source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. MULLEN.
    (No. 5897.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.
    Rehearing Denied Nov. 21, 1917.)
    1. Carriers <§=>377 — Carriage of Passengers — Ejection oe Person Riding on Pass —Condition.
    Where the pass on which plaintiff’s wife was admitted to defendant’s train provided that it was based upon no consideration, and that the person accepting it agreed that the companies issuing it should not be liable for any injury to the holder caused by the negligence, the provision, if valid, could not be invoked to relieve the road from payment of damages caused by its negligence in ejecting plaintiff’s wife at an improper place, the pass in fact not being good on the particular train boarded by plaintiff’s wife under direction from the gateman, since the railroad refused to recognize the pass as good, and so cannot invoke its provision to protect itself from the consequences of its negligence.
    2. Carriers <§=>307(2) — Carriage of Passengers — Invalid Stipulation — Exemption prom Liability.
    A stipulation in a railroad’s pass exempting the company from liability for injuries resulting from its negligence was contrary to public policy and so void.
    3. Constitutional Law <§=>315 — Due Process-Holding Stipulation op Railroad Pass to be Void.
    In suit against a railroad, the trial court’s holding that a stipulation in the road’s pass which exempted it from liability for injuries resulting from its negligence was void did not contravene the state Constitution, providing that no citizen shall be deprived of liberty, property, privileges, or immunities except by due process, or the federal Constitution, providing that no person shall be deprived of liberty or property without due process.
    Appeal from District Court, Bexar County; R. S. Minor, Judge.
    Suit by L. W. Mullen against the Galveston, Harrisburg & San Antonio Railway Company. Erom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Templeton, Brooks, Napier & Ogden and Ed. W. Smith, all of San Antonio, for appellant. Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for appellee.
   MOURSUND, J.

L. W. Mullen sued appellant to recover damages for personal injuries alleged to have been sustained by reason of his wife being ejected from one of the company’s passenger trains near El Paso, charging negligence in that she was put off at an improper place. It was' alleged that Mrs. Mullen held a pass entitling her to passage from El Paso to San Antonio; that she presented the pass to the gatekeeper at El Paso, who examined the pass and approved the same and passed her through the gate, and directed her to the train from which she was ejected; that she boarded the train in good faith, without knowledge of the conditions bn the pass and of the fact that said pass would not be recognized by defendant’s employés on said train. Plaintiff pleaded that the act of the gatekeeper amounted to a waiver of any limitations in the pass, and that Mrs. Mullen had the right to ride on said train to San Antonio. Plaintiff further pleaded that if the acts1 of the gateman did not give Mrs. Mullen the right to ride to San Antonio, the defendant’s employés in charge of the train were guilty of negligence in putting her off at an improper place. The facts relied upon to show negligence in this respect were fully pleaded, as well as those showing h'ow and to what extent plaintiff was injured. The defendant answered by general demurrer, numerous special exceptions, a general denial, a special plea that the conductor told Mrs. Mullen she could ride on that train to San Antonio by paying her fare, or he would carry her to Ysleta, or she could leave the train at Alfalfa, and she chose the last-mentioned alternative; that the pass was not good on the train in question, and a statement to that effect was plainly printed on the face thereof; that it was the conductor’s duty to refuse to let Mrs. Mullen ride on the pass on said train; that the pass contained a provision reciting that it was based upon no consideration, and that the person accepting it agreed that the companies issuing the same should not be liable for any injury to the holder caused by negligence of the agents of the companies or others, and that as to the holder the companies should not be considered as common carriers or liable as such; that by her signature Mrs. Mullen assented to such condition; that such contract for non-liability was a valid contract, and that any statutes prohibiting the same or denying the binding effect of the agreement, and any court decision holding it invalid, would not be a fair, reasonable and appropriate exercise of the police power, and would contravene “that article of the state Constitution [Const, of Tex. art. 1, § 19], which provides that no citizen shall be deprived of liberty, property, privileges, and immunities, except by due process of the law of the land, and those articles of the federal Constitution [Amendments 5 and 14] which provide that no person shall be deprived of liberty or property without due process of law, and that no state shall deprive any person of liberty or property without due process of law, nor to deny to any person within its jurisdiction the equal protection of the laws.” Defendant also charged plaintiff and his wife with contributory negligence. Plaintiff, by supplemental petition, excepted to all allegations of defendant based upon the agreement the companies should not be liable for negligence,, and such exception was sustained. The trial resulted in a verdict and judgment in favor of plaintiff for $5,000.

The court submitted the case to the jury upon the theory that the facts alleged by plaintiff, if found to be true, made her a licensee, as distinguished from a trespasser, and required of the company’s employés the exercise of ordinary care in ejecting her from the train, as distinguished from the high degree of care due passengers. By appropriate assignments appellant attacks the rulings of the ccturt in striking out its pleadings relating to the agreement absolving the company from liability for negligence, excluding that provision of the pass when offered in evidence and refusing to permit Mrs. Mullen and plaintiff to be interrogated concerning the facts relating to the defenses pleaded by it based upon said provision, and’ their acts with regard to obtaining and using the pass. Appellant contends that in making the rulings complained of the trial court necessarily held the condition in the pass relieving the company from liability for negligence to be void, and that such holding constituted an unreasonable, unnecessary, and arbitrary interference with, and infringement of, appellant’s right to contract, and “was repugnant to that article of the state Constitution which provides that no citizen shall .be deprived of liberty, property, privileges, or immunities, except by due process of the law of the land, and to those articles of the federal Constitution which provide that no person shall be deprived of liberty or property without due process of law, and that no state shall deprive any person of liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Appellant argues that if correct in its contention that the stipulation in question was valid, then it would constitute a complete defense in this case (even though the pass was not honored by its employés) for the reason that the relation of licensee grew out of the holding of the pass by Mrs. Mullen, and would not have come into existence had it not been for her possession of the pass.

On the other hand, appellee contends that the question whether the stipulation in the pass is valid is immaterial in view of the facts of this case; that such stipulation, if valid, would not constitute a defense in this case because the pass had been repudiated by appellant in its dealings with Mrs. Mullen and therefore it could not invoke a provision contained therein to absolve it from damages for injuries inflicted upon her by negligence occurring after the repudiation of the pass.. Appellee contends, further, that if the stipulation be material, it is void under our decisions, and that no constitutional inhibition is contravened by holding it void.

Our conclusions upon the questions presented are as follows:

1. The condition in the pass, even if valid, could not be invoked in this case to relieve appellant from the payment of damages caused by its negligence. The mistake of fact on the part of Mrs. Mullen and the gateman would not have occurred had she not held the pass, and undertaken to ride thereon, but when she was told that it was not good on that train, appellant’s employés in the discharge of their duty refused to recognize that any contractual relations existed by virtue of the pass, and it does not appear logical to us that appellant could nevertheless invoke a provision contained therein to protect itself from the consequences of its negligence.

2. The stipulation in the pass, exempting the company from liability for injuries resulting from its negligence, is contrary to public policy, and therefore void, and the trial court in so holding did not contravene any of the constitutional provisions relied upon by appellant. This conclusion is probably contrary to the weight of authority (see Corpus Juris, vol. 10, p. 720), but is in accord with the rule obtaining in this state (Railway v. McGown, 65 Tex. 640; Railway v. Bean, 45 Tex. Civ. App. 52, 99 S. W. 721; Railway v. Flood, 70 S. W. 332; Railway v. Fenwick, 34 Tex. Civ. App. 222, 78 S. W. 548). Writs of error were refused in the Court of Civil Appeals cases cited. In the case of Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S. W. 179, the opinion in the McGown Case is accepted as conclusively settling the question in so far as the carriage of passengers upon public passenger trains may be involved.

The court did not err in making the rulings complained of, and the judgment is affirmed.
      ffi=>For other cases see same topic a ml KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, O. j.

text:
    CAMERON AUTOMOBILE CO. v. BERRY.
    (No. 7809.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1917.)
    1. Limitation or Actions <S=29(1) — Statute ojt Limitations — Current Account Between Merchant and Merchant.
    Where defendant pleaded the two-year statute of limitation, plaintiff’s reply that the account sued on was “made in mutual current trade between merchant and merchant,” and was not barred until four years, was not subject to exception, being within Rev. St. art. 5688, subd. 3.
    2. Limitation oe Actions <§=>85(2) — Absence ebom State.
    In a suit to recover on a sworn account, defendant setting up the statute of limitations, the court erred in sustaining exception to a paragraph of plaintiff’s pleading alleging that defendant was out of the state some of the time during which the cause of action might have been maintained, since by Rev. St. art. 5702, the time of defendant’s temporary absence from the state is not counted in determining whether the cause of action is barred by limitations.
    3. Justices oe the Peace <®^174(20) — Appeal to County Court — Amendment of Pleadings — Rules.
    On appeal from a justice court to the county court, the pleadings being oral in justice court, an amendment thereto may be made orally, and such pleadings need not comply strictly with the rules of pleading, as when the case originates in the county court.
    4. Justices of the Peace <⅝=»174(22) — Appeal to County Court — Pleading New Promise.
    In the county court on appeal from a justice court, it was not permissible for plaintiff to allege a new promise of defendant’s, renewing the account sued on, defendant having pleaded the bar of limitations; such new promise not having been pleaded in justice court.
    Appeal from Dallas County Court; T. A. Werk, Judge.
    Suit by the Cameron Automobile Company against R. G. Berry. From a judgment for defendant, plaintiff appeals.
    Judgment reversed, and cause remanded.
    Wood & Wood and W. W. Hagebush, all of Dallas, for appellant. Jobn G. Wilson, of Dallas, for appellee.
   RAINEY, O. j.

This suit was brought by appellant against appellee in the justice court to recover on a sworn account. Judgment was rendered against appellee for $128, from which he appealed to the county court.

In the county court appellant pleaded orally in answer to the plea of the two-year statute of limitation, theretofore filed in the justice’s court by appellee, that the said account was “made in mutual current trade between merchant and merchant, not that the same is not, therefore, barred by limitation, but that the four-year statute would apply.” It further pleaded that appellee was out of the state some of the time during which this cause of action might have been maintained, and also pleaded that before the two years had elapsed from the time said debt was due, defendant promised and agreed in writing to pay said account. Exceptions were interposed to said pleas by appellee, which were sustained by the court, and the appellant refusing to amend judgment was rendered for. appellee, from which this appeal is taken.

1. The court erred in sustaining appel-lee’s exception to paragraph 1 of appellant’s pleading that the account sued on was a mutual current account made between “merchant and merchant.” When accounts are so made the statute fixed four-year limitation to bar an action, and the two-year statute does not apply. Article 5688, subd. 3, R. S.

2. The court also erred in sustaining exception to paragraph 3 of appellant’s pleading, where it was alleged “that appellee was out of the state some of the time during which this cause of action might have been maintained.”

3. The two foregoing pleas 1 and 2 were made to defeat the two-year statute of limitation though made in the county court on appeal. They set up no new cause of action, and if it were shown by evidence on the trial that the transactions were between merchant and merchant, or that the appellee was out of the state a sufficient time to prevent the statute running, appellant was entitled to recover. R. S. 5702.

4. In an appeal from the justice’s court to the county court the pleadings being oral in the justice’s court, an amendment thereto may be made orally and such pleadings need not comply strictly with the rules of pleading as when the case originated in the county court. Barnes v. Sparks, 62 Tex. Civ. App. 451, 131 S. W. 610.

5. There was no error in sustaining the exception to the paragraph where the appellant alleged a new promise which renewed the account. This constituted a new cause of action, and it is not permissible to so plead, such promise not having been pleaded in the justice’s court, but pleaded here for the first time.

6. For the error in sustaining the two exceptions above mentioned, the judgment is reversed, and the cause remanded.
      <g=>ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    EMERSON-BRANTINGHAM IMPLEMENT CO. v. HICKMAN.
    (No. 7815.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1917.)
    Limitation op Actions <§=>149(4) — -Acknowledgment oar Debt.
    A debtor wrote Ms creditor in effect that he could not pay, but that his brother had agreed to let him have enough stock in a waterworks company to pay the creditor, or to give it $300 stock in the company, stating that if he, the debtor, did not get the deal through, he would have to go to the bankruptcy court for relief, etc. Held, that such letter renewed the debt, and prevented a bar by the running of four-year limitation.
    Appeal from Dallas County Court; T. A. Werk, Judge.
    Suit by the Emerson-Brantingham Implement fompany against Frank Hickman. From a judgment for defendant; plaintiff appeals.
    Reversed and remanded.
    Spence & Haven and W. J. Rutledge, both of Dallas, for appellant.
   RAINEY, C. J.

This suit was brought by appellant, a corporation, in the county court to recover on two notes for $500 each, with interest, less credits, against appellee. Appellant alleged that on the 19th day of September, 1913, appellee, by letter of that date, acknowledged the debt was just and due, and promised to pay the same and “here now declares upon this new promise.” Appellee answered, among other things, the bar of four-year limitation. The evidence was heard on the question of limitation, and on this issue alone the court instructed a verdict for appellee, and judgment was so rendered.

The record shows that the two notes were executed by Frank Hickman, each on May 2, 1910, one payable October 15, 1910, and the other payable November 15, 1910. Appellant also offered in evidence the following letter, viz:

“Bronte, Texas, Sept. 19-1913.
“Emerson-Brondorff Co., Dallas, Gentlemen: I promis to writ you last of the month and will say I not in position to pay you, but my Bro. Will Hickman has agreed to let me have enught stock in Bronte Water Works Co. to pay you, or to give you $300.00 stock in the Water Works Co. Stock is full paid and non assessi-ble. Incorporated for $16,000. Now if this appeal to you let me no and I go in detail and tell you boutt the Water Works Co. all no. If I don’t get deal like this through will haf to go to the Bankruptsy Court for releaf. But I don’t want to do that for I no this would not pay and if I can get something to let you have so you can get your money in few years with interest, Will beat the if a man owe a debt he still owed it after he get through the Bankruptsy Court.
“So let me no by return mail.
“I am you truly, Frank Hickman.
“P. S. This is all I can do.”

Appellant only files briefs, contending that the letter written by Frank Hickman renewed the debt and prevented á bar by the running of four-year limitation.

Among the authorities cited is the case of Howard v. Windom, 86 Tex. 560, 26 S. W: 483, which sustains appellant’s contention, and is decisive of this case. That case is a full and exhaustive discussion of the point at issue here, and we deem it unnecessary to discuss this point further, but content ourselves with reference to the Howard v. Windom CaS'é; supra, in support of our action in reversing the judgment and remanding the cause in this case; and it is so ordered.

Reversed and remanded.


text:
    GIBSON v. ST. ANTHONY HOTEL.
    (No. 5900.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1917.)
    1. Damages <§=>89(2) — Exemplary Damages— Breach oe Contract — Sueeiciency oe Petition.
    Where no facts were alleged showing that the breach of contract was committed in a manner that amounted to a tort, the petition stated no cause of action for exemplary damages.
    2. Courts <§=>247(11) — County Court — Final Jurisdiction — Amount in Controversy.
    Where the justice court judgment was for less than $100, and plaintiff’s amended petition claiming a larger sum on appeal to county court was insufficient to state a cause of action, the jurisdiction of the county court is final; and an appeal to the Court of Civil Appeals will be dismissed.
    Appeal from Bexar- County Court for Civil Cases; John H. Clark, Judge.
    Action by Homer Gibson against the St. Anthony Hotel. From a judgment of the justice’s court for plaintiff, an appeal was taken to the county court, and from the judgment there rendered plaintiff brings error.
    Writ of error dismissed for want of jurisdiction.
    A. L. Hatchett, of San Antonio, for plaintiff in error. Boyle, Storey, Ezell & Grover, of San Antonio, for defendant in error.
   MOURSUND, J.

Homer Gibson obtained a judgment against the St. Anthony Hotel in justice’s court for $20.85, and an appeal was taken to the county court. The suit was for wages alleged to be due plaintiff for services rendered.

In the county court plaintiff by amendment sought to recover exemplary damages, alleging that defendant’s failure to pay the debt due plaintiff was willful and .malicious, and that therefore he was entitled to recover damages in a sum equal to 'five months’ wages at the agreed price, which sum is $97.50. No facts were alleged showing that the manner in which the breach of contract was committed amounted to a tort. It is clear that the petition stated no cause of action for exemplary damages. Hooks v. Fitzenrieter, 76 Tex. 277, 13 S. W. 230; Peterson v. Thomas, 24 S. W. 1124; S. W. Tel. Co. v. Luckett, 60 Tex. Civ. App. 117,127 S. W. 856. This being true, the amount in controversy was less than $100, and the jurisdiction of the county court final. The writ of error must therefore be dismissed. Wells Fargo & Co. v. Burford, 59 Tex. Civ. App. 645, 126 S. W. 927; Connor V. Sewell, 90 Tex. 275, 38 S. W. 35; W. U. Tel. Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8.

Writ of error dismissed for want of jurisdiction.
      ifes>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    BROPHY et al. v. KELLY.
    (No. 7062.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.
    Rehearing Denied Nov. 21, 1917.)
    Appeal and Error @=>511(3) — Omissions in Record— Allowance op Time pok Filing Bill op Exceptions.
    Where 90 days were allowed to file statement of facts and bills of exception, and neither has been presented to the appellate court more than 6 months after adjournment of the term of the trial court, and no good and valid reason for failure is offered, a motion to affirm will be granted.
    Appeal /from District Court, Hidalgo County; Y. W. Taylor, Judge.
    Suit between Chas. A. Brophy and others and John C. Kelly. Judgment for the latter, and the former appeal. Motion by John G: Kelly to affirm .on certificate.
    Granted.
    E. F. Thompson, of Chicago, Ill., for appellants. L. J. Polk, Jr., of Pharr, Sleeper, Boyonton & Kendall, of Waco, and W. S. Pey-ton, of San Antonio, for appellee.
   FLY, C. J.

This ease was tried on March 30,-1917, in Hidalgo county, and the term of the court closed on April 2, 1917, and 90 days was allowed by the court in which to file statement of facts and bills of exception. No statement of facts, bills of exception, or transcript of the proceedings had been presented to this court when the motion was submitted on October 17, 1917, more than 6 months after the district court of Hidalgo .county adjourned. No good and valid reason has been offered for a failure to file the transcript and statement of facts, but affidavits filed herein indicate an utter lack of diligence to prosecute the appeal. No transcript was applied for in the ease until October 6, 1917.

