text:
    CITY OF FT. WORTH v. YOUNG et al.
    (No. 8353.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 25, 1916.
    Rehearing Denied April 22, 1916.)
    1. New Trial <⅜=56 — Improper Documents in Jury Room.
    A pleading in another suit, not offered in evidence, having in contravention of Rev. S-t. art. 1957, found its way into the jury room, and influenced one juror, at least, to agree to a higher award for land condemned than he otherwise would, new trial should be granted.
    [Ed. Note. — For other cases, see New Trial, Cent Dig. §§ 116-119; Dec. Dig. <⅜=>56.]
    2. Appeal and Error <S=>978(3) — Review-Denial op New Trial.
    While the matter of refusing a new trial because of documents not introduced in evidence having been taken into the jury room and considered by the jury is largely in the discretion of the trial court, such discretion is not an arbitrary one so as to be beyond the revision of the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3870; Dee. Dig. <®=>978(3).]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Suit by Mrs. Ella Young and others against the City of Ft. Worth. Judgment for plaintiff, new trial denied, and defendant appeals.
    Reversed and remanded for new trial.
    T. A. Altman and A. B. Curtis, both' of Ft. Worth, for appellant. Flournoy, Smith & Storer, of Ft. Worth, for appellees.
   CONNER, C. J.

This suit was brought by Mrs. Young and others in the Sixty-Seventh district court of Tarrant county, Tex., on the 28th day of July, 1913, against the city of Ft. Worth, wherein complaint is made of damages resulting on account of the construction and completion of a large dam on the west fork of the Trinity river, which resulted in the backing up of water from said dam and overflowing plaintiff’s lands. The case was tried on an amended petition filed in this cause on the 11th day of January, 1915. In said petition it was alleged that plaintiff owned about 1,200 acres of land, a large portion of which bordered on the west fork of the Trinity river, the entire tract consisting in the main of river bottom land; that the erection by the said city of its dam crossing the Trinity river a few miles below the land owned by plaintiff caused the water to back up and submerge a large portion of plaintiff’s land, which in another clause of said petition was set out and described by metes and bounds. Plaintiff further alleged that the reasonable and fair market value of the land so appropriated by defendant city was, at the time of the appropriation, of a value of $100 per acre. It was further alleged and shown in said petition that the land actually submerged, and the land which the city actually sought to and had converted to its own use, consisted of 360.7 acres; that said land so appropriated was located in the Trinity river bottom, and that by reason of such appropriation on the part of said city of said bottom land, and because of the construction of the dam, and the consequent formation of a large body of water immediately adjacent and adjoining the land owned by plaintiff and not submerged, such uplands left remaining to plaintiff were damaged in the sum of $18 per acre; that said uplands consist of about 839.3 acres.

Plaintiff also alleged, and this was not controverted, that on the 7th day of February, 1914, the city of Ft. Worth, as principal, and the Southwestern Surety Insurance Company, as surety, had executed and filed in this cause their certain bond in writing wherein the said city, as principal, and said security-company, as surety, promised and bound themselves to pay plaintiff in full, satisfy, and perform whatever judgment and decree might be rendered in plaintiff’s favor in this cause against the city of Ft. Worth for damages for the taking or condemnation of the lands of plaintiff desired by the city for reservoir purposes and involved in this cause, including all costs of suit.

The defendant city to this petition filed a general demurrer, general denial, and special answer, alleging, -among other things, that the land which had been appropriated was not of a reasonable value in excess of $30 per acre. Defendant admitted in its first amended original answer that it had appropriated and used for reservoir purposes lands belonging to plaintiff, the same being necessary for the completion of a waterworks system for said city of about 360.7 acres. Defendant admits also that the water backed up from the dam constructed by said city did overflow and submerge the bottom land owned by plaintiff, and denied that said land was worth in excess of $30 per acre, and alleged that by reason of being contiguous to said reservoir, alleged to be a magnificent body of water, said remaining lands, referred to as uplands, were not damaged, but that the value thereof had been enhanced.

To said amended answer of defendant city, plaintiff filed a reply, in which' denial was made of the allegations in said answer, and in which it was again alleged that the value of the land actually taken for reservoir purposes, consisting of 360.7 acres, was of a market value of about $100 per acre, and that the remaining land not actually appropriated had been damaged in respect to its market value to the extent of $18 per acre.

The case was tried before a jury, and the cause submitted upon special issues in which the jury were directed to find the reasonable market value of 360.7 acres appropriated by the city for reservoir purposes on February 1, 1912. In answer to this question, the jury fixed the valuation at $75 per acre.- Another issue was with reference to the damage to the uplands, consisting of 839.3 acres, and in reply to this question the jury answered $9 per acre.

In accordance with the verdict of the jury, and upon motion of plaintiff, judgment was rendered in favor of plaintiff against the city of Ft. Worth, as principal, and the Southwestern Surety Insurance Company, as surety, in the total sum of $39,867.88, with interest on said sum at the rate of 6 per cent, per annum from April 28, 1915, from which judgment the defendant has duly prosecuted this appeal.

The appellant first insists that the trial court committed error in overruling its motion for a new trial, in that:

“During the consideration of the verdict bj the jury, certain improper and prejudicial matters which were not in evidence were communicated to the jurors, consisting of a certain petition or answer filed in an injunction suit involving the same property involved in this suit, but not being a pleading in this case, submitted to the jury as such, which document was read by a juror, W. W. Manning, and was read and discussed by other jurors; that said document was also read by a juror, J. F. Wise, and that it contained a statement to the effect that the defendant herein had not paid exceeding $75 per acre for any land that it had acquired in iaid reservoir site; but that, as a matter of fact, this defendant did not pay more than $50 per acre for any land that it acquired by voluntary purchase in said reservoir site; that said statement, which was probably intended to mean that this defendant had not paid more than $75 per .acre for any lands that it had acquired in said reservoir site by condemnation, or arbitration, was misleading, and that the jurors thought that said statement meant that this defendant purchased lands in said reservoir site at the price of $75 per acre; that said statement was considered and discussed by said jurors before they agreed on their verdict, and at the time of said discussion at least two of the jurors favored a verdict of $50 per acre for the 360.7 acres belonging to plaintiff, taken by the defendant, and that said statement in said document did affect the verdict rendered by said jury, and caused the jury to render a verdict in excess of what would have been rendered, if they had not seen said statement; that Mr. Farmer, the foreman of the jury, made a statement in the presence of the jury which was construed by certain jurors to mean that he arrived at his verdict from personal knowledge of the value of the land in controversy, which statement this defendant alleged to have been true.”

■ The motion was supported by the following affidavit of the Juror Wise submitted to the court with the motion:

“That he was one of the jurors in the case of Mrs. Ells Young et al. v. City of Ft. Worth, in the Sixty-Seventh district court of Tarrant county, Texas; said ease being No. 35508, which was tried during the month of April, 1915; that after he had heard all the evidence and the charge of the court and the argument of counsel, and after he, with the remainder of the jury, had retired to the jury room for consideration of their verdict, from the evidence and the charge of the court he had decided firmly that he would not vote for a verdict exceeding $50 per acre for the 360.7 acres of land belonging to the plaintiffs in said cause and taken by the defendant for reservoir purposes, and that he would not vote for more than $2 per acre damages to the remaining uplands belonging to said plaintiffs; that he firmly believed from the evidence and the charge of the court that said above-mentioned amounts were all that plaintiffs were entitled to; that on the first ballot of the jury he voted for the allowance of $35 per acre for said 360.7 acres; that the jury considered their verdict all during the morning, that they were out, and that he never at any time during said morning voted for or agreed to more than $50 per acre for said 360.7 acres or more than $2 per acre damages to the remaining land; that after the jury had returned to the jury room after the noon recess on said day, Mr. Farmer, the foreman of the jury, stated ' to affiant that he had a way of knowing the value of river bottom land in that part of the country; that he had similar land which was on the market, and that he could get $100 per acre for his land, and said Farmer also showed affiant a typewritten statement which stated in substance that the city of Ft. Worth had paid as high as $75 per acre for land that it had bought for reservoir purposes, and that affiant believed that the statement in said written document was true, and relied on it; that there had been submitted to him no evidence as to what the city had actually paid for lands that it had acquired, and that the statement in said typewritten document caused affiant to agree to a verdict of $75 per acre for said 360.7 acres, and if it had not been for the statement in said written document, affiant would never have agreed to such verdict, and that he now believes that said verdict was excessive, and has always thought so; that affiant is about 50 years of age, had never been on a jury prior to that time, and was unacquainted with the procedure and customs of juries, had been away from his home for considerable time, and was needed at home and was anxious to get off the jury and go back to his home to attend to his work; that the majority of said jury were of the opinion that said land was worth a great deal more than af-fiant thought, and that the' damages to said upland was a great deal more than affiant thought it was, and that affiant did not realize, and did not calculate, how large a sum of money a verdict of $10 or $15 per acre for damage to the upland would amount to; that some of the jurors tried to get affiant to agree to $10 per acre damage to the upland, and finally agreed to compromise on $9 per acre, and that said Farmer stated to affiant that most any kind of a verdict was better than a hung jury, and that if the city of Ft. Worth did not get justice from the verdict, it had the right to appeal, and that affiant,, being unacquainted with court procedure, and believing said statement of said Farmer, finally agreed to the verdict of $9 per acre as damages to the plaintiff’s uplands; that af-fiant at all times believed that said damage was excessive and told the other jurors that he so believed, and still believed so, and that he further told the jurors, and believed and still believes, that the verdict of $75 per acre for the 360.7 acres was excessive, and that if affiant had only heard the evidence, the charge of the court and argument of counsel, he would never have agreed to such verdict.”

