author: ■SWEARINGEN, J.

text:
    ALLEN et al. v. DRAPER et al.
    (No. 6041.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 29, 1918.
    Rehearing Denied June 19, 1918.)
    1. Public Lands <@=>175(1) — Disposal op State Lands — “Appropriated Lands.”
    Where by virtue of a land certificate legally issued a survey was made and properly and promptly filed in the county and general land office, the land surveyed became “appropriated lands,” which could not be covered by another certificate thereafter in view of Const, art. 14, § 2, providing that all general land certificates heretofore or hereafter issued shall be located, surveyed, and patented only upon vacant and unappropriated public domain.
    2. Public Lands <@=>175(1) — Conflicting Surveys — Rights of Parties.
    Surveys Nos. 207 and 208, location of which covered a portion of a prior school survey, were void to the extent of the conflict because forbidden by Const, art. 14, § 2 and the award of No. 208 and the patent to 207 passed no right or title to the land in the prior survey.
    3. Adverse Possession <@=>7(3) — Rights Which may be Destroyed — Award of School Land.
    An award of a school survey, coupled with proof of occupancy, payment of a part of the purchase money, interest, and taxes, is such a right as can be destroyed by adverse possession, notwithstanding title will remain in the state until it gives a patent.
    4. Adverse Possession <@=>73 — “Color of Title from the Sovereignty of the Soil.”
    An award of a school survey located in a prior survey of which there had also been an award is not “color of title from the sovereignty of the soil,” reguired to< give a superior right by throe years’ adverse possession under statute.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Color of Title.]
    5. Adverse Possession <@=>73 — “Color of Title from the Sovereignty of the Soil.”
    ■ AYliile a patent could not convey paramount title to land located within a prior school survey, it constituted “color of title from the sovereignty of the soil,” within the three-year statute of limitations, sufficient to enable patentees to secure a right thereto superior to one having an award of prior school survey.
    6. Trespass to Try Title <@=>56 — Improvements.
    If the improvements did not increase the value of the property, there can be no recovery therefor.
    7. Trespass to Try Title <@=>58 — Improvements.
    There should be no allowance for the value of improvements where they are completely offset by the rents.
    8. Judgment <@=>253(1) — Conformity to Pleading — Amount Demanded.
    In trespass to try title, defendant, who im» pleaded his warrantor, could not recover from him an amount in excess of that pleaded, although a greater price was proven.
    Error from District Court, Jim Hogg County ; Y. W. Taylor, Judge.
    Suit by B. R. Allen and others against J. J. Draper and others. There was a decree against plaintiff named, and he brings error.
    Affirmed in part, and reversed and rendered in part.
    John L. Dannelley, of Laredo, for plaintiff in error. J. E. Leslie, of McAllen, and Ball & Seeligson, of San Antonio, for defendants in error.
   ■SWEARINGEN, J.

This is a suit in trespass to try title, as well as for damages, by A. C. Allen, Guy Allen, L. M. Allen, B. R. Allen, Rhoda E. Allen, Jessie L. Sprague, joined by her husband, F. W. Sprague, Susie G. Wright, joined by her husband, W. B. Wright, E. Grace Laffoon, joined by her husband, W. I. Laffoon, and Nellie P. Geiser, joined by her husband, Clarence Geiser, against Henry Edds, Sirs. J. J. Draper, J. J. Draper, and his guardian, J. C. Draper. A jury returned an instructed verdict, upon which decree was rendered against appellant and in favor of all the appellees for the land claimed by them. Brought to this court on writ of error, but for convenience parties are styled appellants and appellees.

Originally B. R. Allen filed two separate suits, one against Henry Edds for 232½ acres of land, particularly described by metes and bounds, the other against Mr. and Mrs. J. J. Draper and J. C. Draper, the guardian of J. J. Draper, for 126% acres of land, also particularly described by metes and bounds. In both original suits the defendants answered by pleas of not guilty, limitation by one, three, five, and ten years, estoppel and improvements and payment; specially alleged the portion claimed, and disclaimed as to balance, and impleaded their warrantors.

The following facts were established: Appellants own the award of survey No. 162. Henry Edds owned the award of survey No. 208. Francis Smith was his warrantor. The Drapers owned the patent to survey No. 207. By virtue of land certificate No. 89, legally issued to Howard <& Wade, survey No. 162 was surveyed, the survey properly and promptly filed in the county and in the general land office in 1877, by reason of which steps the 640 acres of land contained in survey No. 162 ceased to be unappropriated public domain, but became lands appropriated to the public school fund. This was in 1877. In 1879 land certificate No. 1/519 was issued to B. S. & F. and was located on surveys 207 and 208; both were, as reguired by law, surveyed, and the surveys promptly filed in the county and in the general land office. Thus in 1879 survey No. 207 became appropriated land of which the assignee of the certificate B. S. & F. No. 1/579 was entitled to own; * the alternate survey No. 208 became.- 'appropriated to the public school fund^, ' School survey No. 162 was awarded to appellant’s grantor in 1908. School survey -No. 208 was awarded to Leon Martinez in] 1906, which award Henry Edds owns. Survey 207 was patented in 1906, and is owned by the Drapers. The court by its decree has determined that the two parcels of land herein sued for are located in survey No. 162, tlie 126% acres being also within the boundaries described in survey No. 207, and the 232½ acres being within the boundaries described in survey No. 208. The evidence is sufficient to support this finding by the court. This proof was offered by appellant to sustain his contention. The question of the exact location of the land and the question of whether or not there is a conflict in the location of the three surveys is therefore eliminated. The only assignment is that the peremptory instruction to find for appellees is error.

The only contentions raised by appellant’s propositions requiring consideration are the following: First, that appellant had the superior right to the disputed lands because survey No. 162 was surveyed prior to surveys No. 207 and No. 208, upon which prior survey the Constitution forbade the location of another certificate. Second, that appellees’ inferior right did not become the superior right by three years’ adverse possession because the award to purchase school survey No. 208 was not color of title from the sovereignty of the soil, and because the patent to No'. 207, a later survey, was not the color of title required by the statute of three years limitation.

The first contention herein made, namely, that appellant’s prior survey gave him the superior right does not seemi to be denied by appellees, and it has been often so decided by our appellate courts. The fact that survey No. 162 was surveyed and the survey filed in the county and in the general land office made the lands surveyed appropriated lands, which could not be covered by another certificate thereafter. Mills v. Needham, 28 Tex. Civ. App. 547, 67 S. W. 1097; Gilbert v. Mansfield, 38 Tex. Civ. App. 300, 85 8. W. 830.

Because the location of the surveys No. 207 and No. 208, made after survey No. 162, covered a portion of survey No. 162, to the extent of the conflict, they were void because forbidden by article 14, § 2, of the Constitution of Texas, and the award of No. 208 and the patent to No. 207 passed no right or title to the land in No. 162. Ellwood v. Stallcup, 57 Tex. Civ. App. 343, 122 S. W. 906.

The second contention made, namely, that appellees did not show a superior right in themselves to the conflicting land by adverse possession for three years under color of title, presents a more serious question.

Appellant has never received a patent to srihool survey No. 162, but has only an award com oled with proof of occupancy, payment of a po rt' *..f the purchase money, interest, and taxes. This is such a right as can be destroyed-by adverse possession, notwithstanding the fact that the legal title is in and will remain in the state until it executes and delivers the patent therefor. Paterson v. Rector, 127 S. W. 561, affirmed in 104 Tex. 708; Parker v. Brown, 80 Tex. 555, 16 S. W. 262; Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Lawless v. Wright, 39 Tex. Civ. App. 26, 86 S. W. 1039. The opinion by Justice Rice in Hamman v. Presswood, 120 S. W. 1052, is apparently not in harmony with the cases followed and cited by us.

It is admitted by appellees and the evidence shows that there was no adverse possession held by appellees sufficient to sustain the one, five, or ten years limitation. The issue is therefore reduced to the three-year statute of limitation. Appellee Henry Edds did not have a patent to school survey No. 208, but only an award, coupled with proof of occupancy, payment of a part of the purchase price, interest, and taxes. He had precisely the same evidence of right to school survey No. 208 as appellant had to school survey No. 162. It has been held, we believe uniformly and consistently, that an award is not color of title from the sovereignty of the soil, which the statute requires to give a superior right by the three years’ adverse possession. Pohle v. Robertson, 102 Tex. 274, 115 S. W. 1166; Johnson v. Knippa, 127 S. W. 905, § 2, and authorities therein cited; Morrow v. Conoway, 157 S. W. 430, § 3; Garrison v. Arnett, 126 S. W. 611; Wolffarth v. De Lay, 142 S. W. 617-622. Appellee did not acquire any right by limitation to that 232⅛ acres of land described in survey No. 208, which was located in survey No. 162.

Appellees, the said Drapers, claimed the 126% acres as a part of survey No. 207, but actually located on survey No. 162, under a regular patent from the state. This patent did not convey to him the paramount title to the part of the land in conflict with survey No. 162, because of the priority of the survey of No. 162; but the patent is color of title from the sovereignty of the soil and is sufficient to enable the Drapers, the appel-lees, by three years’ adverse possession of the conflict land, to secure to themselves a right thereto superior to the right of appellant Allen, though of course the Drapers, by this three years’ limitation, cannot affect the right of the state to forfeiture for nonpayment. Gullett v. O’Connor, 54 Tex. 416; Grigsby v. May, 84 Tex. 240-249, 19 S. W. 343; Horton v. Halff, 147 S. W. 735; Hulett v. Platt, 49 Tex. Civ. App. 377, 109 S. W. 207; Smith v. Power, 23 Tex. 34; Payne v. Ellwood, 163 S. W. 97; League v. Rogan, 59 Tex. 432; Anderson v. Jackson, 69 Tex. 346, 6 S. W. 575; Galan v. Town of Goliad, 32 Tex. 776; Williamson v. Brown, 49 Tex. Civ. App. 402, 109 S. W. 412; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031; Houston Oil Co. v. Wm. M. Rice Ins. Co., 194 S. W. 415.