The motion to affirm on certificate is granted.


text:
    ROBINSON v. ALDREDGE.
    (No. 7788.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1917.
    Rehearing Denied Nov. 10, 1917.)
    1. Appeal and Error @=>1062(1) — Haemless Error.
    In an action on a contract for the purchase price of certain interests wherein defendant alleged fraud, an issue as to what money was paid by defendant on the contract, which was answered, “Nothing,” although not within the issues, was harmless as to plaintiff, being favorable to him.
    2. CORPORATIONS @=>121(5) — Sale op Stock-Fraud op Seller — Reliance on Statements op Third Parties.
    Where defense was fraudulent representation, and the main issue of the case was whether defendant relied on the representations of plaintiff and whether such representations were untrue, evidence of representations of third parties was immaterial.
    3. Corporations @=>423 — Sale op Stock — Fraud — reliance on Representations.
    A nominal director of a corporation may rely on statements of the president, who was salesman and financial agent, as to solvency of the corporation, so as to set up fraud in an action for the purchase price of stock.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by Stone J. Robinson against J. D. Al-dredge. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    C. M. Smithdeal, of Dallas, for appellant. J. Hart Willis and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.
   RAINEY, C. J.

Appellant sued the appel-lee to recover the sum of $3,750, alleged to be due by the terms of a written contract. Said sum was in part consideration of all the right, title, and interest of appellant and Walter Nash to any stock or assets of the Matthews Company, Incorporated.

Appellee answered, admitting that he executed the contract, but alleged that he was induced to do so by the false representations of appellant, in that the stock of said company was of considerable value, to wit, 80 or 85 cents on the dollar, while in truth and in fact, said stock had no value; that there was no consideration for said contract, said stock being worth nothing, which fact was well known to plaintiff; further, if said stock, at the time said contract was entered into, was of any value whatsoever, that immediately thereafter it became of no value, the plaintiff having full knowledge of the condition of the company, and that the stock would be of no value, and'being under the duty at the time to inform this defendant of the financial condition of said company and the value of said stock, and failing to do so; further, that plaintiff represented to the defendant that the Matthews Company was a solvent concern, when in fact said concern was insolvent ; and that such fact was known to plaintiff.

The case was submitted to a jury on special issues, and judgment rendered in favor of appellee, from which this appeal is taken.

The first error assigned by appellant is the refusal of the court to give a special charge, to wit:

“Gentlemen of the jury, the undisputed evidence showing that the defendant promised and agreed in writing to pay the plaintiff $3,750, and interest as stipulated in the written contract sued on, and that he has not paid said sum, or any part thereof, and has shown no sufficient reason in law why he should not pay the same, you will return a verdict for the plaintiff for the principal sum of $3,750, with interest thereon as stipulated in tho written contract introduced in evidence before you.”

The judgment of the court is in accord with the findings of the jury, which findings establish the following facts: That at the time of making the contract appellant represented the Matthews Company was solvent, which representation was untrue; • that the stock of said company was worth 80 or 85 cents on the dollar, which representation was also untrue; that appellee relied upon said representation concerning the solvency and worth of the stock and was induced thereby to make the contract sued on; and that said representations were made by the appellant for the purpose of inducing appellee to sign ¿aid contract.

The evidence was sufficient to warrant the jury’s findings, and said assignment is overruled.

With the exception of one or two of the answers of the jury to the various questions submitted they are attacked separately by appellant as not being supported by the evidence. The assignments thus made are overruled.

Referring to the exceptions above mentioned, assignments 12, 13, and 14 relate to issues 8 and 9, which the appellant grouped, and complain that they relate to the question of what money was paid to appellant by appellee on said contract, to which the jury repiied, “Nothing.” The objection is that there was no pleading or evidence raising such an issue. This is true, but the answer was at least as favorable to appellant as to appellee and was harmless. Besides, the proposition submitted under said assignments was:

“There being no pleading asking for a rescission of the contract and no offer on the part of appellee to return the consideration he had received and put appellant in statu quo, it was error for the court to submit any issue under appellee’s cross-action.”

This proposition is hardly germane to the assignments submitted. Under the circumstances of this case appellee was in no position to rescind; for the evidence shows that the concern was insolvent at the time 6f the contract, and before trial the stock and assets had been absorbed toward the payment of creditors, and there was nothing upon which to base a rescission.

Complaint is made to the submission of issue No. 4½, which reads:

“Did the defendant rely on his own knowledge and information of the condition of the Matthews Company, Incorporated, as to its solvency or insolvency at the time of making the contract, or was he induced to make said contract, relying on the statement of the plaintiff?”

The objection and exception is as follows:

“Plaintiff objects and excepts to the submission of special issue No. 4½ because there is no evidence to authorize the submission of said issue to the jury, and because the uncontradicted evidence shows that Walter Nash and H. B. Robertson both made statements to said Al-dredge with reference to the condition of said business, and the defendant had before him written statements, and that defendant relied on them, and the jury might conclude from the evidence that defendant did not rely upon anything plaintiff said, and did not rely on his own knowledge, but did rely on statements that were before him at the time, and put in evidence, and statements made by others than plaintiff.”

There were statements made to appel-lee by Walter Nash and H. B. Robertson with reference to the financial condition of said business. But there was evidence that appellee relied on the representations of appellant and the jury so found. .That Nash and Robertson made statements becomes immaterial under the testimony in this case. The main issue was: Did appellee rely on and was he induced to contract on the faith of the representations of appellant, and were said representations untrue? There is nothing strange about his relying on the state-, ments of appellant, who was the president and salesman of the company and financial agent of the concern. It is true appellee was one of the directors, but all the directors were merely nominal, and appellee knew nothing about the financial condition of the business, and the fact that others made statements did not prevent his reliance on appellant or prevent his recovery for such reliance. In 20 Cyc. 41, under the head of “fraud,” it is said:

“It is not necessary that plaintiff should have relied exclusively upon defendant’s statements, that they should have been the sole, or even principal, inducement to plaintiff’s change of situation, but if they exerted a material influence upon his mind, although they constituted only one of several motives which, acting together, produced the result, it is sufficient, as where plaintiff to some extent relied upon the statements of third persons. And the same principle applies to a concealment.”

Believing that, the issues raised were fairly submitted, and the findings of the jury were warranted hy the evidence, the judgment is affirmed.

Affirmed.
      <®=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    SCHRAUB v. UHR.
    (No. 5901.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1917.)
    Appeal and Error ®=»501(4) — Record—Presentation op Exceptions.
    Prior to the amendment of the statute hy Acts 35th Beg. e. 177, the giving or refusal of special issues could not be reviewed where appellant did not embody his exceptions in a written bill of exceptions showing the essential facts and verified by the trial court.
    Appeal from) District Court, Guadalupe County; M. Kennon, Judge.
    Action by Henry Uhr against A. G.- Schraub and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    E. B. Fischer and H. E. Short, both of Se-guin, for appellant. Dibrell & Mosheim, of Seguin, for appellee.
   SWEARINGEN, J.

Henry Uhr, the appel-lee, brought this suit to recover upon a balance of approximately $2,000 on a $2,350 promissory note against A. W. Greene and Arthur G. Schraub and to foreclose a lien securing same, and for the value of certain personal property upon which the lien was given, which had been sequestered by appel-lee and replevied by appellant, Schraub.

Appellant, Schraub, in addition to his- defenses, asked for judgment against appellee, Uhr, for $692, which item was not connected with the note and lien or sequestration.

Special issues were submitted to the jury. The court rendered judgment in favor of ap-pellee against A. W. Greene for the balance of the note, together with interest and attorney’s fees, and foreclosing the lien. It rendered judgment against appellant, A. G. Schraub, and Adam Schraub, Edw. C. Meyers, and Peter A. Meyers, sureties on the replevin bond, for $1,103.60, the value of the property replevied by Schraub, and rendered judgment in favor of Schraub against appel-lee, Uhr, for the amount of the separate indebtedness set up in Schraub’s cross-action.

Appellant, Schraub, appealed. A. W. Greene did not.

The cause of action pleaded by appellee, Uhr, was the indebtedness evidenced by the note and the lien securing same. The note was alleged to have been executed by Greene, an'd subsequently assumed by appellant, Schraub, but was not paid, though past due. Allegations for attorney’s fees and foreclosure were made. The sequestration by Uhr, re-plevy by Schraub, and also the replevin bond, and the value of the property when replev-ied, were all alleged.

Greene and Schraub joined in their answer, and after a general demurrer and denial specially answered that the note and lien securing same were for a valuable consideration canceled by the mutual agreement of Uhr, Greene, and Schraub. The consideration averred was that Uhr primarily contracted certain debts amounting to something more than $1,000 while conducting the saloon business which seems to have been the “Pandora’s box.” Schraub bought the saloon from Uhr, and agreed to pay these debts contracted by Uhr. Uhr bought from Schraub, and again assumed the payment of these continuing debts, which were for supplies for the saloon. Then Greene stepped in, and assumed their payment, and finally, when Greene, Schraub, and Uhr anticipated that the parties to whom these numerously assumed debts were due would attempt to force payment thereof from one or all the assum-ers, then, when this fear of forced payment became acute it is alleged that Uhr, as well as the other parties to the agreement, considered it a valuable consideration to have Schraub, by payment, to relieve Uhr from this imminent forced payment, and, after thus avoiding the threatened personal judgments and extinction of the saloon business, Uhr was to resume the conduct of the saloon free from the danger of immediate extinction; but Uhr was to payl Schraub the amount paid by him to the threatening creditors. Such, in a general way, are the aver-ments of Schraub, the appellant, and of Greene, who did not appeal.

