author: DAVIDSON, P. J. PRENOERGAST, J. PER OURIAM. MORROW, J. DAVIDSON, P. J. PRENDERGAST, J.

text:
    FRY v. STATE.
    (No. 4390.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.
    On Motion for Rehearing, June 5, 1918.)
    1. Criminal Daw <&wkey;371(5) — Passing Fobbed Instruments — -Guilty Knowledge — Proof.
    In prosecution for passing forged instrument, where the evideis.ee, circumstantial or direct, shows prima facie that collateral instruments passed by accused were forgeries, such collateral instruments are admissible to show intent or guilty knowledge.
    2. Criminal Daw <&wkey;>351(10) — Evidence—Incriminating Circumstances.
    In prosecution for passing forged instruments, that defendant, afte'r being indicted, attempted at night- to get into the courthouse to gain access to the papers involved at which time two men were killed, was admissible, and the details were admissible, as res geste of the transaction, on the question of whether his intent was simply to inspect the documents or to destroy evidence.
    Prendergast, J., dissenting.
    Appeal from District Court, Olay County; William N. Bonner, Judge.
    E. W. Fry was convicted of passing a forged instrument, and he appeals.
    (Reversed and remanded.
    Edgar Scurry, of Wichita Falls, Wantland i& Parrish and Taylor, Allen & Taylor, all of Henrietta, and B. X. Cummings, of Waco, for appellant. P. A. Martin, Deslie Humphrey, Dist. Atty., and Jno. C. Kay, all of Wichita Falls, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment in the first count charged forgery, and in the second passing a forged instrument. The count charging the passing was alone submitted to tbe jury. So the forgery count passed out, and upon which in future trials he will stand acquitted.

There are a great many bills of exceptions reserved to the introduction of testimony, and several exceptions properly pointed out errors in the court’s charge. The state seems to rely upon the case of Fry v. State, 182 S. W. 331. There is a marked distinction between that and the present case. That opinion recites in quotation an agreement as follows:

“It is agreed by counsel, and it is admitted by the defendant, that the entire bunch of warrants purporting to be issued by the county clerk of Young county and his deputies and the entire bunch of checks purporting to be issued by I. B. Padgett, county treasurer of Young county, and drawn on the Graham National Bank, are each and all the genuine warrants, so issued by the clerk, and that the checks are the genuine checks of I. B. Padgett, drawn by him or by his authority, and that the indorsements appearing on the back of said checks, as E. W. Fry, are the genuine indorse-ments and signatures of the defendant E. W. Fry.”

This record does not contain such admission, and the issue of the genuineness of the indorsement of the checks is one of the most serious question arising on this record. The checks admitted were considerably over 100 in number. A serious question arising was that appellant did not sign his name or that of the payee upon the back of the cheeks. These issues were sharply contested. The state contended that the signature of appellant was genuine, and that the payee’s name was forged. These questions were to bo solved largely, if not exclusively, by the knowledge of the witnesses as to the handwriting of appellant. These transactions cover two or three years of time. The cheeks were introduced by the state upon the theory that it was necessary to prove intent of the appellant by means of systematic passing forged instruments. System is only used where it connects with the main fact, and this to show intent or knowledge or identity. Independent of these, system is not introducible as we understand the law. It is not permissible to prove independent transactions unless by doing so they show the intent of the accused, or connect him with the main fact; that is, the case on trial. The mere fact that system was pursued is not admissible independent of the other matters. The writer has not believed, nor does he yet believe, that these checks were admissible from any viewpoint of this record, or of the record in the case of Fry v. State, 182 S. W. 331. He took occasion in that case to note the fact that he did not believe the extraneous offenses, or the details thereof, should have been admitted, but the majority of the court did not take that view of the case or the law. But here we have an entirely different case from the former one, and in all of the cases there was an issue sharply drawn and hotly contested that appellant’s name was not genuine; that his name as written on these checks was not in his handwriting. The case is one of purely circumstantial evidence, and the court so charged the jury. In this case we are of opinion these checks should not have been admitted under the circumstances stated. In all of the: checks, amounting to a great number, the issue was fought with i ence to each check introduced as to the genuineness of appellant’s name. From the fact that his name was on these instruments, the deduction was supposed to be dra--that, if he signed his name upon these checks, he forged the name of the payee in the checks, or knew, if he did not sign the name, that the indorsed name was a forgery. This necessarily involves evidence as to the genuineness vel non of appellant’s name and of these various checks. So it will be seen from this statement that each check involved a separate trial as to that particular transaction, and we have the main trial turned aside from passing the instrument made payable to and indorsed by Lowe, which was the check upon which the indictment was based to all the other checks introduced. There is no question, it seems, of the fact that the check was genuine as drawn by Padgett, the alleged county treasurer. The fraud consisted in the indorsement of Lowe’s name upon the back of it, and passing the check in that condition. Lowe testified that he did not sign his name, and that the county did not owe him the amount for which the check was drawn. The same may be said of the other checks, practically all of them. It is a rule that only the case upon which the indictment declares a violation is to be tried. Extraneous or collateral offenses may be introducible to show intent, knowledge, or identity, and sometimes this may be inferred from system. But wherever the state turns aside and introduces collateral offenses, and it becomes necessary to prove the case, they are admitted with a view of ascertaining whether they are genuine. If not, they should not be introduced. This constitutes as many trials on the independent offenses as there are number of alleged independent offenses or collateral crimes. This diverts the minds of the jury and of the court from the case on trial. It involves trials separately upon each collateral offense to ascertain whether or not he is connected with that offense criminally. This was recognized by the court, and the jury instructed with reference to it. The court’s charge in this connection is as follows:

“The state has introduced in evidence a number of checks with their indorsements, other than the check mentioned in the indictment, and upon which the defendant is being tried in this case, and, with reference to these checks you are instructed: (1) That the said checks were only admitted in evidence for the purpose of showing the intent of the defendant and his system of conduct with reference to such checks, if in fact they show such intent and system of conduct, and they cannot be considered by you for any other purpose. (2) You are further instructed that you cannot consider for any purpose any such checks other than the ,T. T. L-owe check, except such, if any, as you may find and believe from the evidence beyond a reasonable doubt were altered or knowingly passed as true by the defendant without lawful authority and with intent to injure and defraud.”

So it will be seen from the court’s charge, as well as from what has been said with reference to the fact, that appellant was tried upon each collateral offense, and the jury was so informed, and that they must find from the evidence beyond a reasonable doubt that these checks were altered or knowingly passed as true by defendant without lawful authority. Then in order to arrive at a conclusion on the part of the jury as a predicate for the consideration of the illegality of these checks,- they must first determine that they were fraudulent or altered. So it will be seen, before the jury could consider these collateral offenses as evidence, they must first determine, after hearing all the facts pro and con, that they were illegal and fraudulent before passing upon the intent of the appellant. If there were 150 to 200 of these checks introduced, the jury would necessarily, under the facts, under the issues and under the charge of the court, have to determine first whether these dliecks were fraudulent, and if so, then they might consider them with reference to the main case, but, unless they did so determine, they could not be so considered. That is the ef-feet of tile charge of the court. There is no question that appellant was tried on many of them on their merits, prerequisite to their consideration as evidence. Under such circumstances these checks were not admissible. The charge above quoted, as well as the fifth subdivision of the charge, seems to be erroneous. Esception was reversed to the fifth subdivision because it was illegal in various ways, and especially that the jury must determine whether or not defendant bd‘ lieved these checks were genuine or false, and, if they should believe that the indorse-ments were made without legal authority and with intent to defraud, then they should consider them; otherwise they should not. The theory of the defendant was that, as the state was relying upon the fact that he passed the instrument, it being a case of circumstantial evidence, the jury must find that he, and not the jury, believed the check was not genuine. If he believed the check was genuine, he . was entitled to an acquittal, because there would be no fraudulent intent. The jury must look at this case, as all the other cases, from the viewpoint of defendant, and not from their viewpoint. If defendant believed the check was not fraudulent, or that the indorsement was made with lawful authority, then he would not be' guilty, although he may.have passed it. But the court instructed the jury that it was their province to believe the indorsement was made without lawful authority and with intent to defraud. Of course, they must so believe, but as a prerequisite in a case of this sort they must also ascertain the fact that defendant' so believed. This matter, was a part of the case, and the jury should have been instructed to look at it from defendant’s standpoint as to whether he believed the indorsement was illegal. The exception to this charge is as follows:

“Because the same instructs the jury that, if the name J. T. Bowe was written on the .back of the instrument set out in the second count .of the indictment by defendant Pry, or any other person, the same would be forgery, and said paragraph assumes that the defendant knew that said indorsement to be a forgery.”

The belief of the defendant was a matter for the jury to determine, and not the court. We are of opinion this exception was well taken.

There is a bill of exceptions reserved to the action of the court, permitting the state to go into the homicide transaction, involving the difficulty and all of its details, as well as the preparation for the entering of the courthouse at night and taking checks from the vault, which finally resulted in the homicide. This matter was gone into in detail in many ways which we deem unnecessary to detail. The majority is of opinion this testimony was introducible. The writer is of opinion that if this attack was made upon the officer at the courthouse with a view of securing this and other illegal checks as a means of destroying testimony, then it was admissible, but is of the opinion that the details of the whole trouble are not admissible. It was not necessary to go into all details of the shooting affair, but if wrong about that then there is another question; that is, as far as the state did go into these matters as criminating, evidence, the defendant had the right to have witnesses present to meet and to introduce all' defensive evidence to meet the state’s evidence. The opposing side always has a right to explain any matter introduced by the other side which tends to incriminate or to be used adversely to him. This has been the subject of so many decisions, and, not only so, but by express enactment of the Legislature we deem it unnecessary to discuss that matter. It seems from the bill of exceptions that there had been a trial of the homicide case against appellant, and he had been acquitted. If the state upon another trial should introduce the trouble occurring at the courthouse which resulted in the homicide, then, as far as the state goes in introducing incriminating circumstances and facts against him, defendant would have the right to rebut this by any testimony legitimately meeting and contesting such crim-inating facts. This case, it occurs to the writer, is an exemplification of the rule that extraneous matters should be gone Into cautiously. This record seems to make it certain that a great number of extraneous matters were placed before the jury, the number of which the writer has not taken the trouble to enumerate, and all the facts and circumstances connected with each one of those collateral offenses introduced. These extraneous matters were proved before the jury by the state, and denied by appellant. So we have the jury trying as many different offenses in this case as there were collateral offenses introduced. Before the state could use these matters against the accused upon his trial, it was necessary for the jury to determine the guilt of the defendant or apparent guilt in each collateral offense. If there were 150 to 200 of those extraneous crimes, then the jury had to determine in 'each that appellant was criminally connected with it to authorize its consideration under the theory of system to show his intent or knowledge. In the case of Fry v. State, 182 S. W. 331, it is recited there were 500 or 600 of these extraneous crimes or offenses introduced. The statement of this matter ought to. show the error in the use of such testimony.

For the reasons indicated, the judgment is reversed, and the cause remanded.

PRENOERGAST, J.

All the cheeks and indorsements thereon held herein inadinissi-ble, in my opinion, were clearly admissible, and correctly so held in the other case appealed by him (182 S. W. 331), and that case is not distinguishable from this in principle.

All the testimony as to the killings which was admitted was clearly admissible.

This case should be affirmed! I dissent.

On Motion for Rehearing.

PER OURIAM.

Rehearing denied.

MORROW, J.

(concurring). The appellant was charged with forgery and passing a forged instrument. The count charging forgery was not submitted. The instrument involved was a check drawn by I. B. Padgett, county treasurer, on the Graham National Bank for the sum of $84.50, payable to J. T. Lowe. It bore the indorsement of J. T. Lowe and E. W. Fry, and was passed by E. W. Fry, ■ and the state’s theory that J. T. Lowe’s name was forged, and that the appellant passed the instrument knowing of the forgery, is sustained by the verdict of the jury. It appears that the county, by authority of the commissioners’ court, was engaged in certain improvements requiring -the employment of labor and teams, and that there was a custom, sanctioned by the commissioners’ court, under which persons to whom the county was indebted collected their money by presenting an account therefor to the appellant, who was county judge; that upon his approval the county clerk issued a warrant for the amount, on the delivery of which to the county treasurer a check was issued, payable to the holder of the claim, and that the check in question was the result of a transaction following this custom. The fact that the check came into the possession of and was passed by appellant was established. J. T. Lowe testified, in substance, that he was not entitled to either the warrant or the check, and that he did not receive, indorse, or authorize the indorsement of the check. There was testimony pro and con touching the contention that the name of J. T. Lowe was written on the cheek by the appellant. The cross-examination was conducted with a view of suggesting that, although the J. T. Lowe, who testified, had not indorsed the check, it was issued to and indorsed by another of the same name and innocently passed by appellant. To discharge the burden that was upon it to show that the check was forged, and that appellant with knowledge of the forgery passed it, and to meet the suggestion mentioned, the state introduced evidence of other similar transactions, which theory was that appellant conceived the purpose to fraudu- . lently withdraw from the treasury of the county some of the money, and devised to that end a system of making fictitious accounts, entering his approval thereon, ordering the county clerk to issue warrants therefor, and obtaining against the same the treasurer’s check upon the funds of the county made payable to the fictitious creditor of the county, which check he would pass after wilting the name of the payee and his own name on the back thereof. In support of this theory the state introduced a large number of accounts, warrants, and checks, with which it showed, or undertook to show, appellant’s connection. These transactions covered a period of about three years, part of them prior and part of them subsequent to that upon which the prosecution is founded. Their admissibility was challenged by the appellant. The general rule is, of course, that an accused is to be'tried upon the merits of the charge against him, and the proof of other crimes is not received. Gilbraith v. State, 41 Tex. 567, and other cases cited in Branch’s Ann. P. O. p. 99.

The question is, Does the proof made here come within one of the exceptions to this rule? That there are exceptions to the rule is as well established as the rule itself. Branch’s Ann. P. 0. p. 98, § 166, and cases cited. That cases of passing forged instruments, where there is an issue of guilty knowledge or intent, come within one of the exceptions has often beén affirmed by this court. Ham v. State, 4 Tex. App. 645; Francis v. State, 7 Tex. App. 501; Heard v. State, 9 Tex. App. 20, and other cases cited in Branch’s Ann. P. 0. p. 864, § 1412. Mr. Wharton in his work on Criminal Evidence, vol. 1, p. 135, § 35, states what we understand to be the correct rule, as follows:

“Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter, .or guilty knowledge, even though the reception of such evidence might establish a different and independent offense.” “In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge. It is equally important in forgery and counterfeiting to establish scienter. The accused is charged with holding or circulating forged paper. He may hold one without being justly chargeable with knowledge of its character; when 3 or 4 are traced to him, suspicion thickens; if 15 .• or 20 are shown to have been in his possession at different times, then the improbability of innocence on his part decreases in proportion to the improbability that such papers could have been in his possession without his knowledge of the true character of the paper. If the accused is charged with knowingly making or holding or passing the forged paper, the possession being shown, but knowledge of its character being disputed, the fact to be proved is that the knowledge was guilty knowledge; and it is admissible to show 'that shortly before or after the fact charged he had made or had held or had uttered similar forged instruments to an extent that renders it improbable that he should have been ignorant of the forgery.”

This accords with the rule stated by Mr. Wigmore in his work on Evidence, vol. 1, § 309. See, also, Ruling Case Law, vol. 8, p. 204. There being an issue of guilty knowledge in the passing of the instrument in question, we think that evidence that appellant passed other forged checks similar in character was admissible. To make them admissible, however, they must be forgeries, and the accused’s connection with them must be proved. Ham v. State, 4 Tex. App. 645.

To identify the instrument with which appellant was connected, the state relied mainly upon the testimony oí I. B. Padgett, who was county treasurer at the time of the transactions. It is plain from the statement of facts that, in the operations of the commissioners’ court, under the custom above referred to, a great many valid transactions occurred. In other words, through the method mentioned a great many accounts were presented and proved by appellant, warrants drawn and checks collected, satisfj'ing valid claims against the county and going into the hands of the lawful holders. There is evidence of the banker who paid these checks that his only means of knowing that the particular checks submitted to him as a witness were paid to appellant was the fact that his name was indorsed thereon, and he admitted that he sometimes required indorsement for tire purpose of identification, and that the fact that appellant’s name was on the check was not conclusive to him that the check may not have been paid to the payee and the indorsement made for the purpose of identification. Padgett identified, as we gather from the record, 193 checks. The relevancy of these checks against appellant depended upon proof that the indorsement thereon was forged. To meet the legal requirement that proof of the forgery be made by it, the state relied upon various circumstances. As to some of the checks, we gather from the evidence that there was testimony that the supposed spurious indorsement was written in appellant’s handwriting. As' to others, the state produced witnesses who were residents of the county and whose names were identical with the payee in the checks, which witnesses declared that they had no connection with the check or its indorsement. As to some of the checks introduced in evidence and identified by Padgett, there was evidence that there lived in the county persons whose names corresponded with that of the payee. As to the major portion of them, however, the evidence showed that the payee, was unknown, and from this circumstance the state presented the theory that the warrants were obtained by appellant in the name of fictitious persons, and that he wrote, or caused to be written, upon the checks the fictitious name, writing his own thereunder and passing the check.

The witness Padgett in his testimony referred to several batches of checks, which he said he examined, and which bore the genuine indorsement of appellant. He gave testimony with reference to each of these checks, aggregating, as we estimate them, 193. He testified that most of the payees of the cheeks were unknown to him, though some of them were known, and from his testimony it is difficult for us to determine just how many of the payees he claimed to have known. The banker referred to testified to a wide acquaintance in the county, and in connection with his testimony there was introduced a detailed list of those who were unknown. In this list there were 144 name's.

There was evidence that the persons who worked for the commissioners’ court were both local and transient people. There was also evidence that other members of the commissioners’ court approved some of the accounts in the name of appellant. Ordinarily we understand the rule to be that, where the payee of a questioned instrument is represented to be or reside in the particular locality, and sufficient inquiry is made, developing the fact that such person is not known in the locality named, a finding of the jury that this payee is a fictitious person would be sustained. Greenleaf on Evidence, § 109; Cyc. vol. 19, pp. 1414, 1421. In this case a. number of persons to whom the county might have been indebted were transient, and some of the transactions introduced were quite remote, but, assuming that the proof met the legal measure that would establish the fact that the persons who were not known were. fictitious, and that the appellant forged the indorsement on these, and that he also forged the indorsement on the 6 or 7 with reference to which testimony was given as above stated, there remains some 40 of the checks identified by Padgett, with reference to which there appears to be no sufficient proof of forgery. They seem to be drawn by Padg-ett in favor of payees who were not unknown, and he gave no testimony to negative their genuineness nor to refute the validity of the indorsement. It may be that this is not a correct analysis of the evidence, and the counsel conducting the trial are able to point out evidence fulfilling the legal requirement that all of the collateral transactions used against appellant were forgeries. They have not in their brief, nor in their motion for rehearing, pointed it out, and we, after repeated readings of the statement of facts, have failed to discover it.

Giving full assent to the proposition of state’s counsel that, when conditions are such that collateral crimes are admissible against an accused, the state is not limited as to the number it may introduce, it cannot be denied that its right to introduce each of them depends upon its ability to introduce legal evidence competent to establish in a forgery case that the collateral transaction was a forgery.

No inference of a corrupt intent in passing the forged instrument declared on the indictment is to be drawn from the passing of a similar instrument which is not shown to be a forgery. We know of no rule which would inhibit use of circumstantial evidence to establish the fact, that an instrument provable as a collateral transaction was a forgery, but, as said by the Supreme Court of Vermont in State v. Williams, 27 Vt. 725:

“To be entitled to any force, as it is only circumstantial and collateral to the main issue, its truth should be established beyond all question or cavil.”

And as said by Mr. Greenleaf:

“When such other instruments said to be forged are offered in proof of guilty knowledge, there must be strict proof that they are forgeries.” Greenleaf on Evidence, vol. 3, § 1X1.

The principle that the proof upon which collateral crimes will become admissible must amount to proof, and that evidence of circumstances upon which a suspicion may be founded is not sufficient has often been approved. State v. Saunders, 08 Iowa, 370, 27 N. W. 455; People v. Altman, 147 N. Y. 473, 42 N. E. 180. This principle is recognized in Taylor’s Case, 47 Tex. Cr. R. 109, 81 S. W. 933, wherein the court says: •

“We would not be understood as hohlina- that contemporaneous suspicion against appellant would be admissible, but contemporaneous acts tending to show and make out a prima facie case of forgery or passing a forged instrument.”

The principle has been definitely affirmed in Ham’s Case, 4 Tex. App. 645.

Our conclusion is that in those instances in which evidence, circumstantial or direct, show prima facie that the collateral instrument was a forgery and was passed by appellant, it should be received, and that the record, as presented and as we read and understand it, shows that a number of instruments of this class were introduced in evidence, and the jury authorized to consider them against appellant, where there was an absence of sufficient evidence to prove that they were in fact forgeries, and'that in consequence of the admission of these a reversal of the case should be ordered.

There was evidence that after appellant was indicted for forgery he sought, without success, through his attorney, to have access to the various documents which bore upon these transactions that were in one of the vaults in -the courthouse, and that he subsequently undertook to go into the-■courthouse at nighttime and secure access to these documents. In his efforts to do so shots were exchanged between appellant and some of the parties with him, who were disguised, and persons guarding ■ the courthouse, these shots resulting in the death of ■one of appellant’s party and one of the guards. The efforts to accomplish this purpose were admissible. Parker v. State, 43 Tex. Cr. R. 526, 67 S. W. 121. The incidents of the transaction which were proved were res geste of the transaction, and were .admissible as giving color to the acts and enabling the jury to weigh them in solving the controversy between the state and the' defendant as to whether his purpose was simply to inspect the documents, or to obtain and suppress the evidence of the offense. Wharton, Crim. Ev. § 748.

I concur in the order overruling the motion for rehearing.

DAVIDSON, P. J.

I agree to the overruling of state’s motion for rehearing, but adhere to the original opinion as my opinion of the case.

PRENDERGAST, J.

I concur with Judge MORROW in holding the forged checks were admissible. I think the proof was sufficient to admit all of them. Rut even if it could be held -the proof might be lacking, as to some of them, their admission was an immaterial error. I also concur with Judge MORROW in holding the facts of the killings objected to were admissible. Upon the-whole, the case should be affirmed, not reversed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests 'and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    JONES v. STATE.
    (No. 5042.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    1. Criminal Law &wkey;>1159(5) — Verdict—Excessive Punishment.
    Assessing punishment being in the discretion of the jury, a verdict within the limits of the statute is rarely set aside as excessive.
    2. Larceny <&wkey;55 — Sueeiciency oe Evidence.
    Circumstantial evidence held sufficient to sustain conviction of theft of one claiming to have been given the articles by another to sell.
    3. Criminal Law &wkey;>448(2) — Evidence—Conclusion.
    Answer in the negative to question whether witness knew a person of a certain name is a statement of fact, and not a conclusion.
    4. Criminal Law <&wkey;695(2) — Trial—Objections to Evidence.
    Testimony being admissible for any purpose, general objections of irrelevancy and. immateriality are not well taken.' . .
    5. Criminal Law <&wkey;1092(6) — Appeal—Bill oe Exceptions — Late Filins.
    Bill of exception filed more than two months after adjournment of court will not be considered ; there being no order in the record allowing it to be so filed.
    Appeal from District Court, Grayson County ; C. T. Freeman, Judge.
    WTill Jones was convicted of theft, and appeals.
    Affirmed.
    E. W. Neagle, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the theft of 730 pounds of brass, and awarded ten years in the penitentiary.

It is contended, first, that the evidence is not sufficient, and, second, that the verdict is excessive. These were made grounds of the motion for new trial, and exception was reserved to the court’s action overruling these grounds of the motion. The bills of exception add nothing to the force and effect of the action of the court overruling the motion for new trial upon these grounds. We are of opinion that the evidence is sufficient. Under our authorities it seems that it was within the discretion of -the jury to assess the punishment, and it is rarely the case where a verdict is set aside because of excessive punishment, where the statute gives a graduated punishment from a minimum to a maximum number of years.

The case is one of circumstantial evidence. The property was taken from one of the shops of the Katy Railroad at Denison. Appellant testified, and it is shown, that he carried this brass from Denison to Dallas and sold it. He claims to have taken it for a man named Morrison, who delivered it to him for the purpose of selling it in Dallas. Appellant employed a chauffeur with a car, and in this car or auto he carried the property from Denison and sold it in Dallas. There was some uncertainty about his identification as the party who made the trade with the purchaser in Dallas. There is no uncertainty as to the fact he was in the car with the chauffeur when they drove to Dallas and when the sale was made, and that he hired the car for that purpose. The seller directed the purchaser to mail the check to Denison to Tom Morrison, ordering it to be drawn in Morrison’s name. Later appellant and two other parties went near the postoffice in Denison and appellant directed one of the parties to go to the post-office and call for the letter to Morrison. The officers immediately arrested appellant and the party who called for the letter. Appellant testified to the fact that Morrison induced him to carry this property to Dallas and sell it. Morrison was not identified and connected with it otherwise. There is some evidence to the effect that such a negro as Morrison Vas not known to the officers and people around Denison. It was claimed Morrison lived in Oklahoma, and brought this brass to Denison and induced appellant to carry it to Dallas and seil it for him. Appellant paid the chauffeur $18, or agreed to pay him $18, to carry him to Dallas to make the sale.

The witness Craig, after testifying that he had been deputy sheriff of Gray-son county for eight years, and had been special officer for the Missouri, Kansas & Texas Railway Company, and had been chief of police during the portion of the time he lived in Denison, was asked by the county attorney if in his experience as an officer he came in contact with the citizenship of Denison and the negroes of Denison. He answered both questions in the affirmative. He was then asked if he knew or had-known a negro named Tom Morrison living in Denison. He answered in the negative. Objection was urged to this on the ground that it was irrelevant and immaterial and just an opinion and conclusion of the witness. It was a fact whether he knew Tom Morrison or not, and not his conclusion. The objections on the ground of irrelevancy and immateriality may be treated as general demurrers. If this testimony was admissible for any purpose, these objections were not well taken. No special exceptions were urged. There was no error in this matter. Morgan v. State, 201 S. W. 654, recently decided.

There is quite a lengthy bill of exceptions containing questions propounded to the purchaser at Dallas and his answers with reference to the matters that occurred between himself and the seller and the conversations. This all was directed to the identity of the appellant as being the party in Dallas. We think it unnecessary to repeat this lengthy bill, but the testimony was admissible. The court qualifies this bill with this statement:

“The defendant testified that he delivered to the dealer at Dallas the brass for which the check to Morrison was sent, and that he directed the purchaser of the brass at Dallas to mail the check for same to Tom Morrison at Denison.”

We think with this explanation and defendant’s testimony in connection with it, which is verified by the record, that this testimony was admissible.

Bill of exceptions No. 7 will not be considered. The bill was qualified with this statement by the court:

“The term of court at which this case- was tried finally adjourned on Eebruary 2, 1918. This bill of exceptions was presented to me upon April 5, 1918, and was never in any manner presented or called to my attention before and is now when first presented allowed and ordered filed herein.”

The court allowed the bill and ordered it filed with that statement. This was something over two months after the adjournment of court. There is no order in the record allowing the bill of exceptions to be so filed. The bill therefore came too late, and cannot be considered.

We are of opinion the judgment should be affirmed, and it is accordingly so ordered.
      otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    Ex parte HOLLINGSWORTH.
    (No. 5027.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    INTOXICATINS LIQUORS <&wkey;15 — MILITARY Camps — Prohibition Zone — Statutes—Validity.
    Acts 35th Leg. (4th Called Sess.) April 15, 1918, § 1, making it unlawful in time of war between United States and another nation to sell, barter, or exchange intoxicating liquors within 10 miles of the land or buildings occupied or controlled by the United States government and used as a fort, arsenal, training camp, or quarters, is not unconstitutional, but is a valid exercise of police powers.
    ■ Davidson, P. J., dissenting.
    Original application for habeas corpus on relation of G. H. Hollingsworth.
    Application dismissed.
    McLean, Scott & McLean and Leonard M. Levy, all of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Relator, restrained under a complaint charging, in substance, that he sold intoxicating liquors in Tarrant county, in time of war between tbe United States and tbe German Empire, witliin ten miles of a United States military camp designated as Camp Bowie, seeks release by original application for babeas corpus on tbe ground that tbe act of tbe Legislature upon wbicb tbe prosecution is based is in conflict witb tbe state Constitution, and is also in conflict witb tbe law of Congress. Tbe section of tbe act of the Texas Legislature involved is as follows:

“From and after April 15, 1918, it shall be unlawful for any person in time of war between the United States and any other nation or country to sell, barter or exchange any spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, within ten miles of any part of the land or buildings occupied or controlled by the government of the United States, or any department thereof, and used as a fort, arsenal, training camp, quarters, or place where soldiers are, or may hereafter, be camped, stationed, or quartered; aviation field or school where soldiers, sailors, marines, or • aviators are being quartered, drilled, or trained for service in any branch of the United States army or navy, except as herein provided.”

Section 5 of tbe act makes a violation of tbe provisions of tbe act a felony punishable by confinement in the state penitentiary for a term of not less than two nor more than five years, without tbe benefit of tbe suspended sentence.

Tbe application, after charging that tbe relator is held by the sheriff of Tarrant county, on a warrant issued by reason of the complaint mentioned, and setting out tbe constitutional provisions with which it is charged to be in conflict, contains tbe following :

“Relator further shows to the court that that portion of Tarrant county, Tex., wherein the offense, is alleged to have been committed, has not heretofore adopted local option, and the sale of liquors has been lawfully pursued therein for many years continuously up to and including the 35th day of April, 1918, and but for 'the inhibition of said act above referred to, such acts were and are lawful.”

No other facts are set out or proved, but those alleged are conceded to be true.

The act of'Congress is chapter 15, First Session of tbe Sixty-Fifth Congress (40 Stat. p. 76), approved May 18, 1917, entitled, “An act' to authorize the President to increase temporarily the military esablisbment of tbe United States.” Section 12 of tbe act contains tbe following:

“That the President of the United States, as Commander-in-Chief of the army, is authorized to make such regulations governing the prohibition of alcoholic liquors in or near military camps and to the officers and enlisted men of the army as he may from time to time deem necessary or advisable.”

This section also declares a violation of such regulations if made would he a misdemeanor, punished with a fine not exceeding $1,000 or imprisonment for not more than 12 months, or both. Pursuant to' this authority the President of tbe United States made an order that alcoholic liquor shall not be sold, given, served, delivered or shipped into the zone created,' as follows:

“1. There is hereby established a zone five miles wide,, circumjacent to 'the boundaries of every military camp (except'that within the existing limits of an incorporated city or town the zone shall not include any territory more than one-half mile from the nearest boundary of such camp).”

From a careful investigation of the subject ,we state the conclusion that tbe section of tbe act of tbe Legislature upon which tbe prosecution is founded, in its application to tbe locality in wbicb tbe alleged offense took place, was not inhibited by tbe act of Congress, nor tbe order of tbe President thereunder. Tbe act of Congress rests upon the clause of the United States Constitution granting power to raise and maintain armies, and upon that subject is supreme and exclusive of state authority. Tbe state possesses no military power further than that given by tbe Constitution, relating to its militia and to repel invasion. Tbe war and military power is vested in Congress. U. S. Const art. 1, § 8; Tarble’s Case, 13 Wall. 397, 20 L. Ed. 597; U. S. Const, art. 4, § 4, Tbe state possesses tbe po.wer to regulate intoxicating liquors within its domain, and this is exclusive of the power of Congress save to tbe extent that regulations on the subject may be necessary in tbe exercise of of some other power vested in Congress by tbe Constitution. Cooley, Const Lim. (7th Ed.) p. 834; U. S. v. De Witt, 9 Wall. 41, 19 L. Ed. 593. Applied to tbe present matter, tbe power of tbe state, through its constitutional and legislative methods of regulation of tbe sale and use of intoxicating liquors, obtains throughout the state, except in so far as it may be modified or superseded by tbe President’s order made as an incident to the enforcement of tbe power of Congress over its armies. Tbe analogy of tbe rules declared by tbe Supreme Court of tbe United States applicable to the power of Congress over the subject of interstate commerce to tbe exercise of tbe power involved in this proceeding is not complete. The cases of Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Railway v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237; Railway v. New York, 233 U. S. 671, 34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138, and numerous others cited by relator, declare tbe power of Congress over tbe subject of interstate commerce exclusive, and that when Congress acts all state laws touching interstate commerce are superseded, and in instances tbe inference from inaction by Congress loads to tbe same result

Unlike tbe subject of intoxicating liquors upon wbicb tbe state’s power is complete, regulation of interstate commerce is not within tbe scope of tbe police power of tbe state. There appears to be a distinction between tbe power under tbe interstate commerce clause, where the power of Congress is exclusive, and a regulation of Congress incidental to its military power affecting the subject of intoxicating liquors peculiarly .within the domain of state legislation. Even in the construction of police regulations of the state, which incidentally indirectly affect interstate commerce, the rigid rule applied in the cases cited by relator is not enforced. Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182. Illustrative is the expression of the Supreme Court in upholding a police regulation with reference to diseased cattle, which incidentally affected the subject of interstate commerce upon which there existed a federal statute. The court said:

“This question must of course be determined with reference to the settled rule that a statute enacted in execution of a reserve power of the state is not to be regarded as in consistent with an act of Congress passed in the execution of á clear power under the Constitution, unless the repugnance or conflict is so direct and positive that the two acts cannot be reconciled or stand together.” Ry. v. Hober, 169 U. S. 613, 18 Sup. Ct. 488, 42 L. Ed. 878.

So in the ease of Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108, making a similar ruling, the court said:

“It should never be held that Congress intends to supersede or, by its legislation, suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said — and the principle has often been reaffirmed — that, in the application of this principle of supremacy of an act of Congress in a ease where the state law is but the exercise of a reserve power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconcEed or consistently stand together.”

Other federal authorities are Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75; McLean v. Railway, 203 U. S. 38, 27 Sup. Ct. 1, 51 L. Ed. 78; Atlantic Coast Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, 52 L. Ed. 230; Railway v. Eubanks, 184 U. S. 27, 22 Sup. Ct. 277, 46 L. Ed. 416; Asbell v. Kansas, 209 U. S. 251, 28 Sup. Ct. 485, 52 L. Ed. 778, 14 Ann. Cas. 1101.

The act of Congress is indicative of the intent to regulate the prohibition of alcoholic liquors near the military camps and to officers and enlisted men of the army as deemed necessary and advisable by the President. The extent to which the President has deemed it necessary and advisable to make such regulations is embraced in his order establishing a zone around military c-amps. This order we think is expressive of the extent to which Congress has entered the legislative field of and control of intoxicating liquors. It has not, by entering the field to.this limited extent, as incidental to the enforcement of the power granted by Congress to raise and maintain armies, ousted the state from its jurisdiction of the remainder of its domain, nor annulled therein the prohibition laws enacted under the local option clause of the Constitution, nor the regulations in nonprohibition territory prescribed by statute. Savage v. Jones, supra.

Section 13 of the same act of Congress is the same, in substance, as section 12, supra, save that section 13 authorizes the military authorities to prohibit bawdyhouses near military, camps. An order establishing a zone within which such prohibition was effective was before the federal court in Ohio, and from the opinion we quote the follow-

“That the state in the exercise of its police power has the right to legislate, and in pursuance of that right has legislated, to control the morals of its citizens, and may prosecute the keepers of bawdy houses, is freely conceded; but their conviction and sentence for that offense in the state court, had action been taken against them there, would not bar prosecution in this court Cross v. North Carolina, 132 U. S. 131, 139, 10 Sup. Ct. 47, 33 L. Ed. 287; Sexton v. California, 189 U. S. 319, 323, 23 Sup. Ct. 543, 47 L. Ed. 833; Byrne, Fed. Crim. Proc. § 211. The attitude of the government is that Congress, not in the exercise of the police power, but in the exercise of the war power conferred upon it by the federal Constitution, may also, as a matter of right, prohibit the presence of such places within the prescribed territory without encroaching on the jurisdiction of the state.” United States v. Casey (D. C.) 247 Fed. 365.

We refer to the above as emphasizing the view that the military regulation of alcoholic liquors is not exclusive of the state’s police po.wer on the subject. The question of whether the federal rules and this state’s law can coexist and be enforced in the same territory is not involved, and not decided; it appearing that relator’s alleged offense was not committed within the federal zone.

We are also of the opinion that that part of the act of the Legislature under which relator is prosecuted for the sale of the liquor complained of, as applied to the place at which the sale is charged to have occurred, is not a prohibition of the sale of intoxicating liquors in conflict with section 20, art 16, of the state Constitution, but a regulation of the sale consistent with and supported by the numerous authorities in this state interpreting the power of the Legislature to regulate the sale of intoxicating liquors in localities where the sale is not prohibited under said article of the Constitution. Ever since the Constitution of 1876 was adopted the prohibition law has been made effective under the local option laws in counties and districts deciding, by vote, to put it in force, and in the remainder of the state the sale of intoxicating liquor has been conducted under laws regulating it. The legislative power to prohibit, having never been asserted, has not been determined by the courts.

The decisions of this and the Supreme Court of the state relating to the subject deal with the two phases mentioned, namely: First, defining the limits of legislative authority over the subject in subdivisions of the state which by vote have declared in favor of prohibition; and, second, those passing on the various acts enforcing the power of the lawmaking branch of the government to regulate the sale of intoxicating liquors in those parts of the state where its sale has not been prohibited under the local option clause of the Constitution.

In the first class mentioned are found the cases relied on by relator to sustain his contention that tne provision of the act under which he is held is an attempt to exercise a power not possessed by the Legislature by reason of the restrictions upon its power coming from section 20, art. 16, of the Constitution, which is as follows:

“The Legislature shall, at its first session enact a law whereby the qualified voters of any county, justice’s precinct, town, city (or such subdivision of a county as may be designated by the commissioners’ conrt of said county), may, by a majority vote, determine from time to time ¡ whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.”

He cites Holley v. State, 14 Tex. App. 516; Dawson v. State, 25 Tex. App. 670, 8 S. W. 820; Ex parte Brown, 88 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743; Stephens v. State, 73 S. W. 1056; Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656; State v. Texas Brew. Co., 106 Tex. 121, 157 S. W. 1166.

Holley’s Case was one in which the court held a statute invalid which authorized the qualified voters of a subdivision of a county to prohibit the sale, exchange, or “gift” of intoxicating liquors for the reason that section 20, art. 16, of the Constitution only authorized the people in a local' option district to determine whether the “sale” of intoxicating liquor shall be prohibited.

In Dawson’s Case, supra, the question arose upon this state of fact: When the local option law was put in effect the statute covering it provided that it might be repealed by vote of the people after .one year. Subsequently the Legislature amended the act providing that the election for its repeal could not be held until the expiration of two years. An election was held within less than two years, resulting against prohibition. Dawson was discharged by the court on his contention that the election resulting against prohibition repealed the law in the territory involved, holding that the Legislature was without power to change by amendment the time within which the repeal could take place after prohibition had been adopted. From the opinion yve quote as follows:

“Our view is that the amendatory act of July 4, 1887, in each and all of its provisions, was intended to and does operate only in localities which have adopted since it went into effect, or may hereafter adopt, local option in accordance therewith, and that said provisions cannot and do not, and were not intended to, operate in localities which prior to their going into effect, had voted upon and adopted the law as it was prior to such amendatory provisions. Any other view, it seems to us, would invade the constitutional rights of the people of such localities and foist upon them a law which, perhaps, they never would have adopted, a law with respect to which their ‘option’ had, never been consulted or ascertained; a law enacted, not by them, but by the Legislature, without constitutional right.”

Ex parte Brown, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743, declared the cold storage act void, an act making it unlawful to keep intoxicating liquors for others on cold storage in districts where the sales were prohibited under the local option statute. The language of the court, in part, is as follows:

“That provision inhibits the sale only, and was evidently intended by the people to mark the limitation of power of the Legislature on that subject. The people, in saying that a sale of intoxicating liquors might be prohibited, deny to the Legislature the power to otherwise interfere with its use; and the cold storage act was an attempted interference with the use of intoxicating liquors iu local option territory, not authorized or warranted by the Constitution.”

See Ex parte Flake, 67 Tex. Cr. R. 216, 149 S. W. 146.

Stephens’ Case, 73 S. W. 1056, held an act of the Legislature void, making it unlawful to give a prescription for intoxicating liquors in local option territory. It quotes and follows the Holley Case, supra.

State v. Texas Brewing Co., supra, held an act of the Legislature, levying a tax upon the pursuit of the business of taking orders for the sale of intoxicating liquors in prohibited territory, void upon the ground that, under the facts of the case, taking orders would amount to a sale, which, being prohibited in local option territory, could not be licensed. Judge Brown, writing the opinion, used the following language:

“All powers of government reside in the people, and the officials of the different departments exercise delegated authority. However, the Legislature can exercise all legislative power not prohibited by the Constitution. But the section of the Constitution quoted provides a method (a referendum) by which the voters of a given territory may exercise the sovereign power of legislating upon this subject, which places, the law adopted by them above legislative authority, as if it has been embraced in the Constitution, and we must so consider the local option law adopted by the voters of Clay county, for that, like the Constitution, is the exercise of primary sovereignty. Therefore, what is prohibited by the local option law, to be done in Clay county, as to sale of intoxicating liquors, cannot be authorized by the Legislature to be done there.”

In the Lewis Case, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656, the previous cases cited were reviewed by Judge Ramsey who wrote the opinion. The conclusion reached was that by reason of the judicial interpretation of the constitutional provision mentioned, and the subsequent implied adoption rof that construction by legislative enactment, a statute making the penalty for a violation of the law prohibiting the sale of intoxicating liquors a felony would not operate in the district which adopted the prohibition when the penalty for its violation was a misdemeanor. Consequently, upon the interpretation of the Constitution given in ! the cases mentioned, the penalty for the violation of the local option law in the several counties of the state varies according to the status of the legislative enactment at the time that prohibition was adopted in the particular counties. Among other authorities on the subject are Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Dupree v. State, 102 Tex. 459, 119 S. W. 301; Segars v. State, 40 Tex. Cr. R. 577, 51 S. W. 211; Ex parte Flake, 67 Tex. Cr. R. 216, 149 S. W. 146; Johnson v. State, 75 Tex. Cr. R. 177, 171 S. W. 211; Longmire v. State, 75 Tex. Cr. R. 616, 171 S. W. 1165, Ann. Cas. 1917A, 726; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040.

The judicial view of the restrictive effect of section 20, art. 16, of the Constitution on the legislative power in districts in which the prohibition has been put in operation by-vote of the people shed only an indirect light on the power possessed by the Legislature in districts such as that in which relator is charged with offending, where such prohibition has not been put in - effect under the local option law. Laws' regulating the sale and use of intoxicating liquors in districts of the state where the sale was not prohibited under the local option law have been enacted by the Legislature in great variety and number, and in many instances their validity has been passed on by the courts. Illustrations' are: Article 155 of the Penal Code, relating to C. O. D. shipments, held valid in L. Craddock & Co. v. Wells Fargo Express Co., 58 Tex. Civ. App. 551, 125 S. W. 59. Article 630, P. C., prohibiting sales of intoxicating liquors on election days. See Anderson v. State, 39 Tex. Cr. R. 34, 44 S. W. 824. Article 1054, P. C., prohibiting the sale or gift of such liquors to minors upheld in Hogan v. State, 66 Tex. Cr. R. 514, 147 S. W. 601. Articles 595 and 623, P. C., relating to sales to habitual drunkards. Article 630, P. C., relating to sales at religious assemblages, held valid. Keith v. State, 38 Tex. Cr. R. 680, 44 S. W. 847.

The sale in the instant case took place in Tarrant county, within ten miles of Camp Bowie, at a place where the sale of intoxicating liquors is not prohibited under the local'option law, and has been lawfully pursued up to the passage of the act of the Legislature in question, which is the only inhibition against its sale making it unlawful. The case of Cohen v. Rice, 101 S. W. 1053, decided by the Court of Civil Appeals at Dallas, the Supreme Court denying writ of error, was one in which an application for mandamus was sought to compel the tax collector to issue Cohen a license as a retail liquor dealer. The city of Marshall was a place in which the sale of intoxicating liquors was permitted. The mandamus was refused because of an ordinance of the city made under legislative authority, which prohibited the issuance of license to any person to sell or give away intoxicating liquors in any part of the districts defined, the prohibited districts including about eight-ninths of the territorial limits of the city. It was urged that in these districts there was established prohibition, which it was claimed was available only under the terms of article 16, § 20, of the Constitution. The ordinance was sustained, the court using the following language:

“The ordinance does not prohibit the sale of intoxicating liquors in the city of Marshall, but regulates the same in the city by confining the sale to the business portion of the city.”

The principle announced in Cohen v. Rice, supra, has been accepted as sound and applied in numerous instances by this court, as in Ex parte King, 52 Tex. Cr. R. 383, 107 S. W. 549, construing a provision of the special charter of Ft. Worth granting authority to prescribe saloon limits of said city. The court, holding the provision valid, used the following language:

“The Legislature of this state is authorized to empower the city council by special charter to prescribe the boundaries and limits within which the sale of liquor shall be prohibited by law, and such local authorities may define and limit the area within which alone such sales may be lawful. This was distinctly ruled in. ■the case of Cohen v. Rice, 101 S. W. 1052, by the Court of Civil Appeals of the Fifth Supreme Judicial District, in which case writ of error was refused by our Supreme Court. This is in accordance with, and is well settled by, the authorities.”

Similar ruling was made with reference to an ordinance of the city of Dallas in Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121, and with reference to an ordinance of Texarkana in Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 883, 18 Ann. Cas. 45. To the same effect, is Garonzik v. State, 50 Tex. Cr. R. 535, 100 S. W. 374, and Le Gois v. State, 190 S. W. 724. See, also, Paul v. State, 48 Tex. Civ. App. 25, 106 S. W. 448, and Andrews v. Beaumont, 51 Tex. Civ. App. 625, 113 S. W. 615. '

We have some statutes and decisions applicable to nonlocal option districts, prohibiting the sale of intoxicating liquors to certain persons in certain localities, and at certain times. This restriction is confined to a part of Tarrant county near United States military posts or camps during the war.

The conclusion that this is a regulation within the scope of the principle discussed in Cohen v. Rice, supra, and cases following it is difficult to escape. The provisions reviewed in the case of Cohen v. Rice, supra, are stated in the opinion as follows:

“(1) In March, 1903, the Legislature of the state of Texas granted to the city of Marshall a special charter, and section 16 of article 1 of the city charter reads as follows: ‘The city council shall have the power to prescribe by ordinance that no intoxicating liquors shall be sold or given away within the corporate limits of said city in any certain prescribed district in said corporation in which there are more resident than business houses, said districts to be accurately defined by said ordinance.’ (2) The city council in June, 1906, adopted an ordinance under the above provisions of the city charter,, defining the resident districts of the city, -which ordinance provides that it shall he unlawful for any person, firm, or corporation, etc., to sell or give away any intoxicating liquors within any or either of the prescribed districts situated within the corporate limits of the said city of Marshall.”

The effect of this ordinance was to withdraw a part of the territory of the city of Marshall from the operation of the laws in force in that city, permitting the sale of intoxicating liquors under the license law, and to prohibit the sale of such liquors in the territory thus withdrawn. The effect of section 1 of the act of the Thirty-Fifth Legislature in question is to withdraw a part of the territory of Tarrant county from the operation of the laws, permitting the sale of such liquors, and to prohibit the sale of such liquors in the territory thus withdrawn. The analogy is obvious.

While, as stated, the Legislature would have no right to pass a law conflicting with the constitutional provisions, express or implied, on the supposition that it possessed such power as a war measure, the judicial knowledge of the court that the country is at war; that the state by large appropriations is aiding to the extent of preparing 'the militia for service in the federal army; that at several points in the state of Texas the United States authorities have located military camps and cantonments, at which are concentrated large numbers of troops; that the conditions produced are abnormal to an extent that Congress has authorized, and the military authorities have adopted stringent regulations with reference to alcoholic liquors and other sources of vice in the vicinity of these camps, may be considered, in aid of the legal presumption in favor of the validity of laws, in determining the reasonableness of the exercise of the police power of the state in the present instance.

The Constitution affords relator no guaranty of the privilege of selling intoxicating liquors in any specified locality in Tarrant county, nor in any particular portion of any of its political subdivisions or defined districts ; nor has he shown that his authority to sell these liquors within the limits of the county, or within limits of any of the subdivisions or districts thereof, in which the sale of such liquors is permitted under the license laws, is unreasonably abridged by the enforcement of the regulation -under consideration.

The application for writ of habeas corpus is dismissed.

PRENDERGAST, J.

(concurring). I hold the act is valid as a necessary and reasonable regulation.

And I also hold it valid under the inalienable police power of the Legislature as straight prohibition in the prescribed zones, as a necessary aid to the successful prosecution of the war.

And I further hold there is no eonstitu- ' tional provision, state or national, which directly or by implication forbids or prevents it.

DAVIDSON, P. J.

(dissenting). There are two propositions involved that I desire to mention, and incidentally discuss briefly: First, that the act under consideration was intended to operate upon the military forces of the United States at training camps, forts, arsenals, shipyards, and aviation camps as a regulation and discipline of their conduct and in their contact with the citizenship of Texas, and therefore it is a war measure, and expressly so stated in the act itself, to wit, that it was to- last during the war, and pass out of existence at the termination of that war. Second, that it is not a regulatory act, but one drastic in its action and purpose with reference to prohibiting the sale, shipment into the alleged zone, and use of intoxicating liquors by the military forces of the United States. Eliminating the military phase of it and its correlated connection, this law would have no standing in court for any other purpose. I, therefore, concur with Judge MORROW in the statement that the Legislature has no authority, express or implied to enact the statute under consideration as a war measure, but I cannot concur with him in his holding that the act may be used as a police regulation. Police power of the state does not pertain to nor include war measures or the control in any of the army and military matters of the United States. That belongs exclusively to the federal government. The control of the army and all military laws and discipline pertaining to regulation and control of the army and its management and maneuvers were delegated to the federal government by the state in • the federal Constitution. The state of Texas, therefore, has no authority to declare war or enact war measures. If it be used as a part of the police power, then we have, in addition to the police power, and overriding military law, and that phase of government- resorted to when the police power has failed, and thereby it becomes dominant over civil authority. This would be violative of article 1, § 24, of the state Constitution, known as the Bill of Rights. It prescribes that:

“The military shall at all times be subordinate to the civil authority.”

Instead of the military controlling the police power of the government that po-wer should be superior to the military in state matters, as evidenced by this provision of the Constitution. See, also, State v. Sparks, 27 Tex. 705. That this is a war measure seems to be certain from the wording of the act, which is shown throughout the entire bill from 'caption to emergency termination. That my personal views may not be substituted for the statute, quotations will be made from the act. It is known as House Bill No. 9. The caption provides:

“An act to prevent and prohibit in time of war the sale, barter, or exchange of spirituous, vinous and malt liquors, or medicated bitters •capable of producing- intoxication, within ten miles of any fort, arsenal, training camp, cantonment, aviation field or school where soldiers, sailors, marines or aviators are being quartered, held or trained, or quartered, or where ships are being 'built under contract with the government ■of the United States in time of war, in any branch of the army or navy of the United •States.”

There are other matters mentioned in the enacting clause, but they all pertain, as does ■that already quoted to a state of war.

'Section 1 of the act provides that:

“From and after April 15, 1918, it shall be ¡unlawful for any person in time of war between the United States and any other nation or country to' sell, barter or exchange any spirituous, •vinous or malt liquors, or medicated bitters .capable of producing intoxication, within ten, miles of any part of the land or buildings occupied or controlled by the government of the .United States,” etc.

Section 2 provides:

“It shall be unlawful for any person, firm or ■corporation, in time of war between the United States and any other country, to ship or transport by or over any common carrier, express, or .service car, any spirituous, vinous or malt liquors, etc., into the zone or territory within 10 miles of any part of the land or buildings occupied or controlled by the United States government or any department thereof,” etc.

.Section 2a provides:

“It shall hereafter be unlawful for any per■son in time of war between the United States and any foreign country, to sell, barter, or exchange any spirituous, vinous or malt liquors, etc., within ten miles of any place used as a yard or place where ships are being built under contract with the government of the United ’ .States.”

Section 3 provides:

“It shall be unlawful for any person, in time •of war between the United States and any other country, to carry, in any manner, any spirituous, vinous or malt liquors, etc., into the zone or territory within ton miles of any part of the land or buildings occupied or controlled by the United States government or any department thereof,” etc.

ISection 3a excepts out of the provisions the sale of wine for sacramental purposes and Alcoholic liquors used as medicine, under circumstances prescribed in the act. Section .5 provides a penalty of not less than two nor more than five years for each separate violation of any of these provisions. Section 6 provides for injunction proceedings. Section 7 gives preference to cases arising under this .act to other cases on the docket. Section S provides that, if any section, or part of this act be held unconstitutional or invalid, such holding shall not affect any other portion of the act. Section 9 is the emergency clause, .and reads as follows:

“Whereas, there are many points in Texas where soldiers, sailors, marines and- aviators are being trained for service in the army and navy of the United States, near which liquor is being .sold to the great injury and detriment of the morale and efficiency of said l troops, there exists an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and that this act become effective from and after April 15, 1918, and it is so enacted.”

It will be noted from these quotations that the only reason for the enactment of this bill was to prohibit during the war between the United States and Germany the sale of intoxicating liquors in ten-mile zones around forts, camps, arsenals, and shipyards to the soldiers within said ten-mile zone. It assigns no other reason and states no other proposition. This is interdicted by the federal Constitution, for the federal government has absolute control of the army and military matters to the exclusion of the state. This does not militate against the right of the state of Texas to repel invasion of its territory, but here there is no pretense of an invasion of Texas soil, or that the bill was enacted because of that reason. Every feature of the bill and word of it excludes that idea. The act, therefore, may be stated in a general way to be a war measure, designed to control the military department of the United States army and navy and shipyards, and is a prohibition law of the most stringent and drastic form.

Judge MORROW is also correct in his statement that the bill as a war measure is not justified by either express or implied power in the state Constitution, or that might be exercised by the Texas Legislature. This would be placing the military above the civil authorities, as well as an invasion of the power conferred upon the federal government. It would be an attempted resumption of that delegated authority. As a general proposition, it is here stated as a safe rule that no implied power exists, unless it is preceded by or bottomed upon an express grant of authority. In this instance there was not only no express or implied authority for the enactment of this bill, but Texas by her deliberate act conferred that power upon the federal government. This excludes state authority to declare war or to enact war measures. A discussion of that subject would be here without any particular profit. That we are engaged in a great war is evidenced by. the current history of the times, and this shows practically a war of world-wide proportions, in which the government of the United States is taking a bold foremost position and entering into it with the strongest hand possible. The direction of these affairs has been confided to the federal government, with the President as Commander-in-Chief of the armies, and it is not the province of Texas to undertake to direct war measures. Military laws, therefore, belong to tire federal and not the state government. As before stated, this act cannot be justified as a war measure, and, that being its only purpose, it is illegal and void.

The application for the writ of habeas corpus is dismissed and denied in Judge MORROW’S opinion because, as stated, applicant failed to show as a fact that this, .as a police measure, has deprived him of any right, and this statement is supported by citing authorities dealing with the question of restricted saloon districts in municipal corporations. Quite a number of these cases have been decided by this court and civil courts of Texas, to the effect that municipal corporations may be endowed with power by legislative act to create what is called' “restrictive saloon districts” within the domain or territory covered by the respective charters. The writer does not believe these cases are in point. In all such charters, and they practically cover the cities of Texas, it will be noted that power was granted to pass ordinances restricting the sale of intoxicants within the' corporate limits of the municipal boundaries to certain- districts or portions of the .territory of said municipality. That was but a regulation specified in the law itself, and went with and was a part of the charter. This was justified by article 11, § 5, of the state Constitution. But in all of those laws and in all of those cases the proposition is asserted and supported that: First, there was a legal right to sell in the territory; second, the municipality was clothed with authority to select the limits in which it should be sold for better regulation and control. This bill has none of the features of regulation as specified in those eases. The law in this instance is a drastic prohibitory enactment. It nowhere authorizes the sale within the territory in or outside of a restricted district, but it bars all saloons and excludes every character of dealing with intoxicants inside of the territory mentioned, the ten-mile zone. This is totally unlike the matter discussed with reference to municipality of city charters and their authority to regulate. I cannot, therefore, agree that this is a regulatory act, or that it was incumbent upon the applicant to show that as a matter of fact the zone law was such restricted district. The statute makes it absolutely prohibitory, and leaves no territory where the sale could be made. The applicant could not show facts that would bring him within the regulatory acts found in the city charters, and discussed by the courts in the many opinions cited by Judge MORROW because not authorized by the terms of the act. A broad distinction is to be observed between the regulatory, acts discussed in the opinions cited by Judge MORROW with reference to city charters and restricted saloon districts, and absolute prohibitory law covering all the territory, with no authority to sell as found in this act.

I have not had time since the opinion was written to go at length into these matters, and therefore merely state what I have stated hurriedly and not concisely, but rather crudely, in support of the two propositions announced in the beginning of the dissenting opinion. I, therefore, conclude that this was intended to operate as a military law or statute, pertaining and confined to the war as a measure and the surrounding forts, training camps, aviation schools, and shipyards, and it was enacted for no other purpose except as a drastic and stringent prohibitory law with reference to intoxicants in that connection. I also agree with Judge MORROW, as I understand his opinion, that had this been a local option law, there could not have been any restricted saloon districts within the territory mentioned. That would be a correct conclusion, yet this act is more drastic than the local option law, and consequently decidedly more prohibitory in its provisions. The same territory covered by the local option law would exclude the zone law. Of this there seems to be no diversity of opinion;- at least there ought not to be. I also conclude that the measure is a drastic prohibitory law, and enacted under the guise of a war measure to prevent the sale, exchange, and shipment into the territory of intoxicants, and that it is a clear invasion of our constitutional provision with reference to local option laws, and intended to operate outside of and superior to that constitutional section.

I, therefore, respectfully submit that the applicant ought to have been discharged from custody.
      <g=s>For otlxer cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    SUMMIT PLACE CO. v. TERRELL.
    (No. 5978.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 13, 1918.
    Rehearing Denied May 29, 1918.)
    1. Appeal and Error <&wkey;907(5) — Review-Finding of Fact.
    The Court of Civil Appeals cannot reverse the trial court’s finding of fact as to the extent of a lot, where such question can be determined only by a map, which the trial court examined, and which is not presented in the record.
    2. Exchange of Property <&wkey;8(5) — Misrepresentation as to Size of Lot — Damages.
    Where, in an exchange of property, plaintiff paid $60 a foot for 16 feet of frontage that were not in the lot he received, a mistake caused by his reliance upon the statement of an officer of the company with which he dealt, the measure of plaintiff’s damage is the difference between the value of what he parted with and the value of what he received.
    3. Exchange of Property <&wkey;8(4) — False Representation — Evidence.
    Evidence held to sustain finding that plaintiff, who exchanged property with defendant company, was induced, by the false representations of the company’s officer, on' which he relied, to pay $60 a foot for 16 feet of frontage that did not exist in the lot he received.
    Error from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by M. W. Terrell against the Summit Place Company. To review judgment for plaintiff, defendant brings error.
    Affirmed.
    MeAskill, .faimmang & Mauermann and Leonard Brown, all of San Antonio, for plaintiff in error. John Turner and Barrett & Barrett, all of San Antonio, for defendant in error.
   SWEARINGEN, J.

M. W. Terrell, the defendant in error, brought suit against the Summit Place Company, plaintiff! in error, to recover $960, with 6 per cent, interest, alleged to have been the excess paid for a lot 114 feet wide, which Mr. Terrell afterwards discovered was only 98 feet wide. The price paid was $60 a front foot. The shortage was 16 feet. The cause was submitted to the court without a jury. Judgment was rendered in favor of defendant in error, M. W. Terrell, for the amount sued for.

Defendant in error alleged in his second amended petition that he purchased lot .7 from the Summit Place. Company and paid therefor the sum of $60 a front foot; that the president of the company, Mr. Ed. Roos, knew the number of front feet in the lot was 9S, but told defendant in error the number was 114; that defendant did not know the number of front feet in the lot, and relied upon the statement of Mr. Roos. Subsequently the mistake was discovered by defendant in error, and he demanded the sum, $960, with interest, from plaintiff in error, which demand was refused. Plaintiff in error answered by general and special exceptions and general denial.

There is evidence to support the- findings of fact made by the trial court, or at least no evidence in the statement of facts to contradict the court’s findings; therefore we adopt as our findings of fact the following:

“(1) That on or about August 11, 1913, the Summit Place Company, a corporation by and under the laws of Texas, made an exchange of property with M. W. Terrell, and as part consideration for his property agreed to convey him lot 6 in block 7, on the southwest corner of the intersection of Howard street and Queensbor-ough court, in San Antonio, Bexar county, Tex.
“(2) That said lot 6 was put in said trade at an agreed valuation of $60 per front foot, and that the Summit Place Company, through its president, Ed. Roos, represented to M. WT Terrell that said lot had a frontage on Queensbor-ough court of 114 feet.
“(3) That on or about August 11, 1913, the Summit Place Company executed a deed to M. W. Terrell to said lot 6, and that he -settled with them therefor, at the agreed valuation of $60 per front foot, for. 114 feet.
“(4) That said lot actually has a frontage on said street of only 98 feet, and that said fact was known to the said Ed. Roos, president of said Summit Place Company, at the time he made said representations.
“(5) That at the time of the settlement the said M. W. Terrell did not know that said lot only had a frontage of 98 feet, or that it was claimed that the sidewalk and parking was a part of said lot, but believed that it had a frontage of 114 feet as represented.
“(6) That said M. W. Terrell was secretary of said Summit Place Company in 1908, hut that he was only a nominal stockholder, and had nothing to do with the laying out and platting of said addition, or with the sale of the property, except, as secretary of said company, to attest the corporate seal and acknowledge the dedication thereof, and sign a few deeds.”
“(8) That directly east of and adjoining said lot is a sidewalk 4 feet wide, and adjoining the sidewalk on the east is a parking 12 feet wide, and that a map showing this has been duly recorded in the deed and plat records of Bexar county, Tex., and that a correct copy of that part of said plat, showing said lot 6 and adjoining sidewalk, parking, and street, together with a copy of the instrument dedicating- said property, as shown by said map of record, are hereto attached, marked Exhibits A and B, and made a part hereof.
“(9) That said sidewalk and parking form no part of said lot 6.
“(10) That plaintiff has been damaged by said false representations in the sum of $960, the agreed valuation per front foot for .the 16 feet shortage in the width of said lot, with interest thereon from August 11, 1913, at 6 per cent.”

By the first and second assignments it is insisted that lot 6 was 114 feet wide, and not 98 feet wide. By the fourth paragraph of its findings of fact the trial court found that lot 6 was only 98 feet wide. The width of the lot is not expressed in the description of the deed given in the record, but the width of the lot must appear upon a plat or map to which reference is made for certainty of description by the deed from Summit Place Company to M. W. Terrell. The court refers to this map as attached to the findings of fact marked Exhibit A. No map of any kind is found in the transcript or in statement of facts. In the briefs for both parties frequent reference is made to a map. Erom tlie record' before us we "are forced to conclude that there was a map before the trial court, and that from the map the trial court found that lot 6 had only 98 feet front, as testified to by Mr. Terrell. Nelson v. Lamm, 147 S. W. 667, § 2.

The contention of the Summit Place Company seems to he that the deed and map together show that the lot is 114 feet wide, because the map shows that the lot takes in the sidewalk and parkway. Whether the lot extends to the sidewalk only, or extends beyond the sidewalk and the parkway to the street, is a question of fact, and could, it occurs to us, be determined only by the map. The trial' court examined the map, and determined that the lot was only 98 feet wide. No map has been presented in the récord to us; hence we are unable to reverse this finding of fact of the trial court. The first and second assignments are overruled.

The third assignment is that the court erred in holding that there was evidence that plaintiff in error fraudulently represented to defendant in error that there was 114 feet across the front of lot 6, exclusive of the public sidewalk and private parking. The court found that there were only 98 feet across the front of lot 6, but that Mr. Roos, president of the plaintiff in error company, told Mr. Terrell the front of the lot was 114 feet, and further found that the price agreed upon and paid was $60 for each and every foot of frontage. The total amount paid by M. W. Terrell included, by mistake on the part of Mr. Terrell, $60 a foot for 16 feet that were not in the lot. This mistake by Mr. Terrell was caused by his reliance upon the statement by Mr. Roos that the lot contained 114 feet. At the time it was well known to Mr. Roos that the lot only contained 98 feet.

The measure of Mr. Terrell’s damage is, as expressed in the case of George v. Hesse, 100 Tex. 41, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, as follows:

“Clearly we think the extent of his losses the difference between the value of that which he has parted with and the value of that which he has received under the agreement.”

Under the judgment of the court, sustained by the evidence, Mr. Terrell parted with $60 a foot for 114 feet, or $6,840, whereas the value of that received, according to the judgment of the trial court, was $5,880. The difference is, of course, $960, the amount for which the judgment was rendered.

The deed could have conveyed title in fee to the land, even though burdened with an easement in the public; and the agreement could have been that Mr. Terrell purchased the specific lot for an aggregate price. But the trial court has found that the agreement was to buy a certain number of feet front at an agreed price per foot, and the trial court has further found, as a fact, that 'there were only 98 feet purchased, and that the price paid for the 16 feet that did not exist was procured to be paid by the false representation of Mr. Roos, upon which Mr. Terrell relied.

Under the law announced in the George-Hesse Case, supra, and the facts found by the court and sustained by the .evidence, we are of the opinion that the third assignment should be overruled. Brown v. Yoakum, 170 S. W. 803; O’Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282; Moore v. Hazelwood, 67 Tex. 624, 4 6. W. 215; Wheeler v. Boyd, 69 Tex. 293, 6 S. W. 614; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Lancaster v. Richardson, 13 Tex. Civ. App. 682, 35 S. W. 749; Wuest v. Moehrdg, 24 Tex. Civ. App. 124, 57 S. W. 864; Barnes v. Lightfoot, 26 Tex. Civ. App. 113, 62 S. W. 564; Yates v. Buttrill, 132 S. W. 831; Id., 149 S. W. 347.

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


author: BROOKE, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. KING.
    (No. 372.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 16, 1918.)
    Damages <&wkey;113 — Measure — Injury to Horse.
    In action for the value of a horse, which fell because of a spike extending several inches above a tie in defendant’s railroad crossing, and broke its leg, and for veterinary services procured at defendant’s request, the value of plaintiffs horse just prior to the accident and its value subsequent to the accident after a reasonable time had elapsed within which the injury might have developed was not the correct measure of damages.
    Appeal from Harris County Court; W. E. Monteitli, Judge.
    Suit in justice court by L. G. King against the Houston Belt & Terminal Railway Company. There was a judgment for plaintiff in both the justice and county courts, and defendant appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, and M. E. Kurth, all of Houston, for appellant. Geo. F. Howard, Vinson & Elkins, and H. L. Nicholson, all of Houston, for appellee.
   BROOKE, J.

This suit was filed by plaintiff to recover from the defendant, Houston Belt & Terminal Railway Company, the sum of $100 as the value of a horse alleged to have been owned by him and injured by defendant’s negligence, and for the further sum of $49 as veterinary services, for which he alleged himself to be liable by reason of the injury to such horse. The suit was begun in the justice court, precinct No. 1, Harris county. The judgment was in favor of plaintiff against the defendant for $149.

In the county court at law the case was submitted on a general charge, which resulted in judgment for plaintiff for $129. The allegation was that plaintiff was the owner of the horse in question, and while he was driving across the tracks of defendant, in the city of Houston, the horse stepped on a spike extending several inches above the tie, and fell and broke its leg; that defendant’s claim agent instructed him to send the horse to a veterinary, which he did. The ground of negligence alleged was that defendant did not keep its crossing in repair. Plaintiff further alleged that he was liable for $49 as doctor’s bill and care of said animal on account of said injury ; the'horse having been sent to the veterinary at the request of defendant’s agent.

The first assignment of error is that the court erred in instructing the jury on the measure of damages, as follows:

“You are instructed that the measure of damages in this case will be the value of the horse just prior to such accident and the value of the horse subsequent to the accident, after a reasonable time had elapsed within which his injury, if any, might have developed, showing the damages sustained.”

This measure of damages is not correct, and, without further comment, the case must be reversed and remanded.