There are several decisions by Texas Courts of Appeals that might be construed to hold that a patent to land appropriated by a survey made prior to the survey for which the patent issued is void, because forbidden by the Constitution, and being void such patent is not the color of title from the sovereignty required by the three-year statute of limitation. But these decisions do not seem to have been approved by the Texas Supreme Court, and seem to overlook the purpose of the statutes of repose. 2 C. J. 169, 170, § 41. Some of these cases are: Kieth v. Guedry, 114 S. W. 392, reversed by the Supreme Court, 103 Tex. 160, 122 S. W. 17, 125 S. W. 5; Gilbert v. Harris, 109 S. W. 392; Grayson v. Peyton, 67 S. W. 1074; Sheppard v. Avery, 28 Tex. Civ. App. 479, 69 S. W. 83; Lamberida v. Barnum, 90 S. W 698; Eyl v. State, 37 Tex. Civ. App. 297, 84 S. W. 607 (three-year statute of limitations does not seem to be involved).

The assignment of error is sustained. Ap-pellees Draper should recover on their plea of three years’ limitation all of the 126% acres described in appellant’s petition against them, and should also recover all costs incurred by them in this behalf. Appellant Allen should recover from Henry Edds all of the 232¼ acres alleged by appellant to be claimed by Edds and described in said petition, together with all costs of this suit except the costs incurred by appellees the Drapers, which are adjudged against appellant.

Upon the issue of improvements and rents pleaded by Edds and appellant, it is suggested by appellant that they be offset. An examination of the statement of facts fails to reveal that the 232⅛ acres was increased in value by reason of the two lines of fence built by Edds, though it seems it would cost from $130 to $150 a mile to build new fences like them. If the improvement did not increase the value of the property, there can be no recovery for improvements. Herndon v. Reed, 82 Tex. 652, 18 S. W. 665. However, if the improvements were made in good faith, as the evidence shows and as is admitted by the agreement that there is no issue of fact, and did improve the value of the land as much as the new fence would cost, the amount would be less than $140— 1,752 varas at 8 cents per vara. The value of the rents was admitted by Henry Edds in his testimony to be a little more than $162 — ■ 232½ acres at 19 cents per acre per annum for 1911, 1912, 1913, 1914, and 15 cents for 1915 and 1916. Therefore the value of the improvements is completely offset by the rents. We therefore adjudge that appellee Henry Edds take nothing by Ms plea for the value of the improvements. Appellant has waived all claim for any excess rents; therefore it is adjudged that appellant take nothing by his suit for rents. The judgment of the trial court is affirmed as to the appellees the Drapers, and is reversed and here rendered as to Henry Edds.

Henry Edds impleaded his warrantor, Francis Smith, and alleged a payment of $2,500 cash on December 29, 1910, for 640 acres of land in survey No. 208, alleging that the deed contained a covenant of express warranty. Francis' Smith admits the sale and warranty in his answer. The evidence contained in the synopsis of the deed introduced at the trial shows that Edds paid $5 an acre for the land bought from Francis Smith, and bought 640 acres. Edds cannot recover an amount in excess of that pleaded, even though a greater price was proven. 640 acres at $2,500 is $3.90 for each acre. $3.90 per acre for ■ 232½ acres is $905.75. We therefore adjudge that Henry Edds do recover from Francis Smith, the warrantor, the sum of $905.75, together with interest at the rate of 6 per cent, per annum from December 29, 1910, until November 21, 1916, date on which the decree was rendered herein, and shall recover interest at 6 per cent, per annum from November 21, 1916, on said amount of principal and interest due on said date. As to all other appellees not hereinabove disposed of the judgment of the trial court is affirmed.

Affirmed in part; reversed and rendered in part.

       127 S. W. 561.

      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    S. A. PACE GROCERY CO. v. GUYNES.
    (No. 1943.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 27, 1918.
    Rehearing Denied June 29, 1918.)
    1. Accord and Satisfaction' <§=>5 — Agreements — “Consideration.”
    While consideration is essential to an accord and satisfaction, slight modification of status of parties is sufficient.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Consideration.]
    2. Accord and Satisfaction <§=>8(1) — Contracts — “Consideration”—Enforcement.
    Where maker of note was solvent, an unperformed promise by payee to accept a lesser sum: as Lull payment was without consideration.
    3. Accord and Satisfaction <3=v>8(1) — Contracts — Expense of Negotiating Loans as “Consideration.”
    Where solvent maker of note, not having sufficient funds for payment borrowed the money, the expense being no greater to borrow only part than to borrow all, such expense was not consideration for agreement to accept a part of debt in full payment.
    4. Appeal and Error ⅞^»1060(3) — Misconduct of Counsel — Statements to Jury-Effect.
    Inflammatory statements to the jury by defendant’s counsel regarding the tyranny of plaintiff’s manager, unwarranted by evidence, per-... mitted over objection, held prejudicial eri•pjtt'''

    Appeal from District CodrR. -'Navarro County; H. B. Daviss, Judge, t.

    Suit by the S. A. Pace Grocery Company against J. T. Guynes. Judgmenjt for defendant, and_ plaintiff appeals.
    Reversed and remanded.
    Dexter Hamilton and R. S. Neblett, both of Corsicana, for appellant. Callicutt & Johnson, of Corsicana, for appellee.
   HODGES, J.

The appellant is a private corporation [city of Corsicana, Tex. It instituted this suit in the court below against the appellee to recover a balance of $583.60 due on a I promissory note and $125.90 due on an open account. It also asked for the foreclosure of a chattel mortgage on some personal property given to secure the payment of the note. Among other defenses the appellee pleaded payment, and • also asked for judgment against the appellant for an excess of $400.44 which he claims to have paid on other indebtedness held by the appellant. He alleged, in substance, that in December, 1915, he owed the appellant a balance on the note here sued on and another note for the sum of $2,500 due the 1st day 'of January thereafter ; that the appellant, through its general manager, S. A.- Pace, offered to accept in payment of the latter note $1,000 less than its face value; that this offer was assented to by the appellee, and he began making an effort to borrow the money for that purpose. He finally succeeded in securing a loan and paid to the appellant $2,425, which he alleged amounted to $400.44 more than he owed the appellant at that time if he had been given credit for the $1,000 deduction promised, by Pace. In reply to this plea of payment the appellant alleged that the offer referred to, if made, was withdrawn before it was complied with, and, further, that it was wholly gratuitous and without any consideration. In a supplemental answer the appellee set out certain expenditures which he made in his efforts to secure a loan of the money needed, consisting of the costs of procuring abstracts, the examination of title, and the purchase of other interests in a tract of land he was required to mortga&e as security. A trial before a jury resulted in a verdict and judgment against the appellant on its demand, and in favor of the appellee for a balance of $388.44.

In view of the disposition which we think should be made of the case, we shall consider first those assignments of error which may be regarded as attacking the sufficiency of the evidence to support the judgment rendered. It was shown in the trial below that the note sued on by the appellant was executed by the appellee in January, 1915. It was originally for the sum of $687, due October 1st after date, and provided for interest at the rate of 10 per cent, per annum and 10 per cent, as attorney’s fees in the event the note wli-.s placed for collection. When introduced in - '\hlence on the trial, it showed credits ami-mi Mug in the aggregate to $352.-34. There was no dispute in the trial.as to the correctness of those credits. On January 16, 1915, the appellee executed and delivered to the appellant another note for the principal sum-, of $2,500 due January 1, 1916, with interest' from date at the rate of 10 per cent, per annum, and also provided for 10 per cent, attorney’s fees in the usual form. This last-mentioned note was secured by a mortgage on real estate. During the year 1915 the appellee contracted other debts to the appellant for goods purchased on account. These debts, however, were settled before this controversy arose. In the fall of 1915, some time after the note first described matured, the appellee made a payment of $250 which he directed to be credited on that note. S. A. Pace, the appellant’s manager, insisted that the credit should be applied in payment of the interest on the $2,500 note, and testified that this was agreed to, but that testimony was disputed by the appellee, and the verdict of the jury is such that it cannot be determined how that issue of fact was settled. It appears that some ill feeling was engendered during the dispute, which caused Pace, who had exclusive management and control of the S. A. Pace Grocery Company, to resolve to discontinue further business dealings with the appellee. A short time thereafter, and before the larger note matured, Pace wrote the appellee a letter offering to accept in full payment of - the $2,500 note $1,000 less than its face value. Omitting the immaterial portions, that letter is as follows:

“You owe me a note for twenty-five hundred dollars, secured by a mortgage on land. You owe a prior mortgage of four hundred dollars to Mrs. Baum on this land. Some time ago you had this matter up with Capt. Allyn, and he agreed to take up this four hundred dollars, and it has occurred to me that possibly, if he is a personal friend of yours, and has confidence in you, that he would be willing to. take up ours also, and if you can do this, or have some one else take it up, I will allow you to do so and will receipt the note for $1,500.00. Or, in other words, to get clear of this matter without any further friction between us, I am willing to accept fifteen hundred dollars for the twenty-five hundred dollars, and then there will be no trouble whatever for you to get sufficient money on the four hundred dollars to pay off the mortgage on your live stock. Or, if you want to do so, as I understand that you have twenty-five or thirty head of good cattle that are worth a great deal more as stock cattle than this note amounts to, I will take a new note for the amount of the balance due on the old one, and take a mortgage on the cattle and renew it until next fall. Then that will -leave everything that you have clear, and you can make your arrangements for groceries with some one else.
“Now, think of this please, and make an effort to do as I have suggested. I am sure that you can do it with just a little assistance from those near you, whom I believe would be glad to assist you.
“Trusting that you.will appreciate my motive in writing to you as I do, and be assured that I do it with the very best of personal feelings towards you, I remain, Yours truly, S. A. Pace, Prest. & Mgr. S. A. Pace Gro. Co.”

Appellee testified that within a day or two after receiving this letter he called on Pace, expressed his appreciation of the generosity extended, and accepted the offer. Being without the necessary funds, he immediately began efforts to secure a loan, and made an application through a local agent of a foreign money lending company for $3,500, intending to use the excess over what was required. to meet the offer of the appellant in payment of debts due other parties. On January 24, 1916, no payment having been made by the appellee, Pace wrote him another letter, of which the following are the material portions:

“Dear Sir: In making you the proposition some time ago that I did as an inducement to have you pay what you owed me, I did not mean, and do not think you understood it so, that the proposition should stand open indefinitely. * * * If I do not hear from you promptly on receipt of this letter, and you do not do what I want you to do, then this is notice to you now that I withdraw my proposition, and you will have to come in and make some other satisfactory arrangement with me.”

Appellee testified that upon receipt of this letter he again called on Pace; and the following is his version of the conversation that took place:

“I told him that the reason I hadn’t been in there in the last three or four days ⅜ * ⅜ I couldn’t get the money there by the 20th, and I was tired of telling him what I was doing. And Mr. Pace said, ‘You understand, Tally, that proposition was not made to stand open indefinitely.’ And I said, ‘I understand that.’ And then he said, ‘However, I will do what is right.’ I told him I would get the money as soon as I could; I couldn’t do anything, only wait on the other parties. Mr. Pace did not tell me on that occasion that he was going to insist on withdrawing that proposition. The first notice I received that he expected not to stand by the proposition he had made was this letter.”

The letter referred to evidently was one written on or about the 7th of February following. On that date the local agent of the Central Life Assurance Company of Iowa, from whom the appellee was borrowing the money, received a check for the full amount applied for. ■ Under the directions of the appellee the agent sent the appellant a check for $2,425, without any explanation or instruction as to how it should be applied. The remainder of the $3,500 was paid through this agent on other obligations and a small balance delivered to appellee. On February 10, 1916, the appellee wrote Pace the following letter:

“Dear Sir: In reply to yours of the 7th, I am very busy getting prepared to commence farming, but will come to see you as soon as I can. I have neglected all my farm work until this week. Respectfully, J. T. Guyncs.
“I acknowledge receipt of the $2,500.00 note.”

On March 9th he wrote Pace the following:

“Dear Sir: In reply to yours of recent date will say I have mortgaged nothing to any one this year, except the land to the loan company for the money I paid you.”

This correspondence indicates what is shown by other evidence, that Pace was pressing the appellee for the payment of the note sued on. While the appellee must have been apprised of the fact that Pace had not allowed him a credit of $1,000, but had applied the entire payment on the $2,500 note, yet he not only failed to then make any objection, but apparently acquiesced in the application made until about May 12, 1916. He testified that on that date he called upon an attorney to consult him about the demands that Pace was making upon him for the payment of the note sued on and' other indebtedness. It appears that the attorney prepared a lengthy communication to be sent to Pace, in which are recited the agreement made by Pace to accept a part of the $2,500 note in full payment and the different transactions which had occurred thereafter during the preceding five or six months, together with the payment of the excess which he had received over the appellee’s indebtedness after deducting the credit of $1,000. This letter was copied by the appellee and mailed to Pace. Upon the trial he testified that it was written in that form as a means of getting the facts therein stated before the jury. That letter seems to have been the first intimation he gave to Pace that he was insisting on the benefit of the $1,000 credit. According to the testimony of Pace, that offer had been withdrawn some time previous to the payment of the note, because of the ap-pellee’s delay; and the appellee had acquiesced in that withdrawal.

The question presented is: Was the appellee at the time this suit was filed entitled to the benefits of the agreement which he says was entered into between him and Pace by which the latter offered to accept as payment in full of the $2,500 note $1,000! less than its face value? In an old English decision known as Pennel’s Case, 5 Coke, 117a, it was held that the payment of a part of a debt under a gratuitous agreement that it should satisfy the whole did not bar a suit by the creditor to recover the balance. That decision has been followed in this country, but with some reluctance. The doctrine announced is often criticized as harsh and out of harmony with the trend of modem jurisprudence. See the cases collected in 1 Corpus Juris, p. 539 et seq. While in this state the presence of a consideration is regarded as essential to the finality of such settlements, the courts are liberal in treating as sufficient even slight modifications of the status of the parties resulting from the terms of such agreements. Rotan Gro. Co. v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586; Powers v. Harris, 42 Tex. Civ. App. 250, 94 S. W. 136; Bergman Produce Co. v. Brown, 172 S. W. 554. But this is not a case where the creditor is seeking the recovery of a balance claimed upon a debt which he had agreed might be satisfied by payment of. a ’ part. Here the debtor is insisting that he be allowed a credit upon the ground that the creditor should be compelled to perform his agreement to accept a part in. pajunent of the whole debt. The questions attending the legal effect of an implied release resulting from an acceptance of only a ¡part tendered in satisfaction of the entire delfit are not involved. The situation would hot be materially different ,i£ the $2,500 n$te had been the only claim held by the appellant, and this were a suit by the appellee to recover the excess over $1,500 which he had paid upon it. "Whatever the agreement between Pace and the appellee may have been, it is made clear by the evidence that Pace did not accept the payment of $1,500 as satisfaction of that note. If the excess over $1,500 included in the check sent to Pace had been placed to the appellee’s credit, it would have been more than sufficient to extinguish all of his indebtedness to the appellant. The fact that for three months after sending that, check appellee made no protest, although he knew how it had been applied, is strong evidence that he did not expect a different application of the money. If he is now entitled to the relief which he sought and- obtained in the court below, it must be upon the ground that the agreement made by Pace to deduct the $1,000 was an enforceable contract.

Assuming that the offer had not been withdrawn, it was wholly without any consideration. The original debt was a liquidated demand about which there was no dispute. The debtor was neither insolvent nor embarrassed. The note was secured by a mortgage whose sufficiency is not questioned. While the debtor was compelled to borrow the money, he had ample property to enable him to secure enough to pay all of his debts. In addition to the incumbered property, he owned a homestead worth several thousand dollars. By his promise to pay $1,500 in satisfaction of a debt of $2,500 no benefit in any form accrued to the appellant. Neither did any detriment result to the appellee. The comparatively small expense incurred in furnishing the security for the loan constituted no consideration. At the time the offer was made he was under an obligation to phy $2,-500. If he did not have the funds with which to meet that obligation, it was his duty to borrow them. Surely it was- no more difficult or expensive to borrow $1,000 less than the original debt. In the agreement with Pace the appellee had not obligated himself to borrow the money in the manner he did. All Pace then asked for was payment, and it was of no concern to him how the money was obtained. The plan adopted by the ap-pellee was one of his own selection, and the expense it entailed must be treated as having been voluntarily incurred. Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875, 62 L. R. A. 760, 100 Am. St. Rep. 386, and notes page 440; 1 R. C. L. p. 193. The presence of a consideration to support a contract must be tested by whnt the parties have done or have bo mil I hemselves to do when the agreement P, completed. If at that stage of the negotiations there is no consideration for the unperformed promise, no benefit to the promisor or detriment to the promisee, it is nudum pactum. When Pace made his offer and appellee accepted it, and thus ended their negotiations, the transaction had none of the elements of a valuable consideration, and was not then an enforceable contract. It could not thereafter be transformed into one by the doing of something which the appellee was equally obliged to do by the terms of his original contract. We are therefore of the opinion that the verdict of the jury was without support in the evidence. The court should have disregarded the defense of payment and required the jury to find only the amount still due upon the note and account sued on. That matter is involved in some doubt by reason of the conflict in the evidence relating to the application of a payment of $250.,

We feel constrained to also call attention to what we regard as a grievous error committed in the argument before the jury. According to the bill of exception presented, counsel for the appellee used the following language:

“I’d rather work for 15 cents a day and be independent than to be the lackey of such a tyrant as S. A. Pace and draw a handsome salary, and crawl and bow down to him and do his bidding as he makes these youngsters do (referring to the witnesses Benson and Robinson), and I am responsible any time- for what I say. The Czar of Russia and the commander of the German army is not as great a tyrant as S. A. Pace. He allows no one to dispute his will, and the man who does not bow and scrape before him and disputes his will and authority is in danger of his mighty wrath. Get down on your knees, sir, and let me put my foot on your neck, or you’ll be hung quicker than the Czar of Russia would hang you. That’s the attitude of S. A. Pace towards the employes and customers of S. A. Pace, the tyrant of S. A. Pace Grocery Company, who measures all men by the eagle on the dollar.’*

There is nothing in the evidence brought to this court which warranted such an inflammatory speech. It was well calculated to, and doubtless did, influence the jury in resolving important issues of fact against the appellant. Evidently such a result was expected by the attorney who used it, and he would have failed of his purpose had he not succeeded in arousing in the minds of the jurors a personal antipathy towards Pace. Every litigant, whether he be morally good or bad, is entitled, in a court of justice, to have his rights passed upon and his evidence weighed by an unprejudiced tribunal. Bias improperly created during the progress of a trial is as hurtful as that which lurks in the minds of jurors before being impaneled. The duty of the presiding judge, to see that illegitimate methods are not resorted to in his presence to arouse personal bias against one of the parties to the suit is an important judicial function, and its timely exercise not only often avoids the necessity of granting a new trial in order to prevent a miscarriage of justice, but maintains the dignity of judicial proceedings. Jurors are disposed to regard as proper any argument which the court permits the attorneys to address to them, and this impression is made stronger when he refuses to sustain an objection by the opposing party. Whatever may be the technical rules regarding procedure, this court is not disposed to sanction a verdict which we have good reason to believe was induced by an improper argument.

For the reasons stated, the judgment is reversed, and the cause remanded.
      (SS^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WITjRSON, C. J.

text:
    STINE & CLARK v. MUNDY FUEL CO.
    (No. 1998.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 18, 1918.
    On Motion for Rehearing, June 27, 1918.)
    Appeal and Error <@=1071(1) — Harmless Eeeoe — Findings—Damages.
    Where amount of judgment was difference found by the court between contract price and market and actual value thereof, the judgment should not be disturbed because of further finding that plaintiff would have made profits amounting to the sum of the judgment, if the contract had been performed.
    Appeal from District Court, Camp County; J. A. Ward, Judge.
    Action by Jeff Mundy, as the Mundy Fuel Company, against ‘Stine & Clark. Judgment for plaintiff and defendants appeal. Affirmed. On motion for rehearing.
    Motion overruled.
    Taylor, Allen & Taylor, of Henrietta, for appellants. Bass & Engledow, of Pittsburg, for appellee.
   WITjRSON, C. J.

This was a suit by ap-pellee, Jeff Mundy, who carried on business as a dealer in wood in the name “Mundy Fuel Company,” against F. Stine and J. W. Clark, in which judgment was rendered in appellee’s favor for $3,876.68 as the damages he was entitled to recover of appellants because of a breach by them of their undertaking to sell and deliver to him, and load on cars, at Faker, 5,000"cords of wood, on or before December 1, 1914, and because of a breach by them of their undertaking t.o sell and deliver to appellee on cars at Faker 500 cords of wood by June 1, 1914. By the terms of the contracts, both of which were in writing, appellee was to pay appellants $2 per cord for the 5,000 cords and $1.50 per car for loading same on cars, and $1.75 per cord for the 500 cords loaded on cars. Appellants delivered to appellee only 1,152 of the 5,000 cords they had agreed to deliver by December 1, 1914, and failed to deliver any of the 500 cords they had agreed to deliver by June 1, 1914.

The trial was to the court without a jury. The objections urged by appellants to the judgment are all on the theory that it was for .profits the court thought appellee might have made by selling to his customers the wood appellants agreed, but failed, to deliver to him. The argument is that such profits were not recoverable, because “too remote, uncer- . tain, and speculative.” The court found that the contract price of the 3,848 cords which appellants agreed to deliver by December 1, 1914, but failed to deliver at all, was $2 per cord loaded on cars at Faker, whereas the market and actual value of same at that place, at the time delivery thereof by appellants was contemplated, was $3 per cord. The court further found that the contract price of the 500 cords was $1.75 per cord, whereas the market and actual value of same at Faker, at the time delivery thereof was contemplated, was $2.50 per cord. Bach of these findings is supported by testimony in the record. The amount of the judgment is the amount of the difference, found by the court as stated, between the price at which appellants agreed to sell the wood to appellee and the market and actual value thereof at Faker at the times it should have been delivered there to appellee. This being true, tbe judgment should not be disturbed, even if it appeared that the court erred, and we think he did not, when he also found that appellee would have made profits amounting to the sum of the judgment by selling the wood to his customers, had appellants delivered same to him as they agreed to.

The judgment is affirmed.

On Motion for Rehearing.

In the argument in support of the motion the statement in the opinion that the objections urged to the judgment were “all on the theory that it was for profits the court thought appellee might have made by selling to his customers the wood appellants agreed, but failed, to deliver to him,” is challenged as incorrect, and attention is called to the fact that appellants in their fourth assignment complained of the finding of the trial court with reference to the “actual” (as distinguished by said court from the “market”) value of the wood.

The action of this court was predicated mainly upon the finding that the wood had a market value at Faker, and that that market value exceeded the price appellee was to pay for the wood the sum adjudged in his favor. If that finding was warranted by the testimony, and we thought and yet think, it was, it is obvious the judgment should not have been reversed because the finding of the trial court as to the “actual,” as distinguished (by that court) from the “market,” value of the wood, or his finding that appellee would have made profits in the amount of the judgment by a resale of the wood, had same been delivered to him in compliance with the contracts, máy not have been warranted.

The motion is overruled.


author: JENKINS. J.

text:
    CAVITT v. BEALL HARDWARE & IMPLEMENT CO.
    (No. 5913.)
    (Court of Civil Appeals of Texas. Austin.
    April 25, 1918.
    Rehearing. Denied May 22, 1918.)
    1. Executors and Administrators <@=338— Sale oe Land — Parties—Intervention.
    One who had purchased interest of some of heirs in a tract of land had the right to have the personal property sold and the proceeds applied to the payment of deceased’s debts before resorting to such land, and an exception to his plea of intervention in administration proceeding's to sell such land for payment of debts should have been overruled.
    2. Executors and Administbatobs ©^325-Payment oe Debts — Resorting to Land.
    Personal property is the primary fund for the payment of debts of a decedent, and must be exhausted before resort can be had to land.
    3. Exectjtobs and Administbatobs ©=333— Sale oe Land — County Court — Jurisdiction — Title to Propisrty.
    Judgment of county court in administration proceedings for sale of land, that personal property mortgaged by deceased belonged to his son, was void for want of jurisdiction, since county court sitting in probate cannot try title to property.
    4. Courts <§=16i>(2) — County Court — Jubis-diction — Value oe Pbopeety.
    If petition of deceased’s son claiming personal property mortgaged by deceased be treated as a suit against the administrator for recovery of property, the county court had no jurisdiction, the alleged value of the property being in excess of ¡¡>1,000.
    5. Executors and Administbatobs <@=72— Inventory — Conclusiveness.
    In proceedings by administrator de bonis non to sell land for payment of debts of deceased, neither the original stating the property was claimed by deceased’s son, nor corrected inventory omitting such property, are conclusive for or against administrator, in view of Rev. St. arts. 3337-3348, providing, among other things, that inventory shall not bo conclusive against administrator in suit by or against him, when there is property belonging to the estate not inventoried, or when it is shown that the property was not separate or common property, as specified in such inventory.
    6. Executors and Administbatobs <§=341— Sale oe Land eob Payment oe Debts.
    In proceedings by administrator de bonis non to sell land for payment of deceased’s debts, intervener, who had purchased interest of certain of heirs in such land, could show that certain personal property belonging to the estate was still in the hands of the administrator and available for payment of decedent’s debts.
    7. Executobs and Administbatobs <§=341— Sale oe Land eor Payment oe Debts.
    In proceeding by an administrator de bonis non to sell land for payment of decedent’s debts, he had the right to show that certain personal property was not the property of decedent, or, if it ever was, it had been lost to the estate by the act of the former administrator in turning it over to decedent’s son, so that it was not available for the payment of debts.
    8. Executors and Administbatobs <§=325— Payment oe Debts — Resort to Land.
    That the personal property belonging to the estate had been lost by the wrongful acts of the former administrator would not prevent dece* dent’s land being sold to pay debts of the estate, since the rights of the heirs or assigns in such case would be against the former administrator and his bondsmen.
    9. Executors and Administrators <§=274— Secured Claims — Resort to Security.
    The debt being that of deceased, it was the duty of the creditor to exhaust its remedy against his property before resorting to property of son mortgaged by deceased to secure the debt.
    10. Executors and Administratobs <§=241— Allowance of Claim — Conclusiveness.
    A claim having been allowed b3< the administrator and approved by the court, and no appeal having been taken from such action, the matter is res adjudicóla.
    Appeal from District Court, McLennan County; B. J. Clark, Judge.
    Proceedings by J. P. Cavitt, administrator de bonis non, to sell land for payment of debts of C. R. Phillips, deceased, opposed by the Beall Hardware <& Implement Company. There was a decision for the administrator in the county court, and the company appealed to the district court, where th'e decision was reversed; whereupon the administrator and the First National Bank of Mc-Gregor, a creditor of the estate, appeal.
    Reversed and remanded, with instructions.
    D. A. Kelley, of Waco, for appellant J. F. Cavitt. Allan D. Sanford, of Waco, for appellant First Nat. Bank of McGregor. Marshall Surratt, of Waco, and Neyland-<& Neyland, of Greenville, for appellee.
   Findings of Fact.

JENKINS. J.

C. R. Phillips borrowed money from th'e First National Bank of Mc-Gregor, for which he gave his note, and as security therefor executed a mortgage on certain personal property, consisting of horses, mules, and farming implements. Subsequently C. R. Phillips died, and J. E. Brown was appointed administrator of his estate. He filed an inventory, which included, among other things, the personal property above referred to, with a notation that the same was claimed by Ernest Phillips, one of the sons of C. R. Phillips, deceased. Subsequently Ernest Phillips filed in said administration proceedings his petition against said administrator, in which he claimed title to said personal property. Upon a hearing of the same the ■county court found that said property belonged to Ernest Phillips, but that it had been mortgaged to the Pirst National Bank of Mc-Gregor by C. R» Phillips, with the knowledge and consent of Ernest Phillips, and ordered that it be turned over to Ernest, to be held, however, by him subject to said mortgage. Th'e bank filed its claim, as evidenced by said' note, with the administrator, which he allowed, and which was'approved by the probate court as a proper claim against the estate of C.' R. Phillips, deceased, and ordered it paid. None of the orders above referred to was excepted to ór appealed from.

At a subsequent term th'e administrator filed his report, showing that he had paid out all funds on hand to creditors whose accounts had been allowed and approved, including 65 per cent, of the bank’s debt;' that there were debts unpaid, and that the only property belonging to said estate remaining oh hand was a certain eight-acre tract of land, and asked for an order of sale for same.

Appellee intervened, alleging that it had purchased at sheriff’s sale the interest of Ernest, Duke, and Otis Phillips in said land; that there was no necessity for the sale of such land, for the reason that the personal property hereinbefore referred to belonged to said estate; and prayed that the administrator be required to sell the same before selling the land.

Before this application was acted on the administrator Brown died, and appellant was appointed administrator de bonis non.

Appellant excepted to appellee’s plea of intervention, and the same was sustained. He also denied that said personal property ever belonged to the estate of G. R. Phillips, deceased, and alleged that the only property belonging, to said estate which had come into his hands was the eight acres of land for which he ashed an order of sale. Appellee appealed the case to th'e district court, and that court overruled appellant’s exception to appellee’s plea of intervention; refused to hear evidence as to the ownership of the personal property; and reversed and remanded the case to the county court, with instructions to refuse the application to sell said land. From that judgment th'e administrator de bonis non has appealed, and the case is now here for review upon appropriate assignments of error.

Opinion.

The undisputed evidence showing that appellee had purchased the interest of some of the heirs of O. R. Phillips, deceased, in the eight acres of land, it had all of the rights of such heirs, which, among other things, was to have the personal property belonging to the estate sold, and the proceeds applied to the payment of the debts of the deceased before resorting to the land. Personal property is the primary fund for the payment of the debts of a decedent, and must be exhausted before resort can be had to land. Minter v. Burnett, 90 Tex. 248, 249, 38 S. W. 350; Arnold v. Dean, 61 Tex. 253. For which reason the district court did not err in overruling appellant’s exception to appellee’s plea of intervention.

The judgment of the county court decreeing that the personal property claimed by Ernest Phillips .belonged to him was void for want of jurisdiction. The county court sitting in probate cannot try the title to property. Wise v. O’Malley, 60 Tex. 588; Timmins v. Bonner, 58 Tex. 555; Edwards v. Mounts, 61 Tex. 398; White v. White, 11 Tex. Civ. App. 113, 32 S. W. 49. In such case suit should be filed in the court having jurisdiction of the subject-matter.

If the petition of Ernest Phillips be treated as a suit against the administrator for the recovery of property, the county court was without jurisdiction, for the reason that the alleged value of such property was in excess of $1,000.

If said petition be treated as a demand that the inventory be corrected, and the order of the county court as having corrected the same,. neither the original nor the corrected inventory is conclusive for or against the administrator. R. S. arts. 3337-3348; White v. Shepperd, 16 Tex. 168; Routledge v. Elmendorf, 54 Tex. Civ. App. 174, 116 S. W. 156.

The appellee had the right to show, if it could, that said property did in fact belong to the estate, and was still in the hands of the administrator; in which event it would have been the duty of the county court to order the same to be sold, and to refuse the petition to sell the land until the proceeds of the personal property had been exhausted.

On the other hand, the administrator de bonis non, appellant herein, had the right to show, if he could, that the personal property referred to was not the property of the decedent, or, if it ever was, that it had been lost to the estate by the act of the former administrator in turning the same over to Ernest Phillips. If either of these facts had been shown, it would have been the duty of the court to order the sale of the land. Such being the law, the district court erred in refusing to hear testimony as to th'e ownership of said property and what had become of it.

If the personal property belonged to the estate, and had been lost by the wrongful acts of the former administrator, this would present no reason why the land should not be sold to pay th'e debts of the estate. The heirs took the property of the decedent, subject to the payment of his debts, and have no claim thereto until such debts are paid. If they or their assigns suffer loss by the act of the former administrator, th'eir remedy is against him and his bondsmen.

There is no merit in the contention of appellee that the bank should exhaust its claim'under the mortgage before it is entitled to have the land sold. On th'e contrary, the debt being that of C. R. Phillips, it is its duty to exhaust its remedy against his property before proceeding against the property of Ernest Phillips.

The claim of the bank having been allowed by the administrator and approved by th'e court, and no appeal having been taken from such action, that matter is res judi-Sata, and cannot now be inquired into.

For the reasons stated, the judgment of the district court is reversed, and this cause is remanded, with instructions to try the issue as to the present availability of the personal property as assets in the hands of appellant, and to enter judgment for or against appellant, accordingly as such' facts shall be found in his favor or against him.

Reversed and remanded, with instructions.
      —.Urn- other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    MIRELES v. STATE,
    (No. 4579.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.
    On Motion for Rehearing, June 26, 1918.)
    1. Criminal Law <§=>938(1) — New Trial — Grounds. — Newly Discovered Evidence.
    A defendant is entitled to a new trial, on the ground of newly discovered evidence., if, in the light of the evidence itself on the trial, the absent testimony set out in the application for a continuance was material and probably true.
    2. Criminal Law <§=>945(2) — New Trial-Grounds.
    In a prosecution for statutory rape, it was error to refuse a new trial, applied for on the ground that defendant had discovered that records disclosing the girl’s age to be more than .15 years existed in Mexico.
    3. Criminal Law <§=>429(1) — Evidence—Admissibility — Census Reports.
    Census reports are admissible as original evidence of facts which under the law are required to be recorded.
    4. Witnesses <§=>392(1) — Evidence—Census Reports.
    In a prosecution for statutory rape, census reports showing the girl’s age were admissible as contradictory statements of the state’s witnesses.
    5. Criminal Law <§=>421(3) — Evidence — Age.
    In a prosecution for statutory rape, evidence by prosecuting witness that her mother two years before told her age, and from such fact she knew her age to be under fifteen, was admissible.
    Appeal from District Court, Brooks County; Y. W. Taylor, Judge.
    Juan Míreles was convicted of statutory rape, and he appeals.
    Reversed and remanded.
    Jno. C. North, of Corpus Christi, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appeal is from a conviction for statutory rape and punishment fixed at confinement in the penitentiary for a period of 5 years.

The application for continuance, based upon the absence of knowledge of witnesses by whom the age of the female named in the indictment might be proved and the belief that the fact that she was over 15 years of age could be established by delay, was not followed by any verification of the motion for new trial or the accuracy of the information or belief upon which the motion is founded. The bill alleging misconduct of the jury, in view of the court’s qualification that it was not supported by proof, does not present error. The assignment in the motion for new; trial and in the bill of exception mentioned charging misconduct of the jury was one, we think, that the court was not required to hear evidence upon for the reason that it was too general, and, further, was a character of alleged misconduct inquiry into which is prohibited by public policy; namely, the use made by the jury of evidence legitimately before it. Turner v. State, 61 Tex. Cr. R. 103, 133 S. W. 1052; Watson v. State, 199 S. W. 1098, recently decided; Jack v. State, 20 Tex. App. 656; Morrison v. State, 39 Tex. Cr. R. 523, 47 S. W. 369; Black v. State, 41 Tex. Cr. R. 187, 53 S. W. 116; Kannmacher v. State, 51 Tex. Cr. R. 122, 101 S. W. 238.

The sufficiency of the proof of the age of the female named in the indictment is challenged. It is conflicting, and the conclusion that the age of the girl is not shown to be under 15 years coul’d well have been reached; but, deferring to the rule of law which makes the solution by the jury of controverted questions of fact binding upon the courts where there has been no error in the conduct of the trial, we are constrained to overrule the assignment complaining of the sufficiency of the evidence.

The injured party testified to her age as under 15 years at the time of the offense, declaring that she testified from knowledge derived from her mother. This character of testimony has been received and given weight in numerous instances. Boyd v. State, 72 Tex. Cr. R. 521, 163 S. W. 69; Lott v. State, 66 Tex. Cr. R. 152, 146 S. W. 544; Knowles v. State, 44 Tex. Cr. R. 324, 72 S. W. 398; Sheppard v. State, 56 Tex. Cr. R. 605, 120 S. W. 446; Vaughn v. State, 62 Tex. Cr. R. 26, 136 S. W. 476. The girl’s mother testified to her age, though she was unable to state the year of her birth. She did state, however, the day of the month. Similar testimony was relied upon in Vaugh v. State, 62 Tex. Cr. R. 26, 136 S. W. 476. There were census returns introduced in evidence contradicting or tending to contradict the testimony as to the age of the injured female. One of these reports, signed by the father of the injured party, contained a schedule of the ages of his children which would have made his daughter, the person named in the indictment, more than 15 years at the time of the offense. There were also some contradictory statements by the injured female herself tending to impeach her testimony as to her age. The parties appear to have been unfamiliar with the English language and lacking in education, and an effort was made on the part of the state to explain the discrepancy on these grounds. The evidence of the mother of the injured party, in spite of the contradictions and effort to impeach, having been accepted by the jury as true, and their finding having been approved by the trial judge, we feel indisposed to disregard their conclusions.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

The indictment was filed April 11, 1917, and the trial begun April 16, 1917. In appellant’s application for a continuance it is shown that he was arrested late in the evening of the 11th of April, and had been in . jail up to the time of the trial, and that he | had a defense for the prosecution in that j prosecutrix was above the age of 15 years at' the time of the commission of the alleged offense; that the time since Ms arrest had been insufficient to prepare for trial; that his information was that prosecutrix was born in the*city of Mier, republic of Mexico, and that under the laws of that republic there was required to be filed in said city a certificate showing the date of the birth which, by a continuance of the cause, could be obtained, and by which he expected to show that the date of the birth of prosecu-trix was more than 15 years prior to the date of the offense.

In writing the original opinion we took the view that this was an equitable application for a continuance, and that in the absence of supporting testimony on the motion for new trial it failed to show a reason for reversal. On re-examination of the record our attention is directed to the fact that adjournment of the court took place on the 18th day of April, one day after the verdict was returned. The time intervening between the overruling of the application and adjournment of the court was so short that we believe we would not be authorized to hold that appellant was lacking in diligence in failing to have, at the time the motion for new trial was presented, a verification of his claim that the record in the city of Mier would support Ms theory that the age of the prosecutrix was more than 15 years at the time the offense was committed. Under the circumstances shown by the record we believe it was appellant’s 'right to have the rules of law defined in White’s C. O. P. p. 412, note 3, applied to Ms case; that is, that he would be entitled to a new trial if, in the light of the evidence itself upon the trial, the absent testimony set out in the application for a continuance was material and probably true. Its materiality is obvious. There is much in the evidence suggesting the probable tputh of the absent testimony. The prosecutrix testified.

“I was born in the republic of Mexico. I don’t know wliat year. My mother doesn’t know what year 1 was horn in. My father didn’t tell me and doesn’t know.”
She said:
“I am 15 years old; in my sixteenth year. 1 know this because my mother told me so. I will be 16 on the 18th day of September next.”

The offense is charged to have taken place on the 15th day of June, 1916. Prosecutrix gave birth to a child on the 15th of March, 1917. Dr. S'trayborn testified that he prescribed for the prosecutrix in November, 1916, and she told Mm her age was 18 years. This she denied. Her mother testified that prosecutrix was in her sixteenth year; that she was born in Mier, Mexico. The witness said she was the mother of seven children, five of whom were living; that she was un- . | j 1 able to give the year of birth of any of them, [ though she could give the day of the month ! on which each of them was born. She also said she was unable to state the exact age of any of them except the prosecutrix. . On her cross-examination there was exhibited a school census report, which was also introduced in evidence. This report appeared to have been signed by her making her mark and sworn to before E. 0. Radial, census trustee, who testified that the mother of pros-ecutrix gave him the statement and made affidavit to it. It bore date of March 27, 1916, and purported to list the members of her family within the scholastic age, giving a daughter Salome, born July 22, 1901, a daughter Francisca, born August 25, 1909, and Andres, a son, born February 4, 1904. This list did not contain the name of the prosecu-trix. Its absence was explained by her mother- with the statement that the prosecutrix told the census trustee she did not want to be listed as she did not want to go to an American school. She claimed that she could not read, and that her husband could read but little, and did not know the ages of their children. Another census report, signed by the mother of prosecutrix, like the one last described, listed three children only, giving the dates of their birth as 1904, 1909, and 1906, and was made March 26, 1917. The prosecutrix was not named. Another census report, signed by the father of prosecutrix, and sworn to by him on the 7th of May, 1914, showed the three children named in the census report mentioned as born in 1902,1904, 1907, ahd also listed the prosecutrix as born September 18, 1899, giving her age as 15 .years, sworn to on the 7th of May, 1914. The father of prosecutrix did not testify.

Census reports, it seems, are treated as original evidence of facts which, under the law are required to be recorded. See Wharton, Crim. Ev. § 310k, vol. 2, p. 604, and note. Whether this is the rule or not, those in this case were admissible as contradictory statements of the state’s witness. On the subject see, also, Lott v. State, 66 Tex. Cr. R. 152, 146 S. W. 544.

From this statement of the evidence of age it is apparent that the evidence that the prosecutrix was under 15 years of age at the time the offense was committed rested entirely upon the recollection of the mother of prosecutrix. The girl testified that her mother some 2 years before told her her age, and that from that fact she knew her age to be under 15 years. This was admissible. Curry v. State, 50 Tex. Cr. R. 159, 94 S. W. 1058; Johnson v. State, 42 Tex. Cr. R. 298, 59 S. W. 898. Still in testing the question involved, namely, the probable truth of the absent testimony set out in the application for a continuance, it appears that the state’s case rested alone upon the memory of the mother of prosecutrix, and that the accuracy of her recollection was rendered doubtful by the conflict between it and tbe various census reports which purported to have come from her, and was also in conflict with the census report signed and sworn to by the father of the prosecutrix, and with the alleged statement of the prosecutrix made to the doctor.

The uncertainty of the evidence touching the age of the prosecutrix is such that we believe we were wrong in holding that the trial court was justified in overruling the motion for a new trial, based on a refusal of the application for a continuance, for which reason the order affirming the judgment is set aside, and the judgment of áe lower court is reversed and remanded.
      <&xsFjr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KEEL v. STATE.
    (No. 4986.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.
    On Motion for Rehearing, June 28, 1918.)
    1. Seduction <@=>46 — Promise of Marriage —Corroboration.
    In a prosecution for seduction, evidence of the prosecuting witness as to the promise of marriage held corroborated by a letter written by defendant.
    2. Seduction <@=>46 — Relations of Parties —Corroboration.
    In a prosecution for seduction, testimony of prosecuting witness as to acts of intercourse held sufficiently corroborated.
    3. Seduction <@=>46 — Circumstantial Evidence — Corroboration.
    Testimony of prosecuting witness in a prosecution for seduction as to intercourse may be corroborated by circumstantial evidence.
    4. Seduction <@=>46 — Corroboration.
    Letters identified only by the testimony of the prosecuting witness in a prosecution for seduction are not available to corroborate the truth of her testimony as to the elements of the offense.
    5. Criminal Law <@=608 — Continuance-Grounds.
    Refusal of an application for a continuance in a criminal ease is not authorized because of affidavits controverting the truth of the purported testimony.
    6. Criminal Law <@=>1151 — Review—Discretion of Court — Continuance.
    When an application for continuance in a criminal case is overruled, the appellate court, in passing upon an alleged abuse of discretion, will look to the evidence adduced at the trial.
    7. Criminal Law <@=>586, 1151 — Continuance — Discretion.
    Continuance in a criminal trial is not a matter of absolute right, but is for the sound judicial discretion of the trial judge, subject to review.
    8. Criminal Law <@=>1151 — Review — Reversal-Abuse of Discretion.
    Generally, a reversal for an abuse of discretion by the trial court in refusing a continuance will take place only -where from the evidence at the trial the appellate court believes that, if the absent witness had testified, a more favorable verdict to the accused would have resulted.
    9. Criminal Law <@=>611 — Continuance-Abuse of Discretion.
    In a prosecution for seduction, refusal of a continuance on the ground that an absent witness would have testified that the hotel wherein prosecuting witness and another girl stayed three months prior to the offense was a disorderly house held not an abuse of discretion.
    10. Seduction <@=>40 — Criminal Prosecution — Evidence—Admissibility.
    In a prosecution for seduction, testimony by the father of the prosecuting witness that he had received information that defendant was a married man was admissible as a circumstance showing defendant’s intent and motive in visiting prosecuting witness.
    11. Criminal Law <@=>442 — Criminal Prosecution — Evidence—Admissibility.
    In a prosecution for seduction, letters written by defendant to the prosecuting witness are admissible upon her testimony identifying them, although not admissible in corroboration of the elements of the offense.
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    H. W. Keel was convicted of seduction, and appeals.
    Affirmed.
    Ralph P. Mathis, of Wichita Palis, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of seduction, and his punishment assessed at confinement in the penitentiary for 6 years.

The subject of the offense was Inez Morgan, a girl between 15 and 16 years of age. She testified that she and appellant spent the night together at a hotel in Wichita Falls on November 22, 1917, that they had sexual intercourse and that she submitted thereto by reason of promise of marriage made her by appellant.

The circumstances relied upon by the state for corroboration are the following: Appellant was a married man of which fact she was ignorant. She had been told he was married but he in the presence of one of the state’s witnesses and in the presence of the young woman in question, denied that it was true, and suggested that he bore a marked resemblance to a brother who. was married. He paid her marked attention, visiting her a number of times; took her riding in an automobile often. Her father was told that appellant w^is married, and appellant denied it to him. His attentions to the girl were testified to by her, by her father, and others. He represented that he was in the automobile business, and on many of his visits to her was in possession of an automobile. The facts show that it was borrowed from a garage at which he yvorked for a short time in Archer City. She testified .that he wrote her a number of letters. These were introduced in evidence, were signed by him, bore various dates covering a period for several months prior to the date of the alleged offense. They were characterized by terms of endearment, declarations of love and affection, and several of them contained references to the coming marriage. These letters were found by the father of the girl in her suit case. He said she got her mail through the general de- • livery, and on the envelopes they were marked, “Personal.” They bore date line, etc., some at Electra, some Wichita Palls, and some Archer City, and the verbiage and characteristics of each of them was similar. One of them was admitted 'by appellant as shown by the record, to have been written by him and sent to her. This letter bears date of the 19th of November, 1917. Prom it the following quotation is taken:

“You must remember darling, that I am not marrying you for a day a week, month, year, but for always or until one of us has to go, and on the other hand darling, I admire beauty as much as any living human in the world. I know you are a good little gii'l, but I am going to marry you not because you are young and pretty, but because I love you.”

In this letter he expresses the intention to visit her the succeeding day. According to her testimony and that of her father and others, he visited her the 20th of November, and he and she together obtained her father’s consent that they should go together in his automobile to Wichita Palls, where she had a sister, and that Mrs. Godfrey and her little boy would accompany them. The party reached Wichita Palls some time during the 21st of November. This was shown by the testimony of Mrs. Godfrey and the sister of the girl. Inez spent the night with her sister. Appellant took her there, and told her sister that they were married. On the next day her sister told appellant that her house did not provide room for them, and suggested that he take Inez with him, and he did so, stating that they were going to Ft. Worth the next day, and would later make their home in Marlin. Inez Morgan said that after spending the night with her, appellant said they would be married next day. Mrs. Godfrey saw appellant and Miss Morgan in an automobile together, and Miss Morgan, in appellant’s presence, told Mrs. Godfrey that she and appellant were married. This occurred near the hotel about 10:30 at night. Inez subsequently on the next day told them that they had not married, but they were going to Ft. Worth that day for that purpose. Appellant, who was present, told her that he had the license. The hotel keeper testified that two persons answering the description of appellant and Miss Morgan spent the night at his hotel. His identification of them was quite indefinite. After appellant’s arrest his wife appeared upon the scene, and also his child or children, and there were conversations between her and Miss Morgan; also a letter from Miss Morgan to her was introduced in evidence.

We regard the evidence corroborating the accomplice, Inez Morgan, as sufficient. The promise of marriage is corroborated by the letter of appellant, the identity of which was admitted and from which we have quoted. Her testimony relating to the acts of intercourse was sufficiently corroborated by the circumstances developed in the evidence which are outlined in the foregoing statement. That circumstantial evidence is available for this purpose is obvious, and established by the authorities beyond a controversy. Creighton v. State, 61 S. W. 493; Nash v. State, 61 Tex. Cr. R. 259, 134 S. W. 709; Bost v. State, 64 Tex. Cr. R. 464, 144 S. W. 596; De Rossett v. State, 74 Tex. Cr. R. 235, 168 S. W. 531; Slaughter v. State, 76 Tex. Cr. R. 157, 174 S. W. 580.

Appellant urges his contention that the corroboration is insufficient; that letters identified .only hy thei testimony of the prosecutrix are not available to corroborate the truth of her testimony to the elements of the offense. This has been declared in Carrens v. State, 77 Ark. 16, 91 S. W. 30; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919; Bishop v. State, 68 Tex. Cr. R. 559, 151 S. W. 821; James v. State, 72 Tex. Cr. R. 155, 161 S. W. 472. Conceding that the letters if any, which were only thus identified would be by this rule eliminated, as corroborating her testimony, the letter of November 19th, referred to above, is not in this category, for the reason that its identity was an admitted fact. We think, however, there were circumstances in evidence tending to show that the statement of the girl that appellant wrote all the letters was true. See Bost v. State, 64 Tex. Cr. R. 479, 144 S. W. 589.

The complaint is made of the failure to sustain the motion to continue, based upon the absence of the witness Ligón, for whose attendance diligence appears to have been used, and whose absence was due to sickness. The facts which were sought to be proved were that the prosecutrix, Inez Morgan, and a girl by the name of Johnson had run away from their homes together in an automobile some three months prior to the alleged offense, and that the witness as an officer had searched for them and found them at midnight registered at the Denver Hotel in Electra under assumed names, and that the general reputation of the Denver Hotel as a resort for prostitutes was bad.; that it bore the general reputation of a disorderly house. It appears from the qualification that all of the facts which appellant expected to prove by the witness were admitted to be true except the alleged general reputation of the Denver Hotel in Electra. It also appears that prosecutrix and her father testified to the occurrence in which she and the Johnson girl had the episode mentioned. There was no testimony that the Denver Hotel in Electra was a disorderly house. In qualifying the bill the trial judge says that the district attorney filed a sworn statement to the effect that he had talked to the witness Ligón over the telephone, and been informed by him that he would not testify that the Denver Hotel was a resort of prostitutes and a disorderly house, but that his testimony would be to the contrary. The trial judge says he also talked to him with the same result. The rule is that the practice dofes not authorize refusal of an application for a continuance because of affidavits controverting the truth of the purported testimony. Roquemore v. State, 54 Tex. Cr. R. 594, 114 S. W. 140; Branch’s An. P. C. § 321, and cases cited. When an application for continuance is overruled, the appellate court in passing upon the alleged abuse of discretion, in doing so will look to the evidence adduced upon the trial. Willison v. State, 7 Tex. App. 400; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175, and other cases cited in Branch’s An. P. O. § 305. The continuance is not a matter of absolute right, but in passing upon it the trial judge exercises a sound judicial discretion, subject to review, and its abuse when prejudicial often results in reversal. Branch’s An. P. 0. § 30S and cases there cited. A reversal will take place, however, generally speaking, in those cases only where, from the evidence adduced upon the trial, the appellate court is impressed with the conviction that it is reasonably probable that, if the absent witness would have been before the jury, a verdict more favorable to the accused would have resulted. Branch’s An. P. C. supra, § 319; Covey v. State, 23 Tex. App. 389, 5 S. W. 283; Sweeney v. State, 59 Tex. Cr. R. 373, 128 S. W. 390, and cases cited. See, also, Yernon’s Texas Grim. Stats, vol. 2, p. 320, note 34, and cases listed. The trial court in passing upon the application for a continuance, having the entire record before him, as well as information that the witness would not state the hotel mentioned was a disorderly house, in our opinion is not shown to ha,ve abused his discretion in refusing to sustain the ground of the motion for new trial based on the overruling of the application for a continuance. See eases Vernon’s Orim. Stats, vol. 2, p. 332. Particularly is this true when the record shows that the witness would not have given the alleged testimony. Sneed v. State, 100 S. W. 922.

The complaint of the fact that the father of the prosecuting witness testified that he had received information that appellant was a married man does not show error for the reason that it otherwise appears without dispute that appellant was a married man, and for the further reason that the record shows that after receiving the information Mr. Morgan communicated it to appellant, making inquiry as to its truth and received a denial. This was while appellant was pursuing his attentions to the prosecutrix, and was admissible, we think, as a circumstance showing intent and motive in visiting her.

The bill complaining of the occurrences during the effort of the state to have prosecutrix identified by the witness McGinley as the companion of a man who registered at his hotel we think shows no reversible error, it appearing from the bill that after seeing the girl the witness failed to identify her.

The bill of exception complaining of the introduction of letters from appellant to the prosecutrix does not show that they were identified by her testimony alone. In this respect it is incomplete. Branch’s An. P. C., § —--. Moreover, they, being material, would be admissible in evidence upon her testimony identifying them. This is held in Bishop v. State, 68 Tex. Cr. R. 559, 151 S. W. 821, relied on by appellant. The extent to which the court’s declaration on the subject in that case goes is that, when their .identity depends upon her testimony alone, they do not furnish corroboration of her evidence to the effect that the accused committed' the offense. None of the objections made to the introduction of the letters were tenable.

We have carefully examined all of the bills of exceptions. Those not specifically mentioned present, according to our view, no question requiring discussion in detail, and none of them disclose error.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

In his motion appellant insists that there was error in the refusal of the trial court to give th'e following requested charge:

“You are charged as part of the law in this case that the letters introduced by the state, claiming them to have been written to Inez Morgan, the prosecutrix, by the defendant are not corroborative of the testimony of the said Inez Morgan, if she is the/ only witness that proves them up.”

In the original opinion reference is made to a letter from appellant to prosecutrix dated November 19, 1917. This: letter the pros-ecutrix testified was written by appellant. If in this she was corroborated, the terms of the letter are such as to constitute a definite admission on the part of appellant that prior to the act of sexual intercourse h'e had made to the prosecutrix a promise of marriage. Bart of the letter is quoted in the original' opinion. The quotation of more of it would but confirm the conclusion reached that it corroborates the testimony of the prosecutrix touching th'e promise of marriage. As we understand the record, after the prosecutrix had identified this letter and other letters and testified that it was written by appellant and received by her from him, appellant in open court advised the court that h'e waived the identification of this particular letter. This appears from the statement of facts and from the bill of exceptions. Referring to this letter we quote the following:

“The above letter was the one by which identification and proof was waived.”

The only question of identification that could have arisen under th'e record was the identity of appellant as the author of the letter. It purported to be signed by him; it was found among tlie effects of tlie proses cutrix; site testified that lie wrote it; and he contends that her testimony to that effect is not corroborated. It is manifest from the qualification of the bill reserved to the refusal of the special charge quoted that the trial court regarded the statement of appellant as an admission of hisi identity as the author of the letter. The court sas's:

“Tlie defendant waived any proof of identification as to one of the letters.”