Upon the hearing of the motion for new trial, the court also heard the testimony, it seems, of some five of the twelve jurors ,who tried the case. The record discloses long examinations in chief and cross-examinations, but we think the following statement of the evidence upon the hearing of the motion will substantially present the essential facts necessary for our consideration.

W. W. Manning, one of the jurors, among other things, testified as follows:

“Counsel states that after the jury had heard the evidence and the argument of counsel, and the charge of the court, and had retired to consider their verdict, it is alleged that a certain document was read and submitted to certain jurors. To state the facts about that, as I remember it: That document was among the papers when we went in the jury room, and it seems to me the first time it was brought to my notice was in the afternoon. We had discussed the case and voted two or three times. We had considered it all the morning. Mr. Farmer, the foreman, I believe called it to my attention. He had it in his hands when I came in the afternoon. They seemed to have been discussing it, and he made the remark, We find here where the city has paid $75 an acre for some land,’ and I examined it closely, and I think I called his attention to the fact it said it had not paid in excess of $75, and then, of course, I do not remember all the little details in connection with that paper, but I think I called their attention to the fact that that paper was an answer of some kind in an injunction suit and doubted the propriety of considering it. That paper was not the answer the case went to trial on. I think it was the answer of some kind of an injunction. During that discussion between Farmer and myself, I think the jurors were all present, but I do not know how many of them hoard it. I was standing right close to them at the time it was first mentioned, when he was first examining it and later on I read it with more detail. I have stated my recollection of the contents of that document on that particular feature; it went into quite a few details as to some kind of agreement, I believe, made between Davis and Mr. Young. I did not read the instrument clear through. Further than that particular discussion I do not remember that I heard any other juror discuss that document. At the time we first went out and first balloted, all of the jurors were not for a verdict of $75 an. acre for the 360.7 acres of land taken; there was quite a difference. I should say there was approximately half of the jurors were for a smaller verdict than that. I do not remember the figures, but I think there was approximately half. I jotted the figures down, we voted in blank, each one put down the figures he thought would justify him for this bottom land, put it into a hat, and then it was called off and the average of $72.50, as I remember about it, on the first ballot. I think the lowest vote on that ballot was $35. The jury had not agreed on their verdict at the time this discussion was had about this document I have just told about; they had not agreed on that feature of it; they had agreed on certain features that were mentioned in the charge, but they had not agreed on the amount of the market value of the 360.7 acres. I do not believe we had taken another vote up to the time of the discussion I have mentioned; there was considerable discussion there, trying to reach a common ground for an agreement. Prior to this discussion I have mentioned my ballot was for $50 an acre for this bottom land. I don’t know whether I had or had not agreed to a higher verdict than $50 prior to the time I saw this document. I may have, but 1 am not certain about that. I do not remember whether we voted again or not, but we discussed the matter and we were trying to reach a common ground, and I think I probably made a suggestion that a lot of us would have to concede from the figures we had, some of the high men had to get down and some of the low men had to get up, and I may have indicated that I was willing to raise my figures a little bit; in fact, I am pretty sure I indicated I would raise my figures to any reasonable basis. I do not think at that time I had agreed to raise my figures to $75 an acre.”

Another juror, J. F. Wise, being duly sworn, testified as follows:

“My name is J. F. Wise. I live in Tarrant county, Tex. I will be 50 years old in November. This is my ninth year in Tarrant county. I am a farmer. I was one of the jurors in the trial of this case in the month of April this year. Prior to that timo I was never on a jury of any kind before; that was the only jury I was ever on. The jury retired to consider their verdict after hearing the evidence, the charge of the court, and the argument, late one afternoon. I do not think it was turned over to the jury until next morning, and we began the consideration of the case on the morning following the closing of the argument on the evening before. The jury took a ballot as to the market value of the 360.7 acres of land belonging to plaintiff that the city was taking. I could not state at what time in the morning they took the first ballot, but it was not a great while after we went in the jury room. I do not remember exactly about how the jury stood on that ballot. I remember it ranged all the way from $35 to $100', or above that. I do not remember whether it went above $100 or not. On the first ballot I voted $35. I do not remember how many ballots we took on that morning. To the best of my knowledge during the morning session I did not personally agree to more than $50 an acre for the land taken. I do not remember whether we had any agreement during the morning session on the amount to be given for the uplands that were not actually taken; not that I remember of did I agree in the morning session to a verdict of exceeding $2 an acre for the remaining upland. I do not remember that we had any agreement. After the jury had come back from the noon recess this statement (witness indicates the original answer above referred to) was in with these papers that Mr. Farmer had, and he showed it to me and told me he had found this, that he had seen something of that kind and told me what it was and showed me the paper. Farmer was the foreman. I can explain what statement he made to me: He and X were arguing with each other about my being too low and he too high. I do not remember what he. was wanting to give for the bottom land, but there was a right smart difference in us, and I told him my reasons for thinking he was too high, and he was telling me his reasons for thinking X was too low. I do not remember what reasons 1 gave him, but anyway we were arguing with each other, and when he came back after noon, I suppose he called my attention to the— I had claimed that I had understood the city never had paid that much for land. I heard that, in fact, once, and he went to _ show me then that it had paid this much; he just called my attention to it being in this statement that they had paid .as high as $75 an acre for land in the reservoir site, and he showed me the statement. I did not read any of it hardly, only just that part where it showed that they paid $75.
“Examined by the Court: I reckon that statement was this pleading that Mr. Manning had here; it seemed to be like that, looked like that, had a blue back on it like that. I never paid any particular attention to what it was, only that particular point. I suppose that is it.
“Examined by Mr. Curtis: You ask me if I looked to see the signature to the paper, and I answer: I think, as well as I remember, I do not know the man’s initials now, but it was Bowlin written with a pon, I noticed that much. Bowlin signed it. His name was down at the bottom below the typewriting, where Bow-lin’s name appeared.
“Mr. Eloumoy: Q. The question is whether or not, to the best of your knowledge, the paper we had here this morning and which was exhibited to Manning and from which he read that- clause about the price was the same one. A. I suppose it was; I have no reason to believe to the contrary.
“Examined by Mr. Curtis: I could not tell you how much of that document I read. I just read it down far enough to catch that part of it was all, that the city paid $75. That is all I remember about it at all. I did not pay any attention to the balance of it. I certainly believed that statement in the document to be true. I certainly considered that statement in the document as evidence in the case. That statement in the document which I believed did have an influence with me in my allowing or agreeing to a higher verdict than I had agreed to or been in favor of prior to that time. To the best of my knowledge, if I had not seen that statement and 'believed it to be true, I do not think I would have agreed to a verdict of $75 an acre. It was just after the noon hour when I saw this document and my understanding is we agreed on a verdict of $75 an acre for the land, taken about 3 o’clock, agreed on the whole verdict. I think it was about 3 o’clock, as well as I remember; it might have been later than that, some — a little. I do not remember.”

The witness, in reply to a question by Mr. Flournoy, of counsel for appellees, replied as follows:

“Q. If you had not seen that paper, or had not heard what Farmer said, are you willing to say to this court you would not, on the evidence in this case, under your oath have given a verdict as you did give it, sooner or later, for that amount? A. For $75, no, sir; I would not. You ask me what makes me say that and I answer that I say I would not if I had not seen this statement; and I say that because I thought it was too high, I thought $75 was too high. I still think it is too high. I thought it was too high after Farmer talked to me, and after I saw that statement. You ask me: Then if it was your original opinion it was too high, and those statements did not alter that opinion, how can you say that altered your verdict — if they did not change your opinion, how could they affect your verdict? and I answer: They did change my opinion; they changed my opinion in the respect that it caused me to agree to give more than I would have done otherwise; it caused me to do that simply because the statement said they paid more than that.”

It was agreed that neither party was responsible for the paper iu question getting to the jury. The pleading identified as being one which found its way to the jury during their deliberations was, as stated, an answer filed by the city of Ft. Worth in this cause on the 27th day of October, 1913, and was in the nature of a motion to dissolve an injunction which had been theretofore obtained against the city.

It seems unfortunate that occurrences of the bind thus brought to our attention should ever happen, but by our laws a litigant has a right to a trial by twelve impartial jurors, and the rules for their government are so framed that each and all shall be free from all probative forces except such as may be submitted to them under the rulings of the court. It is specially provided by statute that “any person who has a bias or prejudice in favor of or against either of the parties” is disqualified. Vernon’s Say les’ Texas Civil Statutes, article 5117. Again, that “no verdict shall be rendered in any cause except upon the concurrence of all the members of the jury trying the same.” Id., article 5217. And after the hearing before the jury is concluded, additional testimony before the verdict can only be submitted to them under the trial court’s direction, and where it appears to the court to be necessary to the due administration of justice. See article 1952. And upon the retirement of the jury they may take with them only “the charges and instructions in the cause, the pleadings and any written evidence, except the depositions of the witnesses.” Article 1957. It is further provided, with certain exceptions not necessary to notice, that after the retirement of the jury they shall be kept together under the charge of an officer who “shall not suffer any communication to be made to them or make any himself except to ask them if they have agreed upon a verdict, unless by order of the court,” etc. See articles 1958 and 1959. Other provisions of our statutes looking to the same end may be found, all, as stated indicating the jealousy with which the law guards the deliberations of a jury, and the precautions taken to give assurances that the verdict is uninfluenced by forbidden or unauthorized communications. Under article 1957, supra, specifying what a jury may take with them in their retirement, it has been held: That it was prejudicial error to permit the jury to receive after retirement a book not offered in evidence. Goar v. Thompson, 19 Tex. Giv. App. 330, 47 S. W. 61. That a jury erred in deciding to take with them an original petition in the case which had not been used as evidence upon the trial. Hall v. Cook, 117 S. W. 4-19. That it was prejudicial error for the jury to take with them and consider a memorandum used by a witness to refresh his memory. Faver v. Bowers, 33 S. W. 131. See, also, Wiggs v. S. W. Telegraph & Telephone Co., 110 S. W. 180. Illustrations of the character given might be multiplied, but we deem it unnecessary.

It is not contended that the answer of the city described in the testimony of the witnesses Manning and Wise was such an instrument as the jury were authorized to take with them. Indeed, appellees substantially so admit. So that, as it,seems to us, it only remains to be determined whether or not the error was such as requires of us a reversal of the judgment.

It is evident from the testimony given that the Juror Wise, at least, was influenced by a consideration of the instrument. He was one of the low men upon the jury. It was exhibited to him by the foreman, one of the high men. Until the consideration of that instrument, the Juror Wise states that he had not agreed to a verdict of more than $50 per acre as damages for the lowland. He says:

“Up until the time I saw this statement in there, that they had paid $75 per acre, I was opposed to the verdict.”

While some suggestion it appears was made that the instrument was such as they were not authorized to consider, the Juror Wise answered that:

“Anything that the court would allow us to have in the jury room I thought was perfectly right we should consider.”

He again -says:

“I certainly considered that statement in the document as evidence in the case. That statement in the document which I believed did have an influence with me in my allowing or agreeing to a higher verdict than I had agreed to or been in favor of prior to that time. To the best of my knowledge if I had not seen that statement and believed it to be true, I do not think that I would have agreed to a verdict of $75 per acre.”

The Court of Appeals for the Fifth District reversed a judgment where it had been made to appear that a single juror received testimony from a secret and unlawful source. Andrews Lumber Co. v. M., K. & T. Ry. Co., 158 S. W. 1194. It was there said:

“The decisions, however, do not place the interference by the courts with jury verdicts upon the ground that the juror has received testimony from a secret and unlawful source which tends to dispute and contradict the facts introduced by either litigant in a lawful manner upon the trial, but, on the contrary, places it upon the high ground that all litigants are entitled to a fair and impartial trial by jury and that essentially and in the very nature of things, a juror who does not recognize the impropriety of discussing the merits or demerits of the case, in which he had been sworn as a juror with witness or litigant, is in no sense a fair or impartial juror.”

It was further-said in that case that:

“It is perhaps often true that such discussion has no effect on the juror; in fact there is in the instant case nothing to show that the juror was affected by what Bates said, or influenced the other jurors. Indeed, the juror has declared the discussions had no influence with him; but such facts and claims are material, if at all, in rare cases, since, as forcibly said in one of the cases cited below, if a practice of this character was permitted to go unchallenged, it would be difficult to draw the line and say when it should cease, and the best practice to pursue is to prevent it altogether. It is impossible in cases where questions of this kind arise to determine whether harm or improper influence resulted, and an effort to ascertain the truth in that respect would be altogether speculative.”

In the case of G., C. & S. F. Ry. Co. v. McKinnell, 171 S. W. 1091, this court reversed a judgment because of a showing that certain jurors in the personal injury action agreed to a verdict for a larger amount upon the statement and argument of other jurors that the appellee would be required to pay some $1,500 to $2,500 for attorney’s fees. It was held, in effect, that the argument of the jurors injected into the consideration of the jury a fact that had not been proven, and which under the circumstances was probably prejudicial. '

So, in Hobrecht v. S. A. & A. P. Ry. Co., 141 S. W. 579, the widow and children of Alvin Hobrecht sued the railway company to recover damages for the death of the husband and father. It was shown that the deceased was run over by a train belonging to the railway company at night, and it was material to determine whether the engineer operating the train could, by an exercise of the proper diligence, have stopped his train earlier than he did. It was shown in behalf of the plaintiffs in the suit that the track at the time was dry, and the train equipped with air brakes, and running at the rate of 6 or 8 miles an hour, and that under such circumstances the train could have been stopped within 100 feet, at which distance the evidence shows the engineer saw Hobrecht. After the retirement of the jury, one of the jurors stated that he had had experience as a railroad fireman, and knew that the track was wet at night, and that the engineer could not stop the train any sooner than he did. It was held that the improper introduction and consideration of such statement required a reversal of the judgment in the railway company’s favor.

In the case of Yanez v. Traction Co., 126 S. W. 1176, by the Court of Appeals for the Fourth District, it was held that the statement by the juror in the jury room while the jury were deliberating in an action against the street car company, that he had been told, and it was generally known at a certain place, that plaintiff was injured while stealing a ride on the rear of the car, was improper and a ground for a new trial, though two of the jurors testified that they were not influenced thereby. See, also, Bevised Statutes, article 1957; Hall v. Cook, supra; Green v. Hill, 4 Tex. 465; McLeod v. Humeston & S. Ry. Co., 71 Iowa, 138, 32 N. W. 246; 29 Cye. pp. 808 and 810, and authorities there cited.

It is true, as appellee insists, that rulings of the character here under consideration are largely left within the discretion of the trial court, but such discretion is not an arbitrary one and beyond the revision of the appellate tribunal, as is very clearly demonstrated by the cases before cited. It may be that we would not feel willing to go quite so far as some of the cited cases have gone, but we certainly think, under the circumstances here appearing, that we would be recreant to the duty resting upon us as a revisory power to approve the ruling of the trial court now under consideration.

We deem it' unnecessary to discuss any other -question presented, but for the error above noted, it is ordered that the judgment be reversed, and the cause remanded for a new trial.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    KELLAM v. TRAIL.
    (No. 7527.)
    (Court of Civil Appeals of Texas. Dallas.
    April 29, 1916.)
    Judgment <§=>17(10) — Process <§=>134^-Re-turn —Form and Requisites — Personal Service. -
    Return of service of citation, showing the time of service and date, and that it was served by delivering to two of the defendants “in person a true copy,” is fatally defective in failing to show that each of such defendants received a copy, and would not support a default judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 31; Dec. Dig. <§=>17(10); Process, Cent. Dig. §§ 164r-169, 176; Dec. Dig. <§=>134.]
    Error from Kaufman County Court; James A. Cooley, Judge.
    Action by John F. Trail against H. C. Kel-lam and others. Judgment against defendants, and defendant Kellam brings error.
    Reversed and remanded.
    Huffmaster & Huffmaster, of Kaufman, for plaintiff in error.
   RAINEY, C. J.

This suit was instituted by defendant in error in the county court of Kaufman county, to recover on a promissory note against A. G., W. C., and H. C. Kel-lam and T. E. Wilson. A. G. Kellam waived service, and T. E. Wilson answered. Judgment was entered for plaintiff against all the defendants. W. C. and H. C. Kellam not having appeared, judgment by default was rendered against them. Execution was issued and levied on property of H. C. Kellam, who sued out this writ of error, filing a super-sedeas bond, and the cause is here for review.

The complaint of plaintiff in error, in effect, is that no proper service of citation was had upon him,.and, he not having answered, the court erred in rendering judgment against him. The return of the officer serving said citation is:

“Came to hand on the 20th day of February, A. D. 1914, at 10 o’clock a. m. and executed on the 5th day of March, 1914, at-o’clock p. m. by delivering to W. C. Kellam and H. C. Kellam, two of the within named defendants, in, person a true copy of this writ.”

This return is fatally defective in failing to show that each of the two Kellams was served with copies of the citation, and was not such as to authorize a judgment against them by default. King v. Goodson, 42 Tex. 152; Holliday v. Steele, 65 Tex. 388; Russell v. Butler, 71 S. W. 395.

The judgment is reversed, and cause remanded.


author: TALBOT, J.

text:
    MIMS v. FOSTER et al.
    (No. 7535.)
    (Court of Civil Appeals of Texas. Dallas.
    April 29, 1916.)
    Appeal and Error <§=>733, 742(1) — Assignments op Error — Too General.
    A single assignment of error in appellant’s brief that “the court erred in its judgment herein in rendering judgment against the plaintiff because under the undisputed evidence the plaintiff was entitled to recover,” not accompanied by a statement to enable the appellate court to determine the question raised without searching the record, will not be considered, as it is too general, and because it is not followed by a statement of the .question raised.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3000, 3025-3027; Dec. Dig. <§=>733, 742(1).]
    Error from Kaufman County Court; James A. Cooley, Judge.
    Suit by L. C. Mims against Jess Foscer and others. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    Wynne & Wynne and Ross Huffmaster, all of Kaufman, for plaintiff in error. Bumpass & Crumbaugh, of Terrell, for defendants in error.
   TALBOT, J.

The'plaintiff in error states the nature and result of the suit, which the defendants in error agree is substantially correct, as follows:

“On the 23d day of June, 1914, plaintiff in error, L. C. Mims, instituted this suit in the county court of Kaufman county against the defendants in error Jess Foster, P. A. Lechner, and E. F. Morrow, and alleging that heretofore, to wit, on or about the 26th day of November, 1913, said defendant Jess Foster as principal and said other named defendants as sureties made, executed, and delivered a certain bond in writing, a true copy of same being attached and mad© a part of said petition. The bond sued on and attached to said petition being a bond in the usual statutory form and conditioned that in case the said Jess Foster failed to establish his right to said property, that he would return the same to the officer therein named in as good condition as it was when he received it, and also pay the reasonable value of the use and hire, increase or fruits of the same in case said Jess Foster failed to return said property, they would pay the value of same with legal interest thereon, etc. Plaintiff alleged a breach of said bond and conditions therein set forth in the sum of $500 and praying judgment for said amount. Defendant filed various exceptions to plaintiff’s petition and a denial that they or either of them breached said bond or any conditions therein set forth, and admitted that they did execute a claimant’s oath and bond in the case of Mims v. Frank Foster, by the terms of which they agreed if Jess Foster failed to establish his right to said property, he would return same to the officer levying said writ in as good condition as when he received same, and also pay reasonable value for the use and hire, increase or fruits, of same from the date thereof, and that plaintiff therein claimed that he had a mortgage upon said property and sought to foreclose same as against Jess Foster, and that judgment rendered was such that these defendants paid off and satisfied same, and the penalty of 10 per cent, as provided by law, and returned said property in better condition than when they received same. There was a trial before the court without a jury, and judgment rendered that plaintiff take nothing by his suit against the defendants, and that defendants go hence without day and recover all costs. Motion for a new trial was overruled, and the case brought to this court by writ of error.”

The single assignment of error presented in the brief is as follows:

“The court erred in its judgment herein in rendering judgment against the plaintiff because under the undisputed evidence the plaintiff was entitled to recover.”

The defendants in error object to a consideration of this assignment, and it is not entitled to consideration for at least two reasons: First, because it is too general; second, because it is not followed by a sufficient statement in explanation and support thereof to enable this court to determine the question attempted to be raised without searching the record for the facts in relation thereto. That such, or similar, assignments of error need not, for either of the reasons stated, be considered by the appellate court has been so frequently and uniformly affirmed by the decisions of this state that a citation of the cases so holding is unnecessary. But, however, if we were disposed to consider the assignment we are not prepared to say it should be sustained. On the contrary we think there was such a conflict in the testimony that it cannot fairly be said that plaintiff in error’s right to recover was established beyond controversy.

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


author: CONNER, C. J.

text:
    REXALL DRUG CO. et al. v. BUTLER BROS.
    (No. 8351.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 25, 1916.
    Rehearing Denied May 6, 1916.)
    1. Corporations <S=»G72(4) — Foreign Corporations — Action—Permit to Do Business —Pleading and Proop.
    The petition alleging plaintiff to be a foreign corporation, it must, to authorize entry of judgment for it, not only allege, but prove, what the statute makes a condition precedent to sue, that it had a permit to do business in the state at the time of the sale therein by it of goods for price of which the action is brought.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2646-2648; Dec. Dig. <®=>672(4).]
    2. Pleading <®=A29(2) — Denial in Answer.
    Statement of the answer, that defendant denies in toto each and every allegation and each and every paragraph in the petition, is a sufficient denial of the allegation of the petition of a foreign corporation that it had a permit to do business in the state to prevent it being taken as confessed under Acts 33d Log. c. 127, § 4 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 19Ó2).
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 271, 273; Dec. Dig. <g=>129(2).]
    3.Pleading <S=o409(1) — Absence op Denial in Answer — Waiver.
    Failure of plaintiff to request the court that an undenied allegation of the petition be taken as confessed is a waiver of the result, under the act of 1913, that it shall be taken as confessed, unless denied.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1375, 1377, 1379-1383; Dec. Dig. <§=»409(1).]
    Appeal from Wichita County Court; Harvey Fiarais, Judge.
    Action by Butler Bros, against the Rexall Drug Company and others1. Judgment for plaintiff, and defendant Annie Will Massie appeals.
    Reversed and remanded.
    Bonner & Bonner, of Wichita Falls, L. Jas. Marks, of Electra, and B. K. Goree, of Ft. Worth, for appellant. Smoot & Smoot, of Wichita Falls, for appellee.
   CONNER, C. J.

The appellees, Butler Bros., instituted this suit against E. B. Mas-sie and bis wife, Annie Will Massie, alleged to have been doing business under the name of the Rexall Drug Company, to recover upon a verified account for merchandise in the sum of $250, alleged to have been, sold to the defendants in. the suit. Briefly stated, the defendant E. B. Massie denied liability on the ground that in the purchase he was but an agent, and Annie Will Massie denied liability on the ground of coverture, which she pleaded. The trial resulted in a judgment for the plaintiff, and the defendant Annie Will Massie has appealed.

The questions presented in the original brief of the appellants relate to the issues indicated by the defendants’ pleas as above stated; but our attention has been called to an error that is fundamental, and that will require a reversal of the judgment, without reference to other questions involved. In the plaintiff’s original petition, upon vvuich the case went to trial, it was, among other things, alleged:

“That the plaintiff is a corporation duly incorporated under the laws of the state of Illinois, and having a permit to do business in the state of Texas, with its principal office in Texas at Dallas, Dallas county, Texas, and that the defendants are both resident citizens of Wichita county, Texas, doing business as the Rexall Drug Company.”

The statement of facts accompanying the transcript has been carefully examined, and we find an entire absence of evidence to support the quoted allegations of the plaintiff’s petition. The plaintiff being, as alleged, a corporation incorporated under the laws of another state, was, under our statutes, required to make the further allegation that as such it had “a permit to do business in the state of Texas.” See Chapman v. Hallwood Cash Register Co., 32 Tex. Civ. App. 76, 73 S. W. 969, and authorities there cited. It was equally imperative, in order to justify a recovery in the plaintiff’s favor, that proof of the fact so alleged should be made. See Taber v. Interstate B. & L. Ass’n, 91 Tex. 92, 40 S. W. 954, by our Supreme Court, where the precise question was presented on certificate and determined. It was there stated that:

“Every state has the right to prescribe the terms upon which any corporation, created in another state or foreign country may do business within its limits, and may exclude such corporations entirely, with the exception of corporations engaged in interstate commerce, or such as are employed by the United States in the transaction of its business. Under this rule of law — about which there is no controversy — this state had the right to adopt such measures as it thought fit to enforce the provisions of its law which required foreign corporations to deposit the articles of their incorporation with the secretary of state. _ And the Legislature having seen fit to prescribe as a condition to the maintenance of suits in its courts that such compliance should precede the transaction of business in the state, it follows that the filing of its articles of incorporation with the secretary of state is a condition precedent to the maintenance of suit upon any contract or right of action accruing to such foreign corporation; and, it being a condition precedent, the fact must be both alleged and proved, to entitle the corporation to judgment in such case.”

The Supreme Court accordingly answered the certificate by ruling:

“That it was necessary for the corporation (plaintiff below) to prove that it had a permit to do business in Texas at the time that the contract sued upon was made in order that the court mijjht enter judgment in its favor.”

In that case, as here, it had been alleged that the plaintiff was a private corporation duly incorporated and doing business under the laws of another state. So that the decision is undoubtedly applicable in the case before us.

Appellee, however, insists in substance that the authorities noted have no application for the reason that its allegation of a permit to do business within the state of Texas was not denied under oath in the pleadings of the defendant, and that therefore, under the familiar act of 1913 (Laws 1913, e. 127, § 4, amending Rev. St. 1911, § 1902), it must be taken as confessed. But while in the pleadings of the defendant we find no specific denial of the allegation, we do find that Annie Will Massie filed a separate answer in which appears an independent paragraph, which reads:

“Defendant, further answering, denies in toto each and every allegation and each and every paragraph in said petition contained.”

The answer in which the paragraph quoted appears was duly verified by Annie Will Massie, and it cannot, therefore, be said, we think, even under the act of 1913, that the allegation that the plaintiff had a permit to do business in the state of Texas must be taken as confessed. Moreover, the record exhibits no request in the court below on appellee’s part that the allegation should be taken as confessed, which failure, as has been a number of times held, amounted to a waiver of the requirement of the statute invoked. See G., H. & S. A. Ry. Co. v. Pennington, 166 S. W. 464; T. & P. v. Martin Bros., 167 S. W. 792; T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217. And if it be admitted, as appellee further contends, that the decision in the Taber Case had no application to interstate shipments, we think the statement of facts before us plainly shows that the goods, for the value of which the plaintiff in this case sued, were bought, sold, and transported in Texas.

We accordingly conclude that the judgment below must be reversed, and the cause remanded.
      <g=s>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BECKHAM v. MUNGER OIL & COTTON CO.
    (No. 7522.)
    (Court of Civil Appeals of Texas. Dallas.
    April 29, 1916.)
    1. Injunction <©==>57 — Conteacts — Use os Premises.
    Whether a court of equity will grant an injunction the effect of which is to compel the specific performance of contract depends on the same principles as govern a direct decree for a specific performance, so that, when it appears on a bin for specific performance and an injunction that plaintiff is not entitled to a specific performance, he is not entitled to an injunction against the breach of the contract.
    [Ed. Note. — Eor other cases, see Injunction, Cent. Dig. §§ 111-113, 136; Dec. Dig. <®=>57J
    2. Specific Performance <©=>75 — Remedy-Suit fob Damages.
    In a suit to enjoin defendant from removing a gin plant and machinery from premises purchased of the plaintiff, and to enforce their contract, whereby the defendant, as a part consideration of the sale, was to maintain the plant, and whereby plaintiff covenanted that no other gin should be constructed upon his 600-acre farm, where specific performance would require the court’s supervision for a long time, it will not be decreed, but the court will leave the parties to their remedies at law.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 210; Dec. Dig. <§=> 75.]
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Suit by J. J. Beckham against the Munger Oil & Cotton Company. Judgment for defendant dissolving a temporary injunction, and plaintiff appeals.
    Affirmed.
    J. E. Bradley, of Groesbeck, and W. M. White, of Mexia, for appellant. C. S. Bradley, of Groesbeck, A. B. Rennolds, of Mexia, and Coke & Coke, of Dallas, for appellee.
   RAINEY, C. J.

Appellant brought this suit to enjoin appellee from removing a gin plant and machinery from certain premises and to enforce a certain contract entered into by them. The appellant alleged that he had maintained and operated a gin at said place for many years prior to the date of his contract with defendant, that same was necessary for the welfare of his farm, which consisted of about 600 acres, and that he would not have sold said gin site, gin, nor machinery to defendant but for his contract and agreement to maintain and operate same, as agreed in said contract, and that the purchase of said gin site and plaintiff’s business and good will were the main inducements for defendant making said purchase and entering into said contract. Plaintiff further alleged that defendant was then violating the terms of said contract, and was removing said gin and gin machinery off of the premises of plaintiff, and that he would sustain irreparable loss and injury unless an injunction should be granted. A temporary writ was granted on the 27th day of May, 1915, and on the 24th day of June, 1915, a motion to dissolve was filed by appellee, which motion was sustained, and said judgment rendered dissolving said injunction, from which this appeal is taken.

The contract entered into between the parties and which appellant seeks to enforce is as follows:

“The State of Texas, County of Limestone.
“Whereas, J. J. Beckham, of said state and county, has this day sold to Munger Oil & Cotton Company, a private corporation duly incorporated and existing under and by virtue of the laws of the state of Texas, of said state and county, a certain parcel of land described in said Beckham’s deed of this date; and whereas, said land and all appurtenances thereto belonging has been conveyed to said Munger Oil & Cotton Company for gin purposes and for the purpose of buying and selling unginned cotton and cotton seed thereon; and whereas, said tract or parcel of land this day so conveyed by said J. J. Beckham to said Munger Oil & Cotton Company is a part of a 600-acre farm now owned by said J. J. Beckham: Now, therefore, as a part of the consideration of said sale, the said Munger Oil & Cotton Company hereby binds itself and its assigns to construct and maintain upon the land this day conveyed as aforesaid by said J. J. Beckham a gin of the latest improved plan, and consisting of four gin stands, and to use said lands and premises for the business of ginning, buying, and selling cotton and cotton seed only. And as a part of the consideration of the aforesaid sale the said J. J. Beck-ham hereby covenants and agrees, for himself, his heirs and assigns, that no gin shall be erected or constructed on any part of his 600 acres of land, from which the land this day conveyed to said Munger Oil & Cotton Company has been taken, for a period of 15 years from this date, and that he, the said J. J. Beckham, Ms heirs and assigns, shall not engage in the 'business of buying and will not buy cotton nor cotton seed on said 600 acres of land nor in the vicinity of said Munger Oil & Cotton Company’s said premises for said period of time, and that he, the said J. J. Beckham, his heirs, executors, and administrators, shall at all times hereafter save harmless the said Munger Oil & Cotton Company and its assigns of and from all actions, costs, and damages for and by reason of the maintenance of the .hereinafter mentioned tanks and by reason of water which may flow therefrom.
“The said Munger Oil & Cotton Company further covenants and agrees to maintain the dam of the east tank now situated on the land this day conveyed as aforesaid to a height sufficient to cause the water to back or flow ‘into the west tank there situate, and to overflow said west tank at the northwest end of the dam thereof.
“It is further covenanted and agreed by and between the parties hereto that the said J. J. Beckham, his assigns, and the tenants on his farm, shall have free use of the water afforded by said west tank for their live stock and for domestic purposes, but no hogs shall be allowed to remain within the inelosure surrounding "said west tank, and the right of ingress and egress over and across the dam of said west tank is hereby reserved by said J. J. Beckham and granted by said Munger Oil & Cotton Company for the purposes aforesaid.
“Witness our hands this first day of April, A. D. 1913. J. J. Beckham.
“Munger Oil & Cotton Company,
“Per H. M. Munger, Pres.”

A short while after said contract was entered into appellee took possession of the land. comprising several acres, mentioned in the contract, built thereon a ginhouse, placed therein a four-gin outfit, and operated it for two seasons at a loss both seasons. Just after appellee installed its said plant an association composed principally of farmers in that neighborhood erected a gin plant within a few miles of appellee’s plant, which controlled the greater part of the patronage, and rendered the operation of two ginning plants in that neighborhood profitless, as the community would not support two gins. Appellant owned a farm of about 600 acres, out of which he sold to appellee the part on which to erect the gin plant. He also had a small store building used for general merchandise which was rented at the time, and the business carried on therein was a convenience for his tenants and the community generally. At the time the petition for injunction was filed the appellee had moved part of the machinery and intended to move all of the plant with the view of not operating the gin plant in that locality any longer.

The appellee contends, in effect, that this suit, while in form it is for' an injunction in effect is one for specific performance, and under the circumstances the appellant has a remedy in damages, and an injunction will not lie. We concur in this contention. The effect of an injunction would be to compel the carrying out of the contract which forms the basis of this suit.

In Am. & Eng. Enc. of Law (2d Ed.) vol. 20, pp. 15, 16, it is said:

“Whether a court of equity will grant an injunction the effect of which is to compel the specific performance of a contract, depends, of course, upon the same principles as govern a direct decree for specific performance. So upon a bill for a specific execution of an agreement and an injunction it is clear that if, upon the plaintiff’s case, as made out by his bill, he is not entitled to a specific execution of the agreement set up by him, he cannot be entitled to an injunction, which is only ancillary to the principal object of the suit.”

This being the general rule, we will next consider whether the contract in this ease should be literally enforced.

It is well settled that, where a contract is not capable of present performance, but the performance would require the constant supervision of the court for a long period of time, a court of equity will not decree specific performance, but will leave the parties to their remedies at law, except where the interest of the public is involved. Salt Co. v. Railway Co., 99 Tex. 434, 90 S. W. 863, 3 L. R. A. (N. S.) 828; Carrico v. Stevenson, 135 S. W. 260; Railway Co. v. Marshall, 136 U. S. 393,10 Sup. Ct. 846, 34 L. Ed. 385 ; Stewart v. White, 189 Ala. 192, 66 South. 623. Other cases might be cited, but the foregoing are sufficient.

In Salt Co. v. Railway Co., supra, it is said:

“Indeed, it is generally held that the mere fact that a decree for specific performance will require a constant superintendence by the court of the execution of a ¡contract continuing through a long period of time, is sufficient reason jor denying the relief.”

In Railway Co. v. Marshall, supra, it is said:

“If the court had rendered a decree restoring all the offices and machinery and appurtenances of the road which had been removed from Marshall to other places, it must necessarily superintend the execution of this decree. It must be making constant inquiry as to whether every one of the subjects of the contract which have been removed has been restored. It must consider whether this lias been done perfectly and in good faith, or only in an evasive manner. It must be liable to perpetual calls in the future for like enforcement of the contract, and it assumes in this way an endless duty inappropriate to the functions of the court, which is as ill calculated to do this as it is to supervise and enforce a contract for building a house or building a railroad, both of which have in this country been declared to be outside of its proper functions, and not within its powers of specific performance.”

We are of the opinion that this case comes within the rule just announced, and that in a proper action there will be no insurmountable difficulty in ascertaining the damages sustained by appellant for the breach of the contract by appellee.

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


author: YANTIS, J.

text:
    WILSON v. FREEMAN.
    (No. 2455.)
    (Supreme Court of Texas.
    May 17, 1916.)
    1. Appeal and Error @=1140(1) — Disposition — Reversal por Excessive Verdict.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 1631, providing that it shall be the duty of a Court of Civil Appeals, when of opinion that the verdict is excessive, to indicate to the party in whose favor the judgment was rendered, or his attorneys of record, the amount of excess and the time within which he may file a re-mittitur, whereupon the court shall reform and affirm the judgment, in an action against the receiver of a railroad for personal injuries, the Court of Civil Appeals should not have reversed and remanded the ease upon the ground alone that the verdict was excessive; the statute being mandatory and requiring the court to authorize remittitur of the verdict above the amount which .would be reasonable compensation for the injury in accordance with its sound judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462, 4464, 4470-4474; Dec. Dig. @=1140(1).]
    2. Appeal and Error @=1094(5) — Review-Question op Fact — Exoessiveness op Verdict.
    On error to review the judgment of a Court of Civil Appeals, on appeal in an action against a railroad 'by its employé for personal injuries, the Supreme Court cannot hold the verdict not excessive, the sole cause for which the Court of Appeals reversed, and affirm the judgment of the trial court for the full amount, the question of excessiveness of verdict in such suit being purely a question of fact, upon which tne judgment of the Court of Civil Appeals is final.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4327; Dec. Dig. @= 1094(5).]
    3. Appeal and Error @=1083(1) — Review— Question op Law.
    Where a Court of Civil Appeals, on appeal from judgment for plaintiff in a suit for personal injuries, held, that there was no evidence to sustain the verdict, ■ a law question is presented on error to review such judgment in the Supreme Court, but a holding that the evidence was insufficient to sustain the judgment does not present a question of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4273-4277; 4345, 4346; Dee. Dig. @=1083(1).]
    4. Appeal and Error @=84(1) — Finality op Judgment.
    Where a remittitur is filed by plaintiff in a suit for personal injuries in accordance with, the judgment of the Court of Civil Appeals, sqch judgment may be appealed from to the Supreme Court by defendant by petition for writ of error ; the judgment of the Court of Civil Appeals having become final.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 528, 534, 538-545, 547; Dec. Dig. @=84(1).]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by C. W. Wilson against T. J. Freeman and another. The suit was dismissed as to the unnamed defendant, judgment for plaintiff against the named defendant was reversed by the Court of Civil Appeals (149 5. W. 413), and to review such judgment plaintiff brings error.
    Judgment of the Court of Civil Appeals reversed and remanded.
    J. D. Childs and Jas. W. Brown, both of San Antonio, and W. C. Campbell, of Palestine, for plaintiff in error. F. C. Davis, of San Antonio, and Ramsey, Black & Ramsey, of Austin, for defendant in error.
   YANTIS, J.

This suit was instituted by C. W. Wilson, plaintiff in error, in the district court of Bexar county, against T. J. Freeman, receiver, and the International & Great Northern Railroad Company, to recover damages for personal injuries received by him while he was rendering services to said receiver and said railroad as an em-ployé. The suit was dismissed as to the International & Great Northern Railroad Company.

The plaintiff in error, Wilson, alleged that while he was removing cross-ties from the roadbed of said railroad with a pick which had been furnished by the defendant in error a sliver of steel, or metallic substance, slivered off from said pick and entered his left eye, causing total blindness therein. Several grounds of negligence were alleged by the plaintiff in error, but only one of the grounds pleaded was presented to the jury, and that was “the defective and insufficient condition” of the pick, by reason of which condition “a piece of steel slivered off from said pick and struck plaintiff in the left eye.” It was alleged by the plaintiff in error that by reason of such negligence he had lost the sight of his left eye, and that “the right eye has also become injured and affected, that it is only a question of time when he will also lose the sight of his right eye, and he will become totally blind.” A verdict was rendered in favor of the plaintiff in error for $20,386.05. An appeal was taken by the receiver, Freeman, to the Court of Civil Appeals for the Fourth District. That court held that no error was committed in the trial of the case in the district court, but held that the verdict was excessive, and that it could not suggest the amount of the excess by reason of the circumstances of the case; that the evidence did not warrant a recovery for total blindness, and it was only upon this theory that the jury could have found so large a recovery, which we construe to be a clear holding that the evidence was insufficient to support so large a sum as was found by the jury. 149 S. W. 413.

The plaintiff in error, C. W. Wilson, presented to this court his petition for writ of error, which was granted; this court entertaining the view that article 1631, Vernon’s Sayles’ Statutes, is mandatory in its requirement that, when the verdict is found excessive by the Gourt of Civil Appeals, it is the duty of that court to indicate the amount of the excess, and to allow a remit-titur thereof, if filed within the time fixed by it. Said article is as follows:

“In all civil cases now pending, or that may hereafter be appealed to any Court of Civil Appeals of this state, and such court shall he of the opinion that the verdict and judgment of the trial court is excessive, and for that reason only, said cause should be reversed, then it shall be the duty of such Court of Civil Appeals to indicate to the party in whose favor such judgment was rendered, or his attorneys of record, the amount of the excess of such verdict and judgment; and said court shall, at the same time,' indicate to such party, or his attorney, within what time he may file a remittitur of such excess; and, if such remittitur shall be so filed, then the court shall reform and aflirm such judgment in accordance therewith; if not filed as indicated, then to be reversed.”

We think said statute is mandatory, and that the Court of Civil Appeals should not have reversed and remanded the case upon the ground alone that the verdict was excessive. True, it is difficult to ascertain the amount of the excess, but this difficulty arises in most cases of excessive verdicts. Eor instance, if a verdict is excessive on account of the passion and prejudice of the jury, aroused by inflammatory speech, it is difficult, and generally impossible, to ascertain, with accuracy, what portion of the verdict was assessed because of the influence of inflammatory speech, and what portion of the verdict was based on the proper elements of damage, legally recoverable; or if the verdict assessed for the loss of a limb, or for some similar injury, is excessive, still it is difficult to ascertain with certainty, the exact amount of the excess. All the Court of Civil Appeals can do, and all that is required of it to do, by said statute, is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess. The court must first determine what amount would be reasonable, before it can determine what amount would be unreasonable. Ry. v. Syfan, 91 Tex. 502, 44 S. W. 1064. Having determined that the verdict is excessive, or unreasonable, it is necessarily implied that the court has decided upon an amount that would be reasonable compensation for the injury which was actually suffered, in which event it should authorize a remittitur of the excess above the amount which would be reasonable compensation for the injury, in accordance with its sound judgment. We think that in the practical administration of justice this is all that is required of the court to do in such cases, but we believe this much is the mandatory requirement of the statute quoted.

It is insisted that we should hold the verdict not excessive, and aflirm the judgment of the district court for the full amount. It is not within our province to do this. The question of the excessiveness of a verdict in this character of suit is purely a question of fact, upon which the judgment of the Court of Civil Appeals is final. I. & G. N. R. R. Co. v. Goswick, 98 Tex. 480, 85 S. W. 785.

We construe the holding of the Court of Civil Appeals to be a finding that the evidence is insufficient to authorize a recovery for the amount of this verdict. It is clearly not a holding that there was “no evidence” to support the verdict in such amount, hut merely a holding that the evidence was insufficient. This does not present a law question. The jurisdiction of questions of fact is final under our statute in the Court of Civil Appeals. If the Court of Civil Appeals had held that there was “no evidence," a law question would have been presented; but it is otherwise when it has only held the evidence is insufficient. In the latter instance its judgment is final, and we have no power to disturb it.

We are not called upon to pass on the several assignments of error presented by tbe defendant in error in the Court of Civil Appeals, as requested by it, since if, when the Court of Civil Appeals indicates, in accordance with this opinion, the amount of excess contained in the judgment, the plaintiff in error does not file a remittitur within the time fixed by the Court of Civil Appeals, the case will by its order stand reversed and remanded for another trial on account of the excessive verdict. In such event the alleged errors now complained of may not arise on another trial. If the remittitur should be filed by the plaintiff in error, the judgment of the Court of Civil Appeals may he appealed from to this court by the defendant in error, by petition for writ of error; the judgment of the Court of Civil Appeals not becoming final until it takes action in compliance with the holding herein indicated. It will only be appropriate for this court to pass upon such questions as may be then presented in the petition for writ of error, should one be presented. We do not feel called upon to pass upon them at this time, as our action on such questions would not be final, and we would probably be again called upon to pass on the same questions.

It follows that the judgment of the Court of Civil Appeals, which reversed and remanded the cause to the trial court, should be reversed and remanded to the said Court of Civil Appeals, for further action by it in accordance with this opinion.
      @=^Uor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRElNDEitGAST, P. J.

text:
    SCOTT v. STATE.
    (No. 4051.)
    (Court of Criminal Appeals of Texas.
    May 3, 1916.)
    1. Homicide <&wkey;257(l)—Assault with Intent to Kill— Sufficiency oe Evidence.
    Evidence in a prosecution for an assault with intent to kill, wherein defendant set up self-defense, held to sustain a conviction.
    [Ed. Note.—Eor other cases, see Homicide, Cent. Dig. §§ 543, 544, 552; Dec. Dig. <&wkey; 257(1).]

      2. Witnesses <§=17 — Trial— Attachment bob Witnesses.
    In a criminal prosecution, defendant, who on discovering that his witnesses were absent, orally asked the court for an attachment for them, stating that if on an attachment he could secure three of the five witnesses in two or three hours, and the others in five or six hours, was not entitled to an attachment.
    [Ed. Note. — For other cases, see Witnesses, Cent, Dig. §§ 28-32; Dee. Dig. <§=17.]
    3. Criminal Law <§=598(2) — Continuance— Absence oe Witnesses.
    On a motion for a continuance on the ground of the absence of defendant’s witnesses, where it appeared that two of them were only 12 miles from the county seat where the trial was had, that they were never summoned, though a deputy sheriff lived at the same place, that there was communication by telephone, highway, and railway, and that defendant did not procure a subpoena as soon as he learned of their absence, the overruling of the motion was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1336, 1341; Dec. Dig. <§= 598(2).]
    4. Cbiminal Law <§=913(3), 956(5) — New Trial — Absence oe Witnesses.
    Where defendant upon'his motion for a new trial filed after his conviction did not attach the affidavit of any of the absent witnesses that they would testify as claimed in the motion, and showed no diligence in having them present at the trial, a new trial was properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2144, 2380; Dec. Dig. <§= 913(3), 956(5).]
    5. Witnesses <§=344(2) — Credibility — Par-tículas Acts.
    In a prosecution for an assault with intent to kill, evidence that the woman assaulted was a woman of loose character and in the habit of being indecently familiar with other men, was inadmissible as affecting her credibility.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 1125; Dee. Dig. <§=344(2).]
    6. Cbiminal Law <§=382 — Evidence! — Attendance oe Witnesses.
    There was no error in refusing to permit defendant to prove to the jury by the sheriff that if he had an attachment he could have secured the attendance of his absent witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 847-864; Dec. Dig. <§= 382.]
    7. Cbiminal Law <§=H72(9) — Appeal—Habmless Error — Sentence.
    Error, if any, in the court’s charge on the suspended sentence law was harmless, in view of the fact that the jury assessed a penalty of 10 years in the penitentiary where they could not on assessing that penalty have recommended a suspension of sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3162; Dec. Dig. <§=1172(9).]
    8. Cbiminal Law <§=720(1) — Trial — Conduct oe District Attorney.
    In a prosecution for an assault with intent to kill, the district attorney’s insistence that the jury should inflict the highest penalty of 15 years in the penitentiary if in his judgment the evidence so justified and his statement that 15 years was inadequate for defendant, and that the state should be rid of his presence for twice that time, and his comment on the testimony of the prosecuting witness before the grand jury when defendant undertook to impeach her,' was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. <§= 720(1).]
    9. Criminal Law <§=1159(1) — Appeal— Sentence.
    In a prosecution for assault with intent to kill, punishable by imprisonment from 2 to 15 years in the penitentiary, the' jury’s assessment of the penalty at 10 years was binding on the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074, 3082, 3083; Dec. Dig. <§=1159(1).]
    Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.
    Harrison Scott was convicted of an assault with intent to kill, and he appeals.
    Affirmed.
    A. E. Masterson, of Angleton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRElNDEitGAST, P. J.

Appellant was convicted of an assault with intent to kill Virginia Tilomas, a negro woman, and his punishment assessed -at 10 years in the penitentiary.

Appellant’s defense was self-defense, which was properly submitted in the court’s charge, to which there is no objection. The jury found against him on evidence amply sufficient to justify their verdict.

Virginia Thomas, the assaulted party, had been married and had one child by her husband. Several years before this offense, her husband had left her, and she had been separated from him. She testified that she had been receiving the attention and company of appellant for some two years, until very shortly before this offense. He testified in effect that he had been staying with her and “kept” her for this length of time, hut that shortly prior to the offense she had cast him off and refused his attentions thereafter. She testified he tried to go with her to a supper and dance, the night he assaulted her, but she refused to permit him to do so. She had a companion, a negro woman, who lived with her, and they together that night went to said supper and dance, and that about the time she started home, appellant saw and accosted her — she swore as follows:

“He was about 5 feet from me when he called me and asked me if Janie told me that he wanted to see me, and I said, T don’t want to see you;’ and he said, T told you I wanted to see you;’ and I said, ‘Well, I don’t want to see you;’ and I says, ‘Anyway, I told you I don’t want to go with you. Why don’t you let me alone?’ And I said, Well, the best thing for me to do is to put the white people behind you and you will let me alone.’- At that time he had hold of me by the collar, but when I said what I did, he turned me loose, and I went back to the supper, where I stayed for half an hour or longer, bought me some fish and started home, and when I got outside of the gate I told Janie Cooks to hold my fish; that I wanted to go back in there and speak to my sister-in-law; I and when I started back Harrison Scott asked me where in the hell I was going, at which time he was about 8 feet from me. I-Ie said, ‘Where in the hell are yon g'oing.’ I said, ‘Harrison, please let me alone; I don’t want to go with you no more;’ and he said, ‘You was going to put the white folks behind me, and I .will give you something to put them behind me for.’ He said, ‘Anyway, you said you was going to put the white folks behind me, and I will give you something to put them behind me for,’ and he pulled out his pistol from his left side and shot at me six times, hitting me three times — in the left side under the nipple,'in the right leg above the knee, and in the left arm. The pistol he shot mo with was a .38 and he was about S feet from me when he did the shooting. When he shot me in the side, I never fell, but when he shot me in the leg I fell, and when I fell, he walked up to me and shot at me three more times; and as I fell, I pulled Janie Cooks down on me, and while Janie was down, he shot again, but did not hit me, and then he shot three more times and hit me in the left arm — while I was on the ground — and then he turned off, but came back and hit me twice on my head with the pistol, causing two scalp wounds, and when the doctor dressed them he took one stitch in each wound. After I fell I said, ‘Harrison, please don’t shoot me any more, I will let you go with me;’ and he said, ‘<3-d d — —n you, 1 don’t want to go with you now; I will kill you.’ He made these remarks while he was shooting. He walked off from me about 15 feet before he came back and hit me with the six-shooter. When he came back to hit me he never said anything, but hit me and ran.”

The witness Janie Cook’s testimony fully and in detail corroborated that of Virginia Thomas.

It is unnecessary to give the appellant’s testimony, except to state that, in substance, he claimed that he shot the woman in self-defense, she coming on him with a knife threatening to kill him, and that he shot the first three shots not to hit, but to prevent her from cutting him, and that when he did not succeed by this means, he proceeded to shoot her in self-defense. There was more or less testimony corroborating each side by two other eyewitnesses who were present.

The offense was committed in July, 1915. Appellant was indicted early in September following, and in the latter part of the month his case was then called for trial, but on his application because of the absence, as we understand, of the same witnesses who were absent on this occasion, he secured a continuance. When the case was called for trial at the subsequent term, the state announced ready, and he called for his witnesses, when five of them appeared to be absent. That when he discovered this, he orally asked the judge for an attachment for them, stating that if he could get an attachment, he could secure three of' the witnesses in two or three hours, and the others in at least five or six hours. Evidently his application for an attachment at this time was merely oral, and his bill on the subject shows no legal ground whatever therefor. Clearly, he was not entitled to an attachment under the law, and the court committed no error in refusing to order one at that time.

His next bill complains of the court’s overruling of his second motion for a continuance on account of the absence of these witnesses. It may be conceded that if the absent witnesses would have testified what he alleged they would, they would have been material for him. Considering the whole record and the testimony, we think they would not have so testified, or if they had, that their testimony would have been untrue. His amended motion for a new -trial was filed and acted on 10 days after his conviction. He attached no affidavit of any of his absent witnesses thereto that they would testify to what he claimed in his motion they would. The record and his bills show that two of these witnesses were at Brazoria, 12 miles from the county seat, Angleton, where the trial was had;- that there was a perfect telephone connection between Angleton and Brazoria; that one of the deputy sheriffs lived at Brazoria; that there was an automobile service for hire at both of these towns, and that the roads were in good condition ; that a trip from one to the other and back could have easily been made within an hour; neither of these witnesses had ever been summoned;- that the other witnesses lived at Bay City, in Matagorda county, adjoining Brazoria county; that good telephone connections existed between Angleton and Bay City, and that the roads between these towns were good, and an automobile rent service between the two was at both places, and the attendance of the other witness could have been had within four or five hours; and that there were also two daily passenger trains between Bay City and An-gleton. Thus it is shown by appellant himself that if he had used any sort of diligence he could have secured the attendance of all three of his witnesses and had the benefit of their .testimony on this trial. He was not entitled to an attachment. 1-Ie could have procured a subpoena at any time, and it was his duty to .do so,'as many times held by this court (see Mitchell v. State, 36 Tex. Cr. R. 307, 33 S. W. 367, 36 S. W. 456; Giles v. State, 66 Tex. Cr. R. 63S, 148 S. W. 320, and cases cited), as soon as he found his witnesses were absent, and they could have been procured within the time he showed they could, and had them to testify. By his own showing, doubtless if he had attempted, he could have secured the attendance of these witnesses by telephone communication to them when he discovered their absence, and even after his motion for a continuance had been overruled. 1-Iis showing is such as clearly to show he was entitled to no continuance, and no new trial, on account of the absence of any or all of said witnesses. It is unnecessary to collate the many authorities so holding.

The court committed no error in refusing to permit him to prove by a witness, Gaddison, that Virginia Thomas was a woman of loose character and in the habit of being indecently familiar with other men. Such testimony -was inadmissible as affecting her credibility. Neither did the court err in refusing to permit him to prove to the jury on the trial by the sheriff that if he had an attachment, he could have secured the attendance of his witnesses. Such evidence was not for the jury.

We think appellant’s objections to the charge of the court on the suspended sentence law was not well taken. But if they were, it was harmless and passed out of the case in view of the fact that the jury assessed a penalty of 10 years in the penitentiary. They could not, with that penalty assessed, have recommended a suspension of his sentence.

Appellant has two bills to the argument of the district attorney. Neither presents any error. The district attorney had the right to insist that the jury should inflict the highest penalty of 15 years in the penitentiary if in his judgment the evidence so justified, and from the state’s testimony he was clearly justified in so insisting, and his stating that 15 years was inadequate to give the defendant, and that the citizenship should be rid of his dirty presence for at least that length of time, presents no ground for reversal. The other argument complained of, as qualified by the court, shows that the district attorney was not purporting himself to testify before the jury about the testimony of Virginia Thomas before the grand jury, but was commenting on her testimony on that subject when it was shown that the defendant was seeking to impeach her on the subject.

The penalty for the offense for which appellant was convicted is from 2 to 15 years’ confinement in the penitentiary. The jury in this instance assessed the punishment at 10 years. It has always been held by this court that the amount of the punishment fixed by the jury, if within the time prescribed by law, is binding on this court, and this court is unauthorized to set it aside.

Nothing else is presented for review, and the judgment is affirmed.
      ©saFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=Eor other oases see same topic and KEY-NUMBER in all Kej-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    ELLIS v. STATE.
    (No. 4052.)
    (Court of Criminal Appeals of Texas.
    May 3, 1916.)
    1. Criminal Law <§=>594(1) — Continuance— Grounds — Cumulative Evidence.
    In a homicide case, the accused was not entitled to a continuance on the ground of the absence of a witness who had testified during the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. <§=>594(1).]
    2. Criminal Law <§=>603(7) — Continuance-Application.
    Accused’s application for a continuance which did not contain a statement of the facts expected to be proven by an absent witness was insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1354; Dec. Dig. <§=>603(7).]
    3. Criminal Law <®=>596(3) — Continuance— Grounds — Impeaching Evidence.
    Accused was not entitled to a continuance on the ground of the absence of a witness whose testimony would be impeaching in character.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1330; Dec. Dig. <§=>596(3).]
    4. Criminal Law <§=>594(3) — Continuance-Grounds— Absence of Witness — Probability of Securing Testimony.
    Accused was not entitled to a continuance on the ground of the absence of a witness shown to be a transient person for whom process had been issued in several counties without success and whose attendance probably could not be obtained in another trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1332; Dec. Dig. <§=>594(3).]
    5. Criminal Law <§=>596(1) — Continuance-Ground — Diligence.
    Accused was not entitled to a continuance on the ground of the absence of a .witness who would testify about matters which can be shown by other available persons.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1328; Dec. Dig. <§=>596(1).]
    6. Criminal Law <§=>742(1) — Verdict—Credibility of Witnesses.
    Although the jury might have acquitted, it was their province to decide the credibility of the witnesses and weight to be given to their testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1719; Dec. Dig. <§=>742(1).]
    Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.
    T. J. Ellis was convicted of murder, and be appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for tbe State.
   DAVIDSON, J.

Appellant was convicted of murder,, bis- punishment being assessed at 30 years’ confinement in tbe penitentiary. There are two bills of exception found in tbe record. Tbe first bill is reserved to tbe action of tbe court overruling an application for a continuance, and the second bill to tbe overruling of tbe motion for a new trial.

Following tbe rule laid down in tbe recent case of Hall v. State, 185 S. W. 574, tbe court did not err in overruling tbe application for a continuance. One of the witnesses mentioned in the application testified during the trial. Tbe facts expected to be shown by another witness are not stated. The evidence of tbe third witness is, generally speaking, impeaching in character. Tbe fourth witness seems to have been a transient-person for whom process bad been issued to several counties, all of which was returned not executed because witness was not in tbe county. In each instance tbe process issued stated tbe residence of tbe absent witness not only as to county, but where be could be found, but tbe officer in each instance on tbe return stated be was not to be found in tbe specified county. This was a second application. Tbe testimony is cumulative and most of it impeaching in its nature. The transient witness is named Breeze. By him it'was ex-peeted to be shown that he had known the deceased for quite a number of years, and that he had known him to have difficulties with other parties in which he used his pocket knife, cutting one or more of them with it. The name of one of these parties was Davis, who lived in Wharton county. Process was not issued for Davis, so far as the application is concerned, and no reason given for not so issuing. The name of no other party is given with whom deceased had a difficulty. If the deceased had trouble, difficulties or fights with other people, and these facts could be shown by Breeze, they could have been produced as well from them as from Breeze. The difficulty between appellant and the deceased occurred in Brazoria county, where the parties, defendant and deceased, were raised. Following the rule laid down in the recent case of Hall v. State, 185 S. W. 574, as applying to the witness Breeze and his being a transient person, it would hardly be probable that his testimony would be obtained upon another tidal, and on this trial it could have been supplied by the parties with whom deceased had had such difficulties. One of the issues was that deceased was making an attack on appellant with a pocket knife at the time he was shot. There is testimony going to prove this fact, though it is denied by the only eyewitness, the mother of the deceased.

It is contended also that the verdict is wrong and excessive as well. Under the state’s theory we think the verdict is justified. The state’s ease, as to the immediate facts, was made by the mother and stepfather of the deceased. The mother was an eyewitness to the difficulty. The testimony of the stepfather and his subsequent statement tends to show that he did not see the difficulty, though he testified to the details of it. In the opinion of the writer it would hardly be probable that the jury gave any credence to what he swore. The jury could have acquitted, but it was their province to decide the credibility of the witnesses and weight to be given their testimony. Ignoring the testimony of the Stepfather, which the writer does, the evidence of the mother of the deceased was sufficiently strong to justify the jury in their conclusion.

There were no exceptions to the charge, and the court gave the only charge asked by appellant. Under this view of the record we would hardly feel justified in reversing this judgment.

The judgment is therefore affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    Ex parte ELLISON.
    (No. 4053.)
    (Court of Criminal Appeals of Texas.
    April 19, 1916.)
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Harvey Ellison was indicted for murder, and sued out a writ of habeas corpus. From an adverse judgment, he appeals.
    Affirmed.
    Woods, King & John, of Houston^, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was indicted by the charged Winkleman. He sued out a writ of habeas corpus before Hon. C. W. Robinson, judge of the criminal district court of Harris county.

It is not proper for us to discuss the evidence, or any phase thereof, on this application, but merely to pass on the question of whether or not the court erred in refusing to grant relator bail on the evidence adduced on this hearing. After a careful review of the testimony we cannot say the court erred in his ruling.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    SEITZ v. STATE.
    (No. 4041.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.)
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Otto Seitz was convicted of forgery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal a a ment, with the lowest penalty assessed, and vdthout a statement of facts or a bill of exceptions. There is no question raised which we can review.

The judgment is therefore affirmed.


text:
    Ex parte VANSICKLE.
    (No. 4048.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.)
    Appeal from District Court, Potter County; Hugh D. Umphres, Judge.
    Lee Vansiekle, under á writ of habeas corpus, was refused bail, and he appeals.
    Affirmed.
    Veale & Lumpkin and A. M. Mood, all of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant, under a writ of habeas corpus proceeding, was Without discussing the facts, and following the practice of this court in opinion writing on this character of case, the reasons are not given why we have reached the conclusion that the judgment should be affirmed.

The judgment, therefore, is ordered to be affirmed.


text:
    GONZALES et al. v. STATE.
    (No. 4069.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.)
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Antonio Gonzales and Enrique Caballero were convicted of hog theft, and they appeal.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of hogs_, at confinement in the penitentiary for two years.

The record is before us without a statement of facts or bill of exceptions. The trial seems to have been had, so far as the record before us is concerned, in accordance with the law.

The judgment will therefore be affirmed.