author: DAVIDSON, P. J PRENDERGAST, J.

text:
    HUDLEY v. STATE.
    (No. 4380.)
    (Court of Criminal Appeals of Texas.
    March 14, 1917.
    Dissenting Opinion April 6, 1917.)
    1. Homicide <§=>2157(1) — Assault wish Intent to Murder — Self-Defense — Sufficiency oe Evidence.
    Evidence showing that city marshal, after ordering a prostitute from the street, assaulted, beat, choked and knocked her down, whereupon slie cut his face with a knife, held insufficient to justify her conviction for assault with intent to murder, in view of Pen. Code 1911, § 1915, providing that, “Where violence is permitted to effect a lawful purpose, only that degree of force must be used which is necessary to effect such purpose,” and section 1016, providing that “no verbal provocation justifies ⅞ * * assault and battery, but insulting and abusive words may be given * * * in mitigation of ⅜ ⅜ * punishment.”
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 543, 544, 552.]
    2. Arrest <®=»63(2) — Authority op Marshal —Assault.
    It was a city marshal’s duty to- arrest a prostitute if her conduct on the street was contrary to law, but he had no authority to assault her when she remarked that she thought “he had it in for her.”
    "[Ed. Note. — For other cases, see Arrest, Cent. Dig. §§ 146, 151-156.]
    3. Homicide <®=3l58(3) — Assault with ■ Intent to Murder — Admission op Evidence —Threats.
    Evidence that defendant, when purchasing knife with which, she assaulted marshal, stated that she wanted “a rib-getter or man-getter” ■was incompetent; she not having definitely referred to any one, and evidence showing that she had had difficulties with and was afraid of other people.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 295.]
    Prendergast, J., dissenting.
    Appeal from District Court, Brazos County; J. C. Scott, Judge.
    Drusilla Hud-ley was convicted of assault with intent to murder, and appeals.
    Reversed and remanded.
    Hudson & Hudson, of Bryan, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J

Appellant was convicted of assault to murder, and allotted two years’ confinement in the penitentiary.

The facts may be thus briefly stated: Appellant was a negro woman, and doubtless a prostitute. On Saturday night, the ISth of the month, she was sitting in fc restaurant, and a negro man also sitting hy her, had his feet in her lap. The assaulted party, Oonlee, who was city marshal of Bryan, ordered her away. She said to him that it looked as if he had it in for her. The next Saturday night, the 20th of the month, she was standing upon the sidewalk, as testified by Oon-lee, or in the door of the house, as testified by herself. Conlee came up the street, and ordered her away. He says she muttered something that he did not understand, but did understand her to say it seemed to her that he had it in for her. He slapped her with his hand upon the face, and then knocked her down and choked her pretty badly. Some of the witnesses say she got up, and he again jerked her down, and while they were on the ground, some of the testimony shows, she cut him with a knife in the face. Other witnesses testified that she cut him when they arose from the street, and when they arose they had eách other by the front or breast. Oonlee jerked his pistol and struck her on the head two or three times. She says that he did that before she fell the first time. There is some difference as to when this occurred, but all agree that it occurred, and “Mr. Oonlee so testifies himself. He testified that he slapped her and knocked her down and choked her-. She bought this knife, under some of the testimony, between the first meeting between Oonlee and herself on the 13th and the second meeting on the 20th. Other testimony shows she bought it a week prior to the first meeting. The party from whom she bought the knife stated that she said she wanted a good keen knife that “was a rib-getter or a man-getter.”. This is denied by appellant. She says she paid 85 cents for the knife, and the seller of the knife testified it was a good knife, and that appellant paid S5i cents for it. She says she got the knife for fear of a certain negro woman with whom she had had trouble, and some of the evidence shows she and another negro woman had had a fight, and the owner of the premises ordered the other woman away. There is testimony also to the effect that she had the knife with her on this occasion to make a negro man take her to the country that night; that he had disappointed her, and that if she came across him, she purposed to make him take her by bullying him with the knife. This is a sufficient statement of the ease.

We are of opinion this evidence does not sustain a conviction against this woman for assault to murder. The statute (article 1015, Kevised Penal Code) provides that :

“In all the cases mentioned in the preceding article, where violence is permitted to effect a lawful purpose, only that degree of force must be used which is necessary to effect such purpose”

—and under this article Mr. Branch in his Annotated Penal Code cites authorities to the effect that, if an officer in making an arrest uses excessive force, he is guilty of an assault, citing Skidmore v. State, 43 Tex. 93; Skidmore v. State, 2 Tex. App. 20; Pilcher v. State, 32 Tex. Cr. R. 557, 25 S. W. 24. But it will be noted in this instance the officer was not making an arrest or attempting to make an arrest. He ordered the woman from the street. She replied, in a manner not pleasing to him, that she thought he had it in for her, and he slapped her. This disposes of the question of attempting to arrest. Article 1016 of the Penal Code reads this way:

“No verbal provocation justifies an assault and battery, but insulting and abusive words may be given in * ⅝ ⅜ mitigation of the punishment affixed to the offense.”

Mr. Branch cites the following authorities to sustain the proposition that a verbal provocation does not justify an assault and battery under the circumstances mentioned in the statute, and cites Welburn v. State, 24 S. W. 651; Timon v. State, 34 Tex. Cr. R. 363, 30 S. W. 808. It is more than questionable if the language used by the woman could be considered as insulting conduct. Her re ply did not justify his assault, and such as sault being on a female might be an aggravated assault. Besides this, he knocked or jerked her down once, maybe twice, and choked her quite severely. To this Mr. Oon-lee testifies himself. .She so testifies practically as did other bystanders and eyewitnesses. There was no separation or abandonment of the difficulty, but it was continuous. To put it as strong as possible for the state, had she killed him, it could not have been more than manslaughter. There were adequate causes. There was a slap in the face and choking of the woman by the assaulted party, and then a beating over the head with a pistol. Strongly is self-defense put by this testimony.

It is true Mr. Oonlee was city marshal, and as such officer it was his duty to prevent violations of the law, and if this woman was doing those things on the street that were forbidden by law, he should have arrested and taken her before the court, but this he did not do, nor did he so -undertake. He made an assault, and the woman defended. I-Ie was the aggressor. The evidence is not sufficient. The judgment will be reversed.

There is another question reserved by bill of exceptions. Appellant objected to the statements of the witness who sold appellant the knife, wherein she stated that she wanted a knife that “was a rib-getter or a man-getter.” The witness testified he did not recollect the exact language, but that was the substance of it. She denied this. If this was a threat, or to be so treated, it did not individuate or point out Mr. Conlee. There was nothing in the statement at the time to indicate that she had him in mind; but the threat was very general. She speaks of a woman who she was afraid of, a negro buck, as she calls him, with whom she might have a difficulty, etc. It is unnecessary to repeat this. Unless the testimony upon another trial can individuate and point out that this meant or was intended to apply to Oonlee, it should be excluded. The authorities seem to be practically, as the writer understands them, one way on this question.

Viewing the case as we do as presented from the record, the judgment ought to be reversed, and it is hereby ordered to be reversed, and the cause remanded for another trial.

PRENDERGAST, J.

(dissenting). I think it is evident Judge DAVIDSON has entirely misapprehended both the facts and the law applicable thereto in this case. He states and discusses some of the testimony only, and especially that part of appellant’s herself and some of the other witnesses, which, if it had been believed by the jury, might have justified her acquittal or finding her guilty of a lesser offense. All that, however, was for the jury and lower court, and not for this court. They are made the exclusive judges of the credibility of the witnesses and the weight to be given their testimony.

The trial judge in apt and correct charges, which were in no way objected to by appellant, submitted every issu.e raised at all by the evidence, submitting self-defense, aggravated and simple assault, and reasonable doubt in her favor, and reasonable doubt between degrees of offense. The jury did not believe her claimed self-defense theory, which was directly disputed by the state’s evidence. They believed from all the evidence and beyond a reasonable doubt, as the testimony was fully sufficient to establish, that she assaulted Mr. Conlee, the city marshal with the intent to kill him, and not in self-defense, nor under such circumstances as to reduce her offense to either aggravated or simple assault.

The testimony of the clerk who sold appellant the knife with which she assaulted and very seriously cut and attempted and intended to kill Mr. Conlee was clearly admissible. This testimony was amply sufficient to show that she bought the knife with which she attempted to kill Mr. Conlee for the very purpose she used it for. The testimony shows that appellant was a prostitute, a streetwalker, and attempted to ply her vocation by solicitation on the public streets of Bryan, especially on Saturday nights. On Saturday night, May 13th, just one week before she assaulted and attempted to kill Mr. Conlee, he in the discharge of his duty found her sitting in the door of one of the restaurants in Bryan with a negro buck sitting by her with his legs across her lap. Mr. Conlee properly told her to get up and get out of sight when indulging in that conduct. This incensed her; made her mad. She at once went to a hardware store, and as the clerk who waited on her swore, she told him she wanted to buy a keen, sharp, knife, “a rib-getter” or “a man-getter,” and she then and there bought such a knife. That was the very knife with which she assaulted and attempted to kill Mr. Conlee just one week later, which was the first time she had seen him since the Saturday night before. Undoubtedly the facts would show, and clearly justify the jury to believe, that she bought that knife for the very purpose of using it- on Mr. Conlee the first occasion she had, and she did so. This testimony was clearly admissible - for the purpose of showing her animosity and hostility, and the extent of it against Mr. Conlee, when she attempted to kill him. If it could be considered as a threat even, it was clearly admissible under the authorities. Hiles v. State, 73 Tex. Cr. R. 21, 163 S. W. 717, and authorities there cited.

It is needless to further give the testimony, to discuss the questions or cite authorities.

This case should, have been affirmed, not reversed.
      dS^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    HOLDER v. STATE.
    (No. 4396.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.
    On Motion for Rehearing, April 18, 1917.)
    1. Criminal Daw <@=?858(3) — Tetad—Deliv-ering Defendant's Statement to Jury-Statute.
    Under Code Cr. Proc. 1911, art. 751, providing that the jury may take with them, on retiring to consider their verdict, all the original papers in the cause, and any papers used as evidence, in a murder case there was no error in delivering to the jury a written statement or confession signed by defendant after it had been introduced in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2058.]
    2. Criminal Law <§kw475.— Opinion Evidence-Times Pistol Had Been Fired.
    In a prosecution for murder, testimony of a deputy sheriff, fully qualified as an expert on pistols, that a pistol, exhibited at the trial, and shown to have been in deceased’s possession at the time of the killing, had been fired only once, in his opinion, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1063.]
    3. Criminal Law ®=o47S(1) — Expert Opinion-Qualifications of witness.
    In a murder case a deputy sheriff, who had been such for about eight years, and was such at the time of the trial, had been familiar with pistols, their use and condition, during the time, and claimed to have made a study of them for the past eight years, and that he could tell by an examination of the pistol in evidence how often it had been fired, was qualified as an expert to give opinion evidence as to such matter, since the rule is that a witness must have some special knowledge of the particular subject to enable the trial court to determine his competency, and the determination of the question is largely in the trial court’s discretion.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1065.]
    4. Criminal Law <§=>1111 (3) — Appeal—Bill of Exceptions — Qualification by Trial Court.
    Defendant’s bill of exceptions to the court’s holding that a witness was not qualified as an expert, having been accepted with a certain qualification, the Court of Criminal Appeals must test the question by the conditions and facts stated in the court’s explanation to the hill.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2894.]
    5. Criminal Law <g=>481 — Expert Opinion —Qualification of Witness.
    In a murder case, where it was disputed how many times deceased’s pistol in evidence had been fired,_ the trial court did not abuse his discretion in holding that a witness, who had never seen the pistol until put on the stand, and then said he knew about as much about the matter as the average man that uses a gun very much, was not qualified to testify as an expert as to how many times the pistol had been fired.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent Dig. § 1070.]
    6. Criminal Law <⅞=⅛038(1), — Appeal — Reservation of 'Grounds of Review — Statute.
    Under Acts 33d Leg. c. 138, providing that in all felony cases, before the charge is read to the jury, defendant or his counsel shall have a reasonable time to examine'it, and shall specify each ground of objection, in a prosecution for murder, where the case was tried both by the state and defendant on the theory that the issue of provoking the difficulty was raised, and the court exhibited his charge submitting the issue to defendant’s counsel before it was read to the jury, and the charge was not complained of, the Court of Criminal Appeals is unauthorized to review the propriety of giving the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    John Holder was convicted of manslaughter, and he appeals.
    Affirmed.
    Mays & Mays, of Et. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for the murder of Hubert Jenkins, convicted of manslaughter, and his punishment assessed at confinement in the state penitentiary for a term of five years.

The court charged the jury on the law of murder, manslaughter, self-defense, and threats, and in connection with the law of self-defense charged on provoking the difficulty.

Complaint is made in the first bill of exceptions of the action of the court in permitting the jury to take with them in their retirement when the case was submitted to them the written confession of appellant. The confession was duly signed and sworn to and introduced in evidence without any objection. The substance of the complaint is that the jury had not called for the confession, and that appellant had testified to other facts concerning the homicide, and claimed that at the time he signed the written confession he had made other statements with reference to the homicide which were not contained in the' confession, and which other statements were beneficial to him, and that the fact that the written confession was given to the jury and that the jury did not have in connection with it the other verbal statements or facts which appellant claimed were stated by him gave undue prominence to the confession, and was by reason thereof calculated to prejudice his case. The written statement admitted that appellant had killed the deceased and stated facts raising an issue of self-defense. The appellant’s testimony on his trial was not in denial of making the statement or signing or swearing to it, but he testified that on the day prior to the homicide the deceased had cursed him and threatened him.

Article 751, O. O. P., states:

“The jury may take with them, on retiring to consider their verdict, all the original papers in the cause, and any papers used as evidence.”

This statute has been construed in the cases of Ferguson v. State, 61 Tex. Cr. R. 152, 136 S. W. 465, and Webb v. State, 69 Tex. Cr. R. 413, 154 S. W. 1013, and other eases mentioned in Vernon’s Ann. O. C. P. p. 566, and in White’s Ann. C. C. P. § 873, and has been held to entitle the jury to take with them all writings and documents introduced in evidence. In the ease of Chalk v. State, 35 Tex. Cr. R. 116, 32 S. W. 534, it was held that they might take the clothes of deceased where they had been introduced in evidence, and in Hatch v. State, 6 Tex. App. 384, it was held that they might take a magnifying glass for the purpose of examining papers submitted in evidence. It has been held in Wragg v. State, 65 Tex. Cr. R. 131, 145 S. W. 342, that there was no error in failure to deliver written evidence to the jury in the absence of a request by them for it, but neither the statute nor decisions prohibit the court from giving the papers introduced in evidence to the jury in the absence of a request from them. In fact, the statute is but declaratory of a right the court could have exercised in the absence of the statute. The text in the Enc. of PI. & Pr. vol. 12, p. 591, states that:

“It is now the general doctrine that all papers and documents given in evidence, with the exception in some jurisdictions of depositions, may properly be allowed to go to the jury.”

There was, in our opinion, no error in delivering the written statement signed by appellant to the jury after it had been introduced in evidence.

In his second bill of exceptions appellant complains of the action of the trial court in permitting a witness to testify that a pistol exhibited at the trial, which was shown to have been in the possession of deceased at the time of the homicide, had been fired only one time in his opinion; that is, only one shot. There was an issue developed by the evidence as to whether the deceased had fired more than once at the time of the homicide. The state’s theory was that he had fired only once, and that after he had been shot by the appellant. Appellant’s theory and testimony was that the deceased had fired at him a number of times, emptying his gun and reloading it, and that the deceased fired at him twice before he fired at all. The witness who gave this opinion testimony had been a deputy sheriff for about eight years, and was at the time of the trial, had been familiar with pistols, their use and condition, during that time, claimed to have made a study of them fox the past eight years, and that he could tell by an examination of the pistol how often it had been fired. The objection was based upon the contention that the matter was not the subject of expert testimony, and that the witness was not qualified to give an opinion. Testimony of this character coming from one whose experience in handling firearms gives him a special knowledge of the subject has often been held admissible. Fay v. State, 52 Tex. Cr. R. 185, 107 S. W. 55; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Pearson v. State, 56 Tex. Cr. R. 607, 120 S. W. 1004; Pemberton v. State, 55 Tex. Cr. R. 464, 117 S. W. 837; Meyers v. State, 14 Tex. App. 35; Modern Law of Ev. § 1990, and cases cited in the note; Bearden v. State, 44 Tex. Cr. R. 578, 73 S. W. 17; Head v. State, 40 Tex. Cr. R. 265, 50 S. W. 352.

On the question of the complaint that the witness did not show himself qualified to give the testimony the rule is that a witness must have some special practical knowledge of the subject in order to enable the court to determine his competency, and the determination of this question is largely in the discretion of the trial court. Wharton’s Grim. Ev. §§ 408, 409, and cases cited in notes. 1 Wigmore on Ev. § 561, in treating the subject, says:

“In most jurisdictions it is repeatedly, declaimed that the decision upon the exceptional qualification of witnesses should be left to the determination of the trial court”

—with the conclusion that it is only in eases where this, judicial discretion has been abused that the trial court’s decision will be disturbed.

In Bratt v. State, 38 Tex. Cr. R. 123, 41 S. W. 622, the rule as approved by this court is stated as follows:

“As a general proposition, the qualification of a -witness to testify as an expert is a question for the trial court, whose decision is not generally reviewable on appeal.”

The question was discussed by this court in the case of Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661, where the court says:

“It is hard to lay down any rule as to who may or may not be qualified to testify as an expert. ⅜ * ⅜ But it would appear that, where a person shows himself totally disqualified as an expert to give an opinion upon a matter,” his testimony should be excluded.

In view of these authorities, we cannot say the court committed error in permitting the witness to give the testimony complained of.

In another bill of exceptions appellant complains of the exclusion of the proffered testimony of the witness who-' would have given an opinion contrary to that of the expert witness above discussed. The bill, in giving the theory of the state and appellant as indicated above, states that the state in support of its theory introduced the pistol in evidence that the deceased had at the time, which was practically a new gun; that ⅛ showed one empty chamber; that the chamber shown to be empty showed a little canker near said chamber; that the state had also introduced the witness Tom Padgett, who testified as an expert over appellant’s objection that the same pistol had been fired only one time.

The court qualified the bill, stating in substance that the state’s expert, Padgett; whose testimony, was admitted, had testified that he saw the pistol near the homicide shortly after it was fired, and that he testified to the condition of the pistol cylinder at or near the time of the homicide or near the time of the homicide as well as its condition at the trial, and further that he had during his eight years’ service as deputy sheriff examined pistols that had been fired in order to see the effect as compared with a barrel that had not been fired; that the witness Pierce, whose testimony was offered by the defendant, had never seen the pistol in question until he was put on the witness stand on the trial of the case, and he then said that he knew about as much as the average man that uses a gun very much; and that in consequence of these facts the court did not regard him as qualified to give an opinion relative to whether the pistol had been fired more than once at the time of the homicide.

The bill of exceptions having been accepted with this qualification, this court, under the authority of Hill v. State, 37 Tex. Cr. R. 415, 35 S. W. 660, Briscoe v. State, 37 Tex. Cr. R. 464, 36 S. W. 281, Collins v. State, 178 S. W. 345, Galan v. State, 76 Tex. Cr. R. 619, 177 S. W. 124, and numerous other decisions of this court cited under subdivision 35 at page 556, Vernon’s Ann. O. O. P., must test the question by the conditions and facts stated in the court’s explanation to the bill, and tested by these, under the authorities cited above holding that the court’s ruling upon the qualification of an expert witness will only be reviewed when it appears that his discretion has been abused, we must hold that the bill shows no error.

The court also in his qualification refers to the fact that another witness for the defendant, Yates, whose testimony put him substantially in the same position with reference to knowledge of the condition of the pistol in question shortly after the homicide, and who testified to knowledge of firearms, gave his opinion that the pistol had been fired more than once.

Complaint is made in the motion for new trial of the fact that the trial court charged the jury on the law of provoking the difficulty ; the appellant’s contention being that, there 'being no evidence raising that issue, there was fundamental error in submitting it.

The question of provoking the difficulty is one that always depends upon the peculiar facts of the case in band, and the question as to when the facts and circumstances do authorize the court to embody it in its charge has given much difficulty, as is apparent from the numerous decisions discussing the subject cited in Mr. Branch’s Ann. P. C. § 1955, p. 1095. In this case there was evidence that the appellant was aware of the fact that deceased would be at the place of the homicide about the time that it occurred; that he anticipated trouble with the deceased, went armed to the place where the deceased was killed, and stationed his brother, also armed, at the place where the deceased was killed. In Mr. Branch’s Ann. P. O. § 1954, there are many decisions of this state dealing with the circumstances under which this issue may properly be submitted and supporting the proposition there laid down that, while the defendant must have said or done something at the time of the homicide to provoke the deceased to attack him so as to have a pretext for killing him, yet prior acts will be looked to to give character to what appellant said or did at the time of the homicide so as to determine his intent and to explain his words and acts. McGrew v. State, 49 S. W. 229; Mason v. State, 72 Tex. Cr. R. 501, 163 S. W. 66.

If there had been an exception to the action of the court in submitting the issue, we would feel it our duty to go into the facts fully and determine the question as to whether they did justify its submission. The case was tried by both the state and the appellant upon the theory that the issue of provoking the difficulty was raised." The court exhibited his charge submitting that issue to the appellant’s counsel before it was read to the jury. It was not complained of then. The Acts of the Thirty-Third Legislature (chapter 138) required the appellant to call the trial court’s attention to the fact that he contended that the issue was not raised. Under the construction of that act in Wright v. State, 73 Tex. Cr. R. 178, 163 S. W. 976, Davis v. State, 73 Tex. Cr. R. 49, 163 S. W. 442, Seats v. State, 75 Tex. Cr. R. 227, 170 S. W. 793, Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 52, Gray v. State, 178 S. W. 337, and other cases cited in Vernon’s Ann. C. CH P. p. 525, we do not feel authorized to review the question, nor can we hold that the record shows fundamental error. White v. State, 52 Tex. Cr. R. 193, 106 S. W. 1167; Vernon’s Ann. C. C. P. art. 743.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

Appellant insists that there was error in the failure to permit the witness Price td testify as an expert. This assignment of ‘error was carefully considered and overruled because, in our opinion, it did not appear from the bill of exceptions as qualified that there was any abuse by the trial court of the discretion vested in him by law to determine the qualification of a witness offered as an expert. The bill as prepared by appellant’s counsel shows that the witness if permitted would have testified that, in his opinion, the pistol in question had been fired a number of times; that the small canker was caused from the leaving of the brass cartridge in the gun; that if a gun is fired all around, emptied, reloaded, and then fired again — that is, only one chamber fired again, and the brass hull allowed to remain ⅛ same — it would cause a canker, whereas, placing cartridges in the chambers that had been fired, the tallow on them would absorb the saltpeter, and thereby the other chambers would not canker. The holding that the bill did not show error was based upon the view that it was not shown the necessary predicate was laid as to the knowledge of the witness to qualify him as an expert upon the subject. We take the following from the trial judge’s qualification of the bill:'

“The question was then asked the witness if he had had occasion to notice the effect of firing a.gun, and I told the attorneys; ‘I want you to get down to the physical facts, if he has any, as well as the knowledge of a gun, and find if he knows any more about guns than that.’ His answer was: T know about as much as the average man that uses a gun very much.’ I then stated that if that was true the jury would know as much about it as the witness. There was no attempt to show that this witness ever had examined the only point.upon which an expert could be used; that is, that he had examined pistols often to find whether they had been recently or lately fired. His being an expert on any other point, even though he was the finest shot in the world, would be of no benefit on the point that was under examination.”

Our judgment is that under the authorities cited in the original opinion this assignment of error as well as the others contained in the motion for rehearing were properly overruled.

It is therefore ordered that the motion for rehearing be overruled.
      <&=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BUTLER v. STATE.
    (No. 4422.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    Schools and School Districts <@=>160 — Compulsory Attendance oe Children — Statute.
    Acts 34th Leg. c. 49, providing that every child in the state who is 8 years and not more than 14 years old shall be required to attend the public schools in the district of its residence for a period of not less than 60 days for the scholastic year beginning September 1, 1916, and that the period of compulsory school attendance at each school shall begin at the opening of the school term, unless otherwise authorized by the district school trustees, was not applicable to a child who became 14 years of age on the 12th day of October, 1916; the public school term in his district beginning October 30th.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 332.]
    Appeal from Palo Pinto County Court; J. T. Ranspot, Judge.
    J. E. Butler was convicted of a violation of Acts 34th Leg. c. 49, and he appeals.
    Reversed, and cause remanded.
    T. P. Perkins', of Palo Pinto, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a prosecution by information for a violation of the provisions of the Acts of the Thirty-Fourth Legislature, c. 49.

Appellant’s son Alvin Butler was 14 years old on the 12th day of October 1916. The public school in the district in which he resided began on the 30th day of October, 1916. The boy was absent from school on the 13th, 15th, and 22d days of November, 1916, without any of the excuses named in the statute. His absence was with the consent of his father, the appellant, and the conviction was by reason of this absence with his consent. The act of the Legislature says (sec. 1);

“Every child in this state who is 8 years and not more than 14 years old shall be required to attend the public schools in the district of its residence, ⅜ ⅜ * for a period of not less than 60 days for the scholastic year, beginning September 1, 1916.”

It also contains the following:

“The period of compulsory school attendance at each school shall begin at the opening of the school term unless otherwise authorized by the district school trustees.”

The caption of the act. begins as follows:

“An act to compel attendance upon public schools of Texas by children between the ages of 8 and 14 years.”

The construction placed upon the statute by the trial court was such as to make the absence of appellant’s boy an offense, although at the time of his absence and at the time of the beginning of the compulsory period for the term of school he was moré than 14 years of age. The appellant insists that this construction was erroneous.

We have examined such decisions as suggest a precedent for the construction of the statute. The one found by us nearest in point is Gibson v. People, 44 Colo. 600, 99 Pac. 333. The act there reviewed was one relating to delinquent children. We take from the opinion in that case the following quotation:

“Section 1 of the delinquent children law says that the act shall apply only to children ‘sixteen (16) years of age or under.’ * * * ‘The words “delinquent child” shall include any child sixteen (16) years of age or under such age’ who violates any law, etc. Any child ‘sixteen (16) years of age or under such age’ may, therefore, become a delinquent child or a juvenile delinquent person. The Attorney General contends that, these italicized words include children during their entire sixteenth year and up to the seventeenth anniversary of their birth, while defendant maintains that it excludes children who have passed beyond the first day of their sixteenth year. » * * Counsel have not found in any other statute or Constitution or in any judicial decision wherein it has been construed the exact language employed in the statute now under consideration, and we have not made the discovery. * * * It is obvious that the General Assembly intended to fix some limit to. the age of children affected by the statute — a point of time beyond which they no longer are amenable to its provisions. In. one sense a child is sixteen years of age until it is seventeen; so also it is sixteen when it is eighteen; but, in the true sense, it is sixteen and over whenever it has passed beyond the first day of the sixteenth anniversary of its birth. Had it been the intention to include children up to the time they reach their seventeenth birthday, the General Assembly would naturally have said ‘children under seventeen years of age.’ But when only those ‘sixteen (16) years of age or under’ were mentioned, it obviously meant what it said, namely, children ‘sixteen (16) years of age or under,’ not sixteen (16) years of age and over.’ If a statute prescribing the age limit read, ‘over the age of fourteen years,’ one fourteen years and six months old would not come within its provisions if the Attorney General’s contention is correct, because he would be only fourteen years of age, and not over fourteen, until he reached the fifteen anniversary of his birth. And yet we apprehend no such construction would be put upon a statute so reading. A child is sixteen years of age on the sixteenth anniversary of his birth, and thereafter is over sixteen years of age. .The alleged delinquent juvenile being sixteen years ahd four months old at the time defendant is said to have contributed to his delinquency was ‘sixteen years and over,’ not ‘sixteen years.or under,’ hence was not a juvenile delinquent person witiiin the meaning of the statute.”

Another case more or less in point is Rogers v. McCraw, 61 Mo. App. 407, construing a statute giving the privilege of attendance to children between 6 and 20 years and holding that one over 20 years of age and under 21 was excluded.

The Supreme Court of Louisiana, in State v. Lanassa, 125 La. 687, 51 South. 688, in construing a statute in which children are defined as persons “17 years of age and under,” held a conviction erroneous where the person involved had passed the seventeenth birthday, using the following language:

“This ruling is clearly erroneous, as it is based on the predicate that a minor, having attained the age of seventeen years., grows no older until he reaches the age of eighteen years.” “It is obvious that a day’s difference in age may remove an infant from one class into another.”

This court in the case of Arrendell v. State, 60 Tex. Cr. R. 350, 131 S. W. 1096, reviewing the juvenile statute, which provided exemptions from certain kinds of punishment to a person less than 16 years of age, held that one who at the time of the trial had passed the sixteenth birthday was not entitled to the benefit of the statute, although at the time the offense was committed he was less than 16 years of age, and in the case of Munger v. State, 57 Tex. Cr. R. 384, 122 S. W. 875, in construing the same statute, held that one who had passed his sixteenth birthday at the time the offense was committed did not come within the terms of the statute.

The appellant attacks the constitutionality of some of the provisions of the act. The criticisms he makes do not involve matters which would affect the result of this appeal, and we have not thought proper to review them in detail. We will say, however, that the act contains a statement to the effect that if any of its terms are found unenforceable, the remainder shall be given effect. Laws having the general scope of this one have been held valid in a number of instances. State v. Bailey, 157 Ind. 324, 61 N. E. 730, 59 L. R. A. 435; State v. Jackson, 71 N. H. 552, 53 Atl. 1021, 60 L. R. A. 739; Commonwealth v. Roberts, 159 Mass. 372, 34 N. E. 402.

In our opinion, under the facts of this case, appellant’s son having attained the age of 14 years before the compulsory term began, the law compelling the attendance of children under 14 years of age was not applicable to him, and that consequently the appellant committed no offense in consenting that his son should absent himself from school at the times that the evidence shows he did so.

The judgment of the lower court is consequently reversed, and the cause reminded.
      <S=>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LERMA v. STATE.
    (No. 4418.)
    (Court of Criminal Appeals of Texas.
    March 28, 1917.)
    1. Criminal Law <§=>1174(2) — Afpeal and Error — Permitting Jury to Taste Liquor —Harmless Error.
    Where prosecuting witnesses testified that they bought whisky from accused and that bottle and contents exhibited was that purchased, accused denying sale, that jury smelled or examined liquor was harmless error; the issue not being whether liquor was intoxicating.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3171, 3172.]
    2. Criminal Law <§=>304(20) — Evidence—Judicial Notice — “Intoxicating Liquor.”
    Tlie court will take judicial notice that whisky is “intoxicating liquor” (citing Words and Phrases, intoxicating Liquor).
    [Ed.* Note. — For other cases, see Criminal Law, Cent. Dig. §§ 716, 2951½.]
    3. Criminal Law <§=>369 (1) — Evidence of Other Offenses.
    Evidence in rebuttal, to effect that accused could not have lived with her present husband long because sbe was living with another man, is not subject to contention that it proves another offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 822.]
    4. Intoxicating Liquors <§==>223(1) — Sale in Local Option Territory — Evidence—Sufficiency.
    A conviction of selling intoxicating liquor in a local option precinct cannot be sustained unless it is proven that prohibition had been adopted and was in force in such precinct at the time of the alleged violation.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 263-267.]
    5. Criminal Law <⅞=>304(9) — Evidence—Judicial Knowledge — Adoption of Prohibition.
    The court cannot take judicial notice that under local option law prohibition is in force in any county or subdivision thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 706, 2951½.]
    6. Criminal Law <§=>304(1) — Evidence— “Judicial Knowledge.”
    Personal knowledge of a presiding judge is not “judicial knowledge.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700, 701, 704, 715, 2951⅛'* For other definitions, see Words and Phrases, First and Second Series, Judicial Notice.]
    Appeal from District Court, Wilson County; F. G. Chambliss, Judge.
    Petra Lerma was convicted of selling intoxicating liquor in local option territory, and appeals.
    Reversed and remanded.
    J. E. Canfield, of Floresville, for appellant.' E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted of the offense of selling intoxicating liquor in a territory where its sale was prohibited, and her punishment assessed at confinement in the state penitentiary for one year.

In the first bill of exceptions complaint is made of the fact that the jury was permitted to uncork a bottle of liquid, alleged to have been a part of the intoxicating liquor sold by appellant, and to smell the liquid. This character of procedure is criticized by this court in the case of Dane v. State, 36 Tex. Cr. R. 87, 35 S. W. 661, in which ease there was an issue as to whether a certain compound was an intoxicating liquor and the jury was permitted to taste and smell it. There was in that case evidence pro and con as to whether the particular fluid which appellant sold was intoxicating. This court also had the question before it in the ease of Parker v. State, 75 S. W. 31, and held that the court committed error in per-, mitting the jury to handle and smell the bottle of liquid which was introduced in evidence as being that charged to have been sold by appellant in that case. Under the facts of that case, there was a sharp issue as to whether the compound charged to have been intoxicating was in fact so, and as to whether or not the liquid exhibited to the jury was the same that had been sold by appellant. In Thompson v. State, 72 Tex. Cr. R. 6, 160 S. W. 685, where the liquid in question was diluted alcohol and shown to have come from the possession of appellant, it was held that the fact that the jury handled the bottle and smelled its contents was not error. In the present ease the prosecuting witnesses testified that they bought whis-ky from appellant. The appellant denied the sale altogether. There was testimony showing that the bottle exhibited to the jury was the same and the contents tire same that was purchased by the prosecuting witness from appellant. The issue, therefore, was not whether the particular liquid was intoxicating, but whether or not the sale had been made. It has been frequently held by this court that it will take judicial notice of the fact that whisky is an intoxicating liquor. Rutherford v. State, 49 Tex. Cr. R. 21, 90 S. W. 172; Wilcoxson v. State, 91 S. W. 581; Words and Phrases (New) vol. 2, p. 1182. The same is true with reference to alcohol. Walker v. State, 98 S. W. 265; Words and Phrases (New) p. 1176. The evidence being conclusive that if the sale was made, it was whisky, and the court judicially knowing that whisky is an intoxicant, the fact that the jury examined or smelled the liquid, while error, would not be harmful under the facts of this case.

The second assignment of error complains that there was error committed by the court in permitting the state to introduce evidence that appellant committed another and different offense. The evidence complained of was in rebuttal to that given by the appellant with reference to the length of time that she had lived with her present husband, and was to the effect that she could not have lived with him long because she was living on witness’ place with another Mexican whose name he did not know. He said that he did not claim that she was living in adultery with the Mexican. Appellant herself said she had been married more than once, and, while we do not think the testimony was material or admissible, we are of opinion that the facts developed do not sustain the contention that it was proof of another offense.

In our opinion the other assignments of appellant present no reversible error, except the one which complains of the insufficiency of the evidence. An examination of the statement of facts discloses that it fails to show that the sale of intoxicating liquor had been prohibited in justice precinct No. 4 where the indictment charges the offense to have been committed. It has been uniformly held by this court that an essential requisite to the validity of the conviction for the .sale of intoxicating liquor is proof that its sale has been prohibited, and that this court cannot take judicial notice of the fact that there has been an election resulting in the prohibition of such sales. The court submitted to the jury the question of whether the sale of intoxicating liquor was prohibited in justice precinct No. 4; but, as above stated, there is no evidence in the record which would authorize the jury to determine that issue in the affirmative.

From the case of Jackson v. State, 70 Tex. Cr. R. 582, 157 S. W. 1196, we take the following quotation in an opinion reversing the case rendered by Judge Prendergast:

“This court has uniformly held, and there aro a large number of decisions to- that effect, that a conviction for violating the prohibition law in any county or subdivision thereof where prohibition has been adopted cannot be sustained, unless proof was made showing that prohibition had been adopted and was in force at the time the alleged violation occurred; that the courts cannot take judicial notice that prohibition is in force in any county or subdivision thereof. The personal knowledge of the presiding judge is not judicial knowledge.”

Other recent cases to the same effect are Whittlesey v. State, 72 Tex. Cr. R. 614, 163 S. W. 78; Lewis v. State, 73 Tex. Cr. R. 16, 163 S. W. 705; Green v. State, 69 Tex. Cr. R. 550, 155 S. W. 210; Robinson v. State, 69 Tex. Cr. R. 496, 154 S. W. 997. In the case of Dorman v. State, 64 Tex Cr. R. 104, 141 S. W. 526, this court, in an opinion by Judge Harper, used the following language:

“The local option law.is a local or special law, and is in force only in those counties where the people have adopted it, and this court does not judicially know in what territory it has been adopted, and the evidence must show this law to he in force in the territory where the sale is alleged to have been made, or the judgment cannot be sustained.”

In deference to the authorities mentioned and the numerous rulings of this court to the same effect, listed in Branch’s Annotated Penal Code, p. 695, § 1231, the judgment of the lower court must be reversed, and the cause remanded, because the record fails to show that the sale of intoxicating liquor was prohibited in the district where the offense is laid; and it is so ordered.
      <S=>For otlier eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    KIMMELL v. EDWARDS et al.
    (No. 8459.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 24, 1917.)
    1. Judgment <®=o16 — “Valid Judgment” —“Subsisting Judgment” — Injunction — Statute oe Limitations.
    A personal judgment, valid on its face, by a court having no jurisdiction of person of defendant at time of rendition, is void, and, on direct attack, is not a “valid and subsisting judgment,” within the meaning of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4648, providing that no injunction to stay an execution upon a valid and subsisting judgment shall be granted after expiration of one year from rendition.
    [Ed. Note. — -Eor other cases, see Judgment, 1 Cent. Dig. §§ 22, 24.]

      2. Limitation oe Actions <@=»39(1) — -Direct Attack on Void Judgment.
    A direct attack on a personal judgment, void for lack of service, is governed by the four-year statute of limitations.
    3. Limitation oe Actions <§=>3(2) — Statute-Repeal.
    Paschal’s Dig. art. 4616, barring certain equitable suits within two years, has been repealed by subsequent statutes.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 12.]
    Appeal from District Court, Taylor County. On Motion for rehearing.
    Motion denied.
    For former opinion, see 193 S. W. 363.
   DUNKLIN, J.

Appellee Edwards earnestly insists that plaintiff’s cause of action was barred by the provisions of article 4648, Vernon’s Sayles’ Texas Civil Statutes, which reads:

“No injunction to stay an execution upon any valid and subsisting judgment shall be granted after the expiration of one year from the rendition of such judgment, unless it be made to appear that an application for such injunction has been delayed in consequence of the fraud or false promises of the plaintiff in the judgment, practiced or made at the time of, or after rendition of, such judgment, or unless for some equitable matter or defense arising after the rendition of such judgment. If it bo made to appear that the applicant was absent from the state at the time such judgment was rendered, and was unable to apply for such writ within the time aforesaid, such injunction may bg granted at any time within two years from the date of the rendition of the judgment.”

As appears in the original opinion, there was no allegation in plaintiff’s petition of fraud practiced upon him at the time or after the rendition of the judgment complained of, nor was there any attempt to allege any facts arising after the rendition of the judgment which would constitute an equitable defense to the cause of action which ripened into the former judgment which plaintiff sought to vacate.

Appellee has cited the case of Williams v. Lumpkin, 86 Tex. 641, 26 S. W. 493. That was a suit to enjoin a judgment foreclosing a lien upon a homestead upon the ground of fraud perpetrated by plaintiff in the foreclosure suit. The defendant in that suit had been cited to appear, and his citation had advised him that a foreclosure had been prayed for upon the tract of land constituting his homestead as well as upon two other tracts. By mistake the mortgage foreclosed had included the homestead tract with the other two tracts, and prior to the foreclosure the mistake had been corrected by the execution of a release of the homestead tract placed on record. After the correction of the mistake, the defendant in the foreclosure suit took no further notice of it, relying upon the belief that there would be no foreclosure upon his homestead. In that case the Supreme Court held that, as no act was done by the plaintiff in the foreclosure suit at the time of the foreclosure to induce the defendant to believe that there would be no foreclosure upon the homestead, the suit to enjoin the said judgment came within the provisions of the article of the statute above quoted, and was barred by limitation because it was not instituted until after the. expiration of one year from the date of the foreclosure decree.

It is insisted that, as the judgment sought • to be enjoined in the present suit is regular on its face, it is therefore a “valid and subsisting judgment” within the meaning of article 4648, the same as the case of Williams y. Lumpkin. Our former opinion is construed by appellee as holding that the judgment was voidable only, and not absolutely void, and that it necessarily follows from the construction that it was within the meaning of article 4648. In our original opinion we did not attempt to designate the judgment as “void” or “voidable,” but we did hold that it was not a valid judgment, if Kimmell was not served with a copy of the petition. In the case of Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325, the following was said:

“The general rule is well established that a judgment rendered by a court even of general jurisdiction is void, if it had, at the time of the. rendition of the judgment, no jurisdiction of the person of the defendant or the subject-matter of the litigation. This principle is self-evident, because until the court acquires jurisdiction it has no power to proceed to investigate and determine private rights. Logically it can make no difference, os to the validity of the judgment, whether the lack of jurisdiction of the person or the subject-matter appears from the face of the record, or is made to appear by evidence aliunde. For if, for instance, no service was had upon the defendant, he not appearing in the case, the court having no jurisdiction whatever over his person, is absolutely without power to bind him by an adjudication that he had been in fact duly served; and logically this want of power is the same, whether the lack of jurisdiction appears on the face of the record or not. There is, however, another rule of law equally well settled upon principles of public policy, which precludes inquiry by evidence aliunde the record, in a collateral attack upon a judgment of á domestic court of general jurisdiction, regular on its face,- into any fact which the court rendering such judgment must have passed upon in proceeding to its rendition. Therefore it is well settled that where a personal judgment has been rendered against a defendant by a domestic court of general jurisdiction, and under the same his property has been seized and sold," he will not, in a contest oyer the title to the property, be allowed to show by evidence dehors the record that the judgment was rendered without any sendee whatever upon him. Logically the judgment is in fact void, hut on grounds of public policy the courts, in order to protect property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the record for the purpose of showing the invalidity of the judgment; and therefore for all practical purposes, in such collateral attack, the judgment is held valid.”

If the present suit were a collateral attack upon the former judgment, then appellant 'Kiminell would have no standing whatever, since the judgment in the original suit is valid upon its face, reciting due service of citation; but, as pointed out in our original opinion, the present suit is a direct attack upon that judgment. Ii in the former suit the court never acquired jurisdiction over the person of Kimmell, then under the rule announced in. Crawford v. McDonald the judgment rendered against him in that suit was void, even though under the rule of pub- • lie policy stated he would not have been permitted, on a collateral attack, to question its validity. And, if void, it could not be said to be a valid and subsisting judgment within the meaning of article 4648. If in that suit the court had acquired jurisdiction over Kim-mell, and he had sought to set aside the judgment on the ground of fraud practiced upon him in its procurement, then the judgment rendered would not have been void, but would have been voidable only in the suit instituted to enjoin its enforcement; in other words, it would have been a valid judgment within the meaning of article 4648 until vacated by a suit to set it aside.

For the reasons stated, we are of the opinion that the period of limitation of one year prescribed by article 4648 does not apply in the present suit, but that the statute of limitation of four years is applicable, and is the only statute of limitation that does control. Lane v. Moon, 46 Tex. Civ. App. 625, 103 S. W. 211, and authorities there cited; Dashner v. Wallace, 29 Tex. Civ. App. 151, 68 S. W. 307; Stewart v. Robbins, 27 Tex. Civ. App. 188, 65 S. W. 902; Foust v. Warren, 72 S. W. 406.

Appellee also cites the case of Fleming v. Seeligson, 57 Tex. 532, in support of the contention that, if the limitation prescribed in article 4648 does not apply to the present suit, yet the statute of limitation of two years does apply. It is a sufficient answer to that contention to say that the statute of limitation referred to in that decision, which was included in Paschal's Digest, has been repealed by subsequent statutes. McLane v. S. A. National Bank, 68 S. W. 65.

For the reasons indicated, appellee’s. motion for rehearing is overruled.

      iS^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    CUMBY LIGHT & TELEPHONE CO. et al. v. PIERCE-FORDYCE OIL ASS’N.
    (No. 7702.)
    (Court of Civil Appeals of Texas. Dallas.
    March 17, 1917.
    Rehearing Denied April 14, 1917.)
    1. Judgment <§=3251(1) — Conformity to Pleadings.
    In an action for goods sold on open account, where defendants by answer alleged a contract under which the goods were sold, and the court found that the contract had been made, but had been broken by the defendants through failure to pay, a judgment for plaintiff for the reasonable value, independent of the contract, could not be sustained; there being no pleading of abandonment or breach of the contract.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437.]
    2. Appeal and Error <§=3984(2) — Scope ot Review — Presumptions—Judgment.
    Where there is neither a statement of facts nor findings of the trial judge, the appellate court should presume in favor of the judgment that every fact essential to its correctness was proved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777.]
    3. Appeal and Error <§=>931 (1,2) — Scope oe Review — Presumptions—Findings.
    The rule as to presumption in favor pf the judgment is. not applicable to findings of fact and conclusions of law, since an appeal from them alone is possible,
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3762, 3763.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Action by the Pierce-Fordyce Oil Association against the Cumby Light & Telephone Company and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    E. W. Merritt and H. C. Miller, both of McKinney, for appellants. James M. Muse and Mort W. Muse, both of McKinney, for appel-lee.
   TALBOT, J.

The appellee instituted this suit against the appellants, Cumby Light & Telephone Company, alleged to be a firm composed of F. H. Hartzog, and the said F. I-I. Hartzog, in the county court of Hopkins county, Tex., to recover" the sum of $539.10, with interest thereon, alleged to be due upon an open account for goods, wares, and merchandise sold and delivered from about the 1st day of March, 1914, to about the 20th day of April, 1915, as shown in an account-attached to the petition. The defendant Hartzog filed a plea of privilege to be sued in the county of his residence, which he alleged was Collin county, Tex., and asked that the suit be transferred to that county. This plea was sustained, and the cause transferred to Collin county as prayed. On September 20, 1915, the defendants in said suit filed their first amended original answer, in which, after pleading general demurrer and general denial, they denied under oath that the said account was just and true in part, and set out in their answer the items alleged to be unjust and untrue and the amount that was due thereon. It was further alleged in said answer, so far as is necessary to state for the purposes of this appeal, that the items charged to be unjust and untrue in said account were sold and delivered to defendants by the plaintiff under and in accordance with a verbal contract made and entered into on or about March 1, 1914, whereby plaintiff agreed to sell and deliver to defendants at Cumby, Tex., for a period of one year from date, fuel oil necessary to run defendants’ plant at an agreed price per gallon, and said oil as shown in said account was sold and delivered under said contract, and that defendants were not indebted to plaintiff, except in the sum of $17S.21, under said contract, which sum defendants in their answer tendered into court. The case was tried by the court without the aid of a jury on December 16, 1915, and resulted in a judgment in favor of the plaintiff for the sum of $558.-81. The appellants duly excepted and gave notice of appeal in said cause, and requested the court to file findings of fact and conclusions of law. This request was granted, and the following findings and conclusions filed:

“(1) That on or about the 1st day of March, 1914, the defendant E. H. Hartzog contracted with the plaintiff to buy No. 3 distillate oil at five cents' per gallon for the purpose of operating his plant at Cumby, Tex., for one year, and plaintiff agreed to deliver said oil at Cumby for said price, and plaintiff delivered one car of oil under said agreement.
“(2) That defendant agreed to pay for said oil at the time of delivery or within a reasonable time after said delivery.
“(3) That defendant failed to pay for said car of oil within a reasonable time after delivery, and plaintiff refused to ship another car until said oil had been paid for.
“(4) That on or about the 1st day of March, 1914, the defendant employed one ■ Aston Kendrick to run and manage his plant at Cumby with full power to buy and pay for such materials and merchandise that were necessary for the operation of said plant, and that said Kendrick ordered the oils and merchandise sued for herein, except the car of oil of $303.10, and received the same and used it in the running of said plant, and the prices charged therefor were either agreed on between plaintiff and the said Kendrick or were reasonably worth the price charged therefor; that all of said goods, wares, and merchandise were delivered within one year from the time of the original agreement between plaintiff and defendant Hartzog.
“(5) That said Kendrick paid all the bills that were paid for said defendant company by giving check on the defendant company; that the defendant Hartzog was at the plant very few times during the times the items were furnished, and knew very little, if anything, of the business during said time.
“(6) That if plaintiff had furnished the oils as it had agreed to do, that is, if the original agreement had been carried out, the amount due by defendant would be $178.21.
“(7) That defendant agreed to pay to plain-' tiff’s attorneys the sum of $178.21, but never actually tendered the same to the plaintiff’s attorneys; that plaintiff’s attorneys’ reply was that they would submit the matter to plaintiff for their decision, they would not advise them to accept it, and this ended the matter as to the tender; that defendant did not follow up their tender by paying the same into court.
“Conclusions of Law.
“(1) That the said Kendrick, as agent for defendant, had full authority to buy the merchandise set out in plaintiff’s petition and bind defendant for the same. That it was necessary to have the said merchandise to run and operate said plant.
“(2) That defendant did not make a legal tender and follow it up.
“(3) That defendant is liable to the plaintiff for the amount sued for, to wit, $558.81, with interest. H. L. Davis, County Judge.”

There is no statement of facts in the record, but appellants duly excepted to the trial court’s conclusions of law and fact. The contention of the appellants is, in effect, that the pleadings in the case are insufficient to support the court’s findings of fact, and authorize the judgment rendered against them. This contention, we think, must be sustained. The appellee’s suit, as has been shown, was based on an. open account, the petition alleging that the merchandise therein mentioned, consisting of distillate oil, had been sold and delivered to the appellants in consideration of the several sums of money charged therefor in said account specified. The appellants pleaded in defense that the items of merchandise stated in the account had been sold to them under and by virtue of a contract by which the price of the same had been agreed upon, and which were much less than those charged therefor in said account. The court found as a fact that the contract as alleged by appellants had been entered into by the parties; that it was to continue in force for the period of one year, and that the merchandise involved in the suit was delivered within a year from the time of the original agreement; that appellants promised to pay for the merchandise so sold the price agreed upon at the time of its delivery or within a reasonable time after delivery; that appellants failed to pay for the merchandise within a reasonable time after its delivery, and that appellee refused to make further shipment until tire goods already shipped had been paid for. The court also found, as will be observed, that the merchandise in question was ordered by the manager of appellants’ plant, who was authorized to buy and pay for the same, but manifestly the judgment rendered is predicated upon the findings stated to the effect that appellants had abandoned or breached the contract entered into for the sale and purchase of the goods and were liable for their value, independently of and apart from said contract. In the state of the pleadings this was error. There is no pleading in the case raising the issue of abandonment or breach of the contract upon which appellants claim the goods were bought, and without such pleading testimony of such abandonment or breach was inadmissible, and, being admitted, furnished no basis for a judgment. That a judgment must he supported by both allegations and proof is' too well settled to require the citation of authority to support the proposition. The absence of either is fatal to the judgment. The court did not make a specific finding that the appellants bought the merchandise, the price of which is sued for in this action, upon account, and not upon the contract alleged by appellants, but evidently, as before stated, based the judgment rendered upon the findings filed to the effect that said contract had been breached by appellants.

It is the well-established general rule that, where there is neither a statement of facts nor findings of the trial judge, the appellate court should presume in favor of the judgment that every fact essential to its cor-reetness was proved, but this rule “is not applicable here, because the law authorizes an appeal upon such findings alone, and generally entitles the appellant, who,” as in the present case, “has properly excepted to them, to have the correctness of the legal conclusions on which tlie judgment rests tested by the facts stated as their basis.” Kimball v. Houston Oil Co., 100 Tex. 336, 99 S. W. 852, and cases therein cited. It is apparent that in the case at bar the trial judge stated affirmatively the facts and the state of the evidence from which his conclusions of law were drawn, and held that, because of the breach of the contract upon which appellants alleged the merchandise was bought, appel-lee was entitled to recover the full amount for which it sued. There being no pleading authorizing the judgment rendered upon such conclusions, the same will be reversed, and the cause remanded.

Reversed and remanded.
      c£=»For other cases, see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes