordinance had been passed, in the absence of proof.
    Appeal from Hill- County Court; R. T. Burns, Judge.
    Curby Wbite was convicted of unlawful speeding in violation of a city ordinance, and he appeals.
    Reversed and remanded. ■
    J. J. Averitte and Wear & Erazier, all of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully speeding in the city of Hillsboro under article 815, P. C., and assessed the lowest punishment. The information alleged that appellant on or about March 22, 1916, unlawfully drove and operated an automobile at a greater rate of speed than 15 miles per hour upon. East Elm street,, a public street there situated, the said street not being a race course or speedway, and was in the built-up portion of the city of Hillsboro, and within the corporate" limits thereof.

While it was unnecessary to allege upon what particular street in the corporate limits of Hillsboro appellant so unlawfully ran and operated his automobile, yet as the pleader alleged that it was upon East Elm. street, it was necessary to prove that it was upon this particular street. See authorities collated in 2 Vernon’s Grim. Stats, p. 199, note 2.

Robert Erwin was the state’s main witness, and he testified that appellant ran his machine at an unlawful rate of speed as alleged. The court should have permitted appellant on cross-examination to prove by him, if he could, that he was employed by tbe city council or county attorney to follow automobiles for the purpose of ascertaining whether they were running at an unlawful speed, and for each person that was arrested and convicted and he would swear they were traveling at a greater rate of speed than 15 miles per hour he would be paid, and expected to be paid, a sum o-f money in each case where conviction was obtained. This was a legitimate subject of cross-examination of him. If he had so testified it might have affected his testimony. It is always permissible to prove any material fact which would go to show bias, interest, prejudice, or any other mental status of a witness which, fairly construed, might tend to affect Ms credibility or the weight of his testimony. 1 Branch’s Ann. P. C. § 163. ‘It might be as appellant was assessed tbe lowest punishment in this case and there was no controverting'testimony as to the rate of speed he ran his machine, this error might not be of such material effect as to require a reversal, but the cross-examination of said witness on the point indicated was admissible.

The testimony of said witness Erwin was not hearsay. While the cross-examination of him may have shown that he relied upon the rate of speed indicated by a speedometer, this would not make Ms testimony hearsay. Taking his testimony as a whole it-clearly was not hearsay.

The court erred in charging the jury, among other things, that:

“The city of Hillsboro has, by ordinance, fixed the speed limit by her municipal officers at a rate not greater than 15 miles an hour within the built-up portion of the said city.”

The bill and record show that there was no testimony at all proving, or tending to prove, that the city of Hillsboro had passed any such an ordinance. The courts cannot take judicial notice that any city has any given ordinance. Such ordinances must be proved properly as any other fact. Karchmer v. State, 61 Tex. Cr. R. 221, 134 S. W. 700, and authorities there cited; Wilson v. State, 16 Tex. App. 497; Lawrence v. State, 2 Tex. App. 486; and, of course, under the circumstances it was error for the county attorney in his argument to tell the jury such an ordinance had been passed by the city of Hills-boro.

For the errors above pointed out the judgment is reversed and the cause remanded.
      ®=»For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    WINN v. STATE.
    (No. 4720.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    Criminal Law &wkey;>784(l) — Instructions — CIRCUMSTANTIAL EVIDENCE — CONFESSION — Burglary.
    It is a case of circumstantial evidence, requiring a charge submitting that phase of the iaw, defendant in burglary having confessed not that he broke G.’s store, but merely that he had G.’s goods and got them from his store; the matter of breaking being only an inference to be drawn therefrom.
    Appeal from District Court, Kaufman County ; F. L. Hawkins, Judge.
    A. J. Winn was convicted, and appeals.
    Reversed and remanded.
    Lee R. Stroud, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, his punishment being assessed at two years’ confinement in the penitentiary. *

The record is without a statement of the facts. There is a bill of exceptions in the record which is so presented that we are of opinion it should be considered, though a statement of facts is not before the court. This hill is lengthy and recites that the court failed to submit the law applicable to a case of circumstantial evidence, and that appellant did not prepare nor request a special charge submitting this phase of the law, but excepted to the court’s charge because it did not so charge. The bill also recites that on account of the confession of the defendant the trial court was of the- opinion the law of circumstantial evidence was not applicable and should not be given. It is stated as a matter of fact, approved by the judge, that independent of the confession and but for the confession it was a case resting alone upon circumstantial evidence.

The facts, as recited by the bill, are that the owner of the shop or store, whose name is Gillis, had testified that he had possession of this house as a clothes-cleaning establishment and store, and that he gave appellant no permission to enter it; that on the close of the evening approaching the night of the date of the offense charged he locked the door of his shop or store and went home for the night. When he returned the next morning at the usual hour the shop or the store had been unlocked, and after entering the same the owner discovered that certain clothes were missing from the shop and had been taken by some one. This was without his consent, and, among other circumstances tending to show defendant’s guilt, there being no eyewitness to the breaking of the house or taking of the clothes, the state, through the witness Amie Godfrey, undertook t<J prove and did. prove certain confessions of appellant by questions and answers which are copied in the bill of exceptions. This brought in review a conversation between appellant and the witness two or three days before the alleged burglary of Gillis’ shop. In this conversation Godfrey states that appellant asked him if he did not want to make some money. Godfrey asked him how this was to be done and was informed that they would get some clothes. Witness asked him where, and he said here in Forn-ey, and witness asked him how would they get them, and appellant said they would steal them, and witness told him no he did not want to help him. A day or two prior to this conversation witness says he had a short conversation with appellant who came to him with a pair of pants and requested witness to let him leave the pants in his shoeshop. He asked appellant where he got them and was informed that he got them up at Dave’s shop-. The pants were stolen a day or two before that. Witness refused to let appellant leave the pants in his shoe-shop for fear they would come over and search his house, and if they found the pants they would swear he was the party who committed the theft. These pants were brown. This occurred before the alleged burglary. Subsequent to this burglary appellant again approached the witness, both of them being at that time in Dallas. He repeats the conversation in Dallas about as follows:

“He came to me and asked me did I want to help him sell the clothes. I asked him, ‘Where is they at?’ He says,‘Over here.’ I says, ‘Where did you get them?’ He says, T got them in Forney. Don’t you know whose clothes I was talking to you about?’ I says, ‘Ves.’ He says, ‘Well they are here; don’t you want to help me go and sell them?’ I said, ‘No; I had rather help steal them than to help sell them.’ Q. Did he tell you where in Forney he got them? A. He didn’t say after we were in Dallas where he got them, but he told me in Forney he was going to get them out of Dave’s shop. That is where he said they were located at. Q. Did he or did he not tell you that he got them at the same place he got the brown pants? A. Yes, sir; he did.”

Here there was some objection and a colloquy ensued, and finally the court remarked:

“Let the witness state just what the defendant told him before the burglary about where he was going to get the clothes.”

The witness answered:

“He came to me, it was two or three days before the burglary, with a pair of pants — he asked me to let him have— The Court: Leave off about those pants. I understood you to say something about some other clothes some time before the' burglary. A. No, sir; nothing but the pants. He came to me and asked me did I want to make some money. I asked him how. He says, ‘We will get some clothes.’ I says, ‘Where?’ He says¡ ‘Here in Eorney.’ I says, ‘Where are you going to. get them from?’ He says, ‘The same place that I got the pants from; and he told me that he got the pants from Dave Gillis’ shop. The Court: That makes it admissible.” *

The witness further stated after the burglary he had a conversation on Sunday evening with appellant with reference to the clothes. Witness says:

“He asked me did X still want to help him make way with them; he said he had done got them; got them at the same place he got the pants.”

