text:
    CITY OF AUSTIN v. JOHNSON.
    (No. 5943.)

    (Court of Civil Appeals of Texas. Austin.
    June 12, 1918.)
    1. Master AND Servant &wkey;>354 — Workmen’s Compensation Act — Actions Against Third Persons.
    A settlement by the Industrial Accident Board, as provided in Acts 33d Leg. c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), with an employé of a subscriber, does not preclude an action by the em-ployé against a third party to recover damages occasioned by negligence of such third party.
    2. Judgment <&wkey;888 — Satisfaction — Release-Joint Tort-Feasors.
    Where an injury is occasioned by acts of two or more joint tort-feasors, though the party injured may have judgment against all of them, he can have but one satisfaction for the injury received.
    3. Release <&wkey;29(4) — Joint Tort-Feasors— Settlement.
    Where a plaintiff settles with one tort-feas- or, but does not release his cause of action, another tort-feasor is entitled to have such payment credited as an offset, pro tanto, against damages that may be recovered against him.
    4. Master and Servant <&wkey;389 — Workmen’s Compensation Act — Subrogation.
    Under Workmen’s Compensation. Act, pt. 2, § 6 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. insurance association is not subrogat-ed to rights of employé against third person, whose negligence alone caused injury, and is given no right to indemnify itself against such wrongdoer, save only where he is an independent or sub contractor.
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by S. W. Johnson against the City of Austin. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. B. Rector and Hart & Patterson, all of Austin, for appellant. Dickens & Dickens and White, Cartledge & Wilcox, all of Austin, for appellee.

      Rehearing denied October 9, 1918.

   Findings of Fact

JENKINS, J.

Appellee was an employé of the Texas Long Distance Telephone Company, a corporation, and at the time of his injury was engaged in repairing the wires of that company in the city of Austin. Appellant owned and operated a light plant in said city. Appellee came in contact with telephone wires, from which he suffered the injuries complained of. Appellee would have suffered no injury by reason of said contact, but for the fact that the telephone wires had come in contact with the wires of appellant’s light plant, which were heavily charged with electricity. The point of contact was 200 yards from- where appellee was injured, and he was not aware of such contact, and had no reason to suspect the same.

In response to special issues submitted to them, the jury found that appellee’s injuries were directly and proximately caused by the negligence of appellant in so constructing its poles and wires as to permit them to come in contact with the wires of the telephone company. The evidence sustains this finding.

Appellant answered, among other things, that appellee at the time of his injury was in the employ of the said telephone company, which was a subscriber to the Industrial Accident Board of the state of Texas; that by virtue of said fact said association became lia.ble to appellee for the injuries he had received, and, recognizing such liability, had settled with appellee in the manner provided by the Employers’ Liability Act of this state; that appellee had accepted such settlement, and was therefore precluded from recovering from appellant in this action.

Appellee excepted to said plea as not presenting any defense to the cause of action herein sued on. The court sustained said exception, to which appellant duly excepted.

Opinion.

The issue presented by the action of the court in sustaining the demurrer, as stated in our findings of fact, supra, is: Does a settlement by the Industrial Accident Board, as provided in chapter 179, Acts of Texas Legislature of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), with an employé of one who is a subscriber to such association, preclude an action by such employs against a third party, who is nowise connected with such association, to recover damages occasioned by the negligence of such third party? We answer this question in the negative.

It is true that, where an injury is occasioned by acts of two or more joint tort-feasors, though the party injured may have judgment against all of them, he can have but one satisfaction for the injury received. Railway Co. v. Darr, 93 S. W. 166; Jones v. Chism, 73 Ark. 14, 83 S. W. 315; McGehee v. Shafer, 15 Tex. 198; Thompson v. Albright (Tex. App.) 14 S. W. 1020; Bank v. Curtiss, 37 Barb. (N. Y.) 317; Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534; Knapp v. Roche, 94 N. Y. 329.

Also, where a plaintiff settles with one tort-feasor, but does not release his cause of action, another tort-feasor is entitled to have such payment credited as án offset, pro tanto, against the damages that m^y be recovered against him.

The evidence indicates that appellant was not negligent in its conduct toward appel-lee. But, independent of this, we do not think that the legal principles announced in the next two preceding paragraphs hereof apply to the instant case. It was. held by our Supreme Court in Middleton v. Power Co., 185 S. W. 560, that a cause of action arising for an accidental injury is purely the creation of the common law, and may be taken away by the Legislature, and another cause of action substituted therefor. The Legislature of this state, by the enactment of the Employers’ Liability Act, has taken from the employé of a subscriber to the insurance association all right of action against such employer, and substituted a cause of action against another (the insurance association), who was not, under the rules of the common law, liable for the damages arising from the injury, being in no wise responsible for such. injury. But it does not follow that the Legislature intended to exempt another party, a wrongdoer, who has paid nothing for such exemption.

This responsibility of the insurance association does not arise from the tort of the employer, but from its contract to indemnify the employé for the injury received, without reference to any negligence on the part of the employer. Its liability is purely one of contract, supported by a valuable consideration on the part of the employer by the premium which he pays, and on the part of the employé by his surrender of his cause of action against his employer, which he otherwise would have had, if the injury had resulted from the negligence of the employer. A third party who causes an injury by his negligence, is not a party to this contract; he shares none of its burdens, and is not entitled to any of its benefits.

A payment by the insurance association to the employé is not a settlement of damages for a tort committed by it, or by any one else, but the payment of an insurance policy in consideration of the premiums received. The employé has paid a valuable consideration for what he receives in a settlement under the act; and a wrongdoer, not a party to such contract, is not entitled to a part thereof, by having such payment offset in whole or pro tanto against his legal liability for a tort committed oy him. It is worthy of note that the Texas Employers’ Liability Act, as well as such acts in other states, is based upon the English Liability Act. Section 6 of the English act provides that the employé may proceed both against the insurer and the person causing the injury, hut shall not he entitled to recover hoth damages and compensation (italics ours). There is no such provision in the Texas act, and it must be presumed that there was a purpose in omitting the^ame. That purpose, it seems to us, could be no other than not to deprive an injured party of his right to recover damages from a wrongdoer, by reason of the fact that he may have received compensation from the insurance association.

The insurance association is not subro-gated to the rights of the employé against one whose negligence alone caused the injury. It is given no right to indemnify itself against such wrongdoer, save only where he is an independent or sub contractor doing work for the subscriber. Section 6, Acts 1913, p. 433 (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 524@qq). The insurance association is presumed to be fully indemnified in all other instances by. the premiums which it receives. The beneficial interest in the action against the wrongdoer remains in the injured party, and in him alone. There is nothing in the act itself to indicate that the payment received by him under his contract with the insurance association, and for which he has paid a valuable consideration, is to deprive him pf his cause of action for an injury suffered at the hands of a wrongdoer, who is a stranger to such contract.

It may be argued that the law allows but one compensation for the same tort. True, the common law does not, and neither does the act here under consideration, though it might legally do so. As hereinbefore stated, the employé’s action against the insurance association is not an action sounding in tort, but an action upon contract. It is not true, and has never been, that full compensation under a contract for an injury done will bar a recovery for the same injury against a wrongdoer. Take the familiar case where one has a life insurance policy, and is killed by the negligence of another. It would not be questioned that the legal representatives of the deceased would be entitled to the full monetary value of the deceased to those dependent upon him, notwithstanding payment of such policy. In such a case it might happen that the death of the deceased was a pecuniary benefit to his dependents. Thus, in a suit for damages on account of the negligence of the defendant, it might be found that the pecuniary value of the life of the deceased to the plaintiff was $10,000. But, if he had a life insurance policy for $20,000, the plaintiff would be the gainer, pecuniarily, of $10,000 net by such death. Of course, this fact would be no defense on the part of him who had wrongfully caused such death.