We find the facts to be that Uhr did first inaugurate this saloon business, ran it for a period, and incurred debts for goods, wares, and merchandise for the business of more than $1,000. Uhr sold to Schraub, who assumed the indebtedness, and paid something on them. Uhr repurchased, and as part consideration assumed the payment of the aforesaid debts. Then Uhr sold to * Greene. Greene assumed the said debts and executed the $2,350 promissory note and the lien which are the basis of this suit. Shortly thereafter the longevity of the running accounts became a question of serious doubt, and gave to Uhr and Schraub sufficient concern to induce them to discuss the payment' thereof and to induce them to visit San Antonio to discuss the matter with at least one of the creditors. After this visit of Uhr and Schraub to San Antonio, -Schraub, who seems to be the only one of the trio who had sufficient means, again took possession of the saloon, ran it, and paid the long-lived debts, and thus acquired all, if any, rights of the original ■creditors.

There seems to be no conflict in the testimony upon any of the above-mentioned facts.

Now follows the conflict in the testimony of the witnesses out of which this lawsuit ■developed.

Schraub, Greene, and Hansen testified that among the considerations which induced Schraub to finally assume and to actually pay the merchandise debts was the agreement of Uhr to cancel the $2,350 note and the lien securing the same, and the stipulation that as soon as Uhr could acquire funds amounting to the merchandise debts he would pay same to Schraub and reacquire the saloon and all its business. The assets were about $1,100.

Uhr, to the contrary, testified that he agreed to accept Schraub’s liability for the $2,350 Jointly with Greene and agreed for Schraub to pay the outstanding merchandise debts. Uhr denied in his testimony that he ever agreed to cancel the note or lien. The three adverse witnesses testified that he did.

The sequestration, the replevy, the bond, and the value of the goods were all proven without dispute; likewise the separate indebtedness of Uhr to appellant, Schraub, of about $690 from which there is no cross-assignment. An automobile figured somewhat in the pleadings, evidence, verdict, and judgment, but all parties have eliminated it from our consideration.

The first and third assignments cannot be considered, because they complain that the trial court refused to give special issues requested by appellant; but appellant has failed to embody his exceptions in a written bill of exceptions showing the essential facts and verified by the trial court.

In November, 1916, when this case was tried, and until 90 days after March 21, 1917, when the statute relating to exceptions to the trial court’s action in refusing or giving special instructions was amended, the Court of ^Appeals had'no power to review such actions of the trial court unless the exceptions and essential statutory facts were embodied in a written bill of exceptions verified by the trial court. Gulf, T. & W. Ry. Co. v. Dickey (Sup.) 187 S. W. 189; Vaky v. Phelps, 194 S. W. 601.

The second assignment cannot be considered, for similar reasons. In this assignment complaint is made that the court’s charge submitted special issues to which appellant asserts he objected. For a review by us of such questions it was requisite, prior to the amendment by acts 35th Leg. c. 177, that the presentation of the objections at the proper 'time be shown by a writing authenticated by the court.

The fourth assignment must be overruled. We think' the chattel mortgage was not erroneously admitted over' objection of appellant.

The judgment is affirmed.
      «SfesFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    McGARY v. STATE.
    (No. 4634.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    1. CRIMINAL Law <&wkey;376 — Evidence — Illegal Sale — Reputation — admissibility.
    In prosecution for pursuing the business of selling intoxicating liquors, evidence of accused’s bad reputation for being a bootlegger was inadmissible to prove bis guilt, though admissible on the issue of suspended sentence.
    2. Disorderly House (&wkey;16, 17 — Evidence-Reputation — Admissibility..
    In prosecution for maintaining a disorderly house, reputation of the house and of the accused is admissible, .though insufficient to convict.
    3. Criminal Law <&wkey;>1173(2) — Evidence—Instructions.
    In prosecution for engaging in the business of unlawful sale of intoxicating liquor, where evidence of reputation was admitted, it was error to fail to confine it to the issue of suspended sentence.
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    D. McGary was convicted of violating the 'prohibition law, and he appeals.
    Reversed and remanded.
    T. Vard Woodruff and Jno. J. Ford, both of Sweetwater, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was

for violating the law prohibiting the pursuit of selling intoxicating liquors in territory where its sale was prohibited. There was evidence sufficient to justify the finding that appellant sold a quart of whisky to two of the parties named in the indictment, about the time therein charged. The other evidence as to the pursuit of the occupation or business of selling intoxicating liquor was quite meager.

There were circumstances showing that another party got a bottle of whisky from appellant’s house about the same time, though the evidence leaves it in question as to whether it was gotten from appellant or another person who was present. Appellant called the agent of the Wells Fargo and American Express Companies to negative that he had been receiving shipments of intoxicating liquor. From his testimony it appeared that the records produced by him disclosed no shipments of intoxicating liquor to appellant. It was shown, however, that there was one gallon consigned on June 10th to Phil Mc-Gary, who was shown to be the wife of appellant. No other shipments were shown. The record indicates that the nearest points from which intoxicating liquors were obtained were San Angelo and Ft. Worth. The evidence does not connect appellant with receipt of the gallon of liquor' consigned to Phil McGary, further than it might be inferred from their relationship. The transactions on which the indictment was founded, occurred from the 15th of 'June to the 4th of July.

On the trial the state proved that appellant had a bad reputation for being a bootlegger of intoxicating liquors, or an unlawful vendor of intoxicating liquors. We assume that this evidence was introduced as bearing upon the issue presente.d by the suspended sentence, as it would not have been admissible for. the state to prove appellant’s guilt by proving his reputation as a bootlegger. Wharton on Grim. Evidence, § 255, p. 481; Hartless v. State, 32 Tex. 88; Thompson v. State, 38 Tex. Or. R. 340, 42 S. W. 974; Fannin v. State, 51 Tex. Or. R. 41, 100 .S.. W. 916, 10 L. R. A. (N. S.) 744, 123 Am. St. Rep. 874; Branch’s Ann. P. C., p. 84, § 148; and cases listed. In disorderly house cases there is an exception to the general rule permitting the introduction of such testimony, but in such cases proof of general reputation is held insufficient to convict. Clifford v. 'State, 77 Tex. Or. R. 204, 178 S. W. 365.

The appellant requested the court to instruct the jury that proof of general reputation alone was not sufficient to prove that appellant was engaged in the business of the unlawful sale of intoxicating liquor. The general rule is that where character evidence is introduced it should be restricted to the purpose for which it is admissible (Vernon’s C. C. P. p. 604, note 32, and cases cited), and in this case, in view of the meager evidence tending to show the pursuit of the occupation charged, we think it error to refuse the requested charge.

The other assignments of appellant do not present reversible error.

For the error pointed out, the judgment of the lower court is reversed and the cause remanded.


text:
    RODGERS v. STATE.
    (No. 4691.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    Criminal Law <&wkey;1090(l) — Absence of Bill of Exceptions — Extent of Review.
    The complaint and information being regular. and the jury instructed by charge not complained of hy bill of exceptions in record, though one provision was questioned on motion for new trial, there is nothing presented for review in the absence of a statement of facts or bills of exceptions.
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    A. B. Rodgers was convicted of keeping a bawdyhouse, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for keeping a bawdyhouse; the punishment being assessed at a fine of $200, and 20 days’ imprisonment in the county jail.

The complaint and information appear regular. The case was tried before a jury, which was instructed by the court in a charge not complained of by any bill of exceptions found in the record, though in the motion for a new trial there is complaint of one of its provisions. There is no statement of facts or bills of exception. In this state of the record there is nothing presented which this court can review.

The judgment of the lower court is therefore affirmed.
      <te»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    Ex parte CHAPMAN.
    (No. 4670.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    Fines <&wkey;15 — Working Out Fine — IMPRISONMENT EOE TERM AMOUNTING TO MORE Than Fine.
    Where relator was convicted of a misdemeanor, fine and costs amounting to $52.70, and his father paid $10 pf the amount, and he remained in jail about 19 days, except half of the day following granting of writ of habeas corpus at his instance, when he was at work on the town streets, having been ordered by the county judge to wait on a lunatic in the jail 5 or 6 days of the time while incarcerated, relator is entitled to his discharge, under the statute entitling him to $3 a day for his confinement unless the proper county authorities hired him out as a convict or required him to do work as stipulated in the statute.
    Appeal from Rains County Court; W. E. Rabb, Judge.
    Habeas corpus on behalf of Cecil Chapman. From a finding refusing to discharge relator, he appeals.
    Finding reversed, and relator’s discharge from custody ordered.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The relator was convicted of a misdemeanor; the fine and costs amounting to $52.70. This occurred on the 2d day of July, 1917. On July 20th he applied for a writ of habeas corpus, which was granted, and set down for the following day. Upon hearing he was remanded to custody. On the 2d of July, the day of conviction, he filed a pauper’s affidavit of his inability to pay the fine and costs. He remained in jail, except one-half of the day of July 21st, the day following the granting of the writ, when he was at work on the town streets. He was employed, or ordered by the county judge, to wait on a lunatic in the jail 5 or 6 days of the time while incarcerated.

Under the unbroken line of decisions, as we understand them, relator is entitled to his discharge. He has been in jail, with the exception of half a day, so far as the agreed statement of facts is concerned, from the time of his conviction to the timie of the rendition of the judgment, and, of course, is still in jail. Under the statute, the predicate which forms the basis of his affidavit, he was entitled to $3 a day, unless the proper county authorities hired him out as a convict or required him to do work as stipulated in the statute. This was not done. These matters devolve upon the county authorities. His objection to working on such improvements, or to do the work required of him by the authorities, or be taken out as a convict under proper bond, is a thing which he cannot resist. He is under the law bound to obey the authorities with reference to those matters in accord with the statute.

It is also agreed in the statement of facts that his father paid $10 of the fine and costs, which would reduce it to $42.70. He was in jail about 19 days, which amounted to $57 at $3 a day. It is also stated in the agreed facts that his father offered to pay the fine and costs for relator, if relator would promise he would not get into any more trouble voluntarily, which relator declined. If his father had paid the fine and costs, the judgment would have been settled; but this was not done. The declined offer did not substitute the law. We are of opinion that the court should have discharged relator.

This court, therefore, will reverse the finding of the trial court, and order the discharge of the relator from custody.


author: MORROW, J. PRBND'ERGAiST, J.

text:
    FLORES v. STATE.
    (No. 4647.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    1. Indictment and Information <&wkey;159(3)— Amendment oe Indictment — Time — Statute.
    Under Code Cr. Proc. 1911, arts. 476, 597-599, providing that an indictment shall not be held insufficient, etc., by reason of any defect or imperfection of form not prejudicing substantial rights, etc., and that any matter of form may be amended, etc., in a prosecution for unlawfully selling intoxicants in prohibition terri-tqry, where defendant moved to quash the indictment for failing to allege when the prohibition' election was held in the county and when prohibition went into effect, whereupon the district attorney moved for leave under the court’s direction to amend the indictment by inserting the date on which the election was held, the court properly permitted the district attorney so to amend the indictment by inserting the date before there was any announcement to try the case on its merits, and properly overruled defendant’s motion to quash.
    2. Criminal Law <&wkey;814(3) — Instruction-Failure to Define Felony in Charging on Jury’s Right to Suspend Sentence.
    In a prosecution for illegally selling intoxicants in prohibition territory, where the proof without contradiction showed defendant had never been convicted of felony, court’s failure to tell jury what a felony was, when it charged that, if they found defendant had never been convicted of a felony, they might recommend that his sentence be suspended, was not error.
    3. Intoxicating Liquors <&wkey;239(l) — Trial-Instructions — Defining Offense.
    In such prosecution, it was not error for the court, in charging, to fail to define the offense of selling intoxicating liquors in violation of the local option law, and to tell the jury what offense defendant was charged with, though it is customary for judges to first tell the jury of what offense defendant is accused, and to give the statutory provision denouncing such offense.
    4. Criminal Law <&wkey;723(4) — Triai>-Argument ow Prosecuting- Attorney — 'Threatening Jury.
    In such prosecution, the prosecuting attorney’s language in argument to the jury, “If you don’t convict the defendant, I am going to have you indicted and sent tb the penitentiary for perjury,” under rules 39, 41, and 121 of the Supreme Court, imposing the duty on counsel to confine their arguments strictly to the evidence and argument of opposing counsel, and on the court to exorcise his authority in enforcing the rules, was improper, and called for rebuke by the court, and a special charge instructing the jury to disregard it.
    Prendergast, J., dissenting.
    Appeal from District Court, Reeves County; Chas. Gibbs, Judge.
    Oetabiano Flores was convicted of unlawfully selling intoxicating liquor in prohibition territory, and he appeals.
    Reversed.
    Ben Palmer and Howard & Cooke, all of Pecos, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction was for the unlawful sale of intoxicating liquor in territory where the sale thereof is prohibited. The penalty assessed was confinement in the state penitentiary for three years.

In the attached opinion the conclusions reached are acquiesced in, except that with reference to the complaint of the argument of the prosecuting attorney. This officer used the following language in his argument to the jury:

“If you don’t convict the defendant in this case, I am going to have you all indicted and sent to the penitentiary for perjury.”

The court, on objection by appellant to the impropriety of this argument, verbally stated that he sustained the objection. He failed to reprimand the attorney making the argument, and subsequently refused a special charge, prepared by appellant, instructing the jury to disregard it. The right of argument, its scope, and the consequences of its abuse, have been the subject of many discussions in the opinions of this court. It is a privilege accorded by the statute. The Supreme Court, acting under a provision of the Constitution permitting it to make rules for the government of the district court, has imposed the duty upon counsel to confine their arguments strictly to the evidence and argument of opposing counsel, and upon the court to exercise his authority in the enforcement of these rules. Rules 39, 41, and 121, Supreme Court. The purpose of these rules is to insure a fair trial, and to maintain the dignity and decorum of the court. Willis & Bros. v. McNeill, 57 Tex. 465. 1 Thompson on Trials, p. 814, § 965, says:

.“The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the causo, both as to the law and the facts, is unabridged. The range of discussion is wide. In his address to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of the parties; to impugn, excuse, justify, or condemn motives, so. far as they are developed in evidence, assail the credibility of witnesses when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. To this freedom of speech, however, there are some limitations. His manner must be decorous. All courts have power to protect themselves from contempt, and indecency in words or sentences is contempt. This is a matter of course in the courts of civilized communities, but not of form merely. No court can command from an enlightened public that respect necessary to an even administration of the law without maintaining in its business proceedings that courtesy, dignity, and purity which characterize the intercourse of gentlemen in private life.”

Our Supreme Court, in the case of Thompson v. State, 43 Tex. 274, said:

“Zeal in behalf of their clients, or desire for success, should never induce counsel in civil causes, much less those representing the stato in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments based upon any other than the facts in the ease and the conclusions legitimately deducible from the law applicable to them.”

The lapse of time has not marred the wisdom of this statement. It is as pertinent to the trial to-day as it was apt at the time it was uttered. Argument such as that quoted in the bill calls for rebuke by the trial judge. 1 Thompson on Trials, § 958, p. 801; Willis v. McNeill, 57 Tex. 465; Burrell v. State, 62 Tex. Cr. R. 636, 138 S. W. 707; Jenkins v. State, 49 Tex. Cr. R. 457, 93 S. W. 726, 122 Am. St. Rep. 812; Crawford v. State, 15 Tex. App. 501; Rushing v. State, 62 Tex. Cr. R. 311, 137 S. W. 372; Brailaford v. State, 71 Tex. Cr. R. 114, 158 S. W. 541; Hatch v. State, 8 Tex. App. 416, 34 Am. Rep. 751; Crow v. State, 33 Tex. Cr. R. 264, 26 S. W. 209; Brazell v. State, 33 Tex. Cr. R. 333, 26 S. W. 723; Henry v. State, 30 S. W. 802; and Hemphill v. State, 72 Tex. Cr. R. 644, 165 S. W. 462, 51 L. R. A. (N. S.) 914, wherein the court expresses regret that it is again called upon to reverse the judgment upon the sole ground of improper argument. The ruling in this court is that where an argument is improper and likely to result in injury to the appellant, which injury may be avoided by an instruction to the jury, that-the failure of the court to so instruct the jury upon request of appellant requires a reversal. Branch’s Ann. P. C, § 362, and cases cited. And it is held that, if an argument is of such a nature as to be obviously hurtful and prejudicial, it will result in reversal, even though an instruction to disregard it is given. Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966. The threat oí the district attorney to cause the indictment of the jurors for perjury if they acquitted the accused, it would seem, would come within the class disclosing obvious injury; at least it was such a breach of the decorum of the court and offense against its dignity as required rebuke; it was such a blow at appellant’s right to have his case tried on its merits as to demand its withdrawal by special charge on request of appellant.

The verdict assessed the extreme penalty authorized by the statute for the offense. In what measure it was brought about or influenced by the threat of the state’s representative is a question that cannot be answered, but the facts relating to it are such as to require this court, out of respect of its own interpretation by previous decisions of fundamental and statutory rights of the accused to a fair trial, to order a reversal of the judgment.

PRBND'ERGAiST, J.

(dissenting).

On May 16, 1917, the grand jury of Reeves county indicted appellant for making an unlawful sale of intoxicating liquor to Ronald Roberson on May 11, 1917, after an election had been held in said county, in accordance with the law to determine whether or not the sale of intoxicating liquors should be prohibited in said county, and such election had resulted in favor of prohibition, and the commissioners’ court of said county had duly made, passed, and entered its order declaring the result of such election, and absolutely prohibiting the sale of such liquors in said county as required by law, and the county judge of said county had caused said order to be published in the manner and form and for the length of time required by law. We have omitted the preliminary allegations about the organization, etc., of the grand jury, and while we have not quoted the language of the indictment following we have given in full the substance thereof.