Witness further testified he had another conversation with appellant in Dallas the following week about the clothes, and that appellant asked him if he did not want to help him sell them, and witness told him no. On cross-examination witness denied being related to appellant, but had known him a couple of years. He says they were never in business together, but would speak and go together; that they were not particular friends; just acquainted with each other; just had a speaking acquaintance. Witness says he is 21 years of age, and that appellant first came and told him he had stolen a pair of pants.

“Q. Hacb broken into a house and got them? A. Yes, sir. Q. Made very free to tell you that? A. Yes, sir; nobody was present when he told me that; can’t remember exactly the day; it was in the shoeshop. Q. He told you where he had broken in and got the pants? A. Yes, sir; he didn’t say he broke in, he said he got them there. Q. And then you refused to become a criminal with Mm? A. X refused to hide the pants there in my shop. I refused to go with him to get the clothes; that was after I refused to let him hide the pants there. .Yes; he kept on after me. Didn’t tell me exactly all. He just told me about the clothes; then afterwards told me he had got them; then afterwards tried to get me to help him sell the clothes in Dallas.”

The general rule is that where confessions are introduced it may relieve the case of being one of circumstantial evidence, but this is not always true. The confession must be' of such a nature that it directly connects the accused with the offense for which he is being tried. Confessions of incidental matters from which the main fact is to be deduced do not relieve the case of being one of circumstantial evidence. These cases are found collated in Mr. Branch’s Ann. P. C. at page 1294. There are quite a number of those cases. Mr. Branch states these rules very clearly and accurately. With reference to burglary he sums up the proposition as follows:

“The factum probandum of burglary, the main fact to be proved, is the breaking and entry, and if there is no direct evidence of the main fact a charge on circumstantial evidence is demanded. If the main fact is proved as a matter of inference from other facts in evidence, the, case rests wholly, in a legal sense, upon circumstantial evidence”

—rand cites a great number of cases. Again:

“In a burglary case if the main fact, the breaking and entry by defendant, is only to be inferred from the fact of subsequent possession of property recently stolen, it is a case of circumstantial evidence. Possession of property recently stolen is but a circumstance”

—citing in support of that proposition quite a number of cases. He also states another rule:

“Proof that the aecqsed pleaded guilty to theft of the same property involved in the burglary case does not relieve the court from charging on circumstantial evidence in the burglary case” —citing Beason v. State, 63 S. W. 633, and Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193. Again he states:
“If it is only by a process of inference from the confession or admission of defendant that it can be determined that he was the party who made the burglarious entry or participated therein, the court in a case of burglary should charge the jury on circumstantial evidence.”

Another rule also well understood and correctly stated by Mr. Branch is:

“If a confession of defendant that he committed the burglary is in evidence a charge on circumstantial evidence is not demanded. A confession of the breaking and entry is direct evidence of the main inculpatory fact.”

In siupport ofi this proposition quite a number of cases are cited.

We are of opinion that these rules stated by Mr. Branch are correctly and forcefully stated and supported by the authorities. If in appellant’s confession he had directly stated that he broke and entered the house, the trial court would have been correct in refusing to charge upon circumstantial evidence, but as we understand this bill of exceptions such confession was not made. Summed up, this bill shows that a few days before the burglary appellant went to the witness Godfrey, who owned a shoeshop, and asked permission to leave a pair of pants in his (Godfrey’s) house or shoeshop. This was declined by Godfrey on the ground that the pants were stolen, coupled with fear of detection. Godfrey also stated further that appellant requested him to enter into an agreement with him to steal clothing, which was declined by Godfrey. These clothes were to be stolen in the town of Eorney. Some days later appellant and Godfrey were in Dallas together when appellant requested Godfrey to help him dispose of some goods that appellant admitted to him or informed him he had stolen, and had gotten same from the place where he had gotten the pair of pants previously mentioned. This Godfrey declined. When the matter was brought pointedly to the issue in his confession as to whether he broke Gillis’ store to get the goods, the witness states that appellant did not inform him that he broke the store, but says he got the clothes. From this statement of Godfrey as to appellant’s confession, we have no positive declaration that he broke Gillis’ store. It is a matter of inference from the statement in the confession that he had gotten Gillis’ goods and had them and wished Godfrey to assist him in disposing of them. From these statements the inference was to be drawn that appellant was connected with the breaking. It is not a direct or positive fact, but by reason of the fact that appellant had the goods and said he got them from Gillis’ store, the inference is to be deduced that he broke and entered the store. While this is a close question, yet the breaking of the store by appellant is a matter of inference and not a positive fact, and under the cases cited by Mr. Branch we are of opinion this is a case of circumstantial evidence which demanded a charge submitting that phase of the law. The Beason Oases, supra, seem to be almost directly, if not exactly, in point.

The court, in the bill of exceptions, signs the statement that, independent of these conversations between Godfrey and appellant, this is a case purely of circumstantial evidence, and if it is relieved of that attitude, then it is by reason of appellant’s statement to the witness Godfrey. We think the bill is sufficient to bring the question in review, and also that the recitals in the bill show that it was a case of circumstantial evidence. The rule is general that all issues of law must be submitted favorably to the ap'pellatLt. The presumption of innocence and the reasonable doubt obtain, and where there is a doubt of the facts, there is also a doubt of the law. In other words, wherever there is a doubt arising from the facts, the issues of the law must be favorably presented by the court for the consideration of the jury with reference to the facts. This is the well-settled law, and under our jurisprudence could not be otherwise. The humane rule laid down by the Legislature, fundamental in our jurisprudence, is that the accused is presumed innocent and the state must overcome this beyond a reasonable doubt. Not only the facts must overcome these presumptions, but the law must be submitted applicable thereto in order that the jury may correctly decide such issues. Exceptions should, of course, be duly saved in order to present errors pertaining to charges.

For the reasons indicated, the judgment will be reversed, and the cause remanded.
      cg^pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte STOUT.
    (No. 4526.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    1.Municipal Corporations ⅞^596 — Powers — Ordinances—Picketing.
    El Paso charter (gp. & Loe. Acts, 30th Leg. c. 5, § 2), empowering the city to protect health, life, and property, and to preserve order and security of the city and inhabitants, gave power to pass an ordinance prohibiting loitering or walking back and forth in front of places of business for the purpose of persuading persons from entering for the purpose of transacting business.
    2. Constitutional Law <©=o90 — Liberty of the Press — Picketing.
    An ordinance prohibiting persons from loitering or walking back and forth before business places, to persuade persons by signs or otherwise from entering to transact business, does not contravene Const, art. 1, § 8, .relating to liberty of speech or press.
    3. Municipal Corporations <®=3i592(1) — Ordinances — Picketing—Statutes.
    An ordinance prohibiting walking back and forth or loitering in front of business places, to persuade persons by sign or otherwise from entering to transact business, but which provides that it does not apply to lawful persuasion of employés from working, does not conflict with Rev. St. arts. 5244, 5245, or Pen. Code 1911, art. 1478, allowing formation of labor unions and persuasion of employés.
    4. Municipal Corporations <®=»625 — Ordinance-Picketing — Constitutionality.
    An ordinance prohibiting picketing for the purpose of persuading persons from entering places of business to transact business is not unreasonable, vague, or uncertain.
    Habeas corpus by Tom 0. Stout, who was convicted of picketing in violation of an ordinance of El Paso.
    Relator remanded to custody of marshal.
    Hudspeth, Dale '& Harper, of El Paso, for appellant. J. I-I. McBroom, City Atty., of El Paso, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Before May 14, 1917, the city council of El Paso, its lawmaking power, duly enacted, and on that date was in force, the following ordinance:

“An Ordinance to Regulate Walking Back and Forth, Loitering or Remaining on the Streets and Sidewalks in the City of El Paso, Texas.
“Be it Ordained by the City Council of the City of El Paso, Texas:
“Section 1. It shall be unlawful for any person or persons to walk back and forth, loiter or remain, or cause any person to walk back and forth, loiter or remain upon the streets or sidewalks in the city of El Paso, Texas, in front of any business house for the purpose of persuading any person or persons by word of mouth from entering said place or places of business for the purpose of transacting business therein.
“Sec. 2. It shall be unlawful for any person or persons to walk back and forth, loiter or remain, or cause any person to walk back and forth, loiter or remain upon the streets or sidewalks in the city of El Paso, Texas, in front of any business house for the purpose of persuading any person or persons by signs carried from entering said place or places of business for the purpose of transacting business therein.
“Sec. 3. Provided, that neither of the foregoing sections shall be held to render it unlawful for any member or members of any trade union, organization or association, or any other person to induce, or attempt to induce by peaceable and lawful means, any person to accept any particular employment, or quit or relinquish any particular employment in which such person may then be engaged, or to enter any pursuit, or refuse .to enter anjí pursuit, or quit or relinquish any pursuit in which such person may then be engaged: Provided, that such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof.
“Sec. 4. Any person or persons violating the foregoing ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not in excess of two hundred ($200.00) dollars.
“Sec. 5. Should it hereafter be discovered or adjudged by any court that any section or portion of this’ ordinance is unconstitutional, void or invalid for any reason, it shall not affect the validity or constitutionality of the remaining portions of this ordinance, unless such portion so declared unconstitutional, void or invalid is so interwoven with, or dependent upon other portions of said ordinance that the same cannot be enforced as intended by this ordinance.
“Sec. 6. Whereas, the fact that there is at present no sufficient ordinance regulating the standing, loitering or remaining upon the streets and sidewalks in the city of El Paso, Texas, creates a public emergency justifying the suspension of the charter rule requiring that all ordinances be read at two regular meetings of the city council, and the same is hereby suspended by the consent of the mayor and the unanimous vote of all aldermen present, and this ordinance shall take effect and be in force from and after its passage, approval and publication.”

Said Stout was prosecuted for the violation of section 2 of said ordinance before the corporation court, was convicted, and fined $25, which he refused to pay. He was thereupon taken into custody by the chief of police of El Paso and held. He sued out a writ of habeas corpus before this court. The facts were agreed upon. At the time he was arrested he was doing “picketing” on the sidewalk in front of the Java Café at 314 San Antonio street, in the city of El Paso, which consisted of his walking up and down the outer edge of the sidewalk, and back and forth in, front of said café, carrying what is termed a “sandwich” badge on his breast, and a like badge on his back, which contained the following words: “This restaurant unfair to organized labor and sympathizers. Cooks’, Waiters’ & Waitresses’ Union, Eocal 848. Labor is worthy of its hire.” He did not engage in conversation, nor was anything said to him, by any one, while so “picketing.” He was a membér of the Cooks’, Waiters’ & Waitresses’ Union, Local 848, and was doing the “picketing” by authority of that union, and because the Java Café was not employing union cooks, waiters, and waitresses.

He attacks the validity of said ordinance:

1. Because he claims the city of El Paso had no authority to pass such an ordinance.

The charter of El Paso was a special act of the Legislature of 1907, p. 24. Section 2 thereof gives said city this power and authority:

“The city of El Paso shall have power to enact and to enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and1 remove nuisances, and to preserve and enforce the good government, order and security of the city and its inhabitants; to protect the lives, health and property of the inhabitants of said city, and to enact ⅜ * ⅜ any and all ordinances upon any subject: Provided, that no ordinance shall be enacted inconsistent with the laws of the state of Texas, or inconsistent with the provisions of this act; and provided, further, that the specification of particular powers shall never be construed as a limitation upon the general powers herein granted; it being intended by this act to grant and bestow upon the inhabitants of the city of El Paso full power of self-government, and it shall have and exercise all powers of municipal government not prohibited to it by this chapter or by some general law of the state of Texas or by the provisions of the Constitution of the state of Texas.”

Section 56 also gives the city this power and authority:

“The city council shall have complete and exclusive control and power over the streets, alleys, and highways of the city, and to abate and remove encroachments thereon; to open, alter, close, widen, extend, establish, regulate, sell, lease, grade, clean or otherwise improve said streets: IJrovided, no street shall ever be closed, sold or leased except for an adequate consideration, and not then except by the vote of at least .three-fourths of the aldermen and the approval of the mayor; to put drains or sewers therein and to prevent the. encumbering thereof in any manner and to protect the same from encroachment or injury: Provided, that the city shall not be liable in damages at the suit of any person for injury, either to 'person or property, arising from an unsafe condition or want of repair of any street, square, alley, plaza, park, sidewalk, or public place in the city unless at least ten days before the injury occurred a notice in writing shall have been filed with the city clerk for the city council specifically pointing out the nature and exact locality of the defect, obstruction, or other thing that afterward occasions the injury.”

The very object and purpose of municipal governments is to pass and enforce ordinances to preserve and enforce the good government, order, and security of it and its inhabitants, and to protect the lives, health, and property of its inhabitants. If they had no power to do these things, their creation and maintenance might be useless. This power and authority given said city is ample and complete to authorize it to pass and enforce said ordinance for any of the objects or purposes specified unless there is some constitutional or statutory provision which would prevent or prohibit it. Ex parte Sullivan, 77 Tex. Cr. R. 87,178 S. W. 537, and authorities cited; Strauss v. State, 76 Tex. Cr. R. 135, 173 S. W. 663, and authorities cited.

2. The relator contends that said ordinance violates section 8, art. 1, of the Constitution of Texas, which provides:

“Every person shall be at liberty to speak, write or publish Ms opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”

And he states it also violates subdivision 1 of the Fourteenth Amendment to the Constitution of the United States, which provides that:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Under this attack he presents only the claimed invalidity under said provision of our state Constitution, and cites Ex parte Neill, 32 Tex. Cr. R. 276, 22 S. W. 923, 40 Am. St. Rep. 776; Ex parte Foster, 44 Tex. Cr. R. 427, 71 S. W. 593, 60 L. R. A. 631, 100 Am. St. Rep. 866; Mitchell v. Grand Lodge, etc. (Civ. App.) 121 S. W. 179; City of St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30, 15 L. R. A. (N. S.) 973, 124 Am. St. Rep. 750 — as sustaining him.

The Neill Case held an ordinance of Se-guin void which enacted that the “Sunday Sun,” a paper published at Chicago, was a nuisance, and prohibited its circulation in Seguin, and made it an offense for any person to sell it therein. This court therein held:

“We are not informed of any authority which sustains the doctrine that a municipal corporation is invested with the power to declare the sale of newspapers a nuisance. The power to suppress one concedes the power to suppress all, whether such publications are political, secular, religious, decent or indecedent, obscene or otherwise. The doctrine of the Constitution must prevail in this state, which clothes the citizen with liberty to speak, write, or publish his opinion on any and all subjects, subject alone to responsibility for the abuse of such privilege.”

The Foster Case held a district judge could not, by an order in a criminal case, prohibit a newspaper from publishing the evidence given in the trial while being tried, and then punish for contempt one who did so publish the evidence, mainly because the Constitution required such trials to bo public.

The Court of Civil Appeals in the Mitchell Case held an injunction would not lie to prohibit the publication of a libel, but said our Supreme Court had never so held, and that the courts of other states differed on the question. That court must have overlooked the cases of Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Ex parte Allison, 99 Tex. 463, 2 L. R. A. (N. S.) 1116, 122 Am. St. Rep. 653. These cases were passing primarily on statutory provisions, but the principles announced would embrace rights without regard to statutory provisions. But whether these cases were overlooked or not this case is not applicable, if for no other reason, because the offense had already been committed, and he was convicted for that, and this was no proceeding to enjoin or otherwise prevent him from committing such offense in future.

The Gloner Case from Missouri shows an altogether different case from this. That the ordinance held void made it a misdemeanor merely “for any person to lounge, stand, loaf around, about or at street comers in the day or night time.” That court said:

“There is no pretense that defendant was at the time of his arrest in any way obstructing the street, or interfering with the rights of any person.”