The Court of Civil Appeals of the Eighth District in the case of Dallas Hotel v. Fox, 196 S. W. 647, announced an interpretation of the act here under consideration different from the conclusion which we have reached as to the proper construction of said act. The facts of that case differentiated it from the instant case, in that Mrs. Fox sued both txarris & Co. as having caused the injury by their negligence, and the casualty company on its contract of indemnity. Harris & Co., instead of relying upon the fact that they were subscribers to the casualty company, admitted their liability as tort-feasors, and obtained a full release therefrom by the payment of an agreed sum of money. In the subsequent suit against the hotel company for alleged negligence in not keeping the elevator in, repair, on account of which Fox was killed, the hotel company pleaded the settlement by its co-tort-feasor. In the instant casé there is no claim of a settlement in whole or in part by a co-tort-feasor for the injuries received by appellee.

However, we rest our decision herein on the broader ground that the settlement with appellee by tbe insurance company did not operate as a waiver of Ms right to sue appellant for damages inflicted upon him by the negligence of appellant. As was held by the Supreme Court of Wisconsin in construing a similar act: The purpose of the act is to control and regulate the relation between employer and employs. Hence a workman is not precluded by the act from recovering of one not his employer. Smale v. Mfg. Co., 160 Wis. 334, 151 N. W. 804 Judge Hall, in Hotel Co. v. Fox, supra, quotes from Railway Co. v. Miller, 120 Ga. 453, 47 S. E. 959, 67 L. R. A. 87, 1 Ann. Cas. 210, as follows:

“It is immaterial whether the government paid the plaintiff anything or not; that would not affect the rights of the plaintiff in this ease to recover against the company.”

He approves this charge for the reason the postal laws provide for the payments to be made to mail clerks “irrespective of liability.” And so the Employers’ Liability Act provides for payment to be made by the insurance association, irrespective of liability on the part of the employer, or by the association, except under its contract of insurance. The amount to be paid by the insurance association does not purport to be the amount of damage suffered by an employé in any particular case, but is based on the wages being paid to the employé at the time of his injury, which may be more or less than full compensation for the injury received, and, in so far as this act is concerned, it is immaterial whether it is the one or the other. The insurance association is not liable for more than is fixed by the scale, and the employé cannot be compelled to accept less. No allowance is made for physical or mental suffering, which are proper elements of damages in actions for tort, and which may be much more in one case than in another, where injury is of the same general character (say the loss of a foot), upon which payment is based. For a further discussion of Employers’ Liability Acts, see L. R. A. 1916A, 22 to 465; and particularly, as to liability of third persons, pages 100 to 103.

The other issues raised by other assignments of error herein do not present any novel questions, for which reason „we do not deem it necessary to discuss them. Suffice to say,' .after carefully examining them, we think they should be overruled. The record presenting'no reversible error, the judgment oi the trial court is affirmed.

Affirmed.
      <S&wkey;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:
    TEXARKANA & FT. S. RY CO. v. PHILPOT.
    (No. 1975.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 10, 1918.
    Rehearing Denied May 16, 1918.)
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Action by W. D. Philpot against the Texar-kana & .Ft. Smith Railway Company. Judgment for plaintiff, and .defendant appeals.
    Affirmed.
    King & Estes and C. A. Wheeler, all of Tex-arkana, for appellant. Hugh Carney, of Atlanta, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for the sum, of $190 as the value of two colts killed upon appellant’s right of way and the attorney’s fees allowed by- law in such cases. It is conceded that the evidence shows that one of the colts was killed in a collision with one of the appellant’s railway locomotives, but it is contended that the other was not, and for that reason the court should not have rendered judgment for the value of both animals. An examination of the record justifies, we think, the -conclusion that both of tlie animals were struck by the appellant’s locomotive; and we cannot say as a matter of law that the judgment was improper.

It is therefore affirmed.


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

text:
    COX v. STATE.
    (No. 4701.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    On Motion for Rehearing, June 28, 1918.)
    1. Criminal Daw <9=>552(1) — Circumstantial Evidence — Illicit Intercourse.
    Illicit sexual intercourse can be proved by circumstantial evidence.
    2. Criminal Law <®=3872(1) — Evidence — Other Defenses.
    As characterizing the acts and conduct complained of as constituting the particular offense, prior acts, though occurring outside the jurisdiction, are admissible on prosecution for vagrancy.
    On Motion for Rehearing.
    3. Vagrancy <§=5l — Nature — Present Status.
    Vagrancy, under Pen. Code 1911, arts. 634-640, is a present condition; and one cannot he convicted thereof 'because previously a common prostitute, having abandoned such life.
    4. Vagrancy Evidence — Prostitute-Common Prostitute.
    Evidence held insufficient to warrant conviction for vagrancy on the ground of defendant being a common prostitute, as distinguished from a prostitute.
    Prendergast, J., dissenting.
    Appeal from Travis County Court; D. J. Pickle, Judge.
    Mamie Cox was convicted of vagrancy, and appeal^.
    Reversed and remanded.
    White, Cartledge & Wilcox and Brownlee & Goldsmith, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The grand jury of Travis county on June 20, 1917, duly indicted appellant, alleging therein that:

“On or about October 15, 1916, and thence continuously up to May 1, 1917, she was, and is, a common prostitute and vagrant, and during said time she did pursue the avocation of a common prostitute and did make a business of selling the use of her person to the male sex for the purpose of illicit carnal intercourse.”

She was tried on August 16, 1917, convicted, and fined $50.

The state introduced several witnesses who gave material incriminating evidence against her. The substance and effect of their testimony will be here given.

Littlepage Hill testified: That he had lived in Travis county all his life and in Austin in November and December, 1916, at which •time he was driving a service car. He lived at Manor at the time he testified. That he knew appellant. That in November or December, 1916, he met her and another girl, whom he did not know, on a certain street in Austin, it seems by engagement, took them in his automobile, drove up to the side entrance of the Avenue Hotel, and there picked up two men, strangers to him, whose names he did not know, and who were standing in the door. As soon as he stopped, these men immediately walked out and got in his car with the women. That he then took the two couples south, across the river,' and up it some quarter or half mile to a secluded place, and they had him stop: The two couples then got out of his car, went off out of his sight, remained some 30 or 40 minutes, returned, got in his ear, and had him drive them back to the city. This it seems was at night. Of course, he did not see what they did after they got out of his sight.

Jim Sullivan testified: That he had lived in Austin all his life and for about a year and a half had been driving a service car. That he knew appellant and had known her a year or two. That about March 1st he phoned her, and she met him with his car near her house where she then lived in Austin. He had a man in his car with him who was a traveling man stopping at the Driskell Hotel. He had never seen the man before this occasion. He took them out some blocks on the Manor road, left that road, and went up a lane some distance from it and stopped. She and this strange man then got out of the car together, went some distance out of his sight, remained away some 30 minutes, came back, got in the car together, and he took her to near her home, and a block or a half therefrom, and she got out of his car. That about a week after that he took another strange man out to near her house where she met him, got in his car, and he took them out the same way to the same place where he had taken her the week before. That when they got out of his ear they were gone out of his sight some 30 minutes, when they came back, got in his car, and he drove to near where she lived. She got out and went on alone, and he went on with the man. Both of these occasions were at night.

R. M. Thompson testified: That he knew appellant and had known her since October, 1916. That he lived in the same house she did from about October 24 to March 13, 1917, except six weeks of the time when he was in Waco. That, the woman whom he afterwards; married was living there in the house during this time. That he slept with this woman there during all this time. That while he was thus living with the woman he afterwards married, Edgar Martin was there with appellant, sleeping with her. That he had many times seen her in bed with him at night. That during this time there were other men there to see appellant who were total strangers to him, and in addition he at one time saw a certain man who lived in Austin at her house.

W. H. Farley, who lived at Hutto, in Williamson county, on the International & Great Northern Railway, testified: That he had known appellant from 1915 When he was at Austin in the high school; that about March 1, 1917, he phoned her and another girl at Austin and got them to coihe to Hutto that night to meet him and J. P. felutto, who also lived at Hutto. That appellant and this oth er girl that night went on the International & Great Northern train to Hutto, where he and his companion met them. That they took: them in the depot, where there were two cots, and “stayed” with them from that time until nearly 5 o’clock next morning, when they returned to Austin on the International & Great Northern early train. That that night in the depot he “stayed” with the other girl and Hutto “stayed” with appellant, each indulging in sexual intercourse with the respective girls. He paid his girl $10, and Hutto paid appellant $10. That one week after that appellant' and another girl went from Austin to Hutto at the same time on the International & Great Northern Railway train, reaching there about 11 o’clock at night, and returned from there between 4 and 5 o’clock the next morning. That he and Will Goodwin met the two girls at Hut-to at the time, and took them in an automobile to a house one mile out of Hutto, staying there with them until between 4 and 5 a. m., and had sexual intercourse with them, then took them back to Hutto to catch said early train to Austin. He swore that he and Goodwin swapped girls and indulged with both of them that night. It seems each girl was paid $10 on that occasion.

Said J. P. Hutto testified: That about March 1st appellant and another girl met him and said Earley at Hutto just as Ear-ley had testified. That they took them into the freight depot and stayed with them from 11 o’clock at night until between 4 and 5 o’clock the next morning and had sexual intercourse with them. That he had appellant and Earley had the other girl that night. That each had paid their respective girls $10.

Mr. R. H. Holman testified that he went to that early train on that morning to come to Austin; that at the time he saw appellant and said other girl in the depot waiting ' for the train. He and said witnesses Hutto and Farley, swore positively that it was appellant at Hutto at said time and that they could not be mistaken as to her identity.

Appellant herself testified and denied all the state’s incriminating testimony. She testified, among other things, that she had not had illicit intercourse with any man since she promised to live right, which was about two years before the time she was testifying, and that Mr. Kennedy had asked her to give up her position with said certain man in Austin and live right. She also denied that said man had been staying with her since she quit him and promised to live right; and that, while this man came to her house on one occasion to induce her to return to him, she told him he could kill her before she would go back and live the life she had lived.

All authorities hold that illicit sexual intercourse can be proven by circumstantial evidence; in fact, that such acts must almost necessarily be proven by circumstances. In 4 Elliott on Ev. § 2790, it is said:

“But few persons are so depraved and so hardened to all sense of shame that they commit the offense (illicit sexual intercourse) except in the most secret and clandestine manner.”

And further quoting from, an English case, in the same section it is said:

“In every case almost the fact (sexual intercourse) is inferred from circumstances that lead to it by fair inference as a necessary conclusion.”

Again, in section 2792, quoting from an Indiana case it is said:

“From the nature of the case, it will rarely happen that direct and positive evidence of acts of illicit intercourse can be obtained. Accordingly, the unlawful and lascivious commerce may be inferred from circumstances proven, which raise such a presumption of guilt as leaves no reasonable doubt, in that regard, in the minds of the jury.”

A large number of cases from many of the states are cited in support of this doctrine.

In Springer v. State, 16 Tex. App. 593, this court said: To be a common prostitute, her (the woman’s) lewdness must be more general and indiscriminate than to have illicit intercourse with the one man only. This is quoted and approved in Ramey v. State, 39 Tex. cr. R. 203, 45 S. W. 489.

In 32 Oyc. 731, as to what is prostitution, or a common prostitute, it is said:

“It is the practice of a female offering her body to an indiscriminate intercourse with men as distinguished from sexual intercourse confined to one man.”

In State v. Thuna, 59 Wash. 689, 109 Pac. 331, 111 Pac. 768, 140 Am. St. Rep. 902, it is held that a woman who submits herself to indiscriminate sexual intercourse without hire is as much a common prostitute as one who does so solely for-hire.

In State v. Rice, 56 Iowa, 431, 9 N. W. 343, it is held that whether or not a woman is a common prostitute is a question of fact which does not alone depend upon the number of persons with whom she has illicit intercourse, and a jury may consider her general conduct and other circumstances tending to show whether or not she so holds herself out to the public. And in that case, and also in State v. Clark, 78 Iowa, 492, 43 N. W. 273, it was held that prostitution does not alone consist in sexual commerce for gain.

There can be no doubt but from the evidence herein the jury were clearly authorized, if not required, to believe that appellant had sexual intercourse at the time the witness Hill took her and another girl and two strange men from the Avenue Hotel, carried them to a secluded place across and up the river as detailed by him. Also, that she had sexual intercourse with a strange drummer whom Sullivan took with her into the country on the occasion testified to by him; and also that she had intercourse with the other strange men taken out with her by Sullivan a week later. Nor that she frequently had sexual intercourse at lier house with Edgar Martin as testified hy Thompson. And the inference is strong that the object of visits' of the other strange men to her during this time was for the purpose of the indulgence with her of sexual intercourse as testified by Thompson. In addition, the testimony by Earley and Hutto was sufficient, without doubt, to establish that she had sexual intercourse with these two parties and Goodwin on the two occasions she went from Austin to Hutto at night as testified by Earley and Hutto. It is also reasonably certain from her own testimony that before these several acts by her she had been living the life of a prostitute.

So that there can be no sort of doubt but that the evidence was amply sufficient to sustain her conviction.

Appellant contends that this prosecution cannot be maintained, in substance, because the proof does not show that she was a common prostitute on the very day the indictment was preferred, June 20, 1917; her contention being, in effect, that, while she may have been a common prostitute for some time before the very day on which the indictment was preferred, she had reformed before that day, and hence could not be convicted unless she was shown to have been a prostitute on the very day the indictment was preferred. To support this contention, she cites only City of San Antonio v. Salvation Army (Civ. App.) 127 S. W. 860, and a note in 137 Am. St. Rep. 949. Neither of these authorities are in point or sustain her contention. The San Antonio case showed that the city of San Antonio, by ordinances and action of its officers, undertook to prevent the Salvation Army from building on its own property a house to be used for the reclamation and reformation of common prostitutes who had abandoned their lives of prostitution. The house to bo built and used by the Salvation Army was in no sense to be used as a house of prostitution or to maintain prostitutes in that kind of life, but the very reverse of that was true. After diligent search, no authority has been found which holds that in order to maintain a prosecution for vagrancy, it was necessary to allege and prove that the party charged with vagrancy was a vagrant at the very time of the beginning of the prosecution. On the contrary, all authorities hold that such a charge must necessarily be sustained by proof of the previous acts and conduct of the party charged.

In 22 Ency. of P. & P. 510, in treating of indictments and informations for vagrancy it is said:

“The general rules as to indictments, informa-tions, and complaints are fully applicable in cases of vagrancy.”

These general rules and our statutory provisions uniformly require that a person charged with a crime must necessarily be charged therewith on some date prior to the filing of the indictment or information, within the period of limitation. In this instance, as shown, the indictment alleged that appel-. lant “on or about October 15,1916, and thence continuously up to May 1, 1917, was a common prostitute and vagrant and pursued the avocation of á common prostitute during said time.” Prosecutions for all offenses must necessarily be of past occurrences. They can never be for occurrences that it is alleged will be committed in futuro, and it would be practically impossible to convict one of an offense eo instanti with the filing of an indictment or information.

In Com. v. Lord, 147 Mass. 399, 18 N. E. 67, it was alleged that Lord on January 1, 1886, and thence continuously to June 6, 1887, was an idle person having no visible means of support and living without employment, a vagrant. It was contended in that case that it was necessary for the prosecution to prove that he was guilty of the charge laid on January 1, 1886, and he could not be convicted unless so proved, and that the proof that he may have been a vagrant prior to said time could not sustain a conviction. The court expressly held against this contention, saying:

“It was sufficiently proved that the offense charged was committed during a substantial part of the time named in the complaint. Com. v. Kerrissey, 141 Mass. 110 [4 N. E. 820].”

In Com. v. Sullivan, 5 Allen (Mass.) 512, the same character of allegation was made. The court said:

“The offense charged being of such a character that it is to be proved by a succession of acts and continuation of behavior, not limited to any particular day, it is proper to allege it to have been committed on a certain day named, and on divers other days between that day and a subsequent day named. Com. v. Elwell, 1 Gray (Mass.) 463.” 39 Cyc. p. 1111, and notes.

As stated above, after diligent search no authority has been found which would sustain appellant’s contention. Doubtless this is because of the fact that such a contention has not before been made so that it was necessary to pass thereon by any court.

Appellant has a number of bills of exceptions showing she objected to the testimony of said witnesses Sullivan, Thompson, Earley, Hutto, and Hill. Under all authorities, the testimony of these several witnesses was admissible. The testimony of Earley and Hutto was also objected to because the acts of sexual intercourse shown by appellant with them and Goodwin, as testified to by them, were not admissible because those acts were not committed in Travis county but in the adjoining county of Williamson.

In 4 Elliott on Ev. § 2796, it is said:

. “It must now be regarded as settled law that in such cases prior acts of improper familiarity or of adultery between parties whether they occurred in the same jurisdiction or not, and even subsequent acts which tend to show a continued illicit relation between them, may be proved in explanation of, or as characterizing, the acts and conduct of the parties complained of as constituting the particular offense.”

To support this text the following authorities are cited: Crane v. People, 168 Ill. 395, 48 N. E. 54; Thayer v. Thayer, 101 Mass.111, 100 Am. Dec. 110; Pond v. Pond, 132 Mass. 219; State v. Way, 5 Neb. 283; Commonwealth v. Nichols, 114 Mass. 285, 19 Am. Rep. 346; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; People v. Jenness, 5 Mich. 305; People v. Clark, 33 Mich. 112; People v. Davis, 52 Mich. 569, 18 N. W. 362; People v. Hendrickson, 53 Mich. 525, 19 N. W. 169; State v. Wallace, 9 N. H. 515; State v. Snover, 64 N. J. Law, 65, 44 Atl. 850; State v. Snover, 65 N. J. Law, 289, 47 Atl. 583; State v. Stubbs, 108 N. C. 774, 13 S. E. 90; State v. Guest, 100 N. C. 410, 6 S. E. 253; State v. Wheeler, 104 N. C. 893, 10 S. E. 491; Commonwealth v. Mosier, 135 Pa. 221, 19 Atl. 943; Richardson v. State 34 Tex. 142; Thayer v. Davis, 38 Vt. 163; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124; State v. Potter, 52 Vt. 33. In Funderburg v. State, 23 Tex. App. 395, 5 S. W. 244, such evidence was expressly held admissible.

Appellant has a number of bills complaining of brief remarks in different particulars of the county attorney in argument before the jury. She requested no written charge to the jury to disregard any of them. In every instance there was a basis from the evidence or a proper deduction therefrom, from which such remarks could be made. The arguments complained of, under the circumstances, show no reversible error.

The court gave one special charge requested by appellant. That, in connection with the court’s main charge, fairly and properly submitted every issue raised.

The court did not err in refusing to give this special charge requested by appellant:

“Certain evidence has been introduced before you in this case to the effect that the defendant had intercourse with one Hutto in Williamson county, Tex., and with one Farley in said Williamson county, Tex. I charge you that if you believe from the evidence that the defendant had intercourse with said parties or either of them in Williamson county, Tex., you cannot consider such alleged intercourse, if any there was, as proving that the defendant is guilty of being a common prostitute in Travis county, Tex., and you will not consider such evidence in arriving at your verdict.”

Nor did the court err in giving this charge to the jury on that subject:

“Certain evidence has been introduced before you to the effect that the defendant had intercourse with one Hutto in Williamson county, Tex., on or about March 1, 1917, and again with one Farley in Williamson county, Tex. I charge you that if you believe from the evidence that the defendant had intercourse with said parties, or either of them, in Williamson county, Tex., you cannot consider such evidence except as a circumstance going to show, if it does show, whether or not the defendant was pursuing the avocation of a common prostitute in Travis county, Tex., as same is elsewhere explained to you by this court.”

No reversible error is presented in this case.

The judgment is affirmed.

On Motion for Rehearing.

DAVIDSON, P. J.

Several interesting questions are presented for consideration on this motion for rehearing. The writer has looked over the matter with some degree of interest, and tried to do so with care and caution, and has reached the conclusion that vagrancy is a present condition or status, and not an abandoned condition or status. That a party may have been a vagrant in the past may not bar prosecution for keeping disorderly house, but if she has abandoned such vice, does not justify the prosecution for a present status of vagrancy. The statutes (articles 634 to 640, P. O.) with reference to vagrancy apply, especially with reference to common prostitutes, to a present and existing condition, not an abandoned condition. She may be at present a common prostitute, and has been for the past, continuing up to the present time. This would justify a prosecution for vagrancy; but, if she has abandoned that life and is not now a vagrant, she is not subject to be taken up as a vagrant under the law. Such we understand to be a fair and reasonable and proper construction of the statute with reference to common prostitutes. It is not sufficient that she may have been in the past such a character, but that status of being a common prostitute must now exist to justify her arrest and detention. Where she has abandoned such a life and gone out into a different attitude and condition or relation and is leading a different life, she is not a vagrant. She may be subject to prosecution for having kept a disorderly house, if such was a fact; but this would not justify her in being charged as a vagrant. The offenses are different, sustained by different definitions of offenses by the Legislature, and necessarily involve different conditions and facts. See articles 634, 637, P. C.; Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759; City of San Antonio v. Salvation Army (Civ. App.) 127 S. W. 860. The same reasoning would apply to a common gambler, or keeper of a gambling house. The party may have kept a gambling establishment and subject to punishment for having done so, but had he abandoned such life and has ceased to carry on the gambling house, and gone out into other and suitable vocations, his condition as a vagrant had ceased. The fact that he kept a gaming house and had abandoned it is a different proposition from being at present a vagrant by reason of such fact. The statute with reference to vagrancy was passed to meet a present and existing condition, an arrest and prosecution of the party under such condition that is now a vagrant. See authorities above cited. The incubus upon society which constitutes vagrancy is a present status, not a past relation or condition. The abandonment of the vagrant’s life ceases to mate the party a vagrant, and arrest and prosecution for vagrancy is based upon a present status or condition that it does exist. If they are making an honest living or doing such work as relieves them of being a vagrant, the condition of vagrancy no longer exists. That the previous acts were illegal under some other statute might be true, hut it does not apply to a present condition of vagrancy. See 20 Cyc. 1090; 22 Cyc. pp. 508-509; 14 Cyc. pp. 1093, 1096.

I am of the opinion further that the testimony does not show the accused to be a vagrant in that she was a common prostitute. The two sporadic acts of her going to Williamson county and having intercourse with some man in that county is not sufficient to show her a common prostitute. The fact that she slept with a paramour in Austin to the exclusion of other men would not make her a common prostitute. There is testimony that on two or three occasions she went out at night with male companions, but there is no testimony that she had intercourse with these men on these occasions. We think it would be not sufficient to hold that, because she went out with some man at night, this constituted an act of prostitution. She may or may not have had intercourse with these men. The presumption is in her favor that she did not, for the law presumes her innocent. A presumption from these facts would be in her favor. In order ■to show that these were acts of prostitution, there must be something more shown than the mere fact that she went driving with men at night, or absented herself with the men from the vehicle in which they rode. We think it would be carrying the proposition too far to say that, because a woman went driving at night with a male friend, therefore she was a prostitute. The writer is not willing to assert such proposition or opinion. It is not every woman who indulges in illicit intercourse that is a common prostitute, and under the authorities there is a wide divergence between a prostitute and a common prostitute. Springer v. State, 16 Tex. App. 591.

The writer therefore is of opinion the af-firmance should be set aside, the motion for rehearing granted, and the judgment reversed and the cause remanded.

PRENDERGAST, J., dissents.
      <§E»For other cases see same topic and KEY-NTJMBER in all Key-Numbered Digestfe and Indexes


author: DAVIDSON, P. J. MORROW, X

text:
    BIBB v. STATE.
    (No. 4750.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    1. Homicide <&wkey;>49 — Manslaughter r- Insulting Conduct.
    Where the killing has taken place because of insulting conduct towards defendant’s wife, the killing will be imputed to the last insulting, conduct, rather than to prior acts or conduct, or previously occurring matters. (Per Davidson, P. J.)
    2. CRiminal Law <&wkey;763, 764(9) — Instructions — Weight oe Evidence.
    In prosecution for murder, an instruction that the killing would not be manslaughter if it was done from hatred or revenge, or by previous design, and not on account of insulting conduct towards defendant’s wife, was erroneous as being on the weight of the evidence. (Per Davidson, P. J.)
    3. Homicide <&wkey;152 — Manslaughter—Burden oe Proof.
    In a murder prosecution, where the state, over defendant’s objection, introduced evidence that the cause of the killing was insulting conduct towards defendant’s wife, thus assuming the burden of reducing the offense to manslaughter, a judgment of conviction should be reversed. (Per Davidson, P. J.) ¡ h
    4. Criminal Law <&wkey;400(10) — Evidence-Secondary Evidence — Predicate.
    In prosecution for murder, secondary evidence of the contents of a letter written by another to defendant’s wife at his request, and which was then in the possession of defendant’s attorney, was inadmissible; a sufficient predicate for the admission of such evidence not having been laid.
    5. Homicide <&wkey;169(l) — Evidence — Relevancy.
    In a prosecution for murder, evidence that, at the time defendant’s wife and deceased left the hotel, where they had stayed, two officers came to the hotel, and that defendant saw them from the opposite side of the street, was irrelevant. (Per Davidson, P. J.) ■ l ,
    6. Criminal Law <&wkey;363 — Evidence — Res Gestje.
    In a prosecution for murder of the paramour of accused’s wife in her presence, an exclamation, “Oh, Daddy! Why did you-do it?” was not admissible as part of the res gestae, where not identified except as being a woman’s voice and coming from lie direction where the killing occurred. (Per Davidson, P. J.)
    7. Witnesses <&wkey;52(7) — Competency—Husband and Wife.
    In prosecution for murder, statements by accused’s wife to a third person as to the killing were not admissible, being testimony by a wife against her husband. (Per Davidson, P. J.)
    Prendergast, J., dissenting, Morrow, J., dissenting in part.
    Appeal from District Court, Tom Green County; C. E. Dubois, Judge.
    M. H. Bibb was convicted of murder, and be appeals.
    Reversed and remanded.
    W. A. Anderson, of San Angelo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was awarded a life sentence for murder.

The case is a little peculiar, in that appellant introduced no evidence. The entire record is made upon the state’s theory. The killing ■ occurred, under the state’s evidence, on account of the familiarity of the deceased, Stokes, with appellant’s wife. This evidence was introduced by the state, and then sought to be evaded by reason of the fact, or by evidence to that effect, that appellant’s wife had been criminally intimate with other men prior to this relation with Stokes, and had prior to this particular occasion been intimate with Stokes; that appellant was aware of these matters, and therefore the killing was not manslaughter, hut murder. The state’s case was in the nature of confession and avoidance. There is no reason shown in this record for the killing, except that Stokes was familiar with appellant’s wife. Appellant and his wife lived at Paint Rock in Con-cho- county; that she left him and went to San Angelo, Tom Green county, and became familiar with Stokes and filed a suit for divorce. Appellant ascertained this, and at once went to San Angelo, disturbed and outraged. He talked to different people, among others a justice of the peace, county attorney, and the sheriff. He was unacquainted with Stokes, but finally managed to secure an interview in which Stokes promised him that he would cease his attention to his wife. It is also shown that appellant stated that if Stokes did not let his wife alone he would kill him. Appellant left San Angelo. Later, ascertaining that Stokes had renewed his intimacy with his wife, he returned to San Angelo. His wife was stopping at a hotel,which fact appellant ascertained. The state’s theory was that he sat on the opposite side of the street and discovered the fact that Stokes came to the hotel to see his wife. Stokes and appellant’s wife left the hotel, probably with knowledge on the part of appellant that they were leaving it in company with each other. Appellant went to some point in the city and secured a gun. At the intersection of the street where his wife and Stokes had cut across a corner of the street near a signboard, appellant met them. The killing occurred.

It is not the purpose of the writer to enter into a discussion of the statutes with reference to what constitutes manslaughter in connection with the stated facts. Insulting conduct towards the wife of the slayer is always adequate cause by the statute. The fact that she may have been a woman of loose character is introducible in connection with the homicide under the terms set out in the statute. Insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide is the fourth ground of adequate cause set out in article 1132 of the Revised Penal Statutes. The following article provides that, when it is sought to reduce the homicide to the grade of manslaughter, the killing must occur immediately upon the happening of the insulting conduct, or soon thereafter as the party killing meet with the party killed, after having been informed of such insults. Article 1134, P. 0., provides that, .in every case where the matter spoken of in the preceding article is relied on, it shall be competent to prove the general character of the female insulted, in order to ascertain the extent of the provocation-; and under such circumstances, under article 1135, the jury is at liberty to determine whether under all the circumstances the insulting words or gestures were the real cause of the killing. While the statute provides that the general character of the insulted female may be investigated in order to ascertain the extent of the provocation, this does not prevent the introduction of evidence of specific acts of insulting conduct or illicit relations. Enough has been said to show the illicit relations between Stokes and appellant’s wife; that appellant had interviewed Stokes and obtained from him a promise to let his wife alone. Appellant was seeking a reconciliation with his wife and prevention of the divorce. Relying upon this, he left San Angelo, and was. soon informed of the renewed relation between the parties, and, having ascertained they were together that night, secured a gun, and upon meeting them in company with each other immediately shot and killed deceased. This is the case in a nutshell. This does not eliminate the question of manslaughter; and not only so, but the state, not the defendant, proved these matters and was bound by them, unless the state could in some way avoid the force and effect of the testimony which brought in the extenuation. Whatever may have been the effect upon appellant’s mind prior to the night of the killing, the authorities are pretty clear, and seem all sufficiently explicit to sustain the proposition that under such circumstances the killing will be imputed to the last insulting conduct, rather than to prior acts or conduct or previously occurring matters. Miles v. State, 18 Tex. App. 156. See 5 Rose’s Notes, p. 451, for enumeration of cases. It seems practically certain from the evidence that, had Stokes not renewed his illicit relation with appellant’s wife, this killing would not have occurred, and it was on account of these illicit relations and his meeting him at the time he did, together at night, that induced appellant to do what he did.

There are quite a number of bills of exception reserved, and there are exceptions to the court’s charge, which were timely reserved. Among other things, objection was made to the following charge:

“You are further charged that if you believe that the killing was done, not on account of any insulting acts or improper conduct of deceased towards defendant’s wife, as a provocation, but from hatued or revenge and in pursuance of a ■design previously formed, when defendant’s mind was sedate and deliberate, the killing would not be manslaughter.”

Several exceptions were reserved to this. We think the exceptions were well taken. This is a charge upon the weight of evidence, and, the writer is of opinion, upon an issue not raised by the facts. It had a tendency to deprive the defendant of the benefit of the state’s case which showed manslaughter, and deprived him also of the benefit of the reasonable doubt between the offense of manslaughter and murder. The court by this charge indicates his view of the testimony, and it might be seriously doubtful if manslaughter should be considered by the jury. It is true that if the killing occurred from malice, hatred, and revenge, which shows a deliberate and willful purpose to do the killing, it might not be manslaughter, although adequate cause may exist; but this is a matter always under the facts to be determined by the jury and not by the court. If the testimony with reference to the relation between Stokes and appellant’s wife on the night of the killing was eliminated from this record, the state would be without a shown cause, and at least without the cause the testimony was introduced to sustain. This testimony was introduced for no other purpose than to show that the killing was on account of the fact that Stokes had had such relationship with appellant’s wife and was with her at the time of the tragedy. Not only is adequate cause shown by the facts, but it was put in only by the state. It was incumbent upon the state to overcome the effect of this testimony. As said before, the ease is sui ju-ris as well as sui generis, in that the state proved a killing under the theory of manslaughter and then sought to disprove it. Usually we find the defendant interposing insulting conduct towards a female relative to reduce the homicide, but in this instance he remained silent, and the state assumed the burden of showing adequate cause, and much of the testimony was introduced over appellant’s objection. If for no other reason than this, the judgment should be reversed. Article 794, C. C. P.; Ratigan v. State, 33 Tex. Cr. R. 301, 26 S. W. 407; Jones v. State, 51 Tex. Cr. R. 472, 101 S. W. 993; Thompson v. State, 77 Tex. Cr. R. 417, 178 S. W. 1192; Norwood v. State, 192 S. W. 248.

Bill of exceptions No. 1 recites that, while the witness Marshall was testifying for the state, he stated appellant came to his (Marshall’s) office in the village of Mertzon and secured him to write a letter directed to appellant’s wife. This letter was written by Marshall, and then follows the substance of the letter. He handed the letter to appellant. What became of it he was not aware. This letter was not introduced in evidence, but the state undertook to prove its contents by Marshall. The court, explaining this bill, states that Marshall wrote the letter for appellant, and after signing it as a witness delivered it to appellant, and by the witness Mrs. Gaskins the letter was shown to afterward be in the possession of Mrs. Bibb, the wife of defendant; and after the testimony was closed and while W. A. Anderson, counsel for defendant, was arguing the case, he stated that he then had the letter in his pocket. The court says it therefore appears from the facts that the letter was beyond the reach of the state to procure the same as evidence upon the trial of this cause. This is the reason he permitted the contents of the letter to go before the jury. We are of opinion, even in view of the explanation by the court, which we think intensifies the error, the contents of this letter under the circumstances were not admissible. There was not sufficient predicate for this ruling of the court. The state could have produced this letter or made an attempt to do so, because it was known where the letter was or where it could be found. The explanation of the judge makes this relatively certain. Mrs.- Gaskins was a witness in the case, or she would not have testified to what was stated by the judge. This testimony was evidently introduced by the state to show that after this letter was written it in some way reached his wife, and Mrs. Gaskins testified that she saw her with it. There was no request made to have the letter produced; no predicate laid for the introduction of its contents. Therefore we think this was error.

Another bill recites that, just prior to the time that Stokes and appellant’s wife left the hotel, two officers came to the hotel. Objections were urged, but overruled. The court says, by way of explanation, that at the time the deceased, Stokes, and Mrs. Bibb, appellant’s wife, came out of'the hotel, appellant was on the opposite side of the street, on a doorstep, watching, and was there when the officers drove up in front of him. This would not make the testimony admissible. If appellant was sitting across the street watching Stokes and his wife, that could be introduced;- but this did not require or authorize the introduction of evidence that officers came there about that time. They were in no way connected with this matter, so far as the record is concerned, and the bill of exceptions does not seek to so show.

Bill No. 5 recites that, while Edwards was testifying and after having located himself, he stated that he heard shooting, and was then asked by the state: “Did you hear any one saying anything or hear voices immediately after the shooting?” Objection was urged, and he was permitted to testify that the voice said: “Oh, Daddy! Why did you do it?” Exception was reserved to this testimony, and we think it should not have gone to the jury. The court says the reason he admitted the testimony, the woman’s voice, as testified by the witness, was in the direction from which the shots came, and near the place where deceased was killed. We are of opinion that this does not come within the rule of res gestae or in such way as to authorize its admission. It was close enough in time, but was not sufficiently identifying in its statement. It was too indefinite. It was not shown to have been the defendant to whom ’ the remark was made. It is not sufficiently connected with the shooting, in our judgment, to render it admissible.

Another bill recites that while Mrs. Gaskins was testifying for the state this occurred:

“We offer the same proposition as we did before noon — the res gestae statements made by Mrs. Bibb just a few minutes after the killing —just time enough to walk across to the corner, being excited and agitated and her clothing being very much disarranged.”

Appellant objected to such, statements made by the. wife of defendant because not a part of the res gestae; that it was an attempt to use the testimony of the wife against her husband; not at the place of the homicide, not in the presence of defendant, and therefore not admissible. Mrs. Gaskins was permitted, however, to testify:

“I think she had just about time enough to walk over there. I guess the distance to be 200 yards. Her cloak was gone and her little bow tie which she wore about her neck.”

Then, to make the bill intelligible, the following occurred:

“G. Now, Mrs. Gaskins, at the time the statement was made by Mrs. Bibb, Mr. Bibb was gone? A. He had just turned from the door and gone. Q. And the door was closed? A. I don’t remember: I believe the door was closed. Q. It was cold weather, wasn’t it, and you had a fire in the stove? A. No, I don’t think we had any fire on that night. Q. Isn’t it a fact that you remember a blizzard had blown up that evening, the 6th of December, and that it was very cold that night? A. Mrs. Bibb was sitting on the porch at one time of the night, but I don’t remember just when it was. Q. Didn’t Mrs. Bibb give you a coat that she was carrying at the time? A. Yes, sir; she brought the cloak in. It was off when they came in. Q. Now, you think it was something like 200 yards from the place of the homicide to your house? A. I am guessing at that; I-don’t know. Q. And it was not exceeding ten minutes time after the shooting that she made the statement to you? A. I think that; of course, I am not sure about it. Q. And she and her husband had brought the gun and left it there with you? A. Yes, sir. Q. Who handed you the coat, Mr. Bibb or Mrs. Bibb? A. I can’t remember. I was kinder excited. I can’t say positively who did. Q. Who handed you the gun? A. I think Mrs. Bibb had the gun. Q. After all this occurred was when the statement was made' by Mrs. Bibb? A. Yes, sir. Q. And Mr. Bibb was gone? A. Yes, sir. G. Who was present besides you and Mrs. Bibb? A. I don’t remember that there was any one else there.”

The witness was permitted to testify, over objections, as follows:

“Mrs. Bibb was carrying the gun. I took the gun and set it back in another room, where it remained till the officers came and got it. I do not know what officer took it. I was kinder scared of it. Mr. Bibb and Mrs. Bibb just came to the house. They did not come in. She came in, but he didn’t. He just turned and walked out back across the street. She came into the house and remained there. Mrs. Bibb seemed to be much excited. She was taking on, crying and talking. She had not entirely quit screaming when she reached my hotel. She was talking. She was screaming practically till she got to the hotel. When she got to the hotel she was talking. She said to me: ‘Pie has killed him. He just tore me away from him, just knocked him away with his gun.’ She appeared much excited.”

We are of opinion that the statement of defendant’s wife to Mrs. Gaskins with reference to what her husband did, as set out above, was not admissible. She did not testify on the trial. The wife could not have so testified. She could not have been used as a witness against the defendant, because the statute has so provided. ■ Article 795, Vernon’s Ann. Grim. Stats, p. 727. This statement was made by the wife some time after the shooting and some distance from the scene of the homicide, made in the absence of the defendant. The husband and wife cannot be used as witnesses against each other except where the offense is against one by the other. This was not an offense against her. This is shown by the testimony. The law of res geste does not meet the situation. The doctrine of res gestae, or any other rule of evidence laid down by the court, cannot overturn constitutional or statutory demands or requirements. We understand that any statement made by a party at the time of the killing, or exclamations of a party, may De testified to by other witnesses or those who heard it. The wife could not have been placed on the stand in this case to testify to acts and conduct of her husband and deceased at the time of the homicide so far as the state is concerned. The defendant might have used her, but the state is prohibited from doing so. The statements between husband and wife overheard by other parties may be used in evidence. It is held not to be violative of article 794 with reference to privileged communication ; but if those communications are made by the husband to the wife, or the wife to the husband, they cannot be testified to by either the husband or wife, for this is. inhibited as privileged. The rule seems to be well settled that where the communications or statements are made by one to the other they are privileged. If these communications or statements are heard by third parties, the third parties may testify to the fact in that state of case. The authorities upon the above proposition are collated in Vernon’s Ann. O. G. P. p. 726, where also will be found article 794, supra. Suppose the wife had not been immediately present and saw her husband kill deceased, but directly afterwards and within five minutes he had stated to her he had killed deceased, and his wife had then subsequently told a third party that her husband made such statement or confession; it would not be contended under.any rule that this communication would have been admissible. But if a witness had overheard the confession by the accused to the wife under the case stated, that witness could testify to the communication, but the wife could not. It would be as to her privileged. The statement made by appellant’s wife to Mrs. Gas-kins was in his absence and of which he was unaware, and it was a statement of the wife to a third party out of the hearing and away from her husband. There is a difference between the exclamations of the wife at the time of the homicide heard by others and to which they could testify, and her statements to others after the killing. The third party could testify to what he heard, but the wife would not be permitted to state what she said under the above articles, 794 and 795. The law seems to be well settled that, when the wife cannot testify to the transaction for the state, her statements to third parties in the absence of defendant cannot be used. See Gant v. State, 55 Tex. Cr. R. 284, 116 S. W. 801; Spivey v. State, 45 Tex. Cr. R. 496, 77 S. W. 444; Gross v. State, 61 Tex. Cr. R. 176, 135 S. W. 373, 33 L. R. A. (N. S.) 477. We are of opinion under the objections urged this testimony was not admissible, and the court erred in not excluding it. We might also refer to Thompson v. State, 77 Tex. Cr. R. 417, 178 S. W. 1192, and Norwood v. State, 192 S. W. 248.

There is another bill of exceptions to which reference will be made. After Charles Hull had testified for the state, and after testifying to hearing the shot that was supposed to have killed Stokes, he was recalled by the state and asked whether or not, the next morning after the shooting (the shooting is shown to have occurred about 9 or 10 o’clock, December 6, 1916), he had examined the place of the homicide and the building on the opposite side of the street, and to describe the blood on the ground and the gunshot signs on the building on the opposite side of the street. Various objections were urged to all this, hut the witness testified that next morning after the shooting he went to the place where the deceased fell, and there was a large bloody place there on the ground, and that he then went across the street and examined gunshot scars on the building on the opposite side of the street, describing them in detail. This bill is signed without qualification. There is no reason assigned by the state why this testimony was sought or should be introduced. There was no question of the fact that appellant killed deceased. The cause for the killing is not challenged by defendant, but proved by the state. The environs of the case all show that it was at a particular place appellant killed deceased. The examination of these locations df the building and scars on the building supposed to have been made by bullets or gunshots served no useful purpose in making out the state’s case. The fact that deceased was killed was not debatable; the fact that he was shot by defendant was not denied; that he was shot by a shotgun was made evident. These matters were prejudicial to the defendant and should not have been permitted. There are quite a number of cases analogous to the question and involving the same principle. See Lacoume v. State, 65 Tex. Cr. R. at page 150, 143 S. W. 626; Corley v. State, 69 Tex. Cr. R. 627, 155 S. W. 227; Gillespie v. State, 190 S. W. 146; Williams v. State, 61 Tex. Cr. R. 356, 136 S. W. 771; Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527; Melton v. State, 47 Tex. Cr. R. 451, 83 S. W. 823; Christian v. State, 46 Tex. Cr. R. 47, 79 S. W. 563; Lucas v. State, 50 Tex. Cr. R. 219, 95 S. W. 1055.

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

PRENDERGAST, X, dissents.

MORROW, X

I concur in the criticisms made by the Presiding Judge in the opinion touching the paragraph of the charge mentioned. Appellant having acquainted a third party with the contents of a letter to his wife, wiheh is referred to in bill of exceptions No. 1, by procuring another to write the letter, I think its contents should not be rejected on the ground of privileged communication. I believe, however, there was a failure to establish a sufficient predicate to justify the introduction of secondary evidence of the contents of the letter.

With reference to the expression, “Oh, Daddy! Why did you do it?” referred to in bill of. exceptions No. 5, I think that, if used by Mrs. Bibb, it was res gestse, and, whether it was used by her or not, was a question for the jury, and its introduction would not require a reversal.

The alleged statement by Mrs. Bibb, testified to by Mrs. Gaskins, I think was res ges-tas and admissible as coming within the rule relating thereto. Being res gestae and testified to by another than appellant’s wife, it does not come within the inhibition of the statute which prohibits the wife from giving testimony against the husband. It is not her testimony that is used, but her verbal act so connected with the transaction as to become a part of it, and provable by competent witnesses like any other part of the transaction. See Robbins v. State, 73 Tex. Cr. R. 367, 166 S. W. 528; Cook v. State, 22 Tex. App. 511, 3 S. W. 749; Wharton, Crim. EV. §§ 252, 253.

So far as developed in the bill of exceptions complaining of the testimony of the witness Hull, descriptive of the blood and other conditions manifesting themselves upon the scene of the homicide on the morning thereafter, their relevancy is not disclosed. As the record is presented, I would not f.eel disposed to concur in a reversal because of the facts shown by this bill alone; but, unless on another trial the matter becomes relevant to some issue, it should not be introduced.
      <£^>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    ARCHENHOLD CO. v. SCHAEFER.
    (No. 5950.)
    (Court of Civil Appeals of Texas. Austin.
    June 19, 1918.)
    1. Execution <@=>288 — Sale — Failure to Comply with Bid — Benalty.
    Rev. St. 1911, art. 3771, providing that if any person shall bid off property under execution, and shall fail to comply with bid, he shall be liable to pay 20 per cent, of value, does not apply if nothing is really sold, as where property of execution defendant passed into custody of bankruptcy court by filing of petition on third day before sheriff attempted to sell.
    2. Bankruptcy <@=>151 — Property op Bankrupt — Custodia Lesis.
    The property of a bankrupt is in custodia legis with the court of bankruptcy from time of filing of petition.

      3. Bankruptcy @=3198 — Adjudication—Vacation op Liens — Statute.
    By Bankruptcy Act 1898, § 67 (U. S. Oomp. St. 1916, § 9651), all liens obtained within four months prior to the adjudication in bankruptcy, whether voluntary or by process of a state court, and whether the proceedings in bankruptcy be voluntarily or involuntarily begun, are vacated by the adjudication of bankruptcy.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Suit by the Arehenhold Company against H. Schaefer. Flrom a judgment for defendant, : plaintiff appeals.
    Affirmed.
    Nathan Patten, of Waco, for appellant. Allan D. Sanford, of Waco, for appellee.
   Findings of Fact.

JENKINS, J.

On January 5, 1917, appellant recovered a judgment against H. Schaefer for $6S7.94. On February 1, 1917, an execution was issued thereon to McLennan county, which was returned nulla bona. On the same day an alias execution was issued to Fayette county, by virtue of which the sheriff of that county on February 10, 1917, levied upon certain personal property as the property of said Schaefer, and after advertising the same as required b,y law, he offered same on February 26th to the highest bidder, and the same was struck off to appellee on his bid of $700. Shortly after making the said bid, appellee learned that Schaefer’s petition in bankruptcy had been filed in the federal court at Houston on February 23, 1917, and he thereupon declined to pay for said property. Appellant brought this suit to recover of appellee 20 per cent, of the value of the property upon which said bid was made. The trial court found said property to be of the value of $1,650', but entered judgment for appellee.

Opinion.

Article 3771 of the Revised Statutes is as follows:

"If any person shall bid off property at any sale made by virtue of an execution, and shall fail to comply with the terms of the sale, he shall be liable to pay the plaintiff in execution twenty per cent, on the value of the property thus bid off, besides costs, to be recovered on motion, five days’ previous notice of such motion being given to the defendant; and, should the property, on a second sale bring less than on the former, he shall be liable to piay to the defendant in execution all loss which he sustains thereby, to be recovered on motion as above provided.”

If- the property was taken out of the custody of the sheriff by reason of the proceedings in bankruptcy, he had nothing to sell. If nothing is really sold, article 3771 does not apply. Towell v. Smith, 55 S. W. 186; Borden v. Fahey, 56 Tex. Civ. App. 218, 120 S. W. 564; Hollon v. Hale, 21 Tex. Civ. App. 194, 51 S. W. 900; Bank v. O’Dwyer, 38 S. W. 368.

The property of a bankrupt is in cus-todia legis with the court of bankruptcy from the time of the filing of the petition. Gee v. Parks, 193 S. W. 769, 770; Lazarus v. Prentice, 234 U. S. 263, 34 Sup. Ct. 851, 58 L. Ed. 1307; Kopplin v. Ludwig, 170 S. W. 106; Acme Co. v. Lumber Co., 222 U. S. 300, 32 Sup. Ct. 96, 56 L. Ed. 213; Ledgerwood v. Dashiell, 177 S. W. 1013; Carter v. Robertson, 198 S. W. 791; Conner v. Long, 104 U. S. 228, 26 L. Ed. 723.

All liens obtained within four months prior to the adjudication in bankruptcy, whether voluntary or by process of a state court, and whether the proceedings in bankruptcy be voluntarily or involuntarily begun, are vacated by the adjudication of bankruptcy. Section 67f, Bankruptcy Act July 1,1898, c. 541, 30 Stat. 564 (U. S. Comp. St. 1916, § 9651); Bank v. Staake, 202 U. S. 141, 26 Sup. Ct. 580, 50 L. Ed. 969, 970; Conner v. Long, 104 U. S. 228, 26 L. Ed. 723; In re Southern Arizona Smelting Co., 231 Fed. 87-91, 145 C. C. A. 275; Wright v. St. Louis, I. M. & S. R. Co., 142 Mo. App. 50, 125 S. W. 517; Bank v. Malley, 103 Tex. 562, 131 S. W. 1066. Brandenburg on Bankruptcy, pp. 646, 666-668, 670.

Such being the effect of the bankrupt law, the property of Schaefer passed into the legal custody of the bankrupt court on the third day before the sheriff attempted to sell the same; the lien obtained by virtue of the levy of the execution was released; the sheriff had nothing to sell; he was not in the legal possession of such property, and could not deliver the legal possession thereof to the purchaser. For these rea'sons, article 3771 of the Revised Statutes does not apply, and the trial court rendered the proper judgment.

No error appearing of record, the judgment of the trial court herein is affirmed.

Affirmed.
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author: KEY, O. J.

text:
    ROSE v. HAYS INV. CO.
    (No. 5924.)

    (Court of Civil Appeals of Texas. Austin.
    June 12, 1918.)
    1. Boundaries @=>40(1) — Construction of Deed — Question for Jury.
    In trespass to try title, what boundary was intended by a deed of part of a lot held a jury question.
    2. Evidence @=3274(11) — Declarations of Deceased Person — Boundaries.
    In determining questions of boundaries, it is competent to show that a third person, who was dead at time of trial, and from whom one of the parties obtained title, while in actual possession, made statements that he did not assert a claim to the boundary subsequently asserted by his grantee.
    Appeal from District Court, McLennan County; E. J. Clarke, Judge.
    Suit’ by J. K. Rose, as executor of the estate of Mrs. Joana McClellan, deceased, against the Hays Investment Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Marshall Surratt, of Waco, for appellant.
    5. E. Stratton and J. N. Gallagher, both of Waco, for appellee.

      Rehearing denied October 16, 1918.

   KEY, O. J.

J. K, Rose, as executor of the estate of Mrs. Joana McClellan, deceased, brought this suit in form of trespass to try title, and sought to recover a certain portion of lot 5, in block 6, of the city of Waco. The Hays Investment Company was made defendant, and in its answer disclaimed as to all of the land sued for, except that portion on the northeast side of lot 5, in block 6, and extending from the back end thereof to within 60 feet of the front, and being 7 feet and 3 inches wide, and lying immediately in the rear of the two-story brick house situated on that lot, and still belonging to the estate of Mrs. McClellan, and one-half interest in the wall or walls between the property of said estate and the property of the defendant, and a certain stairway easement. The defendant also pleaded the five-year statute of limitation. After the conclusion of the introduction of testimony, the trial court instructed the jury to return a verdict for the defendant, which was done, and judgment entered accordingly, and from that judgment this appeal is prosecuted.

We sustain appellant’s first assignment, and hold that the court committed reversible error when it directed a verdict for the defendant. However, we do not sustain appellant’s contention to the effect that the court should have instructed a verdict for him. It was agreed in open court that appellant, in his capacity as executor, was the common source of title. Appellee produced in evidence a deed from appellant, as such executor, to S. and M. Archenhold, dated October 10, 1900, and duly recorded in McLen-nan county, where the property is situated. Appellee holds by mesne conveyances from the Archenholds. The deed just referred to described the property conveyed as follows:

“All that certain piece or parcel of land known and designated as 23 feet and 7 inches off the N. E. side of lot 5 and in block 6, according to the original plat of Waco, same fronting 23 feet 7 inches on Austin street, in said city, of Waco, and running back 165 feet to alley, and being the premises now occupied by J. Prade, on said Austin street; * * * and this conveyance is intended to include, and does include, also half of the division party wall between the premises herein conveyed and another storehouse west of said premises, and adjoining the same on lot 5, block 6, which is owned by the estate of Joana McClellan, deceased, as well as free right of way to the grantee herein and his assigns over the stairway leading to the second story of said premises, which free right of way shall be enjoyed by the grantee and his assigns as long as said building remains as now constructed, and shall terminate upon the destruction or removal of said building.”

The other conveyances under which ¿ppel-lee claims contain. substantially the same description of the property. Appellee introduced testimony tending to support his plea of five-year limitation, and several assignments in appellant’s brief relate to that phase of thé case; but, inasmuch as it was agreed that appellant was the common source of title, and as appellee holds under a chain of title emanating from him, it seems to us that, if the deed executed by appellant conveyed the land in controversy, appellee is entitled to judgment, regardless of the question of limitation.

The proof shows that lot 5 has a frontage of 50 feet on Austin avenue, in the city of Waco, and extends back 165 feet to an alley. It was also shown that at the time appellant, as executor, executed the deed to S. and Ml. Archenhold, 'two business houses were located upon that lot; that they covered the entire frontage on Austin street, and had a common wall between them, extending back 60 feet. To the extent of that 60 feet, the two buildings referred to were each two stories in height. On Austin street, one of those buildings was known and designated as No. 416, and the other as No. 418. Back of each building was a one-story addition. The one back of No. 416 extended to within about 26 feet of the alley, and the one back of No. 418 to within about 13 feet of the alley. The one back of No. 418 was not as wide as the two-story building to which it was annexed, but lacked 7 feet and 3 inches of extending to the common corner of the two-story buildings known as No. 416 and No. 418, and that strip of land is the subject-matter of this litigation. There was testimony tending to show that the frontage on Austin street covered by the building known as No. 416, extending on the corner up to, but not including any portion of, the common wall, is 7 feet and 10 inches. But, notwithstanding that discrepancy as to distance concerning frontage, if the wall which divided the two-story buildings had continued straight on toward the alley, without any offset, the same distance that the addition in the rear of No- 418 extends, there would be no room for doubt as to how the deed should be applied, and appellant’s contention as to its construction should be sustained. But the stipulation in the deed that “this conveyance is intended to include, and does include, also half of the division party wall between the premises herein conveyed and another storehouse west of said premises, and adjoining the same on lot 5, block 6, * * * and being the premises now occupied by J. Prade,” together with proof tending to show that at the time appellant executed that deed Prade was appellant’s tenant of the premises known as No. 416, and with appellant’s permission was in possession of and using the offset of 7 feet and 3 inches, and the fact that the entire building known as No. 418, including both the two-story and one-story part thereof, was being used as a store by a mercantile firm ’which, was selling agricultural implements, created a latent ambiguity, and rendered it uncertain as to whether it was the intention of the grantor, in making the deed, merely to convey a parcel of land in the shape of a parallelogram, as wide as the frontage on Austin street of the store known as No. 416, and extending back to the alley, or to convey all the land and premises just referred to, and in addition thereto the offset of 7 feet and S. inches, including half of both the walls on No. 418, comprising 7 feet and 3 inches of the rear wall of the two-story building and half the wall of the one-story addition thereto. In other words, the testimony made the case one of boundary as to the application of the deeds in question to the subject-matter conveyed, and the court should have submitted that issue to the jury under proper instructions upon that subject.

We also sustain the assignments which complain of the action of the court in refusing to permit appellant to introduce in evidence statements made by Mr. Prade while he was in possession, claiming the same under the deed referred to. The proof showed that Mr. Prade was dead, and could not be produced as a witness. We understand the rule to be that, in determining questions of boundary, it is competent to show that a third person, who was dead at the time of the trial, and from whom one of the parties obtained title, while in possession, made statements showing that he did not assert a claim to the boundary line subsequently asserted by his grantee, and conceded that the premises in controversy were not on his side of the true boundary line. Of course, such statements are not admissible, unless the grantor who made them was in actual possession, and discussing or pointing out the disputed boundary line; nor are they admissible when the conveyance can be easily applied to the subject-matter, and no room exists for controversy concerning its true location.

Other assignments in appellant’s brief are decided against him; but, for the reasons stated, the judgment is reversed, and the cause remanded for another trial.

Reversed and remanded.
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