The cause was tried on May 23,1917. The evidence is very short and to the point. It was agreed by both parties that said election was ordered by the commissioners’ court on September 9,1911, and that the prohibition of the sale of intoxicating liquors in said county was in effect, “and was at the time this sale occurred.” The purchaser, Ronald Roberson, testified positively that he knew the defendant and had known him 5 or 6 years; that about May 11, 1917, he bought a half quart of whisky from him, and paid him $1.25 therefor, and that this occurred in a pool hall in the Mexican town in said state and county; that Mose Buchanan was with him at the time he bought the whis-ky from appellant. Mose Buchanan swore that he was present, and that said Roberson bought from appellant said whisky and paid him $1.25 therefor. There was <no testimony whatever from any source disputing the testimony of these two witnesses. They were in no way impeached or attempted to be impeached.

Appellant introduced one witness, the county judge, who swore that he had known him some fourteen years, ever since he was quite a small boy, and that he had never been convicted of a felony in that county or anywhere else. This witness swore that he was not acquainted with his reputation as a peaceful, law-abiding boy, and therefore could not qualify and did not testify as to his reputation in this respect. Another witness did testify that he did not know that he could state that he knew his general reputation in the respect inquired about, because he had never known of him being in any trouble, but that so far as he knew his general reputation in the particular stated was good. He further swore that he had never been convicted of a felony that he knew of. His father swore that appellant was 23 years old and that he had never been sent to the penitentiary. The state introduced the sheriff and a deputy, who each swore that they had known appellant for many years and they knew his reputation for peace and quietude — that it was bad. The sheriff swore he had never been convicted of a felony in that county. There was no testimony by any-witness showing, or tending to show, that appellant had- ever been charged or convicted for any offense. Appellant pleaded for a suspended sentence.

Appellant made a motion to quash the indictment on the ground that it failed to allege when the prohibition election was held in said county and when prohibition went into effect therein. Whereupon the district attorney made a motion for leave, under the direction of the court, to amend the indictment by inserting the date therein on which said election was held, and the court thereupon permitted him to amend the indictment by inserting the date, September 9, 1911. Appellant objected to the court permitting this amendment. After this amendment was made under the leave and direction of the court, and before there was any announcement to try the case upon its merits, the court overruled the motion to quash the indictment. All this action by the court was correct and shows no error.

Both before and after the passage of the statute in 1909 making it a felony to sell intoxicating liquors in prohibition territory it has uniformly been held that the failure or omission of an .indictment to allege the date of the prohibition election, or when prohibition was put into effect, was no ground to quash the indictment; and it has further been uniformly held that since the passage of the aet making it a felony to sell intoxicating liquors in prohibition territory, if the sale alleged to have been made was after such statute went into effect, that such offense alleged, whether by indictment or information, was legally presumed to allege a felony. Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782; Coy v. State, 59 Tex. Cr. R. 380, 128 S. W. 414; Nobles v. State 71 Tex. Cr. R. 122, 158 S. W. 1133; and cases therein cited; Sandaval v. State, 72 Tex. Cr. R. 368, 162 S. W. 1148; Garner v. State, 62 Tex. Cr. R. 525, 138 S. W. 124; Lewis v. State, 73 Tex. Cr. R. 16, 163 S. W. 705. It is unnecessary to collate the many other decisions holding the same.

Article 598, O'. C. P., expressly provides that:

“Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties.”

The next article prescribes that such amendments shall be made with the leave and under the direction of the court. Article 597 prescribes that:

“When the exception to an indictment or information is merely on account of form the same shall be amended, if decided to be defective, and the cause proceed upon such amended indictment or. information.”

Article 470 prescribes that:

“An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.”

This court has held uniformly, and in a large number of cases, that the date on which a prohibition election was held and the law thereby put in force is at most a matter of form in both an information and indictment, and may be amended so as to allege the correct date, as was done, under the statute, in this case. Hamilton v. State, 65 Tex. Cr. R. 511, 145 S. W. 348, and cases cited; Meyer v. State, 65 Tex. Cr. R. 587, 145 S. W. 919; Dobson v. State, 65 Tex. Cr. R. 637, 146 S. W. 546; Mealer v. State, 66 Tex. Cr. R. 144, 145 S. W. 353; Crawford v. State, 66 Tex. Cr. R. 440, 147 S. W. 229; Ferguson v. State, 66 Tex. Cr. R. 427, 147 S. W. 239; Snell v. State, 68 Tex. Cr. R. 1, 150 S. W. 615; Johnson v. State, 70 Tex. Cr. R. 583, 157 S. W. 1196. It has uniformly been held that allegations as to the court and term at which an indictment was presented are matters of form, and may be amended. Many other matters have been held defects of form, and can be amended. See notes in 2 Yernon’s Crim. Statutes, p. 301.

Like the statement of facts, the charge of the court was short and to the point. After giving the style and number of the cause and the court and term, it is as follows:

“Gentlemen of the jury, if you find from the evidence that the defendant Octabiano Mores, sold a bottle of whisky to Ronald Roberson on or about the 11th day of May, 1917, in Reeves county, Texas, as charged in the indictment, then you will find the defendant guilty.
“If you find the defendant guilty, you will assess his punishment at confinement in the penitentiary for not less than one nor more than three years.
“If you find the defendant guilty, and you further find that the defendant, has never been convicted of a felony, you may recommend that his sentence be suspended.
“The defendant is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt, and if you have a reasonable doubt of the defendant’s guilt yon will acquit him.
“You are the exclusive judges of the credibility of the witnesses, of the weight to be given to the testimony, and of the facts proved; but the law applicable to this case is herein given you, and you will be governed thereby.”

Appellant objected to this charge, first, because it failed to properly instruct the jury upon the suspended sentence law, and did not define a felony, nor explain what kind of an offense it takes to constitute a felony. As shown above, the proof was positive and undisputed that he had never been convicted of any felony anywhere. There is not an intimation in the record that he had ever been prosecuted for, or convicted of, any offense whatever. The court specifically, hut briefly, told the jury that if they found him guilty, “and you further find that the defendant has never been convicted of a felony, you may recommend tbat his sentence be suspended.” We do not see that a failure or refusal of the court to tell the jury what a felony was could have in any way materially affected the defendant. It was immaterial to the jury what is a felony offense, because the proof without contradiction showed he had never been convicted of a felony; hence the failure of the charge to define a felony presents no error.

The second objection to the court’s charge was because it failed to define the offense of selling intoxicating liquors in violation of the local option law, and did not tell the jury what offense he was charged with. It is customary for judges in their charges to first tell the jury with what offense an appellant is accused, and to give the statutory provision prescribing such an offense. But it has never been held by this court that the omission of such matters in a charge was reversible error. In fact, as stated by Judge White in his Ann. C. C. P. § 791, such statements cannot properly be considered a part of the charge and such is the holding of this court. McGrew v. State, 31 Tex. Cr. R. 336, 20 S. W. 740; Wolfforth v. State, 31 Tex. Cr. R. 398, 20 S. W. 741. And Judge White cites cases in his notes where even mistakes in such matters were held not reversible error.

The statute prescribing this offense is plain and brief to the effect that, if any person shall sell intoxicating liquor in any county in which the sale of such liquor has been prohibited, he shall be punished, etc. How it could have enlightened the jury in any regard to have told them this we fail to see. He required them to find from the evidence the sale was made which made him guilty of the offense, in order to convict him. In other words, lie told them that, if they found from the evidence that the appellant sold a bottle of whisky to Ronald Roberson on or about the date alleged as charged in the indictment, then to find him guilty. As stated, this one fact which constituted the offense was proven by the positive testimony of two uncon-tradicted witnesses, who were in no way impeached. It was unnecessary to use any other language, or elaborate the matter in any way to the jury. The refusal of neither of appellant’s special charges presents error.

The appellant objected to this remark by the district attorney, in his opening argument to the jury:

“If you don’t convict the defendant in this case, I am going to have you all indicted and sent to the penitentiary for perjury.”

Appellant promptly objected to this, and the court as promptly sustained the objection, and at the time verbally instructed the jury not to' consider said remark of the district attorney. He did not, however, reprimand the district attorney. The appellant then prepared a special charge in writing so instructing the jury. For some reason, not disclosed, the judge refused or failed to give that charge. He should have given this charge. But, under) the circumstances and proof in this case, does the said remark and the refusal to give said special charge present reversible error? No other verdict should, or legally could, have been found by the jury than that of guilty. The remark of the district attorney was alone as to his guilt. It in no way insisted on or suggested assessing the amount of punishment. If it had been anything in the way of insisting upon a higher punishment than the lowest, it would present reversible error: but under the circumstances, as it does not do this, it does not require a reversal.

The judgment should be affirmed.
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author: PRENDERGAST, J.

text:
    GRIDER v. STATE.
    (No. 4667.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.
    Rehearing Denied Nov. 28,1917.)
    Criminal Daw <S=o103S(1) — Objections to Charge.
    Under Code Or. Proe. 1911, art. 737a, as added by Acts 33d Deg. c. 138, requiring the trial judge to deliver to defendant’s attorney his charge before the arguments begin, and to give him a reasonable time to present objections, and article 743, providing that all objections to the charge shall be made at the time of the trial, in a prosecution for cow theft, Pen. Code 19Í1, art. 1354, prescribing a punishment therefor by confinement in the penitentiary for not less than two nor more than four years, the charge, unobjected to by defendant during trial before reading to the jury, or before verdict was rendered and the jury discharged, that if the jury found defendant guilty they could assess his punishment at confinement in the penitentiary for any term of years not less than two nor more than five years, was not reversible error.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Shorty Grider was convicted of cow theft, and he appeals.
    Judgment affirmed.
    Mays & Mays, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The grand jury of Dallas county indicted appellant for cow theft, alleged to have been committed November 3, 1916. He was tried on May 23, 1917, found guilty, and his punishment assessed at 3 years in the penitentiary. The court gave a charge which, was in no way objected to by appellant during the trial, or before the charge was read to the jury, or before the verdict was rendered and the jury discharged. In the charge the jury were told that, if they found him guilty, they could assess his punishment at confinement in the penitentiary “for any term of years not less than two rior more than five years.” The statute (article 1354, P. C.) prescribes the punishment for this offense “by confinement in the state penitentiary not less than two nor more than four years.”

There is no statement of facts in this case, neither is there any bill of exceptions. After the trial was concluded, and the jury discharged, appellant made a motion for a new trial on this ground:

“The court improperly instructed the jury as to the punishment in. said cause.”

This motion was not called to the attention of the court nor passed upon until the following Monday, May 28th, four days after the trial. Of course, as soon as the case was tried and the verdict rendered, the jury and witnesses were discharged, and, no doubt, all the witnesses had scattered and gone. The sole question is whether the mistake made by the judge in his charge as to the maximum number of years at which the jury could assess his punishment, under the circumstances and the law as it now is, presents reversible error.

Under the decisions of this court, the question has been expressly held against appellant. In Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 960 [3 Ann. Cas. 867], Manning was tried for perjury, found guilty, and his punishment assessed by the jury at seven years in the penitentiary. This court in that case held:

“The court charged the jury that the punishment for perjury was not less than five nor more than ten years. This was error. The punishment since the Twenty-Fifth Eegislature (see Acts 1897, p. 146) has been not less than two nor more than ten years in this character of perjury. However, appellant cannot avail himself of this error. It is not presented by bill of exceptions, nor did he reserve it in motion for new trial. He insists on it for the first time in this court. This, under the authorities, he cannot do. Code Cr. Proc. art. 723; Barnett v. State, 42 Tex. Cr. R. 302 [62 S. W. 765]; Pena v. State, 38 Tex. Cr. R. 333 [42 S. W. 991]; Magee v. State, 43 S. W. [98, 512]; Abbott v. State [42 Tex. Cr. R. 8] 57 S. W. 97; Spears v. State [41 Tex. Cr. R. 527] 56 S. W. 347. The jury fixed the penalty at seven years’ confinement in the penitentiary, ’svhieh was within the punishment prescribed by the Legislature.”

The question again came up in Robbins v. State, 57 Tex. Cr. R. 9, 121 S. W. 505, wherein this court in a unanimous opinion rendered by Judge Ramsey held:

“Complaint was made that the court erred in his charge to the jury in instructing them with reference to the penalty to be assessed by them, for the reason that under the act of the Thirtieth Legislature the law had been repealed and the punishment changed. The punishment was indeed changed by the act of the Thirtieth Legislature. The offense was in no sense repealed, and stands practically unchanged by the law and as it was aforetime. It is true that the penalty for this offense was changed by act of the Thirtieth Legislature, which imposed a severer punishment for an infraction of the law than that which had theretofore existed. We have held, however, uniformly, since the rendition of the decision in Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957 [3 Ann. Cas. 867], that it is not reversible error where the charge misdirects the jury in respect to the punishment, unless excepted to at the. time or the matter was challenged in the motion for new trial. This (Manning Case) was a perjury case, in which the court gave a higher minimum punishment than the law authorized. This decision has been repeatedly followed in this state and is the recognized rule among us.”

In Gantt v. State, 105 S. W. 800, in another unanimous opinion of this court by Presiding Judge Davidson, it was held:

“As article 723, White’s Ann. Code Or. Proc., has been construed by this court, these questions cannot be considered, having been raised for the first time in this court. See Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. Rep. 957 [3 Ann. Cas. 867], where the question was discussed and authorities cited. In the Manning Case the charge erroneously stated the punishment, and one that had been repealed by the Legislature some time prior to the Manning trial; but no exception was taken in the trial court, and it was held that it was too late to except to error for first time on appeal.”

These decisions, and especially the Manning Case (on other points) have been many times cited since their rendition and at no time modified or overruled. At the time these decisions were rendered the statute — article 743 (old article 723) C. C. P. — expressly authorized the defendant to make objections to the court’s charge for the first time by motion for now trial after verdict and judgment. The law also at that time required, and which was the practice, a trial judge to read his charge to the jury after the arguments were concluded and not before they began, and he was not required to give it to appellant before he read it to the jury, nor was the appellant given any opportunity to object to it before it was read. By the act of April 5, 1913, p. 278, arts. 735, 737, and 743 were amended and article 737a added whereby the trial judge is now required to deliver to appellant’s attorney his charge before the argument begins and give him a reasonable time to present objections if any he has, to the charge, and also giving them an opportunity to request any special charges they desire. Prior to that act of 1913, article 743' expressly authorized a defendant to make any objections he desired to the charge “in the motion for new trial.” By that article, as amended in 1913, that provision of the statute was purposely cut out, and instead it was provided that all objections to the charge “shall be made at the time of the trial.” The emergency clause of that act states reasons for said change, stating:

“The fact that there are many reversals in 'criminal cases because of errors in the charge of the court, due to the fact that such errors are not pointed out to the trial judge before the charge was given, and the further fact that the docket of the Court of Criminal Appeals is daily becoming crowded with cases, many of which contain such errors, creates an emergency,” etc.

Since said articles have been so amended and enacted, this court, in a great many cases, has held, in effect, that the statute means what it says, and says what it means, and that this court has no right to ignore it or construe it away. In Crossett v. State, 74 Tex. Cr. R. 446, 168 S. W. 552, this court held:

“The object of the Legislature, as shown by said act of April 5, 1913, amending said articles above specified, was that whatever objections an accused on trial had to the court’s charge should be distinctly then and there pointed out, so as to give the judge an opportunity to correct his charge, if the objections were at all applicable. In other words, the object and intention of the Legislature was that an accused on trial must aid the lower court in giving a correct charge, instead of waylaying him, taking chances of an acquittal, and then securing a reversal, as had theretofore been the case, by making objections for the first time to the charge of the court after the trial was concluded.”

A large number of cases so holding could be cited, from the time said act became effective and the question was first raised in this court down to the present time. The latest is that of Holder v. State, 194 S. W. 165, wherein it is held that, unless the court’s charge was excepted to at the time of the trial, it was too late to except to it in the motion for new trial. This instant case is a fair illustration of what the law was intended to remedy. Here the court made a mistake in telling the jury the highest punishment which could be inflicted. It was the duty of the appellant and his attorney to then and there call the court’s attention to this mistake, so that the court would correct it. If he had, the court would immediately have corrected the mistake; but, if he had not then corrected, and appellant had then excepted, he might have had reversible error.

The judgment is affirmed.

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text:
    HEAD v. STATE.
    (No. 4662.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.
    On Motion for Rehearing, Nov. 28, 1917.)
    1. Criminal Law <@=>829(3) — Instructions —Repetition.
    Where the court correctly charged that, although it was found that defendant was engaged in the business of unlawfully selling intoxicants, he should be acquitted unless it was found that he made two sales to the parties named in the indictment, it was not error to refuse special requested charge that state must prove two sales as alleged.
    2. Intoxicating Liquors <@=>239(5) — Illegal Business — Insteuctions.
    It was not error to refuse special charge that the state must prove that bottles introduced in evidence and labeled Budweiser contained intoxicating liquor, where the sales charged had been fully proved by other evidence; the bottles being introduced upon issue of character of business in which defendant was engaged.
    On Motion for Rehearing.
    3. Criminal Law <@=>829(18) — Instructions —Repetition.
    Where the court charged on the presumption of innocence and the necessity to prove guilt beyond. a reasonable doubt, there was no error in refusing defendant’s special requested charge to the effect that the jury must believe beyond a reasonable doubt that sales of intoxicating liquors were made as charged before a conviction could follow.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Jim Head was convicted for pursuing the business of unlawfully selling intoxicating liquors in prohibited territory, and appeals.
    Affirmed.
    Stephens & Sanders, of Gilmer, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for pursuing the business of unlawfully selling intoxicating liquors in prohibited territory.

The purchasers named in the indictment testified to the transactions. One claimed to have bought nine bottles óf Budweiser beer in three transactions, and produced at the trial and exhibited to the jury six of the bottles labeled “Budweiser.” He testified:

“I know whether or not that beer was intoxicating when drunk in reasonable quantities. It is bound to have been intoxicating when drunk in reasonable quantities, because I drank one bottle and I know it was 'beer, as good beer as ever was brewed.”

He further testified that he did not get intoxicated, that he drank some of the beer, and that if he had got enough it would have made him drunk. The other witness testified to the purchase on several occasions of bottled beer at 25 cents a bottle from the appellant. Speaking with reference to one of them, he said:

“I drank that bottle of beer that I bought from him there in his place of business. That beer that I drunk, in reasonable quantities was intoxicating.”

The express agent testified to quite a number of shipments of beer and whisky to appellant. He described these shipments as barrels of beer containing ten dozen bottles, or a case of beer containing four dozen bottles, as the. case might be. In several instances he described a shipment as a box containing twelve quarts of whisky, and gave a number of these occurring during the months of June and July. The offense is charged to have taken place in July. One of the prosecuting witnesses testified that, when he first approached appellant to purchase beer, appellant told him he was expecting a cask, and the witness further said that he saw the cask arrive and opened in appellant’s place and bought and drank some of the liquid. He further said appellant expressed anxiety to assure himself that he (the witness) was not a detective before he would make the sale. There were several casks of empty beer bottles and a number of empty bottles of various kinds about the premises. Their presence was explained in part by testimony that the place had been used as a saloon before local option became effective, and further by the testimony of several witnesses that they and appellant made a pool to purchase beer for drinking and not for sale.

The court in its charge accurately stated the law with reference to necessity for proof that appellant was engaged in the business of unlawfully selling intoxicating liquors, and for proof of the two sales charged in the indictment, and correctly advised the jury that proof of two sales was requisite but not sufficient to sustain the conviction, but must be supplemented by proof of the pursuit of the business, and that, although they might find that the appellant was engaged in the pursuit of the business of selling intoxicating liquors as explained in the charge, they would acquit him unless he had made two sales to the parties named in the indictment. In this state of the record, the trial court committed no error in refusing-appellant’s special chargej requesting that the jury be instructed that it was incumbent upon the state to prove two sales of intoxicating liquors alleged in the indictment. Neither do we think there was error in failing to give a special charge to the effect that it was necessary for the state to prove that the bottles introduced in evidence and labeled “Budweiser” contained intoxicating liquor, and that the label thereon was not conclusive evidence of the contents. It is true that the label was not conclusive evidence of the contents of the bottles. It is not true that it was incumbent upon the state to prove that the six bottles introduced in evidence and labeled “Budweiser” contained intoxicating liquors, for the reason that the requirement of the statute as to sales was fully met by evidence of the sales by appellant of bottled beer that were opened and drunk by prosecuting witnesses, and their contents described as hereinbefore indicated. The bottles with the labels thereon, under the evidence with reference thereto, like the testimony of shipments, and the condition of the premises, were relevant upon the issue of the character of business in which appellant was engaged. Under the evidence, the jury, we think, wag authorized to find that appellant was engaged in the business of selling intoxicating liquors, and in pursuance thereof he made two sales of such liquor to the parties named in the indictment, and that the intoxicating quality of the liquor was not proved alone by the fact that it was called beer, or Budweiser beer; but that the beer that appellant was engaged in the business of selling was the intoxicating kind, we think, was pzwed both by the direct testimony and by circumstances; and that the charge requested by the appellant to the effect that beer was not an intoxicating liquor' was properly refused. Johnson v. State, 194 S. W. 143.

We fail to find any error disclosed in the record, and the judgment of the lower court is affirmed.

On Motion for Rehearing.

In the second paragraph of his main charge, the court told the jury that it was necessary that the state prove beyond a reasonable doubt that the appellant engaged in the business or occupation of selling intoxicating liquors; in the fourth paragraph, that it was essential that the state prove at least two sales in addition to the- pursuit of the business; and in the sixth paragraph charged on the presumption of innocence and the necessity to prove guilt beyond a reasonable doubt.

We think that the charge sufficiently covered the law of reasonable doubt, and there was therefore no error in refusing the special charge requested by appellant to the effect that the jury must believe beyond a reasonable doubt that two sales were made before a conviction could follow. Hill v. State, 74 Tex. Cr. R. 481, 168 S. W. 864; Douglass v. State, 8 Tex. App. 520; Neyland v. State, 13 Tex. App. 549; Gonzales v. State, 30 Tex. App. 224, 16 S. W. 978; McGrath v. State, 35 Tex. Cr. R. 423, 34 S. W. 127, 941; Barton v. State, 53 Tex. Cr. R. 445, 111 S. W. 1042; Carson v. State, 57 Tex. Cr. R. 398, 123 S. W. 590, 136 Am. St. Rep. 981.

The motion is overruled.
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text:
    RYAN v. STATE.
    (No. 4631.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    Rehearing Denied Nov. 28, 1917.)
    Ckiminal Law <⅜»1026 — Judgments Aj?- ' pealable — “Final Judgment.”
    Const, art. 5, § 5, provides that the Court of Criminal Appeals shall have appellate jurisdiction in all criminal cases, with such exceptions and under such regulations as may be prescribed by law. Vernon’s Ann. Code Cr. Proc. 1916, art. 894, provides that a defendant in any criminal action, upon conviction, has the .right of appeal. Article 853 substantially defines a final judgment as one in which there has been a trial settling the controversy against the appellant by his conviction. Held that, while a judgment dismissing a case is in a sense final, the words “final judgment” mean a conviction, so that an appeal will not lie on behalf of accused from a judgment dismissing the case.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    George Ryan was indicted for murder, and the case was removed to a different county. From a judgment dismissing the case, the defendant appeals.
    Appeal dismissed.
    Jas. B. & Chas. J. Stubbs, Mart H. Roy-ston, and Tom Tumley, all of Galveston, and Jos. H. T. Bibb, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for murder in Harrison county, and on change of venue his case was removed to the district court of Galveston county.

The district attorney filed a motion to dismiss the case, stating his reasons. Opposition was filed thereto by appellant, and the accuracy and sufficiency of the reasons assigned were assailed. On hearing, the court entered a judgment dismissing the case. Exception was reserved, and notice of appeal given. The authority of this court to entertain the appeal is questioned by the Assistant Attorney General. Appellant insists that it is the right and duty of this court to review the grounds of dismissal, and reverse the judgment if the grounds are deemed unsound, basing his claim upon the proposition that the dismissal upon insufficient or illegal grounds would operate to deny him a speedy public trial guaranteed to him by the Constitution. Our Constitution (article 5, § 5) says:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.”

The necessity and force of regulations prescribed by the Legislature relating to appeals to this court have often been recognized by its decisions. Johnson v. State, 42 Tex. Cr. R. 103, 58 S. W. 69; Barnett v. State, 42 Tex. Cr. R. 302, 62 S. W. 765; Earles v. State, 94 S. W. 467; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967. Similar views have been expressed by the Supreme Court. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279; S. A. & A. P. Ry. Co. v. Blair, 196 S. W. 502, not yet officially reported. The authority of the Legislature to prescribe rules to be observed in pursuing an appeal is generally recognized. See Ruling Case Law, vol. 6, p. 454, § 451; Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. 389, 39 L. Ed. 422; Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; Macartney v. Shepherd, 60 Or. 133, 117 Pac. 814, Ann. Cas. 1913D, 1257, and notes.

Onr statute (article 894, C. C. P.) is as follows:

“A defendant in any criminal action, upon conviction, has the right of appeal under the rules hereinafter prescribed.”

And article 952 of the same Code makes a similar provision with reference to habeas corpus proceedings. Construing these statutes, the court has limited its right to entertain appeals to cases that come within the terms of one of these provisions. Eor instance, in Ex parte Wright, 40 Tex. Cr. R. 136, 49 S. W. 104, the right of appeal was denied where the trial court refused to reduce the bail. A similar ruling was had where the trial court decided against the appellant upon the issue of insanity in Darnell v. State, 24 Tex. App. 6, 5 S. W. 522; also on the issue of identity, under article 861, subd. 4, in Washington v. State, 31 Tex. Cr. R. 84, 19 S. W. 900.

In a number of cases the court has held that there must be a final judgment of conviction rendered to authorize this court to consider the case on appeal. See Young v. State, 1 Tex. App. 64; Cox v. State, 34 Tex. Cr. R. 94, 29 S. W. 273; and numerous cases cited at page 870, Yernon’s C. C. P. The term “final judgment” is used, and in a sense a judgment dismissing a case is final. It is not a final judgment of conviction, however, and the term “final judgment,” as used in the decisions, has, we think, reference to that term as defined by article 853 of the Code of Criminal Procedure, which, in substance, defines such a judgment as one in which there has been a trial settling the controversy against the appellant by his conviction. Article 856 provides for a sentence. The entry of the sentence, except in .capital cases, which is governed by a special statute, has been held prerequisite to appeal. Crow v. State, 36 S. W. 93; Foster v. State, 64 Tex. Cr. R. 531,143 S. W. 625; and numerous cases cited in Vernon’s C. C. P. p. 851, under article S56, supra. Article 37 of the Code provides for a dismissal, and lays down the procedure, and our conclusion is that upon the order entered dismissing the case, following this procedure, the right of appeal to this court does not exist. It is not to be doubted that a wrongful dismissal might be oppressive, and that against such wrong the aggrieved party should have an appropriate remedy. Such is the suggestion of Judge Hurt in the opinion of this court in Venters v. State, 18 Tex. App. 209, wherein he says:

“We have made these observations to show that such a procedure, if persisted in, would result in very great oppression to a party charged with an offense; and if a case should arise in which it appeared that such a procedure was had for the purpose of depriving the citizen of ‘a speedy trial,’ we think that the proper relief would be found.”

This relief, however, is not to be attained by an appeal from the order of dismissal.

The appeal is dismissed.
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