Section 2 of this ordinance does not make such an act only an offense, but makes it— “unlawful for any person to walk back and forth upon the streets or sidewalks of the city of El Paso, in front of any business house for the purpose of persuading any person, by signs carried, from entering said place of business for the purpose of transacting business therein.”

The difference in this and the Missouri ordinance is SO' marked as to make comment unnecessary.

In Fitts v. City of Atlanta, 121 Ga. 567, 49 S. E. 793, 67 L. R. A. 803, 104 Am. St. Rep. 167, the ordinance prohibited any one from making a speech on the streets without license from the city authorities, and made it an offense if one did so. Fitts so made a speech without license and was arrested and fined therefor. He refused to pay the fine, and was taken and held in custody, and sued out a writ of habeas corpus seeking discharge, because of his constitutional right of free speech. Among other things, the court held:

“The primary object of streets is for public passage. They should be kept open and unobstructed for that purpose. If damage accrues to passers by reason of improperly allowing them to be used for other purposes, the city may become liable. The streets of the city are peculiarly within the police control for the purpose of preserving and protecting their use by the public as thoroughfares. A man has many constitutional and legal rights which he cannot lawfully exercise in the streets of a city. Thus, every citizen has a right to lawfully acquire and hold personal property; but he has no right, constitutional or otherwise, to insist on storing his possessions in the street. Every man has the inalienable right to sleep and eat (if he has the edibles), but he has no constitutional right to make his bed or set his table in the street. Every man has not only the right to, but he should, bathe and cleanse himself, and change his raiment, if he has a change. This is a duty ■imposed by his individual constitution, if not by that of his country. But there is no constitutional right on his part to perform his ablutions or exercise the most necessary demands of his nature in the public streets. At proper times and in proper places one may make loud noises, or shoot a gun, or test his lung power vocally to a considerable extent, without offending against any law; but there is no right, inherent or constitutional, to make vociferous outcries or practice gunnery in the street. If Prof. Fitt’s idea of constitutional law were correct, I see no reason why every citizen should not claim a right to use the public streets for the exercise of his trade, calling, or profession, which may be much more essential to his welfare and that of the public than speechmaking by the plaintiff in certiorari, however eloquent, and reg'ardless of the soundness or unsoundness of his argument.
“If the Constitution, state or federal, guarantees to Prof. Fitts the right to make public speeches on the streets of Atlanta, why’ does it not also guarantee the same right to every lecturer who may not desire to hire a hall, and to every showman who wishes to exhibit on the highway, or to every mechanic, artisan, merchant, or other citizen the right to ply his lawful vocation in the public thoroughfare? The constitutional right to exercise one’s lawful vocation is quite as sacred, and often more important, than the right to make speeches; but the exercise-of either right must yield to the municipal power properly exercised over the streets for the primary objects for which they were established. If every one who has some constitutional right has also the constitutional right to exercise it in the streets of a city regardless of municipal regulations, these thoroughfares may soon become a gathering place of a numerous clan rivaling those adjuncts of modern exhibits, which, since the term was used during the Columbian Exposition at Chicago in 1893, have come to be distinguished by the name of ‘Midway Plaisance.’ The right of the public in regard to the streets is to use them for passage' as public highways, provided they are used lawfully for that purpose. But even the right of passage is subject to reasonable legislative regulations for the general good. Thus, idling and loitering in the public streets has generally been prohibited, and no one as yet doubted the constitutionality of such legislation*”

See Love v. Phalan, 128 Mich. 545, 87 N. W. 785, 55 L. R. A. 618; Com. v. Davis, 162 Mass. 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389; and also Goldberg v. Stableman, etc., 149 Cal. 429, 86 Pac. 806, 8 L. R. A. (N. S.) 460, 117 Am. St. Rep. 145, 9 Ann. Cas. 1219; Jensen v. Cook & Waiters, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; Barnes v. Chicago, etc., 232 Ill. 424, 83 N. E. 940, 14 L. R. A. (N. S.) 1018, 13 Ann. Cas. 54.

The principles applicable to “picketing,” made illegal as by this ordinance, has been held valid in other jurisdictions. See Ex parte Williams, 158 Cal. 550, 111 Pac. 1035; Beck v. Ry., etc., Teamsters, etc., 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421; Otis Steel Co. v. Local Union (C. C.) 110 Fed. 698; Knudsen v. Benn (C. C.) 123 Fed. 636; and other cases.

In Ex parte Williams, 158 Cal. 550, 111 Pac. 1035, such an ordinance, even less specific than this, was held valid. In the Beck Case, supra, the court held:

“To picket complainants1 premises in order to intercept their teamsters or persons going there to trade is unlawful. It itself is an act of intimidation, and an unwarrantable interference with the right of free trade. * * * It will not do to say that these pickets are thrown out for the purpose of peaceable argument and persuasion. They are intended to intimidate and coerce.”

In the Otis Steel Co. Case, supra, the court held:

“Whether this picketing has been accompanied with violence or not we need not consider. It was certainly one of the means used by this defendant organization to enforce its mandate. While picketing may not be an occasion1 of war, it certainly is an evidence that war exists, and the term is appropriately borrowed from the nomenclature of actual warfare. This system, constantly kept up, in its nature leads to disturbance, and has a tendency to intimidate. * * * It is certainly true that this system of picketing, although it may not have been accompanied by violence on the part of those who have served as pickets, has and will do injury.”

3. Relator further contends that said ordinance conflicts with articles 5244 and 5245 of the Revised Civil Statutes, and article 1478 of the Penal Code, and is therefore void on that account. Articles 5245 (R. S.) and 1478 (P. C.) are exactly the same.

Whether these articles are in such conflict with said ordinance as to render it void is almost, if not entirely, a question of fact to be determined by an inspection of them. In order to show clearly that they are not the .same they will be quoted in parallel columns:

Art. 5244 (R. S.) is: It shall be lawful for any and all persons engaged in any kind of work or labor, manual or mental, or both, to associate themselves together and form trades unions and other organizations for the purpose of protecting themselves in their personal work, personal labor, and personal service, in their respective pursuits and employments.
Art. 5245 (R. S.) Idem. 1478, P. O., is: It shall not be held unlawful for any member or members of such trades union or other organization or association, or any other person, to induce or attempt to induce by peaceable and lawful means, any person to accept any particular employment, or quit or relinquish any particular employment in which such person may then be engaged, or to enter any pursuit, or refuse to enter any pursuit, or quit or relinquish any pursuit in which such person may then be engaged: Provided, that such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof.
Sec. 2 of said ordinance is: It shall be unlawful for any person or persons to walk back and forth, loiter or remain or cause any person to walk back and forth, loiter or remain upon the streets or sidewalks in the city of El Paso, Texas, in front of any business house for the purpose of persuading any person or persons by signs carried from entering said place or places of business for the purpose of transacting business therein.
Sec. 3 of said ordinance is: Provided, that neither of the foregoing sections shall be held to render it unlawful for any member or members of any trade union, organization, or association or any other person to induce, or attempt to induce by peaceable and lawful means, any person to accept any particular employment or quit or relinquish any particular employment in which such person may then be engaged, or to enter any pursuit or refuse to enter any pursuit or quit or relinquish any pursuit in which such person may then be engaged: Provided, that such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof.

It is unnecessary to here copy section 1 of said ordinance. It and also the others have already been copied herein. Section 3 of the ordinance makes it perfectly plain that it- was the intention of the city council of El Paso in passing the ordinance to expressly avoid conflict with both the civil and penal articles copied above. It is clear that they accomplished such intent. What was made lawful by said articles was for any and all persons engaged in any kind of labor to associate themselves together and form trades unions for the purpose of protecting themselves in their personal work and in their respective pursuits and employments; and that it should not be held unlawful for any member of said unions to induce, or attempt to induce, by peaceable and lawful means, any person to accept any particular employment or quit the same in which such person may be engaged, or to enter any pursuit or to refuse to do so, or quit or relinquish any pursuit in which any such person may then be engaged.