This court in the original opinion treated the appellant’s statement as an admission. This interpretation of it was correct. Such we understand to be the rule of law. See Wigmore on Ev. vol. S, p. 2894, § 2132. While Inez Morgan was the only witness who testified that appellant wrote the other letters, we think there are circumstances which furnish other proof of appellant’s identity as their author. Their verbiage, and subject-matter was similar to that of the letter, the identity of which was not questioned. They bore the signature of appellant. They appear to be part of the same series of letters as that of November 19,1917, and we .think there were circumstances, some of which are pointed out in the original opinion, supplementing the testimony of the prosecutrix connecting appellant with their authorship. See Wigmore on Ev. vol. 3, § 2131, p. 2893 ; Wharton’s Crim. Ev. vol. 2, § 546; State v. Freshwater, 30 Utah, 442, 85 Pac. 447, 116 Am. St. Rep. 853; Thompson v. State, 35 Tex. Cr. R. 511, 34 S. W. 629. These letters are not depended upon as corroboration of the act of sexual intercourse. There were other circumstances furnishing such corroboration which are mentioned in .the original opinion. There is no evidence denying the authorship or qualifying the letter of November 19th. The identity of the appellant as the author of that letter furnishing definite corroboration of the prose-cutrix’s testimony and the promise of marriage, the other letters introduced being but cumulative of the same subject, we think there was no harmful error in the court’s refusal to limit them, even though we were in error in stating that the prosecutrix’s testimony with reference to them was corroborated by circumstances.

The motion for rehearing is overruled.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    ROBERTS v. STATE.
    (No. 5065.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.
    Rehearing Denied June 28, 1918.)
    1. Crüminal Law <⅜»1098 — Appeal—Form op Statement op Eaots.
    A statement of fact in question and answer form will be struck out, being in violation of the statute requiring such statements to be in ⅛⅜ narrative form.
    2. Criminal Law <®=>1144(7) — Appeal — Statement op Fact — Continuance.
    Where there is no statement of facts presenting to appellate court the testimony heard by-lower court on a-motion for • Continuance, the court’s ruling pn such motion will be presumed to have been justified by the evidence.
    8. Criminal Law 3=^1169(2) — Appeal — Harmless Error.
    Where a judgment was introduced in evidence, showing that the jury trying the case at which such judgment was rendered was legally organized, the court’s action in permitting the district clerk to orally testify that such jury was organized was not reversible error.
    4. Criminal Law <⅝=>400(3) — Primary and Secondary Evidence — Oppicial Capacity.
    The fact that a certain witness was a deputy district clerk at, the time of a certain criminal prosecution could be established by the oral testimony of such witness and that of the district clerk under whom he worked, without introducing records of appointment.
    5. Perjury <®=^32(7) — Evidence — Testimony-Court Stenographer.
    In prosecution for perjury committed while testifying as a witness, evidence of the testimony given by accused at the trial at which the alleged perjury was committed may be testified to by the court stenographer at such trial.
    Appeal from District Court, San. Augustine County; W. T. Davis, Judge.
    Abe Roberts was convicted of perjury, and be appeals.
    Affirmed.
    K. W. Stephenson and E. T. Anderson, both of San Augustine, for -appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of perjury and assessed the lowest punishment.

Appellant’s attorneys have filed a lengthy and forcible brief, which has had due consideration.

Prior to 1909 the stenographer’s act authorized the stenographic report of the proceedings and testimony in question and answer form to be sent to this court as a statement of facts. After that law had been in effect for some time and this court had seen the workings of it, in Baird v. State, 51 Tex. Cr. R. 824, 101 S. W. 992, it was said:

“The Legislature should pass an amendment to the present stenographic law and require a narrative form of statement of. facts to be prepared by counsel. This would save an enormous amount of unnecessary work to this court.”

In 1909 the Legislature did amend said law and require the statement of facts to be in narrative form and prohibited it to be in question and answer form. Ever since the passage of this latter act this -court has uniformly struck out and refused to consider a statement of facts unless in narrative form. Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Essary v. State, 53 Tex. C. R. 596, 111 S. W. 927; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; Kemper v. State, 57 Tex. Cr. R. 355, 123 S. W. 131; Choate v. State, 59 Tex. Cr. R. 266, 128 S. W. 624; Hart v. State, 67 Tex. Cr. R. 496, 150 S. W. 188; Criner v. State, 71 Tex. Cr. R. 369, 159 S. W. 1059; Stephens v. State, 77 Tex. Cr. R. 30, 177 S. W. 92; Ferguson v. State, 202 S. W. 733, 734; Kitchens v. State, 203 S. W. 768, not yet officially published.

In this case the stenographer made ont a report of the case, which is made np largely of the questions and answers of the various witnesses who testified, of a great many objections made by appellant to various matters, and of the remarks and rulings of the court and of the remarks of the prosecuting attorney, none of which matters should have been contained in any statement of facts, and which are in direct violation of the statute prescribing how a statement of facts should be made. The Assistant Attorney General has made a motion to strike out and not consider the purported statement of facts because of the condition of the stenographer’s report, which should be granted, and said purported statement of facts should be struck out and not considered. However, the said report of the stenographer has been carefully read; and, even if it could be considered as a statement of facts, none of’the appellant’s assignments of error which are presented by various bills of exceptions show any error.

Appellant was indicted, as stated, for perjury growing out of his alleged false material testimony given by him in the trial of the ease of’the state against Will Olay, Jr., tried in the district court of Rusk county. The proof, if we could consider the statement of facts, without question shows that appellant testified in the trial of said Olay Case falsely as alleged in the indictment herein. The falsity of his testimony, which was material in said Clay Case, was proven by several witnesses introduced by the state, .and also by others introduced by appellant in this trial. The evidence was 'amply sufficient in every particular to sustain the verdict of the jury and his conviction.

When the case was called for. trial appellant made a motion for a continuance or postponement, claiming that he was sick and unable to stand trial at that time. Before acting upon this motion the court heard testimony thereon. At some time during this hearing appellant said:

“We want to reserve an exception to this inquiry going on in the presence of the jury.”

At that time evidently no> jury had been impaneled. Appellant’s bill does not otherwise state, although it may be inferred from his objection, that some of the venire may have been present. The bill in no way indicates that in making up the jury later any of the veniremen were asked anything about whether they heard said proceedings or testimony, and no objection is shown to have been made to any juror because of any prejudice against him in any way aroused by said inquiry. The bill does not state what testimony was introduced, nor give the testimony of any witness at all heard on this inquiry. In said purported statement of facts the first four pages of it purport to give the testimony of two witnesses only, doctors, both introduced by the appellant himself, but this testimony is not agreed to, as the testimony which was introduced on that occasion, by the attorneys for either side, nor is it in any way approved by the court as a statement of facts heard by him on that hearing. Besides, it was filed in connection with said purported statement of facts nearly three months after the adjournment of the court for the term, so that it cannot be considered for any purpose. The action of the court in hearing the testimony on the motion for a continuance and then overruling the motion must be presumed to have been clearly justified, and it doubtless was, by the facts and circumstances heard by the judge at the time. Reyes v. State, 196 S. W. 533, and cases there collated.

Appellant has another very meager bill, wherein he merely claims that the court committed an error in permitting the district clerk to swear orally 'that the jury was organized to try the issue in the case of the state against said Will Olay, Jr., and another defective bill, wherein he objected to the clerk swearing that R. E. Buckner was his deputy clerk at the time of the trial of said Olay Case, and another like defective bill in permitting said Buckner to testify that he was such deputy district clerk before, at the time of, and subsequent to, the trial of said Clay Case. Neither of these bills claim that no other testimony was introduced to prove by the records all of these facts to which he was objecting to the witness testifying orally, and as each is presented no error is shown. But if we could look to said purported statement of facts, each and every one of these facts were proven by the introduction of the record itself. The judgment of the court in the Olay Case was introduced, which showed specifically that the jury was regularly and legally organized to try, and did try, said Olay. And the’record of the appointment, affidavit, and bond of Mr. Buckner as deputy clerk was also introduced, showing that he w'as truly and legally deputy district clerk prior, at the time, and subsequent to the trial of the Olay Case. But, even if the said records had not been introduced in evidence, the oral testimony objected to was admissible anyway. Watson v. State, 9 Tex. App. 237; Hardin v. State, 40 Tex. Cr. R. 217, 49 S. W. 607; De Lucenay v. State, 68 S. W. 797; Kennedy v. State, 19 Tex. App. 633; Thompson v. State, 19 Tex. App. 614; Burrow v. Brown, 59 Tex. 457.

The state introduced the court stenographer who was and acted as such, in the trial of the said Olay Case, who testified over appellant’s objection to what appellant herein testified on that trial. This court holds that his testimony was admissible. See some cf the eases cited in 1 Branch’s Ann. P. 0. § 81.

The court did not err in permitting 'the state to ask, and the witness S. M. Davis to testify, what the appellant swore in the trial of said Olay Case, as shown hy his bill No. 20. The question asked the witness was not a leading question. 1 Branch’s Ann. P. O., § 157, and eases cited. But, even if it had been, the bill is insufficient to show any error, in the court’s permitting it to be asked and answered. Carter v. State, 59 Tex. Or. R. 75, 127 S. W. 215, and other cases cited by Mr. Branch in said section 157 and in section 159.

The court did not err in refusing appellant’s instruction to peremptorily require the jury to find him not guilty, nor in refusing his instruction that the evidence in the case only presented oath against oath, and to acquit him if they found that such was the case. At least two witnesses swore without contradiction that appellant testified to the material testimony upon which the perjury charged was based, and it was proved by several witnesses, probably as many as five or six, that his said testimony was false. His only other bill is to the argument of the district attorney. It shows no error. The argument made was based, without doubt, on the testimony legally introduced on the trial. So that, even if we could consider the purported statement of facts and all of appellant’s bills, none of 'them show any reversible error. But with the statement of facts struck out and not considered, then none of his bills could be considered. In either contingency, no reversible error is shown, and the judgment is affirmed.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes