source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    LIGHT PUB. CO. v. HUNTRESS.
    (No. 5944.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 2, 1918.)
    1. Libel and Slander @=338(1) — Newspapers — “Absolute Privilege.”
    Rev. St. 1911, art. 5597, providing that certain publications of newspapers shall be deemed privileged and cannot be made the basis of action without proof of malice, does not give newspapers an “absolute privilege,” because “absolute privilege” is based upon the theory that the publication of defamatory matter must be protected in the interest of and for the necessities of society, even though it be both false and malicious.
    [Ed. Note. — For other definitions, see Words and Phrases, First Series, Absolutely Privileged; .Second Series, Absolute Privilege; Absolutely Privileged Communication.]
    2. Libel and Slander @=3101(1) — Newspapers — Court Proceedings — Burden op Proof.
    Under Rev. St. 1911, art. 5597, providing that newspapers can publish accounts of court proceedings, etc., the burden is on one suing for libel to show falsity and unfairness, or that a publication was actuated by malice, because the statute protects the publications therein designated with a presumption of fairness and truthfulness.
    3. Libel and Slander ⅞=71 —• Statutes — Defense's — Newspapers.
    Rev. St. 1911, arts. 5595-5597, relating to libel, did not destroy any common-law defense to libel, but rather added to the same so far as newspapers and periodicals are concerned.
    4. Libel and Slander @=3105(1) — Publication of Court Proceedings — Scope of Examinations.
    In an action against a newspaper for libel in which the truth and fairness of an account of proceedings in court was not assailed, but only the fairness of comment and criticism thereon, it was proper to inquire into the circumstances surrounding plaintiff and the occasion that called for the comment as well as caused the publication of the court proceedings.
    5. Libel and Slander @=48(3) — Candidate for Office — Publications Concerning Fitness.
    A newspaper has the right to publish, in good faith and within reasonable limits, the fitness and qualifications of any candidate for a public office.
    6. Appeal and Error @=1067 — Candidate for Office — Public Concern — Instructions.
    Where a candidate for public office sued a newspaper for unreasonable comment on a certain court proceeding concerning his qualifications for office, it was prejudicial error not to instruct that such comment was about matters of public concern.
    7.Libel and Slander @=48(3) — Truthful Report of Court Proceedings — Unfair Comment,
    Although a report of a court proceeding was true, a newspaper did not have the right to base unreasonable and unfair comment and criticism thereon, although the subject of criticism was a candidate for public office.
    Appeal from District Court, Bexar County; John T. Sluder, Judge.
    Action for libel by George W. Huntress against the Light Publishing Company. Judgment for plaintiff, and defendant appeals.
    Reversed.
    Templeton, Brooks, Napier & Ogden, of San Antonio, for appellant. Marshall Esk-ridge, Ward & Bickett, and J. F. Carl, all of San Antonio, for appellee.
   FLY, C. J.

This is an action for damages arising from an alleged libel instituted by appellee against appellant. It was alleged that appellee is an attorney at law practicing his profession in San Antonio, Tex.; that in 1912 appellee was a candidate before the primaries held by the Democratic party for the office of county judge of Bexar county, James R. Davis being his opponent; that ap-pellee was defeated for the nomination in the primary, and during the campaign appellant, through its newspaper, the San Antonio Light, opposed appellee, and published and printed divers and sundry false and libelous statements of and concerning appel-lee in order to defeat him; that in 1916 ap-pellee was a candidate before the said primaries for nomination to the office of county-judge of the county court for civil cases in Bexar county against John H. Clark, and said newspaper advocated the nomination of said Clark, and the latter defeated appellee for said nomination, and said newspaper, just prior to the primary election, published of and concerning appellee “many slanderous, false, libelous, and defamatory articles,” and referred its readers to the libelous and slanderous statements which had appeared in said newspaper in the campaign of 1912. It was further alleged that in 1911 there was pending in the county court of Bexar county, sitting in probate matters, an administration of the estate of F. Kruse, deceased; that on August 10, 1911, Albert G. Riedner was appointed temporary administrator, appellee being his attorney; that said Riedner continued as temporary administrator until November 6, 1911, when he was appointed and qualified as permanent administrator of said estate; that appellee performed a large amount of work for said administrator, and presented to him a claim of $1,-000 for his services, which was allowed by said administrator, and, after a full hearing, was approved by the county judge sitting in probate, and the amount was paid to ap-pellee by the administrator. It was further alleged that in its issue of July 23, 1912, said newspaper published that appellee had charged a fee of $1,000 against an estate valued at $4,070.18; the estate was in money, which was in banks; that the administrator received only $100; that in his campaign appellee was promising to handle estates of poor at small expense; that the charge for the attorney’s fee was made after appellee had announced as a candidate for county judge and had proclaimed his platform, “which embraced in part a declaration that widows and orphans, if he were elected, would have their interests conserved in the probate court” ; that in the oath as t.o value of the estate it was given as $500, and the inventory was published showing the value of the estate to be $4,070.18; that the claims proved against the estate amounted to $43.50; .that the temporary administrator collected the estate and preserved it, and he was allowed $100. The publication emphasized and restated the different points as to the attorney’s fee, setting out a contract by and between the administrator and appellee for one-third of the money of the estate collected. It was further alleged that on July 16, 1916, the story as to the fee was repeated with embellishment, and also charging that appellee was the candidate of a “machine” which was trying to “ditch” Judge John H. Clark. It was alleged:

That the publication of the matters and things alleged tended “to expose plaintiff to public hatred, contempt, and ridicule and financial injury, and each and all of the same did tend to impeach plaintiff’s honesty, integrity, virtue, and reputation, both as a man and as a lawyer and as a candidate before the people of said county for election to the office of judge of the county court of Bexar county for civil cases, and the same did cause him great mental pain and anguish, humiliation, mortification, and suffering, to his damage in the full sum of $50,-000.”

Appellant filed a general demurrer and 14 special exceptions, and answered by general denial, and that appellee was a candidate, and his acts were subject to a fair and candid criticism, and that was all that had been published by appellant. The publication of 1912 was withdrawn from the jury. The cause was tried by jury, being submitted on special issues as follows, with the answers of the jury:

“Question No. 1. Was the publication by defendant of July 16, 1916, and complained of in plaintiff’s petition, libelous,- as that term has been hereinabove defined? Answer ‘Yes’ or ‘No.’
“We, the jury,-answer the foregoing question: Yes.
“Question No. 2. Was the publication by de■fendant of the records of the probate court, and in evidence before you, a matter of public concern and published for general information? Answer ‘Yes’ or ‘No.’
“We, the jury, answer question No. 2: No.
“Question No. 3. Was the comment and criticism of defendant of the acts of plaintiff reasonable and fair, under the circumstances under which said publication was made? Answer this question ‘Yes’ or ‘No.’
“We, the jury, answer question No. 3: No.
“Question No. 4. Has the plaintiff sustained damages by reason of the publications contained in defendant’s newspaper of July 16, 1916, and set forth in plaintiff’s petition? Answer this question ‘Yes’ or ‘No.’
“We, the jury, answer question No. 4: Yes.
“Question No. 5. If-you have answered question No. 4 that plaintiff has been damaged by reason of publications complained of in his petition, then state what amount you find from the evidence before you he had been damaged, if any, and in arriving at such damages I charge you that you shall only award to plaintiff such actual damages as would ordinarily and probably result from the publication of the articles complained of, and in estimating his damages, if any, you may consider plaintiff’s mental suffering, if any, and mental distress, if any, caused by such publication.
“We, the jury, answer question No. 5: Awarding plaintiff in damages the sum of fifteen thousand dollars ($15,000.00).”

The first four assignments of error assail the evidence as being insufficient to sustain a verdict, and' contend that a verdict should have been instructed for appellant as requested by it. Appellee introduced in evidence a publication made by appellant in its newspaper on July 23, 1912, in which it was charged that appellee had charged as an attorney’s fee the sum of $1,000 for services in connection with an estate of the value of $4,070.18; that he was makilng campaign promises to handle estates of poor people at little expense; that E. Kruse, deceased, was an aged German whose estate was worth the sum named, as shown by the records of the probate court; that the charge of $1,000, almost one-fourth of the estate, was made after appellee had announced his candidacy for the county judgeship and had proclaimed his platform, “which embraced in part a declaration tha* widows and orphans, if he were elected, would have their interests conserved in the probate court.” It was further stated that the estate of Kruse, except four shares of stock of the value of $100, was in banks; that Albert G. Riedner, through appellee, had been appointed temporary administrator, and about two months after the death of Kruse, which occurred on July 27, 1911, application was made by appellee for the temporary letters to be made permanent; that in the application it was stated that administration was necessary because deceased “was Indebted to various and sundry persons, and several persons and banks were indebted to him,” It was further stated that on November 11, 1911, the administrator filed an inventory and ap-praisement of the estate, showing cash in San Antonio bank in the sum of $162.50, in Cuero bank of $818.05, in Bellville bank of $892.95, in bank at New Braunfels of $2,096.68, and in bank in New York City amount unknown, total $4,070.18; that only four claims were made against the estate, amounting in the aggregate to $43!50, which, deducted from the whole amount, left $4,-026.86. This was followed by a verified report by Riedner and appellee that, had it not been that the temporary administrator “had taken charge of all effects belonging to deceased, the same would have been burned or carried out as garbage, and none of the amounts of money which he had found could have been recovered for the estate,” and “that it was on account of the investigation of your administrator that he discovered the money in the San Antonio National Bank and the various banks referred to.” It was further stated that the temporary administration ended on November 6, 1911, and on that date Riedher was made permanent administrator, and five days afterwards the inventory was filed; that Riedner was paid $100 for his services, as shown by an order of the court, and that appellee put in a claim as follows1:

“To legal services rendered to the administrator at his request,' for the benefit of the estate. The said Huntress would show that through his untiring efforts he has succeeded in collecting over $4,000 in cash for the estate, and which amount would have been wholly lost to the estate, and the same would not have been collected, but for the administrator and said Huntress.”

The rest of the reasons for the claim made by appellee, a part of the paper from which the foregoing is quoted, was printed, in which it was stated that the' administrator had contracted to give appellee one-third of all amounts collected, but that ap-pellee only claimed $1,000, and, as he expected to make further collections, he would, at the proper time, present a claim for further services. It was further stated that after appellee had begun his campaign for county judge, namely, on January 6, 1912, his claim for $1,000 was allowed, and that the records did not show whether appellee had collected “further claims due the estate” or that he had presented “his further claim for such services,” but the administration had not been closed. There was then a summing up of the matters taken from the records of the probate court, as herein indicated, and the assertion' by appellee in his campaign speeches that:

“If I am elected county judge, the estates belonging to widows and orphans shall be conserved and handled to their advantage.”
■ Appellee, after the foregoing, introduced in evidence a publication in appellant’s newspaper of date .July 16, 1916, as follows:
“ ‘Machine’ Aid for Huntress Brings Fight.
“Clark’s Friends Using Campaign Material of Four Tears Ago Against Him.
“Revive Story in Light.
“Tells of Fee of $1,000 Demanded by Huntress for Settling German’s Estate.
“The attempt of certain ‘machine’ leaders to ‘ditch’ John H. Clark, county judge for civil cases, and throw his controllable vote to Judge George W. Huntress, is bitterly resented by Judge Clark’s friends and bids fair to pi-ove one of the factors in the ultimate wrecking of the Bexar county political ‘machine.’
“The sacrifice of Judge Clark is said to have been decided upon to satisfy and make a place for Huntress, who was mentioned as a probable candidate against County Judge James R. Davis. It is a significant fact that some of Judge Davis’ closest political followers are urging the selection of Huntress. It appears, however, that the ‘machine’ is not a unit for him, since some of the other county officers, candidates for renomination, are vigorously canvassing the county for JiMge Clark.

“Fought Him Four Tears Ago.

“This is another instance to prove the old adage that ‘politics makes strange bedfellows.’ Hour years ago Judge Huntress voluntarily retired from the position to which he now aspires to make the race for county judge, being pitted against Judge James R. Davis. That campaign was a rather bitter one and the storm center was the race for county judge.
“The strongest political document used by the supporters of Judge Davis at that time came from the records of the probate court, being case No. 6020. This dealt with a fee of $1,000 demanded by and paid to Judge Huntress acting as attorney for the administrator of the estate of F. Kruse, an aged German. The total amount of the estate was $4,010, and all of it except four shares of stock, valued at $100, represented by money in the bank. Tot the attorney, Judge George W. Huntress, demanded and received ten times as much for his services as the administrator.

“Story Never Answered.

“The story of this affair as shown by the records and as printed in the Light of July 23, 1912, was never answered by Judge Huntress or his friends, and the facts there revealed were credited with being one of the factors resulting in his defeat by Judge Davis by a vote of 6,334 to 5,120, and the defeat of the old Callaghan ‘machine.’ Judge Clark’s friends are using these facts with telling effect in this campaign.”

This was followed by a republication of the charges made in 1912. Appellee also introduced in evidence an editorial from the San Antonio Light of July 16, 1916, as follows:

“The Same Man.

“The city and county machines, which have shown in the past that they care nothing for the rights of the public, or for the good of the people, are supporting a candidate for the position now held by Judge Clark. This candidate was repudiated by the voters of Bexar county when he ran against the present county judge, James R. Davis.
“The candidate is the brother of one of the managers of the ,San Antonio Express, which dares not publish one word against prohibition. That alone should be sufficient reason for the voters of San Antonio to vote against him at the polls. In addition to this reason, however, there were certain facts brought out by the Light against Geox-ge Huntress, when he ran against Judge Davis, in connection with the administration of the estate of a deceased German citizen. These facts, which Huntress never could deny, were largely responsible for his defeat. They are as true of him to-day as they were then. They show his unfitness for office as clearly to-day as when he ran against Judge Davis.
“At that time the men who are now directing the Citizens’ League were strong in their'denunciation of George Huntress. They thronged into the office of the Light asking that it publish the facts it had collected against Huntress in connection with the administration of this estate. They were free in asserting, then, that these things conclusively proved him an utterly unfit person to occupy any position on the bench. Now they are seeking to convince the people of San Antonio that this man has all the merit they formerly denied him.
“George Huntress has undergone no change since he last ran for office under the auspices of the morning newspaper, that does not dare to say that it is against prohibition. It is the leaders of the Citizens’ League who have changed. With them it is now, as it has ever been since the first election of Mayor Brown, anything on earth that will permit them to retain their grip on the offices of San Antonio and Bexar county.
“Huntress has been repudiated once, and the indorsement of the city machine is good reason why he should be defeated again.”

On the morning of July 26, 1912, appellee made a statement through the Daily Express showing that the most of the labor connected with administering the estate of Kruse was done by appellee, and that he had recovered a total of $5,400 for the estate, and had charged a fee of $1,000 and there was also a statement that after Riedner was appointed temporary administrator appellee “took matters in hand, and with great labor traced the different funds of this estate throughout the state of Texas and the United 'States, wrote numerous letters to Europe and to different sections of this country,” and that he was still attending to matters of importance in connection with the estate. There was no denial of the facts taken from the records and published in the Light.

Appellee was examined as to the statements in the article of July 23,1912, as to the $1,000 fee, as to the same being nearly one-fourth of the estate, that the money was in the banks, that the administrator received only $100 for his services, that appellee was the attorney, that appellee had promised “to handle estates of poor at little expense,” and all the other statements of facts in the article were pronounced correct when they were published, and he also admitted that he got an additional fee of $442 for attending to the collection of the additional $1,800 after he had received the $1,000 fee.

In article 5595, Rev. Stats. 1911, “libel” is thus defined:

“A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings, tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public, hatred, ridicule, or financial injury.”

This definition is broad enough to include any case of libel that could arise, and the definition was intended by the lawmakers who enacted the law of 1901 (Acts 27th Leg. c. 26) to take the place of all other definitions of “libel.” In the second section of the law, being article 5596, Rev. Stats., it is provided how damages may be mitigated, and, further, that:

“The truth of the statement or statements in such publication shall be a defense to such action.”

In article 5597 it is provided:

“The publication of the following matters by any newspaper or periodical as defined in article 5595, shall be deemed privileged, and shall not be made the basis of any action for libel without proof of actual malice: 1. A fair, * * ⅜ an(j impartial account of the proceedings in a court of justice, unless the court prohibits the publication of the same, when in the judgment of the court the ends of justice demand that the same should not be published, and the court so orders; or any other official proceedings authorized by law in the administration of the law.
“2. A fair, true and. impartial account of all executive and legislative proceedings that are made a matter of record, including reports of legislative committees, and of any debate in the Legislature and in its committees.
. “3. A fair, true and impartial account of public meetings, organized and conducted for public purposes only.
“4. A reasonable and fair comment or criticism 0¾ the official acts of public officials and of other matters of public concern published for general information.”

Under the facts in this case “a fair, true and impartial account of the proceedings” in the county court of Bexar county was published by appellant. It is admitted by appellee that the account of the proceedings was true, and there was no evidence tending to show that the account was not fair and impartial, and indeed this phase of the matter was not made an issue before the jury. The only issue submitted in connection with fairness and reasonableness was as to the comment or criticism indulged in as to the proceedings that were published. Under the terms of the statute no absolute privilege is granted to newspapers or periodicals; for, before enumerating matter that shall be privileged, the statute qualifies the authority to publish by granting the power to destroy the privilege by “proof of actual malice.” Absolute privilege is based upon the theory that the publication of defamatory matter must be protected in the interest of and for the necessities of society, even though it be both false and malicious. Whenever a publication can be rendered libelous by proof of malice, it is not a publication protected by absolute privilege. The statute places all newspaper publications made on the subjects and in the manner therein provided in the class of qualified privilege.

Publications made as set forth in the statute are protected with the presumption of fairness and truthfulness, and that they were made without malice and the burden rests upon the person aggrieved by such publication to show its falsity and unfairness or that the publisher was actuated by motives of actual ill will and malice. Privileged publications are different from all other publications of defamatory matter, in that malice-is presumed in every unprivileged communication, and proof of malice is not required by-the complaining party, while as to publications qualified by privilege' malice must be-proved. Such proof might, of course, be furnished by the terms of the publication itself.. Tlie attention of tlie court Ras been called to an opinion of the majority of the Court of Civil Appeals of the Sixth District in which it is hold that any publication in a newspaper or periodical may he shown to be actuated by malice, thus holding that no absolute privilege is conferred upon newspapers by the statute. Associate Justice Hodges dissented, however, seemingly on the ground that the publication was libelous per se, and proof of malice was not required. Belo v. Looney, 201 S. W. -, not yet officially published. The case is before the 'Supreme Court on the dissent. That question is not before this court; for it is conceded by appellee that there was a question of fact to be determined by a jury as to whether the publication was libelous or not.

The Legislature, in passing the law of 1901, evinced no intention or desire to destroy or impair any defenses, but rather to add to the same, so far as newspapers and periodicals were concerned, and also leave to them, as well as others, all defenses under the common law. In no uncertain terms it provided that:

“Nothing in this act shall be construed to amend or repeal any penal law on the subject of libel, nor to take away any existing defense to a civil action for libel. * * * ”Section 4.

No one will question the fact that common-law defenses were “existing defenses to an action for civil libel” at that time, and no such forced construction can be placed upon the plain language used as that it was intended to protect such defenses in pending cases or cases which arose before the enactment of the law. That is done in the last clause of the section, which provides that nothing in the act Shall “affect any suits now pending, or that may hereafter be brought upon a cause of action arising prior to the taking effect of this act.” The law means what it says that it shall not “take away any existing defense to a civil action for libel.” The courts, since the passage of the law, have uniformly recognized the right of defendants in civil libel cases to interpose the defenses existing a,t common law. We have thoroughly discussed this question and further discussion is unnecessary. Koehler v. Dubose, 200 S. W. 238. To hold that no common-law defenses were left by the Statute of 1001 would be to rule that no one except the owners of newspapers and periodicals had any defense, except possibly the truth of the publication, against any libel suit that might be instituted. No such proposition has been or probably ever will be sustained by any court of the state.

The conclusions are reasonably deducible from the statute that the publishers of newspapers and periodicals are given certain special defenses to actions for libel, and that in addition all the common-law defenses are accorded to them and all other parties, It follows, therefore, that in passing upon, the reasonableness and fairness of the comment or criticism in regard to the acts of appellee as shown by the proceedings of the probate court the fairness, truth, and impartiality of the account of which are not assailed, it would be proper to inquire into and investigate the circumstances surrounding appellee and the occasion that called forth the comment as well as caused the publication of the court proceedings.

The facts in this case show that appel-lee was a candidate for a county office, and that appellant opposed him and was endeavoring to defeat him, and it became pertinent, just, and proper for the jury to be instructed as to the rights of newspapers in the discussion of a candidate for public office. In the case of Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212, the Supreme Judicial Court held, in a case where the plaintiff was suing for damages for a libel published about him while he was a candidate, that the truth of the publication could not alone be used in justification, but held further:

“And when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office. And publications of the truth on this subject, with the honest intention of informing the people, are not a libel. Eor it would be unreasonable to conclude that the publication of truths, which it is the interest of the people to know, should be an offense against the law.”

Speaking on this subject, Mr. Newell says:

“Freedom of the press and freedom of speech are equally sacred and equally protected by the Constitution. Section 3 of the Bill of Rights provided that the liberty of the press shall forever remain inviolate; and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible only for the abuse of the right. In the United States nearly all the officers are elective.. The press possesses no immunities not shared by every individual in the land. In every election the same freedom in discussing the merits and demerits of candidates for office is allowed equally to the press and the people, and every citizen can claim to be interested in the election of his rulers.” Newell, Sian. & Libel, § 634.

The statement as to the rule made by the text-book writer is approved in Express Printing Co. v. Copeland, 64 Tex. 354, in which case the facts were quite similar to those in this case, and the court held:

“Whatever pertains to the qualifications of the candidate for the office sought is a legitimate subject for discussion and comment, provided that such discussion and comment is not extended beyond the prescribed limits; that is, all statements and comments in this respect must be confined to the truth, or what in good faith and upon probable cause is believed to be true, and the matter must be pertinent to the issue, i. e., it must relate to the suitableness or unfitness of the candidate for the office.”

Judge Cooley, in his great work on Torts, p. 442 (3d. Ed.), says:

“The freedom of the press was undoubtedly intended to be secured on public grounds, and the general purpose may be said to be to preclude those in authority from making use of the machinery of the law to prevent full discussion of political and other matters in which the public are concerned. With this end in view, not only must freedom of discussion' be permitted, but there must be exemption afterward from liability for any publication made in good faith, and in the belief in its truth, the making of which, if true, would be justified by the occasion. There should consequently be freedom in discussing, in good faith, the character, the habits, and mental and moral qualifications of any person presenting himself, or presented by his friends, as a candidate for a public oflice either to the electors or to. a board or officer having powers of appointment.”

These are fundamental principles essential to the preservation of liberty in a democratic form of government. Publicity, truthful publicity, cannot be dispensed with in a government of the people, and any attempt to throttle such publicity and punish one who desires to faithfully present it to the public would be a thrust at the very heart and vitals of popular government. We cannot, therefore, conjecture that a Texas Legislature intended to destroy open, free, and full discussion of the character, fitness, and qualifications of any man who offers himself for the suffrages of the people. The rule given by the Massachusetts court, by Newell, by Cooley, and indorsed by the Supreme Court of Texas, as well as all great American courts, still exists, and the jury, in passing upon the fairness or reasonableness of the comment or criticism of a complaining party, should be permitted to take in consideration the fact that he was criticized while a candidate for office. The very fact that he was a candidate made a discussion of his fitness for the position he sought a matter of public concern published for general information. If anything in a democratic government can be of public concern, it undoubtedly is the character, fitness, and qualifications of a candidate for office. The jury should have been instructed that, appel-lee being a candidate for office, the publications as to his fitness for the office became a matter of public concern, and the only inquiry should have been as to the reasonableness and fairness of the comment or criticism arising from the publication of the privileged proceedings ‘ of the probate court as to the estate of P Kruse, deceased.

Appellant requested the court to charge the jury that the proceedings of the probate court were matters of public concern, and that the comments and criticism were about a matter of public concern, and that the only issue was as to whether the comment was fair and reasonable.

That charge should have been given; for the very fact that the court showed doubt as to the matter by submitting to the jury the question as to whether the publication was about a matter of public concern led them to consider that the question should be viewed as though appellee was criticized as a private citizen, and not as a candidate for office. How much a failure to give the requested charge, may have affected the ver-, diet as to the fairness and reasonableness of the comment cannot be ascertained, but it is a natural and reasonable conclusion that the jury, thinking that the publication was about a matter of no public concern, considered the matter as though appellee was not a candidate for office, and, so considering it, would inevitably arrive at a decision that the comment was unfair and unreasonable. The candidacy of appellee made comment on his fitness a matter of public concern, and upon that basis alone could the publication be justified. Consideration of that fact was denied to appellant. The only real issue for the jury to determine, in the absence of any attempt to show malice, was the fairness and reasonableness of the publication. If the proceedings of the county court were published with actual malice, the privilege of the publication might be destroyed, but no effort was made to show malice in any of the publications, and that issue was not presented to the jury.

Although there may have been a truthful report of the proceedings of the county court, still, if the 'comment and criticism based thereon were not fair and reasonable, the truth of the matter on which they were based would not justify them, but such comment and criticism would be judged by their own fairness and reasonableness. The proceedings of the court cannot be made the excuse for venting malice and ill will toward a person, even though he be a candidate for office.

The other questions raised by appellant will not probably arise on another trial, and consequently need not be considered.

The judgment is reversed, and the cause remanded.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    McCASLIN v. VEASY et al.
    (No. 1882.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 20, 1917.)
    1. Appeal and Error <®=>854(2) — Decision ■ Based on Untenable G-rottnd.
    That the court may have based his judgment on an untenable ground would be no reason for setting it aside, if sustainable on a tenable ground.
    2. Trespass to Try Title ⅞=38(1) — Plaintiff's Title.
    In trespass to try title, plaintiff is not entitled to judgment for land in dispute, unless he shows title thereto.
    Appeal from District Court, Camp County; J. A. Ward, Judge.
    Action by L. B. McCaslin against Phil Veasy and another. Prom judgment for dej fendants, plaintiff appeals.
    Affirmed.
    This was a suit of trespass to try title. It was brought by appellant against appellees. The land involved, according to the allegations in the petition, was 307.6 acres in the northeast corner of the Mary Hays survey in Camp county. Appellees disclaimed as to all the land sued for except 15 or 20 acres just south, of the north boundary line of said Hays survey; and as to the 15 or 20 acres, after denying the allegations in appellant’s petition, they set up the three, five, and ten years’ statute of. limitations as a bar to the recovery sought against them. It appeared that the north boundary lirie of the Hays survey was the south boundary line of the Jesse Kitchens survey. Appellee Yeasy claimed to own a tract of 100 acres, described in a deed to him by metes and bounds and as a part of the Jesse Kitchens survey, and appellee Boyd to own a tract of 116.8 acres on the west, described in the same way in a deed to him. The court, before whom the trial was had without a jury, seems to have found that the calls in appellees’ deeds included said 15 or 20 acres, and, treating the suit as one to establish the boundary line between land owned by appellant and land owned by ap-pellees on said Hays survey, rendered judgment establishing said line according to said calls and awarding appellees a recovery of the 15 or 20 acres. The judgment was in appellant’s favor for the remainder of the 307.6 acres for which he sued.
    O. A. Arnold, of Pittsburg, for appellant, Smith, Eollin & Bryson, of Pittsburg, for ap-pellees.
   WILLSON, O. J.

(after stating the facts as above).

Assuming that the judgment of the court was predicated on a finding that the statute of limitations of ten years had operated to bar a right he had had to recover the 15 or 20 acres of appellees, appellant insists that the finding was without support in the testimony. As the findings of the court were not reduced to writing, we do not know from the record whether the court made such a finding, and based his judgment on it, or not. But if he did, and if it should be conceded that the finding was not authorized by testimony, it would not therefore appear that the judgment was erroneous. That the court may have based his judgment on an untenable ground would not be a reason for setting it aside if it is sustainable on a tenable ground. Insurance Co. v. McCurdy, 183 S. W. 796; O’Fiel v. King, 23 S. W. 696; Walker v. Cole, 27 S. W. 882; League v. Rice Institute, 152 S. W. 1182; Railway Co. v. Purcell, 91 Tex. 585, 44 S. W. 1058; Estey v. Fisher, 44 S. W. 555; Avery v. Popper, 92 Tex. 337, 49 S. W. 219, 50 S. W. 122, 71 Am. St. Rep. 849; Warren v. Kohr, 26 Tex. Civ. App. 331, 64 S. W. 62. And clearly it is, for in no view of the case as made by the record was the court authorized to render judgment in appellant’s favor for the land in dispute. It did not appear that appellant ever had the title to the land. It was not shown that he and appellees claimed title from a common source; and the only evidence before the court of title in him was that furnished by a deed dated November 4, 1903, which passed to him the undivided interest one Miller claimed to own in the 307.6 acres. Greenlee v. Taylor, 79 Tex. 149, 14 S. W. 1056; Harris v. Kiber, 178 S. W. 673; Griffin v. Hay, 135 S. W. 248. In the Taylor Case the court said:

“The suit is trespass to try title, with plea of not guilty, and before boundary questions can be important plaintiff must show title, otherwise defendants will recover.”

The judgment is affirmed.
      ©soPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    WELLS v. FOREMAN.
    (No. 1874.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 6, 1917.)
    Specific Performance <®=o47 — Parol Contract-Part Performance — Recovery of Value.
    It is essential to specifically enforce an oral contract for. the sale of land that valuable improvements be made on the land, although the price has been paid and possession taken, and the value of the land cannot be recovered in the alternative, but the price can be recovered in a proper action.
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Suit by T. H. Wells against J. H. Foreman for specific performance of a1 parol contract for the sale of land. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    The appellant agreed to give appellee two gasoline engines and certain other personal property of the total value of $750 for a horse and a jack and certain real estate of the total value of $750, the appellee to make a deed of conveyance to appellant for the real estate. The contract between the parties was an oral one. The appellee placed the appellant in possession of the real estate, and both parties were delivered possession of all the personalty they were to get under the contract. The appellant did not make improvements, so far as the record shows, on the real estate after he got possession of the same. The appellee failed and refused to make a deed to the real estate, and the appellant, setting up the facts, sued for specific performance, and “in the alternative to have judgment against defendant for the sum of $750, the value of the said land and premises.” The jury made findings of fact on special issues. The court entered judgment for the defendant.
    Cunningham & McMahon, of Bonham, for appellant. S. F. Leslie and J. W. Gross, both of Bonham, for appellee.
   LEVY, J.

(after stating the facts as above). The jury made the special findings that the contract, as pleaded, was made by the appel-lee with the appellant, and! that each party received and was put in possession of all the-property agreed upon between them. But the evidence established that the contract was an oral one, and there was no evidence that the plaintiff! had made valuable improvements on the place after he went into possession of the premises. In order to have a judgment of specific performance as to the real estate, as pleaded, it was necessary for the court to find, which the evidence did not authorize, that the plaintiff had made valuable improvements on the place. Therefore the court did not err, it is concluded, in entering judgment as he did for the defendant. Bor it is an essential, as a firmly established rule, to take a parol sale of land out of the statute of frauds that the vendee on the faith of the transaction has made valuable improvements on the land. Bradley v. Owsley, 74 Tex. 71, 11 S. W. 1052; Robertson v. Simpkins, 61 Tex. 259; Cobb v. Johnson, 101 Tex. 440, 108 S. W. 811. And this court has held, and adheres to the ruling, that there must be not only payment of purchase money and change of possession, but valuable improvements as well must be made upon the property by the vendee. Page v. Vaughan, 173 S. W. 541. See West v. Webster, 39 Tex. Civ. App. 272, 87 S. W. 196. And if the contract, as shown in the record, was legally unenforceable to compel conveyance of the land, then a recovery of “the value of the premises,” as pleaded, may not be awarded. But this does not mean that the consideration paid the appellee may not be recovered in a proper suit therefor.

The appellant’s assignments are overruled, and the judgment is affirmed. But in affirming the present judgment it is directed that it be done without prejudice to any right of the appellant to have suit for the recovery ¡of the purchase price paid to appellee.
      <E=>For other cases see same topic and KEY-NUMBKR in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. JOHNSON.
    (No. 1859.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 22, 1917.)
    1. Railroads <&wkey;480(3) — Pires — Actions— Burden of Proof.
    To rebut the prima facie case made out by showing that the fire emanated from a railroad company’s locomative, it is not necessary for the company to establish by preponderance of the evidence that its employes in charge of the locomotive exercised ordinary care to prevent the escape of sparks therefrom.
    2. Appeal and Error <®=?1064(1) — Review— Harmless Error.
    In such case error in the charge imposing such burden of proof on the railroad company was not harmless.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Action by Earnest Johnson against the St. Louis Southwestern Railway Company of Texas. Prom a judgment, defendant appeals.
    Reversed and remanded.
    Marsh & Mcllwaine, of Tyler, E. B. Perkins, of Dallas, and W. W. Sanders, of Gil-mer, for appellant. W. R. Stephens, of Gil-mer, and Simpson, Lasseter & Gentry, of Tyler, for appellee.
   LEVY, J.

The suit is by appellee to recover damages to property, which was occasioned by fire communicated by one of the appellant’s engines. The defendant, besides denial, pleaded that its engine was equipped with the best and latest improved spark arrester, in good order and repair, and was carefully and skillfully handled. The case was submitted upon special issues. Question No. 4 was:

“Did the employés of defendant railway company in charge of its locomotive or engine No. 523 exercise ordinary care in the handling and operation of its said locomotive and engine that set out the fire in passing plaintiff’s property on the day the same was destroyed by fire to prevent the escape of sparks of fire therefrom?”

And the following special charge was given:

“You are at the request of plaintiff charged that in answering question No. 4 it devolves on defendant to show by a preponderance o£ the evidence the affirmative, and if it has not done so you will answer same in the negative.”

Error is predicated upon the special charge, upon the ground that “a preponderance of the evidence” placed too great a burden on the defendant in rebutting a prima facie ease made out by showing that the fire emanated from its locomotive. The assignment should be, it is concluded, sustained. Railway Co. v. Starks, 109 S. W. 1003; Railway Co. v. Gregory, 142 S. W. 656; Railway Co. v. Morgan & Bros., 146 S. W. 337. And the error in the charge may not, it is believed, in this case be held harmless error. Railway Co. v. Dickey (Sup.) 187 S. W. 184.

The judgment is reversed, and the case remanded for another trial.


text:
    MOORE v. DENMAN.
    (No. 1871.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 13, 1917.
    Rehearing Denied Dec. 20, 1917.)
    Appeal and Error cg=j547(1) — Overrulinu Motion for Continuance — Failure to Present in Bill of Exceptions.
    Where the ruling of the trial court in overruling motion to continue made by defendant when the cause was reached for trial ⅛ not presented in a bill of exceptions, as required by rule 55 (142 S. W. xxi) for the government of dis. trict and county courts, the Court of Civil Appeals cannot revise it. .
    Appeal from District Court, Titus County; P. O. Beard, Judge.
    Suit by J. J. Denman against J. A. Moore. Prom a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Seb P. Caldwell, of Mt. Pleasant, for appellant. J. M. Burford, of Mt. Pleasant, and Chas. Kassel, of Pt. Worth, for appellee.
   WILLSON, O. J.

Tlie suit was by appellee to recover on promissory notes made by appellant and to foreclose tbe lien of a deed by which he conveyed certain land to a trustee to secure the payment of the notes. The appeal is from a judgment in appellee’s favor for $12,089.88, the sum found to be due on the notes, and foreclosing the lien created by the deed in trust.

The contention made here is that the judgment is erroneous, and therefore should be reversed, because of the action of the trial court in overruling the motion to continue it made by appellant when the cause was reached for trial. As the ruling complained of is not presented in a bill of exceptions as required by rule 65 (142 S. W. xxi) for the government of district and county courts, this court cannot revise it. Trabue v. Cook, 124 S. W. 455; Barton v. Ash, 154 S. W. 608; Albrecht v. Lignoski, 154 S. W. 354; Cranfill v. Fidelity & Deposit Co., 143 S. W. 233; Darby v. White, 165 S. W. 481.

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


author: HODGES, J.

text:
    BUTLER v. PERDUE.
    (No. 1875.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 21, 1917.
    Rehearing Denied Jan. 3, 1918.)
    Landlord and Tenant <&wkey;129 (4) — Renting on Shakes — Action—Damages.
    In action by tenant for landlord’s failure to permit him to cultivate rented lands, an instruction allowing as damages the reasonable cash market value of the plaintiff’s share of the crops he might have raised on the premises, less such sums as he earned or might have earned during the year at other labor, was erroneous, as preventing the jury from taking into consideration some of the expenses it was shown would have been incurred in making and gathering such crops. .
    Appeal from Disfcict Court, Fannin County; Ben. I-I. Denton, Judge.
    Action by A. L. Perdue against W. J. Butler. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Cunningham ■& McMahon, of Bonham, for appellant. Rosser Thomas, of Bonham, for appellee.
   HODGES, J.

The appellee sued the appellant for damages for the breach of a rental contract, or, as stated in the appellant’s brief, for the alleged failure on the part of'the appellant to permit the appellee to cultivate certain described lands during the year 1916, which, the appellee claimed, he had rented from the appellant for that year. Under a charge submitting the ease on special issues the jury found that the rental contract had been made. On the issue of damages the court gave the following;

“What amount would be a reasonable compensation for plaintiff for damages, if any, sustained by Mm? In this connection you are instructed that in estimating the damages you are instructed that the duty of the plaintiff to exercise ordinary care and diligence to find and lease other premises, or seek other employment to prevent or diminish any damages that might result to him by reason of his failure (if any) to get the land, and the measure of plaintiff’s damages will be the reasonable cash market value of three-fourths of the cotton and two-thirds of the corn and two-thirds of the oats which plaintiff could and would have reasonably raised, grown, and gathered on the land in controversy for the year 1916 had he remained on such premises, less such sums of money which the said plaintiff did earn by his labor during the year 1916, or by the use of reasonable diligence he might have earned during said year.”

It is contended by the appellant that this charge prevented the jury from taking into consideration some of the expenses which the evidence showed would have been incurred by the appellee in making and gathering the crops referred to. We think the charge subject to the objection. Moreover, we are of the opinion that it is an affirmative misdirection of the jury, which would conflict with any other charge submitting the proper measure.

The judgment will therefore be reversed, and the cause remanded.


text:
    BUTLER, Sheriff, et al. v. LOLLAR et al.
    (No. 1867.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 29, 1917.)
    1. Descent and Distribution &wkey;>155 — Rights of Creditors of Heirs — Effect of Advancement.
    Under Rev. Civ. St. art. 2467, relative to bringing advancement into hotchpotch, a father had a legal right during his lifetime to make an advancement to a son that would supersede the son’s inheritable interest in the estate remaining at the death of the father, and where he did so, the son had no interest in the father’s estate subject to execution, though theie was no record evidence of the fact that he was excluded from any share in the estate.
    2. Frauds, Statute of <&wkey;129(9) — Part Performance-Possession and Improvements.
    A parol gift of land from a father to his son followed by actual possession of the premises by the1 son, and the making of valuable improvements, invested him with a good title, without any written conveyance.
    3. Descent and Distribution &wkey;>117 — Advancements — Sufficiency of Evidence.
    Where a father gave his son a tract of 200 acres of land, but executed no conveyance, and the son wont into possession, made valuable improvements, and occupied the land as a homestead for many years, and continuously until his father’s death, and paid the taxes and claimed the land as his own, and after his death it was agreed by the widow and children that he had no interest in any of the lands owned by the father at the time of his death, and that the tract so given to him was an advancement, the facts justified the trial court in finding that the son received such land as an advancement and had no further interest in the father’s estate.
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Suit by Lula Lollar and others against J. B. Butler, Sheriff, and others. From a decree in favor of plaintiffs, defendants appeal.
    Affirmed.
    F. E. Scott, of Sulphur Springs, for appellants. Thornton & Thornton, of Sulphur Springs, for appellees.
   HODGES, J.

This appeal is from a decree enjoining the sale under execution of an undivided interest in certain tracts of land levied on as the property of J. B. Sparks. In February, 1916, J. N. Sparks died intestate, leaving a community interest in 3,000 acres of land. He was survived by his wife and eight children, among whom was J. B. Sparks, a son. Some time after the death of J. N. Sparks certain judgment creditors of J. B. Sparks had executions issued and levied on what they treated as his undivided interest in the real estate left by his father. The ap-pellees, who were the children and heirs of Sparks, Sr., brought this and other similar suits, asking for injunctions restraining the sale of any portion of the land seized, on the ground that J. B. Sparks had no interest therein, and that the sale would constitute a cloud upon their titles. In a trial before the court without a jury the writ was granted and the sale restrained.

The record discloses a state of facts about which there is little or no dispute. About 16 years prior to his death J. N. Sparks gave to his son, J. B. Sparks a tract of 200 acres of land, but executed no deed of conveyance. J. B. Sparks went into possession, made valuable improvements on the land, and occupied it as a homestead for many years and continuously up to the date of his father’s death. He also paid the taxes and claimed the land as his own. Testimony was presented showing that J. N. Sparks had told others that he had given this tract of land to his son, but withheld the deed in order to prevent the latter from selling it. Soon after the death of J. N. Sparks, and subsequent to the levy of the executions referred to above, his children had a friendly partition suit for the purpose of dividing their father’s esr tate. In that suit it was agreed by the parties in interest that J. B. Sparks had no interest in any of the lands formerly owned by their father except the 206 acres above mentioned; that this portion had been given to J. B. Sparks during the lifetime of their ancestor as an advancement.

The appellants contend that, if prior to his death J. N. Sparks had made an advancement which excluded his son, J. B. Sparks, from any share in the residue of the estate, there was no record evidence of that fact of which the creditors of J. B. Sparks were bound to take notice, and they had a right to seize any apparent interest of their debtor in the paternal estate. The proposition seems to be that upon the death of the ancestor an estate which apparently descends and vests in an heir is subject to seizure by a creditor -in the absence of some record evidence that the heir had parted with his interest before the levy was made. The rule invoked applies when the debtor whose property is seized has once owned an estate and subsequently parts with his title by an unrecorded conveyance. But that rule has no application to situations where the property seized never at any time really belonged to the debtor. J. N. Sparks had a legal right during his lifetime to make an advancement to his son that would supersede the latter’s inheritable interest in what estate remained at the death of ihe ancestor. Bevised Civil Statutes, art. 2467; Morrison v. Morrison, 43 Tex. Civ. App. 339, 96 S. W. 100; Oxsheer v. Nave, 90 Tex. 568, 40 S. W. 7, 37 L. R. A. 98. This having been done, as was evidently found by the court, J. B. Sparks had no interest in his father’s estate, and the creditors seized property to which he had never owned a title. In this instance the gift of the 200 acres to J. B. Sparks from his father was by parol, but the evidence warranted the court in finding that it was followed by actual possession of the premises and the making of valuable improvements. These were sufficient to invest the grantee with a good title without any written conveyance. The facts, we think, are such as to justify the trial court in finding that J. B. Sparks received from his father the 200 acres of land which he used as his homestead as an advancement, and had no further interest in the estate.

The judgment of the district court is affirmed.
      <S=»Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DBV5T, J.

text:
    TEXAS & P. RY. CO. v. DUNCAN.
    (No. 1877.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 3, 1918.
    Rehearing Denied Jan. 17, 1918.)
    1. Master and Servant <&wkey;121(l) — Injuries to Servant — Warning.
    A railroad company employing a night watchman to patrol their premises inside and outside of a roundhouse owes to such watchman the duty to keep a drop pit in the roundhouse covered or to warn him of its uncovered condition.
    2. Master and Servant t&wkey;289(l) — Injuries to Servant — Question oe Fact — Contributory Negligence
    In an action by a night watchman injured through falling into a drop pit in the roundhouse, whether or not an ordinarily prudent person would go into such roundhouse without using -a searchlight with which he was provided was a question for the jury.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Action by A. B. Duncan against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    At 7 o’clock p. m. of October 3, 1916, the appellee entered the service of appellant at Marshall as special night watchman of the premises inside of the roundhouse and outside around the front and back of the same. His duties required him to keep watch upon the premises and to prevent any probable threatened interference on the part of certain colored persons with the work of colored em-ployés in the roundhouse. The appellee was furnished by appellant with an electric flashlight to use in goingi around the roundhouse premises. Shortly after 9 o’clock, while on a tour of inspection of the premises, the ap-pellee fell into a pit, called the drop pit, sustaining serious bodily injuries. The pit is situated within the roundhouse, and is 14 feet deep, about 10 feet wide, and extends between 20 and 30 feet east and west under and at right angles to two tracks. When not in actual use, it is covered with planks 2 inches thick and about 12 feet long, and at night has an electric light burning over it. The night appellee was injured the light was not burning, and a portion of the pit was left open and uncovered, and was not in actual use. The appellee did not know of the location of the pit, and did not know that it was open and uncovered; and there is nothing in the evidence tending to show that ap-pellee’s duty did not call upon him to pass the way he was going when he fell into the pit, and there is lack of any circumstances indicating that appellee may have expected an open pit. The roundhouse is in the shape of a semicircle with the open side to the south. The turntable is towards the south, and the tracks leading into the roundhouse diverge from the center of the turntable in a fanlike shape toward the north. The pit is under the two western tracks in the roundhouse, and is used to remove and disconnect the large driving wheels from an engine by lowering them into the pit by means of machinery situated down in the pit. After they were lowered into the pit they are shifted to one side and raised up in line with another track and they are rolled off on this other track. Appellee, being at the time south of the pit, started northward and walked into the pit. The place was dark, and appellee did not use his flash light. The petition alleges that the appellant negligently left the pit open and unclosed and not lighted. The defendant, besides denial, pleaded that plaintiff was himself negligent in not using the flash light provided him. The jury found for plaintiff, and found that he was entitled to recover $2,500, but diminished the amount to $1,250 on account of contributory negligence. The evidence warrants the finding that the appellant was guilty of negligence proximately causing the injury, as pleaded, in leaving the pit open and uncovered. The amount of the verdict is warranted by the evidence. The finding of the jury as to contributory negligence is sustained.
    F. H. Prendergast, of Marshall, for appellant. S. P. Jones, of Marshall, for appellee.
   DBV5T, J.

(after stating the facts as above). Appellant presents the question in two views: One is that as a matter of law the company did not owe the protection to appellee to keep the pit covered, and the other is that the jury should decide whether that particular duty of keeping the pit covered was in fact a duty owing appellee. The appellee testified that:

“My duties require me to go around on the inside of the roundhouse and outside, around front and back. * * *In the discharge of my duties I kept .moving around through the roundhouse, first one place and then another.”

The drop pit, it appears, was in the roundhouse, and, according to the witness Bell, “there is only one drop pit in the roundhouse.” And there appears no evidence that appellee’s duty did not require him to be upon that portion of the premises of the roundhouse where the pit was situated. If, as appears, the appellee’s duties as watchman required him to patrol and watch the premises of the roundhouse “inside of the roundhouse and outside around front and back,” and there was, as appears, a pit within the roundhouse premises, then it may not be said that appellant did ndt owe the appellee the duty to keep the pit covered, or inform or warn him of its being there in that uncovered condition.

The court, in the eighth paragraph of the charge, in effect instructed the jury that in order to find for the plaintiff the company must have been negligent in leaving the pit open and uncovered, and such negligence must have resulted in injury to plaintiff. The court further instructed the jury that:

“The evidence in this case shows that the plaintiff was in the employ of the defendant and received some injuries by falling into an open pit, but this is not sufficient alone to justify you in finding a verdict in his favor. But if you find a verdict for him you must find that the railroad company was negligent, and that it neglected some duty it owed to the said Duncan. If you believe from the evidence that the defendant did not owe to Duncan the duty of keeping the pit, while ojoen, guárded or protected by lights or other warning signals, you will find for the defendant.”

It is concluded, that in the record the points made should not be sustained for reversal of the case, and that the assignments of error numbered 1, 2, 3, 5, 6, 8, and 11 should be overruled.

The question of the plaintiff’s negligence in failing to use the flash light furnished him was sufficiently submitted to the jury in the court’s charge, and assignments of error Nos. 4 and 7 are overruled.

As to whether the amount of the verdict is excessive depends on the extent of the injury and pain and suffering and lost time sustained by the appellee, and the award made by the jury is not without any evidence to warrant it. The assignments are overruled.

Appellee’s cross-assignment of error is overruled. The question of whether or not an ordinarily prudent person would go into a dark place without using a search light in the hands at the time was a question for the jury, as submitted by the court.

The judgment is affirmed.
      <S=aFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    LEWIS v. McDOWELL et al.
    (No. 1892.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 4, 1918.)
    Appeal and Error <&wkey;387(3) — Bond—Time poe Filing.
    To confer jurisdiction upon the appellate court the appeal bond must have been filed within 20 days after the expiration of the term at which judgment was rendered, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2084, and where this was not done the appeal must be dismissed.
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    B. W. Lewis appeals from a judgment against him and in favor of J. M. McDowell and others.
    Appeal dismissed.
    Turner & Smitha and T. N. Graham, all of Texarkana, for appellant. O’Neal & Allday, of Atlanta, for appellees.
   WILLSON, C. J.

To confer jurisdiction of the appeal upon this court the appeal bond must have been filed within 20 days after the expiration of the term at which the judgment was rendered. Article 2084, Vernon’s Statutes. Said term of the court ended April 13, 1917, and the bond was filed on the 25th day thereafterwards, to wit, on May 8, 1917. As this court, therefore, is without power to hear and determine the appeal, it is dismissed.


text:
    BROTHERHOOD OF AMERICAN YEOMEN v. JAGGERS.
    (No. 1879.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 13, 1917.)
    Appeal and Eeeoe &wkey;>512 — Dismissal.
    In a case originating in justice court and then tried in county court, where the record to the Court of Civil Appeals contains no transcript from the justice to the county court, and the justice court’s original jurisdiction of the cause of action is not otherwise shown, the appeal will be dismissed.
    Appeal from Titus County Court; J. W. Tabb, Judge.
    Action between the Brotherhood of American Yeoman and W. M. Jaggers. From a judgment, the Brotherhood of American Yeoman appeals.
    Dismissed.
    Reed & Reed, of Mt. Pleasant, for appellant. T. O. Hutchings, of Mt. Pleasant, for appellee.
   LEVY, J.

The case originated in the justice court, and was then tried in the county court. The record to this court does not contain a transcript from the justice court to the county court, and it is not otherwise made to appear that the justice court had original jurisdiction of the cause of action. The parties appear to have had notice of this defect.

The appeal is dismissed. Wells v. Driskell, 105 Tex. 77, 145 S. W. 333.


text:
    JACKSON v. LANCASTER.
    (No. 1865.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 13, 1917.
    Rehearing Denied Dec. 20, 1917.)
    Courts <&wkey;488(4) — County and District Courts — Statutes.
    Acts 32d Leg. c. 54, conferred upon the district court of Harrison county jurisdiction in civil cases theretofore in the county court of Harrison county. Acts 33d Leg. c. 53, restored to said county court exclusive original jurisdiction in civil cases involving between $200 and $500, and ordered transfer to that court from the district court of pending causes of such amount. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 268, provides that when an attachment issued from a county court has been levied upon land no order or decree foreclosing the lien thereby acquired shall be necessary, but that the judgment, briefly reciting the issuance and levy of such attachment, shall be sufficient to preserve the lien, and that the land may be sold under execution after judgment. When action for $490 was commenced in the district court shortly after the 1911 enactment, writ of attachment was levied on land belonging to defendant, and the action was tried and judgment entered in that court after the 1913 act took effect. Held, that, the proviso in article 268 not being inapplicable because the writ was issued out of the district rather than county court, the district court had no jurisdiction to render the judgment, since the required transfer to the county court would not have divested plaintiff of a right he had acquired to have the land subjected in that suit to the payment of any judgment he might obtain against defendant,
    Appeal from District Court, Harrison County; P. 0. Beard, Judge.
    Action by C. D. Lancaster against Robert Jackson. From judgment for plaintiff, defendant appeals.
    Reversed and remanded, with instructions.
    M. P. McGee and Cary M. Abney, both of Marshall, for appellant. T. W. Davidson, of Marshall, for appellee.
   WILLSON, C. J.

The suit was for a balance of $490.53 and interest from January 1, 1910, alleged to he due from appellant to ap-pellee, who was the plaintiff. It was commenced by a petition filed in the district court October 14, 1911, which was after the act approved March 13, 1911 (General Laws, p. 95), conferring upon said district court jurisdiction in civil cases theretofore in the county court of Plarrison county, took effect. It was tried in said district court in February, 1917, or more than three years after the act approved March 28, 1913 (General Laws, p. 103), restoring to said county court exclusive original jurisdiction in civil cases “wherein the matter in controversy shall exceed in value $200, and shall not exceed $500, 'exclusive of interest,” of which it toad been deprived by said act Mareto 13, 1911, took effect. The appeal is from a judgment in appellee’s iavor for $343.05, and foreclosing a lien created by the levy of a writ of attachment 'on land belonging to appellant.

It is insisted, and we agree, that the district court was without power at the time it undertook to do so to hear and determine the controversy between the parties. Not only was the exclusive jurisdiction the county court possessed of such a cause prior to the passage of the act March 13, 1911, restored to it by the act March 28, 1913, but it was expressly provided in section 4 of the latter act that the district court of Harrison county—

“shall no longer have jurisdiction of eases in which the county court of said county by provisions of this act has original or appellate jurisdiction.”

And in section 5 it was further provided that:

“It shall he the duty of the clerk of the district court of said county within 30 days after this act shall take effect to make full and complete transcripts of orders on the civil docket then pending before the district court of said county, of which cases by the provisions of this act exclusive original or appellate jurisdiction is given to the said county court, and to deliver said transcripts, together with the original papers in each case, to the county clerk of said county, and the said county clerk shall file the same and enter said cases on the docket for trial by said court, and a certified bill of costs in each case, and all such cases shall be immediately docketed by the county court, as appearance cases for the next succeeding term, and all civil cases shall he docketed and disposed of in the same manner as if the same had been originally filed in and triable in said county court, and all process in civil cases now issued and returnable to said district court shall be returnable to said county court.”

The contention of appellee that the district court had power to render the judgment is predicated on the fact that the court had jurisdiction of the suit at the time it was commenced, and at the time the writ of attachment was levied upon land belonging to appellant. The argument is that the lien created by the levy of the writ could not be foreclosed in the county court, and therefore that the effect of transferring the cause to that court would be to divest appellee of a right he had acquired to have the land subjected in that suit to the payment of any judgment he might obtain against appellant. Whether a county court has power to foreclose a lien on land or not is still an open question in this state (Hillebrand v. McMahan, 59 Tex. 450; McCall v. Page, 155 S. W. 655; Hamill v. Samuels, 135 S. W. 746); but if it is without such power we think it is not therefore true that appellee could not, by a judgment recovered in the county court, subject the land levied upon to same by process from that court in that suit. A proviso in article 268, Vernon’s Statutes, is as follows:

“When an attachment issued from a county or justice court has been levied upon land, no order or decree foreclosing the lien thereby acquired shall be necessary, but the judgment shall briefly recite the issuance and levy of such attachment, and such recital shall be sufficient to preserve such lien. The land so attached may be sold under execution after judgment, and the sale thereof shall vest in the purchaser all the estate of the defendant in attachment in such land, at the time of the levy of such writ of attachment.”

We think that the fact that the writ of attachment was issued out of the district court and not out of the county court would not render the proviso in article 268 just set out inapplicable to the case. The clear purpose of the act March 28, 1913, was to confer upon the county court of Harrison county all power, in the class of civil cases specified, possessed by county courts generally in like cases under the laws of the state. See section 6.

The judgment will be reversed and the cause will be remanded, with instructions to the district court to dismiss the case, but without prejudice to the right of appellee to have the clerk comply with the mandate to him in said act March 28, 1913, and to a trial of the cause in the county court.
      (gssFor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    YOUNG et al. v. CITY OF MARSHALL.
    (No. 1884.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 28, 1917.
    Rehearing Denied Jan. 10, 1918.)
    1. Taxation <&wkey;345 — Assessment—Name oe Deceased Ownee.
    Under Rev. Civ. St. art. 7527, providing that all real property subject to taxation shall be assessed to the owners thereof in the manner herein provided, but no assessment of real property shall be considered illegal by reason of the same not being listed or assessed in the name of the owner, an assessment against property in the name of a deceased person was valid as against subsequent purchasers from the heirs.
    2. Municipal Coepobations &wkey;>978 (7) — Actions eob Taxes — Limitations.
    Under a city charter providing that suits for taxes shall be brought within four years from the time they become due, limitations began to run against a city from the 1st day of February of each year; each year’s taxes forming the basis of an independent and separate cause of action. ■
    Error from District Court, Harrison County; P. O. Beard, Judge.
    Action by the City of Marshall against T. P. Young and others. Judgment for plaintiff, and certain defendants bring error.
    Reformed and affirmed.
    Young & Young, of Marshall, for plaintiffs in error. C. E. Carter, of Marshall, for defendant in error.
   HODGES, J.

The following is the substance of the court’s findings of fact in this ease: On the 7th of August, 1911, the city of Marshall instituted a suit against Margaret Wright for taxes due the city from 1906 to 1910, inclusive, on lot 19 of the Chev-allier addition to the city of Marshall. Citation was issued, but there was no evidence that it was ever placed in the hands of the sheriff, or any attempt made to serve it. On the 8th day of July, 1913, an alias citation was issued to Margaret Wright and placed in the hands of the sheriff, but no return was ever made, it having been ascertained that Margaret Wright was dead. On the 12th of May, 1914, the city of Marshall filed an amended original petition, making parties defendant T. P. Young and Cary Abney, of Harrison county, M. M. Parks, Thos. S. Plowman, and J. C. Patton, of Dallas county, and James Wright, Lee Wright, and John Wright, alleged to be transient persons whose residences were unknown. That amendment was for taxes due from 1906 to 1910, inclusive, on the lot above referred to. Citation by publication was issued upon that amended petition for each of the defendants. On July 7, 1914, T. P. Young, Cary Abney, M. M. Parks, T. S. Plowman, and J. C. Patton answered, setting up appropriate defenses, and alleging that the land was owned by Young, Abney, and Parks in fee simple; it having been acquired by them from the children and only heirs of Margaret Wright, then deceased. On March 1, 1917, Abney filed a disclaimer. No answers were filed by the Wright heirs. The evidence shows that Mrs. Margaret Wright died in February, 1902, and that the property had been continuously assessed in her name since that time, and has never been assessed in the name of any other person. The record further shows that on the 1st day of March, 1917, the city of Marshall filed another amended original petition, in which it claimed taxes for the years 1906 to 1915, inclusive.

From these findings of fact the court concluded, as a matter of law, that the issuance of the citation on the 7th of August, 1911, and the alias citation on the 8th of July, 1913, did not interrupt the running of the statute of limitation against the collection of the taxes, but that the filing of the plaintiff’s amended petition on the 12th of May, 1914, did have that effect. He further concluded that the city was entitled to recover judgment for taxes for the years 1910, 1911, 1912, 1913, 1914, and 1915, with interest, penalties, and attorney’s fees, with the foreclosure of the tax lien, which judgment should be made a charge upon the property alone; no personal judgment being rendered against any of the defendants. It was further ordered that Ab-ney and the Wright brothers be discharged with their costs. From that judgment T. P. Young, M. M. Parks, T. S. Plowman, and J. C. Patton have prosecuted this writ of error.

The first assignment of error assails the judgment of the court upon the ground that the undisputed evidence shows that the property was assessed in the name of Margaret Wright, who died in 1902. It is contended that by reason of that fact the assessments were invalid, and will not support a suit for the recovery of the taxes. Article 7527 of the Revised Civil Statutes provides that:

“All real property subject to taxation shall be assessed to the owners thereof in the manner herein provided; but no assessment of real property shall. be considered illegal by reason of the same not being listed or assessed in the name of the owner or owners thereof.”

The record in this case does not disclose whether the property was rendered for taxes by the owners in the name of Margaret Wright, or was listed in her name by the. assessor as unrendered property. If the true owners rendered the property in the name of a deceased person, they were in no attitude to claim the invalidity of the assessment. But under the statute above referred to, even if there was an error in listing the property in the name of a person who was not the owner, that fact alone is not sufficient to vitiate the assessment. Taber v. State, 38 Tex. Civ. App. 235, 85 S. W. 835. There is no contention that the description otherwise given of the land in the assessment is incorrect or insufficient.

The second assignment of error complains of the action of the court in giving judgment for the full amount of the taxes sued for, upon the ground that a part of the taxes were barred by the statute of limitations of four years. Section 296 of the charter of the city of Marshall, as enacted in 1909, provides that suits for taxes shall be brought within four years from the time they become due. The record in this case shows that in 1914 the city’s amended petition asked for taxes for the years 1906 to 1910, inclusive. It was not until March 1, 1917, that taxes due for the years 1911 to 1915, inclusive, were sued for. Limitations began to run against the city from the 1st day of February of each year for the taxes which accrued for the year before, and the right of the city to collect for any one year was barred by the provision of the charter above referred to when a period of four years had elapsed between the accrual of the right to sue and the institution of the suit. Each year’s taxes formed the basis of an independent and separate cause of action. Taxes for the years 1911,1912, and 1913 had been delinquent more than four years when the city filed its amended original petition March 1, 1917, and for the first time sued for their recovery. The fact that the recovery was sought in an amended petition in which older taxes were sued for did not relieve the city from the operation of the prescribed limitation. We are of the opinion that the city was not entitled to recover for those years, and the judgment will be reformed accordingly.

The remaining assignment of error, w a think, is without merit.

The judgment will be reformed in aceoi fiance with the views above expressed, and as reformed will be affirmed.
      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    DAVIS v. STATE.
    (No. 4768.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    Appeal from District Court, Gray County; W. R. Ewing, Judge. George Davis was convicted of burglary, and be appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appealed this case from a conviction for burglary. There is no statement of facts, nor any bill of exception®. Nothing is presented for review in the absence of these. The judgment is affirmed.


text:
    DORSETT v. STATE.
    (No. 4796.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1917.)
    Appeal from District Court, Eastland County; Joe Burkett, Judge. Bluford Dorsett was convicted of hog theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Assh Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant prosecutes this appeal from a conviction for hog theft, with the lowest punishment assessed; but he has neither a statement of facts nor a bill of exceptions, and nothing is raised which can be reviewed in the absence of these. The judgment is affirmed.


author: DAVIDSON, P. J.

text:
    JACKSON v. STATE.
    (No. 4730.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. J. D. Jackson was convicted of an aggravated assault, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $25. The record is without statement of facts or bill of exceptions. The matter® contained in the motion for new trial cannot be considered in the absence of the testimony. The judgment is affirmed.


text:
    JOHNSON v. STATE.
    (No. 4789.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1917.)
    Appeal from Polk County Court; B. P. Bean, Judge. Sandy Johnson was convicted of violating the local option law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25 and 20 day®’ imprisonment in the county jail. There being no statement of facts or bill of exceptions in the record, there is nothing in the motion for new trial which can .be reviewed. In this condition of the record the judgment will be affirmed.


text:
    SPRUILL v. STATE.
    (No. 4778.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge. Manuel Spruill was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appealed this case from a conviction of burglary. There is no statement of facts, nor any bill of exceptions. Nothing is presented for review in the absence of these. The judgment is affirmed.


author: LANE, J.

text:
    LOUISIANA & TEXAS LUMBER CO. v. PATTON.
    (No. 7454.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 21, 1917.)
    Appeal from District Court, Houston County; John S. Prince, Judge. Action by W. J. Patton against the Louisiana & Texas Lumber Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Nunn & Nunn, of Crockett, for appellant. Adams & Young, of Crockett, for appellee.
   LANE, J.

This suit was instituted by appel-lee, W. J. Patton, against the appellant, Louisiana & Texas Lumber Companj', hereinafter, for convenience, called the Lumber Company Plaintiff’s petition was in the ordinary form of trespass to try title to 220 acres of land, in said petition described, and for damages. The suit in fact, however, ⅛ strictly a boundary suit in so far as the title to the land involved therein is concerned, and for damages to plaintiff’s land by reason of the construction of a tramroad thereon by the Lumber Company. The James Patton headright survey of one-half league was surveyed and located in 1851. The land of plaintiff is a part of said headright survey and extends to its north line. The land claimed by the Lumber Company is a part of the International & Great Northern Railway surveys Nos. 42 and 43, which were located many years after the James Patton headright survey had been located, and their locative field notes call for the north line of said headright survey as their south boundaries. It is admitted by all parties that, if the land in controversy is wholly on the Patton survey, it is owned by appel-lee, Patton, and, if it is wholly on the International & Great Northern Railway surveys, it is owned by the Lumber Company. The case was tried before the court without a jury, and judgment was rendered for the appellee. W. J. Patton, for the land sued for, and for $25 damages thereto, against appellant, by reason of the construction of a tramroad on same by appellant. The main and only important contentions of appellant are that the trial court erred in finding that the north boundary line of the James Patton headright survey was at the place where the plaintiff contended it was located, and in finding that appellee’s land was damaged by appellant by the construction of a tramroad thereon in the ®um of $25, because there was no competent evidence to support such findings. We have carefully examined the evidence, and have reached the conclusion that both of such findings complained of were amply supported by the evidence. Other findings of the court complained of were immaterial, and unnecessary for the support of the judgment rendered, and, if error, the same was not such as should cause a reversal of the judgment rendered. The judgment of the trial court is therefore affirmed. Affirmed.


text:
    JACKSON v. STATE.
    (No. 4657.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Intoxicating Liquoes <&wkey;20S — Engaging in Business — Indictment — Time oe Offense.
    The offense of engaging in the business of selling liquors in prohibition territory, laid by the indictment as committed on or about a certain day embraces a period of three years prior and up to the filing of the indictment.
    2. Intoxicating Liquoes @=>236(11) — Engaging in Business — Sufficiency of Evidence.
    Evidence held sufficient to sustain a conviction of engaging in the business of selling liquors in prohibition territory.
    3. Intoxicating Liquoes <@=3233(2) — Engaging in Unlawful Business- — Evidence.
    Testimony, on a prosecution for engaging in the business of selling liquors in prohibition territory, that on one occasion when witness bought whisky of defendant he had on hand 5 or 6 quarts, and on another occasion 7 or 8 pints, is admissible.
    4. Intoxicating Liquoes <&wkey;233(2) — Engaging in Business — Evidence.
    Evidence of receipt of shipments of whisky by defendant within three years before the filing of the indictment for engaging in the business of selling liquors in prohibition territory is not too remote, the offense though laid on or about a certain day covering the whole of that period.
    5. Intoxicating Liquoes <&wkey;226 — Engaging in Business — Evidence.
    Evidence, on .prosecution of a negro for engaging in the business of selling liquors in prohibition territory, that white people often ordered whisky in the names of negroes and then got it from the express office, or, finding it had ¡ come, got them to sign for it, is inadmissible for defendant, not being connected with him.
    Appeal from District Court, Morris County; J. A. Ward, Judge.
    John Jackson was convicted and appeals.
    Affirmed.
    Henderson & Bolin, of Daingerfield, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully engaging in the business or occupation of selling intoxicating liq.uor in prohibition territory, and assessed the lowest punishment.

The indictment laid the offense as committed on or about July 1, 1915, and alleged sales to given persons on that date, and on December 25; 1915, and March 26, 1916. The indictment was not preferred until April 18, 1916. Of course, the offense laid would embrace a period of three years prior and up to ,the date of the filing of the indictment. Prohibition was admitted to have been in effect in said county for more than three years before the indictment herein was filed.

J. T. Sewell, agent of the express and railroad companies at Daingerfield, produced his books, and therefrom testified to deliveries of whisky to appellant as follows: In 1915, June 17th, 4 quarts, August 7th, 4 quarts, October 1st, 4 quarts, October 10th, 6 quarts, October 18th, 4 quarts, October 23d, 2.quarts, November 2d, 24 pints, November 8th, 12 quarts, November 12th, 24 pints, November 16th, 24 pints, November 22d, 12 pints, November 26th, 8 quarts, December 2d, 24 pints, December 7th, 24 pints, December 11th, 12 quarts, December 17th, 6 quarts, making in all 16 separate and distinct shipments and deliveries to him in six months and aggregating 128 quarts. Then in 1916, January 4th, 6 quarts, January 10th, 12 quarts, January 17th, 12 quarts, February 11th, 6 quarts, February 14th, 12 quarts, February 25th, 6 quarts, March 8th, 12 quarts, March 24th, 6 quarts, March 30th, 4 quarts, making in all 11 separate and distinct deliveries within three months, and a total of 94 quarts.

Raymond Rhody, to whom sales were alleged to have been made, swore that on December 26, 1915, he bought two pints of whis-ky from appellant — as we understand, this was two separate and distinct sales of a pint each on said date — that on March 26, 1916, he bought another part of a bottle from appellant and paid him six bits therefor-; that at the first time he bought the whisky, appellant had 4 or 5 quarts on hand, and at another time he bought from him he had 7 or 8 pints on hand; that the whisky was in a box, in his place of business, under a counter, and at the time appellant was selling things to eat.

Mr. Sewell swore that the express company’s books, which he produced and from which he showed the several deliveries to appellant, were the books kept expressly for whisky shipments; that the collect packages were kept in one and the prepaid packages in another book; that to those receipts of shipments appellant’s name was signed, and that said records showed it to have been in different handwritings; that he did not know who signed for the packages where these different handwritings were signed. He said:

“I have known of instances and have had several people come around and ask if John Jackson had any whisky there. Then later on Jackson would come and get the whisky. I have had that to occur a number of times.”

On re-direct examination he swore:

“If whisky is consigned to John ’ Jackson, John Jackson will have to come and sign for it. The consignee has to come and sign for the whisky. With reference to those inquiries I don’t know whether or not they wanted Jackson to get it out so that they could buy some. They may have made the inquiry in order to purchase it from him for all I know.”

Appellant himself testified and swore in effect that he had the said shipments of whis-ky made to him. He claimed, however, that the whisky was not always for himself; that some of it was for other people, white friends of his. He denied ever having sold any whis-ky at any time to said witness Rhody. On cross-examination ho swore that in the summer time tie ran an ice cream parlor, and in the winter time ran a restaurant and sold stews and chili; that he did not order and get and sign for all the whisky shown by the express conqpany’s books; that there was some came for him that he knew nothing about, and never signed for at all; that he drank some of the whisky, but not all; it was not all his. He said:

“I did not order whisky for white people, but they asked me if they could use my name and send my name to the whisky houses. Then they would get me to go and get it out. I can name some of the men who did that, but I don’t want to leave here; I would like to stay. I can name some of the men X got whisky for, but I don’t want to.”

He claimed to have gotten some for Mr. Heard, and he said that Mr. Heard was one who ordered whisky in his name, and that Mr. Joe Bradfield was another; that he did not know how many times he had ordered it for Mr. Bradfield. He said:

“I don’t know of any others except those two who got whisky in my name: that is all X can think of, just those two men”; that he thought Mr. Heard got whisky in the way he said,, in his name, about 10 or 15 times.

He swore that lots of days he did not drink much whisky, and sometimes went a week at a time and never drank a drop and sometimes a month at a time without drinking.

Mr. Xleard testified that he did not use appellant’s name 10 or 15 times in ordering whisky for himself. He swore that sometimes he and others got together and ordered as much as a case at a time, and he said some of the boys might have ordered it through appellant. On cross-examination he said that he never ordered a case from appellant in his life; that he may have had some whisky in an order, but never as much as 4 quarts; that he never got any in pints.

The evidence was undoubtedly sufficient to sustain the- conviction.

The court was correct in permitting the said Khody, over appellant’s objection, to testify that on March 26, 1916, when he bought some whisky from appellant, appellant then had on hand 5 or 6 quarts of whis-ky, and that at another time when he bought from him he had on hand 7 or 8 pints of whisky. That testimony was clearly admissible.

The respective dates and quantities of whisky received by appellant from the express company is shown above. He objected to the proof that on June 17, 1915, he got 4 quarts, on August 7th, 4 quarts, and on October 1st, 4 quarts, on the ground that said testimony was immaterial and the deliveries too remote from the offense charged. The court explained in his approval of the bill that, because appellant was charged with pursuing the business or occupation as stated, he admitted the receipt by him of the large quantities of whisky as tending to show he was engaged in the business at the time charged. As stated above, the offense was laid on July 1st, but embraced the whole period from the time the indictment was filed for 3 years before. These 3 respective shipments to which he objected were clearly not too remote, and were admissible for the purpose as stated by the court.

The court did not err in refusing to permit the witness Sewell to testify, as shown by another bill of appellant’s, that while he was working for the express company at Daingerfield he knew it to be a fact that white people often ordered whisky in the name of negroes, and then came to said express office and got it out, or found out whether it had come, and then went out and hunted the negroes up and had them come in and sign for it, and that appellant was a negro. This testimony of what others did, having no connection with appellant, was properly excluded.

The judgment is affirmed.
      <g=aFor other cases see same topic and KEY-NÜMBEK in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    HUNT v. STATE.
    (No. 4770.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    Burghlaby <&wkey;>2—Shooting into House.
    Shooting at one on the porch of a house, ii continuance of a fight, and wounding him ana Ins wife, who is in the house, does not constitute burglary.
    [Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Burglary.]
    Appeal from District Court, Bastrop County ; R. J. Alexander, Judge.
    R. L. Hunt was convicted, and appeals.
    Reversed and remanded.
    Maynard & Maynard, of Bastrop, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant appeals from a judgment and sentence condemning him to confinement in the state penitentiary for two years for the offense of burglary.

The count in the indictment upon which the conviction is based, is as follows:

“That in said county of Bastrop and state of Texas, on or about the 20th day of December, A. D. 1915, and before the presentment of this indictment, R. L. Hunt did then and there unlawfully, fraudulently, burglariously, and willfully, in the nighttime, by force, to wit, by firearms, viz. a gun, discharge said gun into the dwelling house of said John Machen, without the consent of the said John Machen and with the intent then and there and thereby to injure the said John Machen, he (the said John Machen) then and there being within said dwelling house.”

The punishment authorized by the charge of the court, and found by the jury, was that set out in article 1311, being the punishment for ordinary burglary as defined by article 3303, as contradistinguished from that prescribed for burglary of a private residence by article 1312, P. C.

From the evidence relied upon by the state it appears that upon the night of December 20, 1015, the appellant was at the private residence of John Machen, which at the time was occupied by the said Machen and his family, consisting of his wife and children; that a quarrel took place, growing out of the claim by Machen that appellant had attached some cotton. A fight ensued in which appellant was hit several times by Machen. Appellant left Machen’s house and went to his own, which was near by, and got possession of his gun, and returning fired at Mach-en, who was on the porch. Machen also fired, and several shots were exchanged. Machen, his wife, who was in the house, and appellant were wounded. This happened at night at the private residence of Machen, then occupied by Machen, and under the statutes and decisions of this state could not and would not sustain a conviction for the offense of which appellant was convicted. This i» held in Curtis v. State, 76 Tex. Cr. R. 661, 176 S. W. 559, and in Miller v. State, 195 S. W. 192.

The judgment of the lower court is reversed and the cause remanded.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numberad Digests and Indexes