As stated above, section 2 of said ordinance made it an offense and unlawful for any person to walk back and forth upon the sidewalks of said city in front of any business house for the purpose of pursuading any person by signs carried from entering said place of business for the purpose of transacting business therein. -A very distinct and different thing from that made lawful by articles 5244, 5245 (R. S.). It seems so clear that the ordinance is not in conflict with said statute that it is deemed unnecessary to further discuss the question. Of course, if there had been such conflict between the statute and the ordinance the ordinance could not stand but would be invalid. Appellant cites a number of cases to the effect that where there is such conflict the ordinance is invalid. It is unnecessary to cite or discuss them because the legal proposition laid down by them is correct.

4. The ordinance is not unreasonable, nor is it vague, uncertain, etc., so that it cannot be understood. The ordinance seems clear, plain, and easily understood. Instead of being unreasonable, it is most reasonable, under the circumstances. Authorities above are quoted which show that the acts of relator which are denounced by said ordinance were clearly intended to intimidate and coerce all union labor folks and their sympathizers and others from going into said restaurant or café and getting their meals or having any other business transaction with the owner or proprietor thereof. In other words, to injure and break up the proprietor in business. Such conduct as his would naturally lead to disturbances, and had a tendency to intimidate and prevent all persons from entering said restaurant, and would necessarily injure the proprietor in his business. There can be no doubt but that the proprietor or owner of said restaurant had a right to conduct his business to suit himself, and to employ union or nonunion laborers as suited him, and no one has the right to injure or disturb his business because he so chose to run it. The fact that his restaurant abutted upon the portion of the sidewalk where the relator was undertaking to injure and disturb him, and his business of itself, would give him some rights. It was the duty of the city of El Paso by such an ordinance to protect him in the conduct of his business, otherwise the city would not have been doing its duty to him and other citizens “to preserve and enforce good government, order and security of the city and its inhabitants, and to protect the lives, health and property of its inhabitants.”

Th^ ordinance is not invalid and void, but, on the contrary, is valid and legal. The relator is therefore remanded to the custody of the marshal of the city of El Paso.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    GILBREATH et al. v. CAGE & GROW.
    (No. 742.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.)
    1. Appeal and Ekkob <®^2S2^-Requisites to Appeal — New Tkial.
    Where the case is tried by the court, a motion for a new trial as a prerequisite for an appeal is unnecessary.
    2. Appeal and Error <®=»1012(1) — Weight op Testimony — Review.
    Judgment of the trial court as to the weight to be given testimony will not be disturbed on appeal.
    8. Bills and Notes <®=96 — Accommodation Maker— Consideration.
    Where defendant signed the note as an accommodation, it was not necessary that any consideration pass directly; a consideration moving alone to the principal being sufficient.
    4. Homestead <S^142(1) — Exemptions — “Heads op Families.”
    In suit against unmarried children upon their notes secured by a trust deed upon homestead of their deceased parents, such homestead was not exempt; the articles of the Constitution exempting homesteads from forced sale applying only to “heads of families,” as to voluntary mortgagors.
    [E'd. Note. — For other definitions, see Words and Phrases, First and Second Series, Head of a Family.]
    Appeal from District Court, Eratli County; W. J. Oxford, Judge.
    Suit by Cage & Crow against W. O. Gil-breath and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    B. E. Coot, of Stephenville, for appellants. Alex Johnson and Keith & Pittman, all of Stephenville, for appellees.
   HARPER, C. J.

This suit was instituted by Cage & Crow, doing business as a joint-stock company (since the suit was filed Mrs. Janie Cage, surviving widow of J. H. Cage, has succeeded to all the rights of the original plaintiffs), against W. C. and S. F. Gilbreath for the sum of $1,449.60, evidenced by certain vendor’s lien notes and secured by deed of trust upon land and cattle described, and to foreclose said liens.

Appellants answered by general denial, plea of non est factum as to the execution of the deed of trust and notes, failure of consideration to Miss Gilbreath upon one note, and that the lands described in the deed of trust was their homestead, and therefore exempt, etc.

Tried by the court without a jury, and judgment rendered for the amount sued for and for foreclosure of the lien, from which this appeal.

Appellees object to the consideration of the assignments of error upon the ground that no motion for a new trial was filed. Where the case is tried" by the court without a jury, it has never been necessary to file a motion.for a new trial as a prerequisite for an appeal. Greer Mills & Co. v. Featherston, 95 Tex. 654, 69 S. W. 69; Graver et al. v. Greer, 107 Tex. 356, 179 S. W. 862.

The first, second, and third raise the questions: " Is the evidence sufficient to sustain the findings of the trial court against appellants upon their pleas of non est factum as to notes and deed of trust, and their plea of failure of consideration as to notes invoked by Miss Gilbreath? Upon the plea of non est factum appellants admitted their signatures. The notary testifies that they were signed in his presence after an explanation of the contents of the papers which appellants swear they did not know and understand the contents of. The trial court is the judge as to the weight to be given .the testimony, and, he having resolved it in favor of appellees, we are not at liberty to disturb the judgment.

As to the absence of consideration for Miss Gilbreath’s signature to the note of her brother, she says she signed it simply as -an accommodation. In such cases it is not necessary that any consideration pass directly to the surety, but a consideration moving alone to the principal is sufficient. Bonner Oil Co. v. Gaines et al., 191 S. W. 552.

The fourth, fifth, and sixth urge that the pleadings assert and the undisputed evidence shows that the lands upon which the deed of trust rests and some of the cattle described therein are exempt to defendants as their homestead.

In support of their proposition they cite Lacy v. Rollins, 74 Tex. 566, 12 S. W. 314, and Smith v. Von Hutton, 75 Tex. 625, 13 S. W. 18. These cases hold that an unmarried man, though he may have a family, may mortgage his homestead, and a sale thereunder will pass title. The facts here are that W. C. Gilbreath and his sister are both single, and living upon their parents’ (now deceased) homestead, and now claim it as their homestead. As indicated above, the article of the Constitution exempting homesteads from forced sale has been construed to apply only to heads of families as to voluntary mortgagors. McGee v. Turner, 61 Tex. Civ. App. 347, 129 S. W. 866; Bateman Bros. v. Pool, 84 Tex. 405, 19 S. W. 552; Watts v. Miller, 76 Tex. 13, 13 S. W 16.

The seventh is an attempt to raise all the questions urged by the others, and must be overruled for the reasons assigned above.

Finding no error, the cause is affirmed.

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


author: HALL, J. HUFF, C. J.

text:
    BRILLHART v. BEEVER.
    (No. 1231.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1917.
    On the Merits, Oct. 31, 1917. Rehearing Denied Nov. 28, 1917.)
    1. Appeal and Eeeoe <§=>409 — Citation in Eeeoe — Defects—Quashing.
    Under Rev. St. 1911, art. 2091, providing that the citation in error shall he made returnable within 10 days, if defendant in error resides in the county, or 20 days, if he resides out of the county, the error of the clerk, in making the citation returnable in 30 days, does not require the quashing of the citation.
    2. Appeal and Eeeoe <§=>429 — Citation in Ebeor — Defects—W aivee.
    Defendant in error waived any right to abate the citation in error because of a mistake in designating the return day by moving to strike out the statement of facts and dismiss the proceeding in error.
    3. Appeal and Eeeoe <§=>14(1) — Successive Proceedings.
    A proceeding in error will not be dismissed because it is prosecuted after the dismissal of an appeal from the same judgment, where the judgment was not affirmed on the appeal.
    4. Appeal and Eeeoe <§=>655(3) — Recoed — Authentication.
    A statement of facts, though not bearing the file mark of the clerk of the lower court, will not be stricken out, where a certificate of the clerk is attached, certifying that it is an exact copy and a duplicate original of the statement of facts filed in his office.
    5. Appeal and Eeeoe <§=>564(2) — Statement of Eacts — Time foe Filing.
    A statement of facts filed within 12 months is in time, where the case is brought to the appellate court for review by writ of error.
    On the Merits.
    6. Specific Pebfoemance <§=>31 — Contbacts Enfo'KCEable — Incomplete Contbacts.
    To be specifically enforced, a contract must show a concluded agreement, and if it is reasonably doubtful whether what passed was only treaty, however it may approach the confines of an agreement, it will not be specifically enforced.
    7. Vendos and Purchaser <§=>28 — Contbacts —Offee and Acceptance.
    In reply to a letter from plaintiff, defendant stated that he would make plaintiff a proposal respecting a sale of land, defendant to assume an amount due the state, pay $1,000 in cash, and give his notes for $4,000, $1,000 to be payable annually, with interest at 6 per centum, and that he would go into further agreement with plaintiff, if this interested him. Plaintiff replied that he would buy the land at defendant’s offer, and would pay $1,000 cash when deed and abstract were satisfactory, and give notes payable annually, and that, if defendant eared for any information in regard to his .ability to pay, he might write a certain person. Defendant replied that plaintiff apparently expected a good abstract and deed, and to give his notes, and that he could not do this. In answer, plaintiff wrote that he did not ask defendant to take his personal notes, that it was customary to furnish an abstract of title, that practically all school land was transferred with vendor’s lien notes against the land, but that, if defendant was afraid of notes against the land, he might give a bond for deed. Beld, that defendant’s offer was not intended to conclude an agreement, and could not be converted into a contract by acceptance, but was merely a proposal to enter into further negotiations, and the subsequent correspondence showed that the parties never reached a c.ommon understanding respecting the time of payment of the amount to be paid in cash, or the manner in which the deferred payments should be secured.
    8. Contbacts <§=>1 — Requisites — Teems of Ageeement.
    An agreement, to constitute a complete contract, must comprise all the terms which the parties intended to introduce into the agreement.
    9. Contbacts <§=>24 — Acceptance of Offer— Vaeiance feom Offee.
    An acceptance varying from the offer is in effect a rejection and a counter proposal, and the offer thereupon lapses as in case of express rejection.
    10. Customs and Usages <§=>10 — Opeeation and Effect.
    A custom to give an abstract of title to land upon a sale does not amount to a custom that the deed and abstract must be satisfactory to the proposed purchaser.
    11. Customs and Usages <§=>14 — Exclusion by Expeess Conteact.
    Where, in correspondence respecting a sale of land, the purchaser expressly stipulated that a deed and abstract must be to his satisfaction, the matter would have been controlled by the contract, if made, and not by a custom to give abstracts of titlev
    Error from District Court, Hemphill County; W. R. Ewing, Judge.
    Action by G. C. Brillhart against J. O. Beever. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Frank Willis, of Canadian, R. T. Correll, of Ochiltree, and F. P. Works, of Amarillo, for plaintiff in error. E. C. Gray, of Higgins, for defendant in error.
   On Motion to Quash Citation, Strike Statement of Facts, and 'Dismiss Writ of Error.

HALL, J.

Defendant in error moves this court to quash the citation in error because the sheriff is commanded to return the process within 30 days. Article 2091, R. S., provides that the citation in error shall be made returnable within 10 days from- the date of its issuance if the defendant in error resides in the county, and in within 20 days if he resides out of the county. The error of the clerk in designating the return day is not such error as requires us to quash the citation. The purpose of the citation is to bring the defendant in error into this court, and it would be a technical ruling to grant the motion in this instance. It is held in Hall v. La Salle County, 46 S. W. 863, that an appearance by defendant in error to dismiss the writ of error upon other grounds is a waiver of clerical defects in a citation. By moving this court to strike out the statement of facts and to dismiss the writ of error proceeding, defendant in error has clearly waived his right to abate the citation.

Defendant in error insists that we should dismiss the proceeding because it is prosecuted after an appeal from the same judgment had been dismissed by this court at a previous term. In Schonfield v. Turner (Sup.) 6 S. W. 628, the court said that the abandonment of the appeal deprived the plaintiff in error of no right, and that the case stood'as'if no appeal'liad béen taken, since defendant in error had made no effort to affirm the judgment at the previous term. This holding is cited with approval in Texas, etc., Ry. Co. v. Hare, 4 Tex. Civ. App. 18, 23 S. W. 42 (affirmed in 93 Tex. 651). In the Hare Case, as in this case, the appeal was dismissed for want of prosecution.

The ground of the motion upon which defendant in error seeks to strike out the statement of facts must also be overruled. It appears that plaintiff in error has used the identical statement of facts which was sent to this court at the former term when an appeal was prosecuted from the judgment of the lower court, and the clerk of the lower court failed to place his file mark upon it. It appeal’s by the certificate of the clerk attached to the copy of the statement of facts that it is an exact copy and a duplicate original of the statement of facts filed in his office in the court below. We . think this is sufficient upon that point. M., K. & T. Ry. Co. v. Waggoner, 102 Tex. 260, 115 S. W. 1172. While the copy now with the clerk of the lower court was filed there more than 90 days after the appeal was perfected, for the purposes of this proceeding it is filed here in time. It seems to be the settled practice that a statement of facts filed within 12 months is in time where the case is brought to the appellate court for review by writ of error. McLane v. Haydon, 178 S. W. 1197; Louisiana-Rio Grande Canal Co. v. Quinn, 160 S. W. 151.

The motion- is in all things overruled.

On the Merits.

HUFF, C. J.

Plaintiff in error, Brillhart, sued the defendant in error, Beever, to specifically perform a contract of sale alleged to have been executed by certain correspondence between the two parties, for the east 480 acres of land out of survey No. 1, block z, in Ochiltree county, and in the alternative for damages. The alleged contract is based upon the following letters:

“Gray, Okla., December 27, 1915.
■“Mr. J. C. Beever, Coulterville, Ill. — -Dear Sir: Am inclosing you check for $75.00 for rent on east 100 acres of land for year of 1915. I understand you have this land on market for sale. I might possibly be able to do some business with you on this land. If $5,000.00 will interest you on this land, and terms will suit me, I think we can do business., I would not care to pay over $1,000.00 down ón same, and balance in payments of $1,000.00 per year at 6 per cent, interest, interest payable-annually. You understand in me buying this land it will be direct from you and you will have no comm, to pay to any one. Shall be glad to hear from you.
“Yours truly, G. C. Brillhart,
“Gray, Okla., R. 4, Box. 55.”
“Coulterville, Illinois, Jan. 5, 1916.
“Mr. G. C. Brillhart, Gray, Oklahoma — Dear Sir: Received your letter with check for seventy-five dollars a few' days ago, in regard to offer on my land. I cannot accept your price, the amount cash you offer is hardly enough to justify me in selling, and the 6% interest on deferred payments is low; however-1 will -make proposal on your terms, you assume the seven hundred dollars $700.00 due the state on this land at 3% interest payable annually, and give me one thousand dollars $1,000.00 cash, and I will take your notes for four thousand $4,000.00, one thousand payable annually, with interest at 6% on deferred payments, all interest payable annually; will go into further agreement with you if this interest you let me know, this is the best I can do on a thousand dollars cash.
- “Very respectfully, J. C. .Beever.”
“Gray, Okla., Jan. 13, 1916-
“Mr. J. C. Beever, Coulterville, Ill. — Dear Sir: Your letter of Jan. 5th had been rec’d. I will buy land at your offer. I will arrange the $700.-00 due the state of Texas. Will pay you the $1,000.00 cash when deed and abstract is satisfactory to me. Will give you the four notes on land for $1,000.00 each, payable annually and drawing 6% interest from date, and interest payable annually. I shall be glad to get this fixed up in a short time as I would like to go to farming land at once. If you care to ask any information in regard to me or my ability in paying for place you may write Mr. Barnett, or any other acquaintance whom you may have in this country. Please let me ¿hear from you at an early date.
“Yours truly, G. C. Brillhart.”
“Gray, Okla., Feb. 3, 1916.
“Mr. J. C. Beever, Coulterville, Ill. — Dear Sir: I wrote you Jan. 13th, stating that I would buy your land at your price. ’ I have not heard from you since. I have turned down deals on other land waiting to hear from you. Please write at once. Would like to get this matter straightened up at once. Let me hear from you.
“Yours truly, G. C. Brillhart.”
“Feb. 7, 1916.
“G. C. Brillhart — Dear Sir: I have had charge of a drug store the past month of a man that had died and settling up his business looked like that I could not tend to my own business. In regard to my land, the way you wrote you expected me to give you a good abstract and deed, and me take your notes for the balance. I could not do that. I talked to a lawyer here and he told me I had better not do anything unless I was on the ground. So you do not need to hold off any on my account if you have other land in view. I have sold some property here and may not sell land now. However, I am coming down about the first of April and may see you.
“Respy., J. C. Beever.”
“Gray, Okla., Feb. 11, 1916.
“Mr. J. C. Beever, Coulterville, Ill. — Dear Sir: Your letter of the 7th has been ree’d. I note what you say in regard to land. You are under the wrong impression in regard to deed and abstract. I did not ask you to take my personal notes in buying the land. You understand that it is customary and only a matter of business that an abstract of title be furnished when land is sold in this state, or any other in the United States. In regard to deed, practically all school land in this state is transferred when it is sold on terms with vendor’s lien notes against land. However, if you are afraid of notes against land you may give bond for deed. Mr. Beever, you have priced this land to me and I have bought it fair and square at your own price. You also have been recommended! to me to be a man who was absolutely good, and would do whatever you said you would. I have sold stuff at a sacrifice in order to raise the $1,000.00 to pay you. I am also ready to, put my teams to work on land as soon as we get some moisture; it is too dry here at the time ■to do any work in the field. Mr. Beever, if you prefer to come down here to close up this deal I will-pay-you R. -R. fare one way, or I will come back there if you prefer, if you will pay my fare one way. I am inclosing you check for $250.00 for forfeit on place to show you that 1 mean business.
“Please do not delay this matter. Answer my letter at once.
“Tours truly, G. O. Brillhart.”
“Coulterville, Ill., Feby. 14, 1016.
“Mr. G. G. Brillhart, Gray, Okla. — Dear Sir: Inclosed find check I received from you to-day. I gave you to understand in my letter of Feby. 7 that the deal was off. If you had inclosed check .with your letter of Jan. 13, 1916, I would have accepted it. But when you did not send anything with your first letter I did not consider it an offer. If there is any railroads built down there I want to settle on my land myself. All I have is tied up in that land and I have worked hard for it all my life. I saw in St. Louis papers that there was prospects of a railroad, and if there is I want to move out there.
“Respy. youps, J. O. Beever.”

Also the following excerpt from a letter from Beever to Barnett, dated Coulterville, Ill., Jan. 31, 1916, who appears to have been looking after, the land for defendant in error or was his agent:

“Geo., I got a letter from Brillhart the last of Dec., 1915. He offered me $5,000.00 for my land. On the 5th of January I wrote him that if he would assume the $700.00 due the state and give me $5,000.00 I would sell. About two days after I got your last letter before this one I got another letter from him accepting my offer. He talked about wanting a good deed and abstract, so I saw a lawyer, and he told me not to do it, so it'just stands that way. I have not answered his letter yet.”

The offer of the defendant to sell the land is contained in his letter of date January 5, 1916, which it is asserted plaintiff in error .accepted. In this letter the price for the land is stated and the terms upon which the payments must be made. This, of course, was an important future of the contract which was to be entered into, but the letter ■concludes: “Will go into further agreement with you if this interests you. Let me know.”

A contract which may be specifically enforced must show a concluded agreement. If it rests reasonably doubtful what passed was only treaty, however it may approach the confines of an agreement, the court ought not to specifically perform what is doubtful as an agreement. .

It is apparent from the letter that the defendant did not intend to conclude an agreement. He states if plaintiff would agree to assume $700 due the state, pay $1,000 cash, and the balance, $4,000, in $1,000 .annual payments, he would then enter into further agreement. If the proposition as made interested plaintiff, defendant would “go into further agreement.” It is not made certain or probable that defendant agreed to conclude the agreement when plaintiff should signify his interest or willingness to buy the land at the price stated, but further agreement must be entered into.

“An offer, to constitute a contract, must be one which is intended of itself to create legal relations on acceptance, and, if it is an offer merely to open negotiations which may ultimately result in a contract, it is not binding. An invitation to enter into negotiations -is not an offer which can be converted into a contract by acceptance. Such a proposal may not be an offer to contract, but merely a suggestion to induce offers by others.” Ruling Case Law, Contracts, vol. 6, 1.23, p. 600; Page on Contracts, vol. 1, § 26; Cherokee Tanning, etc., v. Western Union Tel. Co., 143 N. C. 376, 55 S. E. 277, 118 Am. St. Rep. 806.

So long as the negotiations are incomplete, there is no contract. An agreement to be finally settled, must comprise all the terms which the parties intended to introduce into the agreement. It is a contradiction of terms to say that a man enters into an agreement until the terms of that agreement are settled. In Lyman v. Robinson, 14 Allen (Mass.) 242, it is said:

“A valid contract may doubtless be made by correspondence, but care should always be taken not to construe as an agreement letters which the parties intended as preliminary negotiation. The question in such cases always is: Did they mean to contract by their correspondence, or were they only settling the terms of an agreement into which they proposed to enter after all its particulars were adjusted, which was then to be formally drawn up, and by which alone they designed to be bound? ‘The circumstance that the parties do intend a subsequent agreement to be made is strong evidence to show that they did not intend the previous negotiations to amount to an agreement.’ Lord Cranworth, in Ridgeway v. Wharton, 6 H. L. Cas. 268.”

As illustrating this view, we think Watkins v. Campbell, 100 Tex. 542, 101 S. W. 1078, is in point, though the rule is there applied to the question of agency. .The letter written by plaintiff, dated January 13th, in answer to defendant’s offer, we think evidence that plaintiff understood that the parties did not mean to contract by the correspondence. He did not agree to pay $1,000 cash, but “will pay you the $1,000 cash when deed and abstract is satisfactory to me.” What would satisfy him? And how long would it take to satisfy him? This must be left to further negotiation. He further shows in the letter that he regarded it as only a negotiation. Therein he referred defendant to other parties for information “in regard to me or my ability in paying for place.” If the matter was concluded and an agreement consummated, there was no necessity for further investigation as to plaintiff’s ability to pay. This suggestion as to ability to pay had the effect to induce the defendant to believe plaintiff’s .personal obligation was to be accepted by him for the land. This is evidenced by tbe defendant’s letter dated February 7th, in which he says: “The way you write you expect me to give you a good abstract and deed and me take your notes for the balance.” Clearly, these parties up to this time had not reached an understanding. The defendant evidently was advised by his attorneys, and he also feared that a vendor’s lien could not be taken against school land. The plaintiff perceived from his letter this was his understanding, as shown by defendant’s letter of date February 11, 1916, wherein he proposed that instead of a deed that defendant give bond for deed. All the facts show simply negotiation and that no contract was consummated. Whatever the defendant’s reasons were for not consummating the contract, the letters do not show an agreement in which the parties had reached a common understanding of all its terms. They had agreed on the price, but had not agreed when the cash should be paid. Plaintiff wanted it when the deed and abstract were satisfactory to him. The personal notes of plaintiff for the deferred payments were not satisfactory to the defendant, and they had not reached an agreement how the deferred payments should be secured — whether by vendor’s lien or by bond for title. The defendant had stated he was unwilling to execute deed and give abstract satisfactory to plaintiff. Plaintiff made a counter suggestion that the furnishing of abstract was customary, and that vendors’ liens could be taken against school land, but he suggested he would take a bond for title. This was a different proposition. “It seems to us the parties were negotiating, and that their minds did not meet in a binding contract on the part of the seller to sell and the buyer to buy in prcesenti and unconditionally.” Foster v. New York, etc., 2 Tex. Civ. App. 505, 22 S. W. 260; Flomerfelt v. Hume, 11 Tex. Civ. App. 30, 31 S. W. 679. The Foster Case, supra, is in many of its features very similar to this case. In that case the purchaser asked for 30 days to examine and satisfy herself as to an abstract, and that feature the court stressed as showing that it was not an unconditional acceptance. There was nothing said in this case in the defendant’s proposal that he would execute a deed and give an abstract satisfactory to the plaintiff. This was a counter proposition in defendant’s purported acceptance.

It is elementary if the acceptance varies from the offer it is in effect a rejection and a counter proposal, and accordingly the offer thereupon lapses as in case of express rejection.

But it is insisted by plaintiff that it was customary to give abstracts of title to land upon sale, and that this entered into the proposal of sale and as a part thereof. The custom proven by plaintiff in this case was simply to give an abstract. Whether that custom required a merchantable title, a good title, perfect title, legal or equitable title, to be shown by the abstract, the evidence fails to show. Certainly it does not show that in a contract for the sale of land that the deed and abstract must be given satisfactory to the proposed purchaser. This would indeed be an onerous obligation, and would practically place the consummation of the contract or the conclusion of the sale in the hands of the purchaser. However, in this case, the plaintiff did not rely on any such custom, but expressly stipulated in his letter that the deed and abstract must be to his satisfaction. Custom, therefore, would not affect the matter, but it would be controlled, by the contract, if made. Daugherty v. Leewright, 174 S, W. 841.

We have concluded that it will not be necessary in this case to discuss whether the letters, if they amounted to a contract, were sufficient with reference to the description of the land, so as to meet the requirements of-the statutes with reference to conveying land in writing.

The judgment of the trial court will be affirmed.
      ©=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    HAYNES v. SOSA et al.
    (No. 5892.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1917.
    Rehearing Denied Dec. 5, 1917.)
    1. Witnesses <§=5243 — Examination—Dead - ing Questions — Discretion.
    It cannot be said that it is an abuse of discretion to permit a leading question to an ignorant witness, testifying through an interpreter; she having previously, without objection, stated the facts summarized in the leading question.
    2. Jury <§=3ll0(l) — Disqualification of Juror-Waiver of Right to Object.
    Disqualification of a juror discovered after-commencement of trial but before its close is waived by not being complained of till after verdict.
    3. Municipal Corporations <§=»705(11) —. Collision of Auto with Wagon — Proximate Cause of Injury.
    Collision of auto with rear of standing wagon, driving the wagon forward; is proximate cause of injury to occupant, pitched forward and out on forward motion of wagon being stopped by contact with hojjpe.
    4. Damages <§=>163(1) — Personal Injury — Burden of Proof.
    Plaintiff in action for personal injury has the burden of establishing, by a fair preponderance of evidence, its nature, extent and probable permanency.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Atila A. Sosa and another against J. P. Haynes. Judgment for plaintiffs, and defendant appeals.
    Affirmed on condition.
    Mason Williams and J. C. Hall, both of San Antonio, for appellant. Norton & Brown,, of San Antonio, for appellees.
   SWEARINGEN, J.

This is a suit by Atila A. Sosa and her husband, Matias Sosa, against J. P. Haynes, the appellant, for personal injuries to Atila Sosa, caused by the-alleged negligence of appellant. In a general charge the issues were submitted to a jury, which returned a verdict against appellant, and assessed the damages at $2,500.

The amended petition substantially alleged a cause of action for damages against appellant. The answer consisted of a general-demurrer, general denial, and specially averred that the injury was caused by the negligence of appellees. From tlie evidence it appears that while the wagon occupied by Atila Sosa, her two children, and her sister-in-law was standing beside the curb, on the proper side of the Corpus Christi road, a wide, macadamized thoroughfare, the appellant hit the bach of the wagon with the automobile, with sufficient force to break the wagon and injure the appellee Atila Sosa. She testified that her arm and leg were numbed by the shock which caused her to remain in bed for four months quite sick, and that she suffered great pain in her arm and shoulder ; could not sleep; and has been unable to attend to her usual household duties since the injury.

Appellant testified to no facts showing negligence on the part of appellees; but testified to facts tending to prove that the injury was due to an unavoidable accident. In deference to the jury’s verdict, we must find that the injury was caused by the negligence of appellant.

The first and third assignments are overruled. These assignments complain of the admission of the testimony of one of the occupants of the wagon, and of the husband of appellee, wherein the witnesses stated how Mrs. TJrejas was knocked from the wagon by the impact of the automobile against the wagon and its effect upon her. We think the testimony was relevant and admissible.

The second assignment is overruled, be*cause we cannot say that the trial court abused his discretion in permitting the leading question to be asked, since the witness was an ignorant woman testifying through an interpreter, and had previously stated the facts, without objection, summarized in the leading question.

The fourth assignment is overruled. There was but one party injured, and the verdict found that her injuries were caused by the negligence of appellant, and assessed the damages for that injury at $2,500. The judgment is supported by the verdict.

The fifth assignment complains of error, because one of the members of the trial jury was a convict, or under indictment, which fact was not known to appellant or his counsel until the last day of the trial. It does not appear that objection was made to the juror, when the information of his disqualification reached appellant’s counsel ; but it seems that appellant waived the objection and thus, by silence, consented to the trial by the disqualified juror. The objection was not made in due time to avail. Chief Justice Stayton has announced the rule in Blanton v. Mayes, 72 Tex. 417, 10 S. W. 452, thus:

“A juror was impaneled on the jury that tried this cause who was disqualified for jury service by reason of having been convicted of a disqualifying crime. At the time the jury were impaneled this fact was not known to appellant or her counsel, but before the cause was submitted to the jury the fact became known to them, and they raised no objection to proceeding with the jury as impaneled, but took the chances of a verdict in her favor, and for the first time raised the question on motion for new trial. We think the objection came too late.”

The seventh assignment is overruled, because there is testimony to support the verdict that Atila A. Sosa received a shock caused by appellant negligently striking, with his automobile, the wagon in which Atila Sosa was seated. Nor can we say the version is absolutely . destroyed by well-known physical laws. The blow to the back of the wagon would tend to cause those seated in it to fall backwards, but perhaps Atila Sosa anticipated this shock and was able to resist it, but in resisting the forward blow was unable to resist the almost immediate stop of the forward motion, caused by the wagon coming in contact with the mare hitched to the front of the wagon. This latter would certainly throw her forward, and in that probable event the automobile collision could be considered the proximate cause of the injury.

The sixth assignment urges that the verdict is excessive. A very careful consideration of the testimony convinces us that it is very unsatisfactory, as to the nature of the injury, as to its extent, and as to its probable permanency. The burden rested upon plaintiff to establish these elements by a fair preponderance of the evidence.

If a, remittitur of $1,000 is entered by ap-pellees within 15 days, the judgment will be affirmed for $1,500. If the remittitur is not entered within the time specified, the judgment will be reversed and the cause remanded for further trial.
      ®=>For other oases see same toDic and KEY-NUMBER in all Key-Numbered Digests and Indexes