text:
    WILLIAMS v. STATE.
    (No. 3125.)
    (Court of Criminal Appeals of Texas.
    May 6, 1914.)
    1. Homicide (§ 300) — Evidence — Self-Defense — Instructions.
    Where the only eyewitness testified that decedent began shooting at accused, and that accused shot once, and then waited a little time and shot again, and it appeared that decedent and his wife were both killed, an instruction that, if accused shot decedent’s wife, with intent to kill her, then decedent, if present, could defend her, and accused was, on account of such defense, put to the necessity of taking the life of decedent to save his own life, the right of self-defense would be cut off, was prejudicial, as unduly limiting the right of self-defense, in view of the facts.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.]
    2. Cbiminal Law (§§ 419, 420) — Evidence-Hearsay Evidence.
    Declarations of accused’s infant children, made on coming alone to the home of witness, that their parents had declared before the children left home that they were going to kill decedent, were inadmissible as hearsay, though when the children came to the home of witness they appeared to be excited.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    Appeal from District Court, Upshur County; M. B. Briggs, Special Judge.
    Campbell Williams was convicted of murder, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NTJMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at five years’ confinement in the penitentiary.

The theory of the state was that appellant had, prior to the killing, a quarrel with his sister-in-law, Lillie Dixon, the wife of the deceased, Charlie Dixon; that shortly before the killing, and on the same day, appellant stated that if Lillie Dixon cursed him again he “would get his gun and go up the road.” He did not say where he would go up the road, but the inference is supposed to be that he would go to her house and shoot Lillie Dixon. That is an inference, but not stated as a fact. About sundown appellant and his wife went to a neighbor’s house to get some pepper with which to season sausage, they having killed hogs that day. Upon leaving-home they sent their two children to a neighbor’s house close by. The facts further show that deceased, Charlie Dixon, and his wife, Lillie Dixon, were both killed. The bodies were found in a room in the house. The evidence shows that the deceased fired three shots with his pistol, and appellant fired two with a gun. The evidence seems to be conclusive that deceased was out in the yard, between the house and the road along which appellant and his wife were traveling, when the shooting occurred. There was blood trailed from that point into the house, and also some shells were found indicating the pistol had there been fired. It is also in evidence that in going after the pepper and returning they had traveled the road that led by the house of deceased, and that as appellant passed by Dixon fired upon him, and that appellant shot in self-defense. The evidence is that Lillie Dixon was with her husband in the yard at the time the shooting occurred. The two bodies were found in the house, not far apart, on the floor, and the gun and pistol of deceased were also found in the house, close together. There is evidence that appellant may have fired the first shot, that mainly arises from the evidence of the witness who testified to facts indicating, in the judgment of that witness, the gun fired before the pistol fired. The defendant’s testimony was positive that deceased fired the first shot. The issues are presented by the facts.

Exception was taken to the court’s charge upon manslaughter, but under the decisions of this court it is unnecessary to discuss that, inasmuch as the bill of exceptions is not specific enough to bring it within the rule laid down in Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878, Berg v. State, 142 S. W. 884, and Byrd v. State, 151 S. W. 1068. We are of opinion, however, that upon another trial the charge on manslaughter should be given free of the objections now urged to it. On account of these decisions, however, the matter is not further discussed.

At the request of the state the following charge was given: “I give you in charge, as part of the law of self-defense, that if you believe from the evidence beyond a reasonable doubt that the defendant went to the house of deceased and made an unlawful assault upon the wife of deceased, Lillie Dixon, and shot her with intent to kill her, if he did so shoot her, and that in so doing he was not justifiable under the law of self-defense given you in charge, then I instruct you that Charlie Dixon, under such circumstances, if he was present and saw such assault was about to be committed, would have the right to defend her against such assault, if any, and defendant was thereby, on account of such defense by the said Charlie Dixon, put to the necessity of taking the life of deceased, 'Charlie Dixon, if he did, to save his own life from an assault by the said Charlie Dixon at the time and place; you are instructed that his right of self-defense would thereby be cut off, unless you further find that in the shooting, if he did shoot, or shoot at, Lillie Dixon and Charlie Dixon, defendant acted upon adequate cause, as explained to you in the main charge on manslaughter.” This charge, to say the least of it, is very confusing; but we are of the opinion the charge was error, and upon a phase not made by the testimony.

The only eyewitness who testified to the transaction was appellant’s wife. After testifying about going to a neighbor’s house and getting the pepper and starting back home, she says: “The first thing I noticed, a.s we were'passing Charlie Dixon’s house, Charlie got up and come out and told Campbell — said, ‘God damn it, didn’t I tell you I was going to kill you the next time you passed this road?’ and he commenced shooting at him. Charlie shot first once or twice. Campbell shot one time, then shot again. He shot once, then waited a little bit, and shot again.” Without going into the cross-examination of the wife, that is her testimony in chief on this particular phase of the case. There is, therefore, no evidence before the jury, as we understand this record, that -justified the court in giving the state’s requested charge that appellant made any unlawful assault upon the wife of deceased, as indicated in the requested charge given. This charge was used to cut off the defendant from his right of self-defense upon the theory that he shot at the wife of deceased first, and therefore he could not justify in shooting deceased, Charlie Dixon. If appellant shot at the wife of deceased first, and her husband, Charlie Dixon, came, and then defendant shot at him in defense of his life, of course, appellant would have no right of self-defense. But the facts do not justify such charge, and it was an unwarranted limitation upon appellant’s self-defense theory under the facts. The charge should not have been given.

Bill of exceptions No. 5 was reserved to the ruling of the court admitting certain testimony, in substance, as follows: While Tave White was testifying in behalf of the state, and after she had testified that the defendant’s children came to her house the night of the homicide, about 7 o’clock, and that nobody came with them to her house, and that there were two of the children, the oldest being about eight ot nine years of age, she was then asked by state’s counsel the following question: “Now, did they say anything about Campbell Williams, or his wife, or what they were doing, or where they were going, or why they were there?” Appellant objected on various grounds, that the testimony was irrelevant, and the answer thereto would be hearsay, and not admissible, and was calculated to elicit hearsay testimony, which objection was by the court overruled, and the witness was permitted to answer the question as follows: “When they came in there they told me that their papa and mama said — that was before they left home — they said they was going to kill Mr. Charlie Dixon and Aunt Lillie; that is what they told me when they came in the house.” To which objection was again urged, for the reason that the testimony was hearsay, and that the witness was not testifying from her personal knowledge of the fact, but solely from information derived from others, and because the same was irrelevant, hearsay, and highly prejudicial to the rights of the defendant, and was calculated to inflame the minds of the jury and injure the rights of the defendant, and the court overruled these objections. The court in signing the bill thus explains it: “That the witness stated that ‘when the children came in they appeared to be badly scared and excited, and the youngest was almost crying.’ Therefore the evidence was admitted on the theory that same was a spontaneous outburst from the children, was the act itself speaking through the child, and, occurring just before the shooting, is res gestee on the question of malice and intent of-the defendant, all of which is fully presented in Tave White’s testimony in statement of facts.”

Reference to the statement of facts does not explain anything further than as stated. It is shown by the evidence of the witness that these children went to her house about the time stated and made these statements to the witness White as testified; at least the witness so testifies. The bill of exceptions and statement of facts both show that appellant and his wife were not present, and knew nothing of the statements made by the children to White. This testimony was clearly inadmissible under all the authorities. It was hearsay, pure and simple. It could not be- part of the res gestee. The children were not present at the homicide and knew nothing about it. The entire testimony, including the witness White, excludes the idea that the children were present at the homicide, and clearly shows they were, at the time of the homicide, at the house of the witness White. It was not legitimate testimony, and was of the most damaging character. These children were not used as witnesses.

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


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J. HARPER, J.

license: Public Domain

text:
    WILLIS v. STATE.
    (No. 2571.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 20, 1914.)
    1. Homicide (§ 52) — Manslaughter—Provocation.
    A love letter, written by deceased to defendant’s ' wife, which unexpectedly came into defendant’s possession a few days before the homicide, was not statutory adequate cause for provocation, so as to reduce such homicide to manslaughter, where defendant, after receiving the letter, was with deceased on several occasions before the homicide, since, though insulting conduct towards a female relative is, under the statute, adequate cause, the killing must take place immediately upon the happening of the conduct or at the first meeting of the parties.
    [Ed. Note. — For other cases, see Homicide, Cent. Eig. §§ 76, 77; Dec. Dig. § 52.]
    2. Homicide (§ 181) — Admissibility of Evidence — Previous Quarrel and III Feeling.
    Though such letter was not statutory adequate cause, yet it could be and should be considered by the jury in passing upon defendant’s state of mind at the time of the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 383-885; Dec. Dig. § 181.]
    3. Homicide (§ 42) — Manslaughter—Provocation. .
    Deceased boarded at defendant’s hotel until trouble arose because of his attentions to defendant’s wife, which also caused defendant’s wife to leave him, going to her father’s home. On the morning of the homicide defendant received a letter from, his wife in reply to a letter from him, informing him that she was writing to deceased, and that, as they had separated, she wanted him to leave her alone, that she would write to whom she pleased, etc., which facts were already known to defendant. Held, in view of defendant’s previous knowledge of all the facts contained in the letter, such letter was not in itself statutory adequate cause to reduce the killing to manslaughter, unless it led defendant to believe that deceased had been guilty of adultery with his wife, and whether it did so lead him was properly submitted to the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 65, 66; Dec. Dig. 42.]
    4. Homicide (§ 239) — Admissibility of Evidence — Premeditation, Deliberation, etc. —Previous Quarrels and III Feeling.
    Though such letter in itself was not sufficient provocation, yet it might be when considered with all the antecedent conduct and acts of deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 502; Dec. Dig. § 239.]
    5. Homicide (§ 205i) — Manslaughter — Provocation.
    While the provocation, to reduce a homicide to manslaughter, must arise at the time of the commission of the offense, yet antecedent matters should be considered in passing upon the state of defendant’s mind; but the court should not enumerate them, but tell the jury that they must look to all the facts and circumstances in the case.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    6. Criminal Law (§ 1092) — Presentation and Reservation in Lower Court of Grounds of Review — Exceptions.
    Bills of exceptions not properly filed within the time allowed by law cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    Davidson, J., dissenting.
    Appeal from District Court, McLennan County;. Richard I. Munroe, Judge.
    Frank Willis was convicted of murder in the second degree, and he appeals.
    Affirmed, and motion for rehearing overruled.
    Dan Jackson, of El Paso, and Joe W. Taylor, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of murder in the second degree, and his punishment assessed at fifteen years’ confinement in the penitentiary.

This ease was tried in 1911, and for more than two years the record was not filed in this court, and when filed no statement of facts accompanied it; but appellant’s counsel filed an affidavit stating that he had secured the approval of and filed a statement of facts within the time provided by law, and asked that this court postpone consideration of the case until the statement of facts could be substituted. Under article 884 of the Code, of Criminal Procedure of 1895, of course time was granted. Subsequently we are informed that by search the statement of facts was found, and it is now on file in this court, and shows to have been filed in the court below within the time allowed by law. Such negligence is inexcusable, for now it will soon be three years since this case was tried in the court below, and it is such delays as this that has caused discussion of and demand for change in our procedure, when a change in procedure in this matter is not so much demanded as a compliance with the law as it is written.

The court only submitted murder in the second degree and manslaughter in his charge, and fully presented the law of self-defense and insanity as applicable to the evidence. The main complaint as to this charge is to that part submitting the issue of manslaughter; it being contended that it is too restrictive, etc. The facts in this case would show that appellant was a married man, and kept a hotel at Eddy. Deceased worked at a gin and boarded at appellant’s hotel. Appellant became jealous and suspicious of the attentions deceased was paying to his wife, and testifies to many circumstances, which finally led to a breach, and deceased quit boarding at this hotel and went elsewhere to board. It also caused a breach between appellant and his wife, and after several quarrels or scenes appellant’s wife left and went to visit her father at San Saba, and brother at Lometa. He contends that he did not know that this was a permanent separation, and he visited her at the home of her brother in Lometa, and while there by going to the post office he secured a letter addressed to his wife signed “K. C.” The letter reads:

“Eddy Texas. Mrs. Tempie Willis, Lome-ta, Texas. Dearest one: Will ans. your sweet letter which I received this morning, listen dear frank left this morning and the letter I got was broken open and had been red before I got it. it was opened while in the post-office. Girl I would give anything to see you and talk with you for awhile and you dont want to see me any more than I do you. Sweet Heart I cant write much for frank has gone and he may call for your mail so if you get this write and let me no, and I will write more next time. Iff I dont hear from you I will keep writing so dont worry about me I will come out all write. I may get killed but he will haft to do it dont think anything A bout this writing until I see what is going to come up and I will write often iff ever thing is all write So love me and stay with me and we will come out all write. I took up for you and would do it again iff necessary So bee good and true and I will do the same. Yours forever K. 0.”

After getting this letter, he and his wife again had words, and the record would authorize the jury to conclude that appellant was then informed by his wife, if he had not been so informed prior thereto, that the separation was permanent. After leaving Lometa, appellant went to Dobbin, and on September 24th wrote deceased the following letter:

“Bud Albright Your plans are known Dont carry them out Stop! Think! Dont! Dont! 8 pair of eyes are on you. ‘Take warning!’ Dont go no further You know what I mean. It is not J. O. You dont know me. Will be near you when you get this. You are not all to blame No harm will be done you. Do right Letters have not all reached their destination ' That is enough.”
Envelope: “Albert Albright, Eddy, Texas.”
Postmarked: “Dobbin, Tex., Sept. 24,1910.”

Appellant returned to Eddy and frequently met deceased after he had secured the “K. C.” letter and written the letter herein copied. In fact he was in the barber shop in Eddy with deceased on Saturday night, and in a restaurant with him on Sunday, Just prior to the killing Monday morning, October 10th.

There is another letter in the record which appellant says he received from his wife on the morning he killed deceased. It reads:

“Yes Prank I got your letter and I have been writing to Albert and he has been writing to me. What is it to you — we are separated, so you let me alone. You had better let him alone, if you dont he will fix you; he said that he had taken all that he was going to take off of you — now one of you will get killed if you dont let me alone. He is not afraid of you and I dont think you are afraid of him. I dont want neither one of you to get killed, but Prank listen to me; he will kill you — so you tend to your own business. I have left you and I will write to any one I please. Tempie.”

Mrs. Willis testifies she wrote appellant this letter on Friday or Saturday before the killing on Monday, morning. He says he did not receive it until Monday morning, and had not received it when he was in the barber shop with deceased on Saturday night, nor when he was with him on Sunday. The state’s evidence is that while deceased, Albert Albright, was in the tailor shop of O. L. Wicks Monday morning, sitting on a table or counter, and while Wicks was showing J. W. Morrow some samples of cloth, appellant came in the tailor shop and,, without a word being passed, shot Albright, who fell to the floor, appellant continuing.to shoot him or shoot at him; that so far as they noticed appellant said nothing to deceased, nor deceased to him; that Albright made no move or demonstration of any kind. Appellant testifies that he was in the tailor shop when deceased came in, being behind Morrow and Wicks, with1 his back to the door; that he heard them speak to Albright, and he turned and looked around; that deceased was leaning against the counter, and as he looked around deceased gave him an angry and threatening look and reached for his hip pocket as if to draw, a pistol, and he thought his life was in danger, when he shot deceased and killed him. While the •record is rather voluminous, yet we think this is a sufficient statement of the case to render intelligible the rulings herein made. •

On the issue of manslaughter, after defining manslaughter as it is defined in the statute, the court instructed the jury: “The following are deemed adequate causes: .Insulting words or conduct, if any, of the person killed towards a female relation of the party guilty of the homicide. When it is sought to reduce an unlawful killing to the grade of manslaughter by reason of such insulting words or conduct, if any, towards a female relation, it must appear that the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, or so soon, thereafter as the party killing may meet with the party killed after having been informed of such insults. In determining whether or not there Was adequate cause, the jury have the right to consider all the facts and circumstances in evidence, both before and at the time of the killing.” 1-Ie also at the request of appellant gave the following special charge as a part of the law of the case: “You aré instructed that, if you should find from the evidence that on the morning of the homicide, and shortly prior thereto, the defendant received a letter written by his wife, the reading of which produced in the mind of the defendant the honest belief that the deceased had committed adultery with Tempie Willis, the wife of defendant, and that such knowledge produced such a degree of anger, rage, or resentment as to render the mind of Frank Willis incapable of cool reflection, and that, while laboring under such degree of anger, rage, or resentment, he shot and thereby killed deceased on the first meeting after receiving such letter, and that his act was not justifiable by reason of his acting in self-defense, or while he was insane, then and in that event he would be guilty of manslaughter, and you should say by your verdict affixing the penalty therefor.”

We do not think it can be contended that the letter herein copied signed “K. C.” could in law be deemed adequate cause under the evidence, for appellant had met deceased a number of times after he had received and read that letter; in fact had written to deceased the letter herein copied. So in law that passes out as presenting “adequate cause” to reduce the offense to manslaughter ; but appellant is right in his contention that it.could be and should be considered by the jury in passing on his state of mind at the time he shot deceased. If it were not for the fact that he had received the letter from his wife on the morning of the homicide, the letter signed “K. O.” would be a most cogent circumstance to prove a premeditated killing, instead of tending to reduce the grade of the offense to manslaughter. In passing on this character of question in the case of Miles v. State, 18 Tex. App. 170, Judge Hurt says: “While it is true that the provocation must arise at the time 'of the commission of the offense, and the passion must not be the result of a former provocation, yet in passing upon the sufficiency of the provocation, and on the effects of the passion upon the mind of the defendant, the past conduct of the deceased toward defendant, his threats and bearing, in fact all the facts and circumstances in the case, should be considered by the jury. An act standing alone may not be a sufficient provocation, but may be ample when it is one of a series of similar acts, or when it has been preceded by an insolent and aggravating course of conduct, whether similar or not to the act committed at the time of the homicide. We are of the opinion that the charge of the court was too restrictive upon the 'subject, and that the attention of the jury should have been directed to all the facts of the case, not by the special enumeration of each; but they should have been told that, in passing upon the sufficiency of the provocation, and the effects of the passion upon the mind of the defendant, they must look to all the facts in the case.”

It is seen that Judge Hurt says antecedent matters can be looked to in passing on the state of mind of appellant, but the court should not enumerate them, but the jury should be told that they must look to all the facts and circumstances in the case. Judge Davidson, in the case of Reinhardt v. State, 60 Tex. Cr. R. 662, 133 S. W. 265, in overruling the state’s motion for a rehearing, aptly and tersely states the rule to be: “Had the jury been instructed with regard to these extraneous matters which necessarily entered into the mind of the appellant, it is possible and fully probable that his punishment, although convicted of manslaughter, might have been less than the five years, the maximum penalty which was given him by the jury. This evidence certainly had a tendency to enhance the passion. It was the beginning and cause of the passion, and the circumstances occurring subsequently added to this passion, and, while he could not rely upon the occurrences of the previous night as a basis of manslaughter, because the insulting conduct had occurred in his presence and had passed, yet, in viewing the transaction at the time of the homicide, these circumstances were of the most cogent and terrific force.” And it will be found by reference to all of our decisions that, if insult to a female relative is relied on to reduce the offense to manslaughter, the. killing must take place at the first meeting after the occurrence, and the court should so instruct the jury, and under no phase of the case could a previous insult be adequate cause, where the parties had met .and passed, and such previous insult can only be considered in passing on appellant’s state of mind, etc., at the time of the homicide. In all other cases the provocation must arise at the time, and the antecedent circumstances can be looked to in passing on the adequacy of the cause and the state of mind of the person on trial.

It is not shown by the record that appellant knew of any misconduct of deceased, after he had seen and passed him, except such as might be inferred from the letter received from his wife; and the court aptly in the special charge given instructs the jury that, if this letter led him to believe that deceased and his wife had been guilty of improper conduct, he would be guilty of no higher offense than manslaughter, and it was for the jury, and not this court nor the trial court, to draw the deductions from the language used in the letter. It may be that this letter emphasized the fact that deceased was writing to his wife, a fact already known to him, and he met and passed deceased after receiving that information, and it may be that prior to that time he had a lingering hope that a reconciliation between himself and his wife might be brought about, and this letter blasted that hope; but, with the knowledge of facts already known to him, this would not be statutory adequate cause, but it would be an incident to be considered with other facts and circumstances in the case as to whether adequate cause existed, and the court did so inform the jury in the following language: “It is your duty, in determining the adequacy of the provocation (if any), to consider in connection therewith all the facts and circumstances in evidence in the case, both before and at the time of the killing, and, if you find that by reason thereof the defendant’s mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and so in this case you will consider all the facts and circumstances in. evidence in determining the condition of the defendant’s mind at the time of the alleged killing, and the adequacy of the cause (if any) producing such condition.” Had the letter written by the wife in and of itself been a statutory adequate cause, appellant’s complaints might be well founded; but it is only by inference or deduction that the language used would be adequate cause in law, and the court instructed the jury specifically as requested by appellant that if, from the language of the letter, an impression was made on defendant’s mind leading him to believe that his wife and deceased had been guilty of adultery, this would be adequate cause; and it was proper for the court to instruct the jury that, in passing on this question, they should consider all the facts and circumstances in the ease, and, if all together were sufficient at the time of the killing to create this impression in his mind, and to render defendant’s mind incapable of cool reflection, it would reduce the offense to manslaughter. In other words, if the letter written by the wife was clothed in language that would lead an ordinary man to believe that deceased and his wife’s conduct was such as to be an insult to an ordinary man, this would be statutory adequate cause; if not, yet it might be considered with other facts and circumstances in evidence in passing on that issue'. What is in this letter? It tells him his wife was writing to deceased, and he was writing to her. He had known this fact for a month, and passed and repassed deceased. It recites they had separated, and she wanted appellant to let her alone, that she would write to whom she pleased. If this had been the first information appellant had received that deceased was corresponding with his wife, it might be adequate cause; but this fact was known to him before he received this letter, and he had not called debased to account for it when he met him. It then goes on and advises appellant to let deceased alone, and it might be said, it threatens, if he did not do so, deceased would kill him; but this would not be statutory adequate cause, but would be considered a circumstance with the other facts and circumstances in the ease. Not only had appellant seen the “K. C.” letter, but he testified to many facts and circumstances occurring at the hotel prior to the separation; but all this time he was daily coming in contact with deceased, and it would have been improper for the court to have undertaken to have enumerated these various matters, for none of them in law were statutory adequate cause at the time of the killing. If there was statutory adequate cause, it must arise from the letter written by his wife to him, viewed in the light of all the antecedent circumstances in evidence. It is not a case where the language used in the letter is in and of itself adequate cause in law; but to render it so it took a consideration of the previous acts and conduct. While it is true that when he received the “K. 0.” letter, had the killing taken place when he first met deceased thereafter, this would in law be adequate cause in and of itself; but he by his acts and conduct condoned this, and then it became like any fact in evidence a circumstance to be considered with the other facts in evidence, and it would have been error and upon the weight of the testimony for the court to have selected this isolated circumstance and instructed the jury in regard to the weight to be given thereto. The court’s charge as a whole, together with the special charge given at appellant’s request, fairly and fully presented the law of manslaughter as applicable to the evidence adduced on this trial, and it is not subject to the criticisms of appellant. The court also fairly and fully presented the law of self-defense and insanity as made by the testimony. In fact we think the court’s charge as a whole is subject to none of the criticisms contained in appellant’s motion for a new trial, and so ably argued and presented in his brief.

The bills of exception in regard to the introduction of evidence cannot be considered by us. The rules governing such matter are stated by this court in the case of Riojas v. State, 36 Tex. Cr. R. 185, 36 S. W. 268, and cases there cited. So far as we have been able to ascertain, the rules there announced have always been followed by this court. One must use due diligence in securing the approval of his bills of exception, and see that they are properly filed within the time the law permits this to be done.

The judgment is'affirmed.

DAVIDSON, J.

(dissenting).

1. In view of all the facts found in this record, I do not believe conviction for an offense higher than manslaughter is justified.. That deceased brought about the separation of appellant and his wife is not debatable. There was no other cause for the trouble attempted to be shown. That deceased perhaps went further than alienation and separation of the parties is justified by the facts. The letter received a few moments before the killing placed his mind beyond cool reflection, and this is the cause for the killing, viewed, in the light of other conduct by deceased. Stewart v. State, 52 Tex. Cr. R. 273, 105 S. W. 809.

2. The defendánt was entitled to a charge: (1) Submitting insulting conduct affirmatively and separately from circumstances generally. (2) Another distinct charge on coih-bination of causes, previous conduct, etc. I do not think the charge was sufficient, nor the verdict justified for murder.

On Motion for Rehearing.

HARPER, J.

Appellant has filed a motion for rehearing, reciting at length the testimony of appellant, and that introduced in his behalf, and says this would show no higher grade of offense than manslaughter, if appellant was not insane, and he did not act in self-defense. Unfortunately for appellant this is not all the evidence in the record; but this court, as did the jury, must take into consideration all the evidence offered in behalf of the state, and from all the testimony adduced pass on the issues' raised. Appellant takes his evidence alone, that on Saturday night before the killing wherein he stated he had heard certain matters about his wife leaving her brother’s residence, and that he thought she had fled with deceased, about him going to Temple, what was there said and done, and about the inquiry he made to locate the deceased on Saturday night and Sunday. If the jury had believed this, doubtless their verdict might have been different. But that such evidence did not present the true state of facts was evidently found by the jury. The state offered evidence that appellant was in Eddy Saturday night and Sunday, and not in Temple, and that he was with deceased in the barber shop at Eddy Saturday night, and with him in the restaurant in Eddy on Sunday evening and appellant shortly after the killing, in talking with George Morris, asked Morris if he knew he (Morris) had prevented him from killing Al-bright Sunday night in the restaurant; that he intended to kill him Sunday night, and he (M.orris) walked between them. Morris also said that appellant said that he saw Albright in the barber shop Saturday night, and that he intended to kill him when he got out of the barber chair, and would have done so but that Ferguson, the barber, was between him and Albright, and he was afraid he would kill the barber. Morris swears positively he saw appellant and deceased in the restaurant together on Sunday night before the killing the next morning. R. C. Elliott testified he heard appellant make these statements to Mr. Morris. Will England testified for the state that appellant and deceased were in Ferguson’s barber shop together Saturday night before the killing on Monday. Thus it is shown, if the testimony offered by the state is true, and appellant told the truth shortly after the killing, he was not in Temple Sat-, urday night, and none of those things took place that appellant’s attorney narrates so. tragically in his argument, based on appellant’s testimony on this trial. In his motion the contention is also made that deceased and appellant’s wife had been guilty of adultery, yet a few days after the killing appellant testified at the examining trial, and, swore, “I do not believe that Bud Albright, [deceased] ever had intercourse with my wife.” If he did not so believe at the time-of the killing, and he so testified under oath,, it is not strange that the jury did not give great weight to his testimony on this trial that he did so believe, and especially so when he also testified before the grand jury that he did not so believe, and in his testimony before the grand jury appellant admits he-saw deceased Sunday night in Eddy, therefore it is not strange that the jury did not place much faith in his testimony on this trial when he said he thought he had run. off with his wife Saturday until he met him Monday morning. The other facts which appellant recites in his motion as showing there was no higher grade of offense than manslaughter made by the evidence are met in, the same way by the testimony offered by the-state.

Appellant insists that, although his bills, were not filed for more than 100 days after court adjourned, yet, as there- was a mistake-of law as to when they should have been filed, we ought to consider them. In the case of George v. State, 25 Tex. App. 229, 8 S. W. 25, a much stronger case was made legally, and from an equitable standpoint, yet the-court struck them from the record. Appellant used not one-half the diligence the at-, torneys in that case show they used; in fact in this case the use of diligence to have the bills filed is not shown, but a mistake as. to the law is only pleaded.

The court’s charge, especially when we-consider the special charges given at appellant’s request, was a full, fair, and apt presentation of the law as applicable to the tes-, timony adduced on this trial; and the mo-, tion for rehearing is overruled.


author: HALL, J.

text:
    A. J. BIRDSONG & SON v. ALLEN et al.
    (No. 614.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 2, 1914.)
    1. Evidence (§ 230) — Admissibility—Letters.
    In an action for the conversion of cotton, which a chattel mortgagee claimed under a mortgage made by a landowner before he conveyed to defendants, a letter written by the landowner, explaining that he had sold the land and was renting from the grantee on shares, and that defendants were to take the first cotton, is admissible only against the writer.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. § 230.]
    2. Evidence (§ 589) — Weight — Sufficiency.
    The jury are not bound to accept the testimony of the parties to the cause.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. § 589.]
    3. Trial (§ 143) — Jury Question.
    Where the evidence as to an issue of fact is conflicting, the question is one for the jury. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.]
    4. Judgment (§§ 98, 310) — Defaulo>-Code-fendants — Amendment.
    Where one of the several defendants, though duly cited, made default, the court should have rendered judgment against him by default; hence the judgment for plaintiff was properly amended so as to include him, though the verdict failed to mention him.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §& 156-158, 601-603; Dec. Dig. §§ 98, 310.]
    5. Judgment (§ 314) —Verdicts —Amendments.
    Under the direct provisions of Rev. St. 1911, art. 2016, a judgment following the verdict may be amended in case of miscalculation, where it can be done by reference to the record.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 610-612, 616; Dec. Dig. § 314.]
    Appeal from Jack County Court; J. P. Simpson, Judge.
    Action by W. V. Allen against A. J. Birdsong & Son and another begun in justice court. From a judgment for plaintiff, the named defendants appeal.
    Reversed and remanded.
    See, also, 165 S. W. 46.
    Sporer & McClure, of Jacksboro, for appellants. Fitzgerald & Cox, of Wichita Falls, for appellees.

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   HALL, J.

R. O. Wilson executed two notes to-W. V. Allen for $68 each and a mortgage upon two bales of cotton to be raised by him during the year 1912, to secure one of the notes. Thereafter Wilson sold the land, upon which the cotton described in the mortgage was to have been grown, to A. J. Birdsong & Son, and entered into a contract with Birdsong & Son for the cultivation of the land. According to the terms of this contract it is contended by the appellants that the relation of master and servant between Birdsong and Wilson existed, and because of such relation the chattel mortgage given by Wilson to Allen was destroyed. Allen instituted this suit in the justice court of Jack county to recover the amount of the notes and against Birdsong for the value of the two bales of cotton. The record shows no pleadings whatever on the part of either Wilson or plaintiff Allen,

The first assignment of error complains of the action of the court in admitting in evidence a letter written by Wilson to Allen, in which Wilson states: “The landlord taken, the first two bales of cotton. I sold my place last fall and rented on the halves this year so the landlord furnished me this year, and he would not let me have the first two bales,” etc. The material issue in the ease was as to the relationship existing between Wilson and the appellants. Appellants insist that while this letter may have been admissible as against Wilson, its effect should have been limited, and the jury instructed' that it was not admissible as against them. This assignment must be sustained, and because the court failed to limit the effect of the letter in its charge, the judgment must be reversed, and the cause remanded. Wolf v. Galbraith, 39 Tex. Civ. App. 351, 87 S. W. 390; Texas Loan & Trust Co. v. Angel, 39 Tex. Civ. App. 166, 86 S. W. 1056.

The second assignment of error complains that the charge of the court did not state correctly the plaintiff’s cause of action to the jury. Reference to the charge shows that this assignment is not well taken. In fact the statement made by appellant in the. brief contradicts the assignment.

The third and fourth assignments • assail) the charge of the court.- We think the charge, as a whole was a correct presentation of the-issues presented by the appellant’s amended' original answer and the general denial of the plaintiff presumed by the statute.

The sixth, seventh, eighth, ninth, and tenth assignments go to the sufficiency of the evidence to support the verdict and judgment. The testimony of Allen is that Birdsong first claimed the cotton by virtue of his landlord’s lien. The testimony of Birdsong and his son, supported by the testimony of Wilson, tends. to show that the relation of landlord and tenant' or tenants in. common did not exist between them, but that the relation was that of master and servant. We are not informed by appellants’ brief what the special charges requested and refused were, but reference to the transcript shows that they practically presented the same issues as the general charge; and, in view of the conflict in the evidence, and by reason of the rule that the jury were not bound to believe either of said witnesses, since they were parties to the suit, and interested in the controversy (Thomas v. Saunders, 150 S. W. 769), we think the court was correct in submitting the issues to the jury, and that the evidence was sufficient to require such submission.

The record discloses that the court first rendered a judgment against Birdsong & Son, in favor of W. Y. Allen, and, upon motion thereafter made and at the same term, amended the judgment, both as to parties and amount, and complaint is made under the eleventh assignment that, because the verdict of the jury did not mention Wilson, no judgment should have been rendered against him. Wilson was duly cited and filed no answer, and in no way contested the right of appellee Allen to recover against him. The court should therefore have rendered judgment by default against Wilson, and the amendment of the first judgment to that extent was proper.

The verdict of the jury was in favor of plaintiff, “for the amount of note and interest to date, and 10 per cent, for attorney’s fees as stipulated by same, amounting to •¶186.56,” and the first judgment was rendered in favor of Allen against Birdsong & Son for that amount. Upon motion, however, it was ascertained that the jury had made a miscalculation, and that the amount of the note secured by chattel mortgage upon the cotton converted by Birdsong & Son was $91.-60. Article 2016, R. S. 1911, expressly authorizes the court to correct its judgment where it can be done by reference to the record in cases of miscalculation.

Appellant insists that the judgment against Birdsong & Son is upon the note. We do not so construe the judgment. We think it is against them for an amount equal to the note, interest, and attorney’s fees, but for the value of the cotton alleged to have been converted by them to that extent. However this may be, it is an error which will not probably arise upon another trial.

The fourteenth and fifteenth assignments of error are without merit. Because of the error of the court in refusing to limit the effect of the letter from Wilson to Allen, the judgment is reversed, and the cause remanded.


author: PLEASANTS, C. J.

text:
    C. A. ELMEN & CO. et al. v. GODSEY.
    (No. 6559.)
    (Court of Civil Appeals of Texas. Galveston.
    April 22, 1914.)
    1. Appeal and Error (§ 544) — Review— Necessity op Statement op Facts.
    In' the absence of a statement of facts, it cannot be determined whether error was committed in any of the matters complained of by assignments, the refusal to instruct a verdict for defendants, failure to submit the issue of any consideration for the contract sued on, and that a paragraph of the charge did not fully and correctly state the issues raised by the pleadings and was on the weight of the evidence and confusing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420. 2422-2426, 2428, 2478, 2479; Dec. Dig. | 544:.]
    2. Appeal and Error (§ 544) — Review—Necessity op Statement op Facts.
    Even if a charge submitted a theory of plaintiff’s case not authorized by the allegations of the petition, it cannot in the absence of a statement of facts be held this was “reasonably calculated to cause and probably did cause the rendition of an improper judgment,” so as, under Court of Civil Appeals rule 62 (149 S. W. x)¡, to authorize a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action by Frank W. Godsey against C. A. Elmen & Co. and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    J. Y. Fleming, of Beaumont, for appellants. J. D. Wilkerson, of Beaumont, for appellee.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by appellee against the appellants to recover the sum of $650, or in the alternative per cent, of the purchase price of a tract of 640 acres of land in Jefferson county, described in plaintiff’s petition. The amount claimed by plaintiff was alleged to be due under a contract with the defendants for services rendered them by plaintiff in effecting the purchase of said land. The defendants answered by general demurrer and special exceptions and general and special denial of the allegations of the petition. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $650.

No statement of facts has been brought up with the record. At a former day of this term appellants filed a motion to substitute the statement of facts alleged to have been filed in this court with the record, and subsequently lost, by an' agreed statement of facts filed with said motion. The motion was granted and the substitute ordered filed; but, upon a rehearing of said motion on application therefor filed by appellee, it was conclusively shown that no statement of facts was filed with the record, and counsel for appellants were mistaken in' so stating in their motion to file the substitute. Upon this showing we set aside our order granting the motion to substitute the statement of facts. The statement of facts filed as a substitute cannot be regarded as a statement of facts and will not be considered.

The first assignment of error complains of the refusal of the trial court to instruct the jury to return a verdict for the defendants.

The second assignment complains of the failure of the court to submit to the jury the issue of whether there was any consideration for the contract declared on by plaintiff.

The third assignment complains of one of the paragraphs of the court’s charge on the ground that it does not fully and correctly state the issues raised by the pleadings and is “upon the weight’of the evidence and confusing.”

In the absence of a statement of facts, we cannot determine whether the trial court committed error in any of the matters complained of in any of these' assignments, and each of said assignments must be overruled. Ross v. McGowan, 58 Tex. 603; Raleigh v. Cook, 60 Tex. 438; White v. Parks, 67 Tex. 605, 4 S. W. 245; Devore v. Crowder, 66 Tex. 204, 18 S. W. 501; Caldwell v. Brown, 43 Tex. 216; Baldwin v. Dearborn, 21 Tex. 447; St. Clair v. McGehee, 22 Tex. 5.

There is no merit in the fourth assignment. The charge complained of in the assignment does not submit, as contended by appellants, a theory of plaintiff’s case not authorized by the allegations of the petition; but, if this objection to the charge was tenable, we could not, in the absence of a statement of facts, hold that such error in the charge was “reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case;” and therefore we could not reverse the judgment for such error. Rule 62 for Courts of Civil Appeals (149 S. W. x).

The remaining assignments of error each present questions of fact and, in the absence of a statement of facts, cannot be sustained. It follows from what has been said that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


author: SPEER, J.

text:
    CLARKE v. KLEIN.
    (No. 7879.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 14, 1914.)
    ’Boundaries (§ 8) — Locatuon oe Surveys— Disputed Boundaries.
    The C. survey called for the W. survey, the D. survey for the C. survey, and the H. survey for the D. survey. The only original corners -of such surveys which could be definitely located were the northwest corner of the D. survey and the southwest corner of the W. survey.’ Survey No. 1 of a railroad company was described as beginning at the southwest corner of the H. survey and survey No. 2 as beginning at the southwest corner of survey No. 1. A disputed boundary line of survey No. 2 would be differently located if the railroad surveys were constructed from the southwest corner of the W. survey than if constructed from the northwest corner of the D. survey. Prior to the patent from the state with the owner of' which the dispute arose, the railroad surveys were resurveyed and patented, and the boundary line established by the resurvey coincided with that found by constructing the survey from the northwest corner of the D. survey. Bdd, that the trial court properly established the boundary line as constructed from such northwest corner, rather than from the more remote southwest corner of the W. survey.
    [Ed. Note.- — For other cases, see Boundaries, Cent. Dig. §§ 66-76; Dec. Dig. § 8.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Action by A. W. Clarke against Ludwig Klein. From a judgment in favor of defendant, plaintiff appeals.
    Affirmed.
    W. T. Allen and Wantland &'.Parrish, all of Henrietta, for appellant. P. M. Stine, of Henrietta, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

This is essentially a boundary suit to determine the west boundary line of survey No. 2, S. A. & M. 6. Railway Company land, the land in controversy being claimed by appellee as a part of the survey and by appellant, who was plaintiff; below, by virtue of a patent issued by the state of Texas conveying the same as a part of the unappropriated public domain, and the further statement of the case will be better understood by a reference to the accompanying plat.

The Jos. Weeks survey is located by its well-established southwest corner. The M. Caraba.jal calls for the Jos. Weeks, and none of its bearings are found save the southwest corner of the Jos. Weeks referred to. The A. Dickerson calls for the M. Carabajal, and its northwest corner is found and identified on the ground. The J. C. Hale calls for the A. Dickerson and none of its corners are found. Survey No. 1, S. A. & M. G. Railway is located as follows: “Beginning at the S. W. corner of John G. Hale No. 19 at a stake in the north line of the Almerone Dickerson; thence north 1900 varas a stake; thence west 1900 varas a stake; thence south 1900 varas a stake; thence east 1900 varas with the north boundary line of the said Dickerson to the place of beginning.” The field notes of survey No. 2, S. A. & M. G. Ry. Co. are as follows: “Beginning at the S. W. corner of survey No. 1 a stake; thence north with west line of said survey 1900 varas a stake, it being the N. W. corner of same; thence west 1900 varas a stake; thence south 1900 varas a stake; thence east 1900 varas the place of beginning.”1 To construct these surveys course and distance from the southwest corner of the Jos. Weeks will establish the west boundary line of S. A. & M. G. Ry. No. 2 at the place contended for by appellant. But to regard the northwest corner of the Almerone Dickerson and to run course and distance for its northeast corner, and then to construct in their order the Hale, S. A. & M. G. Ry. No. 1 and S. A. & M. G. Ry. No. 2, course and distance according to their field notes, respectively, will establish the disputed boundary line in accordance with the judgment of the trial court in keeping with the contention of appellee. We think the latter method is the, proper ' one. The evidence abundantly authorizes the conclusion that the southwest corner of the Jos. Week's and the northwest corner of the Almerone Dickerson are the only original corners of any of these surveys now definitely located by the testimony. We think the line in dispute can be more certainly located from the northwest corner of the Dickerson than from the more remote corner at the southwest of the Jos. Weeks. Furthermore, the' northwest and the southwest quarters of survey No. 2 were resurveyed and patented prior to appellant’s patent covering the land in controversy and the line established by the honorable district court coincides with that established in the resurvey, and for that reason as well the judgment is supported by the evidence.

There is no error in the judgment, and it is affirmed.


author: CARD, J.

text:
    TARDIO v. FIRST NAT. BANK OF BRYAN.
    (No. 5280.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 6, 1914.)
    1. Bills and Notes (§ 377) — Forgery—Estoppel.
    Where the apparent maker of a note accompanied by the payee thereof represented to a bank that the note was good, and the bank on the payee’s indorsement took the note and paid the money thereon, such maker was estopped from defeating a recovery by the bank on the note on the ground that it was a forgery.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. § 952; Dec. Dig. § 377.]
    2. Bills and Notes (§ 459) — Pasties—Peop-ee Pasties.
    The maker of a note is the proper party defendant in an action thereon, and, if he desires that the payee shall be made a party, he must request it.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1424-1433; Dec. Dig. § 459.]
    Appeal from Brazos County Court; J. T. Maloney, Judge.
    Action by the First National Bank of Bryan against Frank Tardio. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. M. Hilliard, of Caldwell, for appellant. Y. B. Hudson, of Bryan, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARD, J.

The First National Bank of Bryan brought suit against appellant, Frank Tardio, on a note, alleged to have been executed and delivered by appellant to C. E. Edwards oil September 15, 1911, for the sum of $350, payable on September 1, 1912, and bearing 10 per cent, interest per annum ; and it was alleged that, before the maturity thereof, said note was transferred by Edwards to appellee, and further showed that same was entitled to a credit of $111.05 of date November 20, 1912. The defendant, Tardio, answered, pleading non est factum, and alleging that the note was a forgery. In reply to this, the appellee alleged in a supplemental petition that on or about August 24, 1912, appellant requested the bank to take up his $350 note held by C. E. Edwards, which it is alleged appellant represented he had given for rent, and that same was a valid, subsisting, and unpaid claim against Tardio which he then and there promised to pay at maturity; that thereafter the bank did take up said note from Edwards; and that appellee was present at the time said note was taken up by the bank at his request; and that same was so taken up at the special instance and request of Tardio. It is further alleged that appellant has since ratified and confirmed the transaction, in that on November 20, 1912, he paid thereon $111.05, which was indorsed thereon as a credit; that, if said note is a forgery, the bank had no notice of the same, and was an innocent purchaser, without notice, for a valuable consideration and at the instance and representation of Tardio that same was a genuine instrument, and was for rents for 1912; and that Tardio did not inform the bank that same was a forgery, but represented it to be a true and valid instrument, binding on him (appellant), and that Tardio was responsible for appellee’s buying the note. The defendant below denied these matters in a supplemental answer.

The trial was before the court, and the findings of fact are, in substance, as follows: On August 24, 1912, the defendant went to the First National Bank of Bryan and told H. O. Boatwright, its president, that he owed O. E. Edwards a rent note lor the sum of $350 which would be due September 1, 1912, and which he could then pay, but that Edwards was insisting on the payment of the same, and that it would be an accommodation to him if Boatwright would take up said note, thereby relieving him of worry and harassment that Edwards was causing him. Thereupon Boatwright consented to take it up, and Tardio left the bank, and in a short while returned in company with Edwards. Boatwright asked them if they had the note, to which Edwards replied that he did not have it then but would get it. Appellant and Edwards left the bank together, and, while Edwards was gone for the note, Tardio came into the bank two or three times inquiring if Edwards had returned with the note. In about 30 minutes Edwards and appellant came into the bank together, and Boatwright asked Tardio if they had the rent note, to which he replied that Edwards had it. In the presence of Boatwright and Tardio, Edwards indorsed a rent note purporting to be defendant’s note, and Boatwright, in the presence of both the others, took the note and paid Edwards §350, the face value of the note. It was at the special instance and request of Tardio and upon his statement that he would pay said note at maturity that Boatwright agreed to take it up, and -appellant was with Edwards when he came into the bank, saw him indorse and deliver the note to the bank, and saw the money paid to Edwards. Tardio turned over to the bank two bales of cotton on August 24, 1912, to be applied as a payment on the note. The note is a forgery, but the bank had no notice that it was a forgery until about September I, 1912, when the defendant came into the bank and told Boatwright the note was a forgery, but then and several times thereafter promised to pay the same, after he knew it was a forgery. He had never disclaimed the debt prior to the suit. The receiver of the estate of O. E. Edwards got the proceeds of the sale of the cotton left by defendant, but afterwards left §111.05, representing the sale price of the cotton, with the bank which was entered as a credit on the note. The judgment was for §260.73. The court found that defendant, before the discovery of the forgery, by his statements and actions had misled the bank, and thereafter promised to pay the same, thus ratifying the said note, and that he is estopped from asserting that the note is a forgery.

We do not agree with the finding of the trial court that defendant paid the $111.05 after the discovery of the forgery. He left the cotton there before the forgery was discovered, and Boatwright collected the money and held it until Jacob Fuchs, the receiver of Edwards’ estate, called for it and collected it. Later, in November, the receiver paid the money back to the bank, and it was credited on the note, November 20, 1912.

It will be seen that appellant, himself, induced the bank to take up the note. Tardio received nothing himself, but it cannot be said that his promise to pay the debt evidenced by the note was without consideration. He induced the bank to part with the money. He came with Edwards to the' bank, saw him indorse the note and receive the money; and, if he did not know the note was forged, he should have known it, because he was in a position to know or to have found out if he had used ordinary care. An equitable estoppel will be created, “not only when the party sought to be concluded knows the material facts he is charged with having represented or concealed, but also where he is ‘in such position that he ought to have'known them, so that knowledge will be imputed to him.’ ” Weinstein v. Bank, 69 Tex. 38, 6 S. W. 171, 5 Am. St. Rep. 23. There was no neglect or fault on part of the bank, and, granted that Tardio did not know the note was forged at the time he got the bank to take it up, “if there was no neglect in the plaintiff, yet there was no reason to throw off the loss from one innocent man upon another innocent man.” Bigelow on Estoppel, 482. But in this case, if there was any fault or negligence in any one, it was the defendant and not in the plaintiff. And where two parties are equally innocent, and yet a duty devolves upon one which he fails to perform and injury results, of the two, the one so failing to discharge the duties he owns should be the loser. Tardio had gone there and made the request, as an accommodation to him, that the bank take up his note and came there with the forger who negotiated it in his presence. If the note were not genuine, whose duty was it there to make that known? The banker could reasonably assume that, since he had requested that the note be taken up and had come with the forger, the note actually indorsed was genuine. Appellant was getting the note taken up, and the consideration and accommodation were being extended to him.

Representations do not always have to be made by words. The actions of the party may proclaim facts more eloquently than words; and when Tardio went out and got the man who held the note and brought him in there to the bank, stood there, and saw the whole transaction, it amounted to saying to Boatwright that this is the note I wish taken up. Edwards v. Dickson et al., 66 Tex. 617, 2 S. W. 718; Bigelow on Estoppel, 486; Weinstein v. Bank, 69 Tex. 38, 6 S. W. 171, 5 Am. St. Rep. 23; Page v. Arnim, 29 Tex. 53.

In the case of Mo., etc., Ry. Co. v. Yale, 27 Tex. Civ. App. 10, 65 S. W. 57, it is said: “If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true-representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act that way to his damage, the first is estopped from denying that the facts were as represented.” Again,. Cyc. (16—752ff) cites the Texas case of Henry v. Bounds, 46 S. W. 120, in support of the well-established doctrine that: “Where a person liable on a note promises a prospective purchaser to pay same, or represents to him that the obligation is valid, and that there is no defense to it, he is estopped to resist payment in an action by such person who has taken the paper in reliance on his representation.”

“Equitable estoppel is the effect of voluntary conduct of a party whereby he is precluded both at law and in equity from asserting the fights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who has, in good faith, relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” Griffith v. Rife, 72 Tex. 185, 12 S. W. 168; Bridges v. Johnson, 69 Tex. 714, 7 S. W. 506; Edwards v. Dickson, 66 Tex. 613, 2 S. W. 718.

If appellant had desired that Edwards be made a party or could have derived any comfort from so doing, he should have taken that step himself. Tardio, as the payor named and the man who had induced the bank to buy the note, was the proper party to be sued. We are not saying that a forged instrument is not void; but we do say that under all the facts in this case appellant, by his acts, has placed himself in a. position where the fact that the note is forged will not avail him anything against the party whom he induced to take it up for him.

The assignments are all overruled, and the judgment is affirmed.


author: FLY, C. J.

text:
    MILLER v. SEALY OIL MILL & MFG. CO.
    (No. 5,281.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 6, 1914.)
    1. Master and Servant (§ 44) — Contract of Employment-Breach —Defense—Burden of Proof.
    Plaintiff having sworn to a breach of a contract of employment by defendant, the burden was on it, if it desired to defend on the ground that plaintiff could have obtained other employment, to prove the same.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 59; Dec. Dig. § 44.]
    2. Master and Servant (§ 41) — Contract of Employment — Breach—Measure of Damages.
    In an action for an employer’s breach of a contract of employment, the plaintiff’s measure of damages is the compensation stipulated for in the contract for the balance of the term, in the absence of allegation of proof in mitigation of damages by the defendant that plaintiff could have obtained other employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 12, 50-53; Dec. Dig. § 41.]
    3. Master and Servant (§ 41) — Contract of Employment — Breach—Illness.
    Where an employé, after having been wrongfully discharged, was ill for a time, the period of such illness could not be deducted from his' damage recoverable for breach of the contract.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 12, 50-53; Dee. Dig. § 41.]
    4. Trial (§ 252) — Request to Charge — Evidence.
    A charge presenting an issue not raised by the evidence is erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Master and Servant (§ 37) — Contract of Employment — Breach—Defenses.
    It was no defense to an employer’s breach of an employment contract that the employé refused to accept a lower salary than that agreed on.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 12, 43; Dec. Dig. § 37.]
    6. Corporations (§ 426) — Acts of Officers —Employment Contract — Ratification.
    Where tfie officers and directors of defendant corporation paid plaintiff $75 per month under an employment contract for a year between plaintiff and the corporation’s president, who acted without authority, such acts constituted a ratification of the contract for the entire term by the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. '§§ 1596, 1702-1704, 1707, 1708, 1710-1716; Dec. Dig. § 426.]
    Appeal from Austin County Court; C. G. Krueger, Judge.
    Action by J. E. Miller against the Sealy Oil Mill & Manufacturing Company. Judgment for plaintiff for less than the relief demanded, and he appeals.
    Reversed and remanded.
    W. I. Glenn and Johnson, Matthaei & Thompson, all of Bellville, for appellant. W. I. Hill and C. C. Glenn, both of Sealy, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit instituted by appellant to recover damages arising from the breach of a, contract of employment. Appellant alleged that he was employed by ap-pellee to perform the work of a bookkeeper, as well as any other work that might be required, for one year beginning June 1, 1911, on a salary of $75 a month; that he worked until January 1, 1912, when he was discharged by appellee; that he was paid for five months, but appellee refused to pay him for the last two months, and he sought to recover his salary, not only for those two months, but for the other five months of the year for which he was employed, the whole amounting to $525. The cause was tried by jury, and resulted in a verdict and judgment for appellant in the sum of $53.

The facts showed that appellant worked for appellee for seven months, that for five months he was paid $75 a month, but for the last two months he was not paid anything, as he refused to accept $60 a month, and on January 1, 1912, he was discharged. Appellant was employed by one W. W. Moore, who testified that he was acting at the time as president and general manager of the corporation. There was some evidence tending to show that the other officers of the corporation knew of the contract and acquiesced in it.

Appellant having sworn to a breach of the contract by appellee, if appellee desired to defend on the ground that appellant could have obtained other employment, the burden of establishing the defense rested on it. The court placed the burden on appellant of showing that he made diligent efforts to obtain employment. This was error. Porter v. Burkett, 65 Tes. 383; S. W. Tel. Co. v. Bross, 45 S. W. 178; Peacock v. Coltrane, 44 Tex. Civ. App. 530, 99 S. W. 107; Weber Engine Company v. Bradford, 34 Tex. Civ. App. 543, 79 S. W. 46.

The court charged the jury that, if appellant proved his contract and a breach thereof, and that he made diligent effort to obtain other employment, he should recover for the time from November 1, 1911, to June 1, 1912, “except for such period of time as he was sick during that time.” It was in evidence that appellant had pneumonia some time after he was discharged. The charge did not give the proper measure of damages. The measure of damages was the compensation stipulated for in the contract, in the absence of allegation and proof by appellee that he could have obtained other employment, which proof would not he a complete defense. Weber Engine Company v. Bradford, herein cited.

The time appellant was sick after his discharge could not be deducted from his damages. Appellee should not be allowed to defend against its breach of a contract by showing the misfortune of appellant; there being no such stipulation in the contract.

The third assignment of error is sustained. There was no testimony tending to show that appellant had overdrawn his salary, but that it was paid to him without cavil or question until November, 1911. The charge presented an issue not sustained by the evidence.

The fourth, fifth, and sixth assignments of error are overruled. There was testimony raising the issues submitted in the charges assailed in the assignments.

Appellee could not protect itself from the consequences of its breach of the contract by showing that appellant refused to accept a lower salary than that agreed upon, and the court erred in so instructing the jury. The special charge set out in the eighth assignment of error should have been given by the court.

The court properly refused the charge set out in the ninth assignment of error, which was clearly on the weight of the evidence.

The president and manager had no authority to employ men for a year at an agreed salary, unless he had been given such authority by the charter, or had been given general control and management by the stockholders or directors, but, even if he had no such authority, the corporation may be estopped to deny such authority, if it has clothed him with apparent authority to act for it in making contracts or doing other acts. It may also impliedly or expressly ratify contracts or 'other acts done without authority. If the corporation accepts the benefit of the contract or acquiesces therein with knowledge, it impliedly ratifies it. Clark & Marshall, Priv. Corp. § 701, pp. 2132-2143. If the officers and directors of appellee paid appellant $75 a month under an employment by its president, the corporation should not be heard to deny his authority to make the contract. A ratification with knowledge of authority to employ for five months would carry with it a ratification for the entire time. If the directors had knowledge of the contract, or if the facts are such as to justify the presumption that they did have knowledge then a failure to disaffirm amounts to ratification. Acquiescence implies knowledge. Clark & Marshall, Priv. Corp. § 717, p. 2191.

Moore testified that he told Hackbarth and Schier, directors, about the contract with Miller, and it was not error to allow Schier to deny that such information was given him.

The contract was in writing, as evidenced by a letter from Moore to Miller, in which he informed him that everything had been arranged “your salary to be $75 per month for one year.”

Eor the errors indicated, the judgment is reversed and the cause remanded.


author: McMEANS, J.

text:
    BOWEN v. SPEER et al.
    (No. 6529.)
    (Court of Civil Appeals of Texas. Galveston.
    April 17, 1914.)
    1. Vendor and Purchaser (§ 16)—Offer and Acceptance—Acceptance by Mail.
    One receiving by mail a proposition of purchase or sale has the right, within a reasonable time, and before it is withdrawn, to accept by a writing, deposited in the post office, duly stamped for delivery, and such acceptance is binding from the time it is so deposited, whether delivered or not; but, if the offeror limits the time for acceptance, it may be accepted at any time within such limit, unless during that time, and before acceptance, the offer is withdrawn, and notice thereof given.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16.]
    2. Vendor and Purchaser (§ 351) — Vendor’s Breach op Contract—Measure oe Damages.
    The measure of damages for the vendor’s breach of his offer to sell after its acceptance is the difference between the market value of the property at the time o£ the breach and the price at which it was offered.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 1017, 1047-1058; Dee. Dig. § 351.]
    3. Vendor and Purchaser (§ 16) — Offer ■ and Acceptance — Sufficiency of Acceptance.
    Where the owner of a lot offered to take $500 net cash, provided he could have the money in hand by May 28th, an unconditional acceptance by mail, by which the owner, by simply executing a deed waiting for him at a bank, could have the money in his hands by the 28th, was sufficient.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16.]
    4. Vendor and Purchaser (§ 343) — Vendor’s Breach of Contract — Diability for Damages.
    A vendor who, after the acceptance of his offer to sell, sold the land to others, thereby placing it out of the purchaser’s power to enforce specific performance, was liable to the purchaser for damages sustained by such a breach of the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1023-1029; Dec. Dig. § 343.]
    5. Torts (§ 12) — Interference with Contractual Relations.
    One who knew of an offer to sell land, and of its acceptance, and of the condition that the money should be in the vendor’s hands by May 28th, and who, for his bank, loaned the purchaser the money to pay for it, and who also knew that the purchase price would be paid within such time on the owner’s tender of his deed, and who two days before such date induced the owner to sell the land to him, was liable to the purchaser for damages resulting from the breach of the contract of sale.
    [Ed. Note. — For other cases, see Torts, Cent. Dig. § 13; Dec. Dig. § 12.] .
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by R. E. Bowen against H. A. Speer and another. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    E. B. Pickett,. Jr., of Liberty, for appellant. Marshall & Harrison, of Liberty, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. a Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

On May 22, 1909, H. A. Speer was the owner of lots Nos. 1 and 4 in block No. 6 in the town of Liberty. On that date W. L. Bingle, a real estate agent, acting for appellant, Bowen, wrote to Speer, who resided in the city of San Antonio, as follows: “I have another applicant for your 2 lots in the town of Liberty, authorizing “me to pay $500.00 for the 2 lots. Please let me hear from you in regard to the sale of it.”

Speer, on May 24, 1909, replied to Bingle by letter as follows: “Replying to your favor of 22d, will say that I will take $500.00 cash, net to me, clear of all taxes, abstract, or commission, for my 2 lots in Liberty, provided you can arrange it so I can get my hands on the money by the 28th of this month. Thanking you for the inquiry, and with best personal regards,” etc.

Receipt of this letter containing Speer’s proposal was communicated by Bingle to appellant, Bowen, who at once began to arrange for the' raising of the needed $500 to pay for the lots. Appellant testified that on May 26, 1909, after banking hours he called upon appellee Zeiss, who was the president of a bank in Liberty, and who was at his office in the bank, and explained to him the necessity of at once obtaining a loan for $500,- and told him that he was going to purchase with it the two lots of Mr. Speer. Zeiss told Bowen that the bank was then closed for business for the day and requested him to call the next day; but Bowen explained to him the necessity of his sending a check that evening, which was, as Bowen testified, on May 26th, so that Speer could get the money by the 28th. Zeiss then told Bowen, upon the latter agreeing to furnish certain collateral security, that he would lend him the money, and that he could send his check by that day’s mail, and that he could execute the note the next day. Accordingly Bowen had a deed prepared to be signed by Speer conveying to himself the lots, and inclosed the same with this check for $500 on the Liberty bank, payable to Speer, ■ addressed to the First National Bank of San Antonio, together with a letter to the latter bank directing it to deliver the cheek to Speer upon his signing and acknowledging the deed. This letter, the deed, and the check were inclosed in an envelope, properly stamped and addressed, and duly deposited in the mails in time for it to leave Liberty on the evening train. There was also sent in the same envelope a letter written by the cashier of the Liberty bank to the Frost bank directing the latter to pay Bowen’s check therewith inclosed. At the time of the mailing the above letter there was also mailed a letter from Bingle to Speer, properly addressed and stamped, accepting for Bowen his offer, and requesting him to call at the Frost bank and sign and acknowledge the deed, and to receive the cheek inclosed with it. After Bowen had talked with Zeiss about buying the lots, Zeiss, who had been wanting the lots himself, taking advantage of the information acquired from Bowen, appears to have concluded to beat Bowen to it, so he took the first train out from Liberty to San Antonio, arriving early the next morning, which he testified was on the morning of May 26th. The evidence was sufficient," we think, to justify the conclusion that he really reached San Antonio on the morning of the 26th, although this is in direct conflict with the testimony of Bowen to the effect that he arranged with Zeiss to borrow the money on the afternoon of that date. However that may be, the testimony leaves no doubt that the letter of acceptance and the letter inclosing the check were mailed on the same day that Zeiss started for San Antonio, and before he concluded the purchase of the Tots. It appears that Bowen’s letter. accepting Speer’s proposition, and inclosing the deed and check, did not reach Speer until the afternoon of the 27th. Zeiss arrived in San Antonio the day after he left Liberty and at once hunted up his friend Herman F. Schmitt, and procured him to purchase the lots from Speer for $500 net, taking the deed in his (Schmitt’s) name, with the agreement and understanding that Schmitt would thereafter deed the lots to Zeiss. Zeiss paid the purchase price to Speer through Schmitt. A little less than a year later Schmitt conveyed the lots to Zeiss, and thereafter, before this suit was brought, Zeiss conveyed the lots to O. W. Fisher and H. O. Compton. Speer received the letter notifying him of Bowen’s acceptance of his offer not later than the afternoon of May 27th, and soon thereafter directed the Frost bank to return the deed and check to him, which was done. • On the morning of May 27th Bowen executed his note to the Liberty bank for $500 in accordance with the arrangement made with Zeiss, and was given credit by way of deposit in that bank for that sum, and had that sum to his credit at that time.

On May 25, 1911, Bowen brought this suit against Speer and Zeiss to recover damages for the breach of contract to sell to him the lots in question, setting up the facts and the further fact of the sale of the lots by Zeiss, thereby placing it beyond plaintiff’s power to compel specific performance, and prayed for a judgment against both. Upon a trial before the court, without a jury, judgment was rendered in favor of defendants, and plaintiff has appealed.

We shall not consider appellant’s assignments of error in detail, but think it sufficient to say that the points hereinafter discussed are sufficiently presented by them.

It appears to be the law that, when á party submits to another through the mail a proposition of purchase or sale, the receiver of the proposition has the right, within a reasonable time, and before it is withdrawn, to accept by a writing deposited in the post office, duly stamped, ready for carriage and delivery, and such acceptance binds the proposer of the contract from the time the deposit is made in the post office, whether it be delivered or not. Mortgage Co. v. Davis, 96 Tex. 508, 74 S. W. 17, 97 Am. St. Rep. 932. But if the proposition so made gives a limit of time in which it may be accepted, then the person to whom it is made may accept the same at any time within the limit given, unless the proposer during said time, and before acceptance, withdraws the offer and notifies the other party thereof. Kempner v. Cohn, 47 Ark. 519, 1 S. W. 869, 58 Am. Rep. 775.

Where an owner, after his offer has been accepted, or during the time in which the proposed purchaser is given to accept, sells to some other person, and in the latter case when the offer is accepted within the time limited, without notice of the withdrawal thereof by the owner, a liability for damages as for breach of contract arises, and the measure of damages is the difference between the market value of the property at the time of the breach and the price at which the owner had so offered to sell it. Kempner v. Cohn, supra; Kempner v. Heidenheimer, 65 Tex. 591; Nevins v. Thomas, 80 Tex. 597, 16 S. W. 332.

Where a person to whom such an offer of sale is made accepts the same within the time in which he is limited by the offer, another person knowingly inducing the person making the offer to break his contract .thus made is liable for the damages caused by such breach of contract. Raymond v. Yarrington, 96 Tex. 443, 72 S. W. 580, 73 S. W. 800, 62 L. R. A. 962, 97 Am. St. Rep. 914; Brown Hdw. Co. v. Ind. Stove Works, 96 Tex. 453, 73 S. W. 800; Lytle v. Railway, 100 Tex. 292, 99 S. W. 397, 10 L. R. A. (N. S.) 437; Davidson v. Oakes, 128 S. W. 944.

Keeping in mind the foregoing principles, we think that under the facts stated Bowen accepted Speer’s offer at such a time and in such manner as to complete a contract between them for the sale of the lots, and that, when Speer sold to Zeiss, he thereby breached his contract and became liable to Bowen for such damages as the latter sustained thereby. Speer’s proposal was definite, and the only condition imposed by him was that the purchase price should be in his hands by the 28th. Bowen’s acceptance was unconditional, and the facts sufficiently show that he took every step necessary to put the money in Speer’s hands by the time specified. In the ordinary course of business affairs the sending of a check is in itself sufficient. But when we recall the acts of Bowen in arranging for the money and depositing it in the bank to meet the payment of his check, and when it is remembered that the cashier of the Liberty bank wrote to the Frost bank to cash the same upon the execution of the deed by Speer, and when Speer, by simply executing the deed, could have the money in his hands by the 28th, we think that Bowen had sufficiently complied with the. only condition imposed by Speer in his offer (Hoskins v. Dougherty, 29 Tex. Civ. App. 318, 69 S. W. 106), and, these facts having been shown, the contract of sale was binding on Speer, and, had he not sold the lots Bowen could have enforced specific performance thereof. Speer having sold the lots to Zeiss, and Zeiss having sold them to others, thus placing it out of the power of Bowen to enforce specific performance, his right to damages against Speer, if he sustained any, for a breach of the contract is, we think, certain. Kempner v. Cohn, 47 Ark. 519, 1 S. W. 869, 58 Am. Rep. 775.

But under the facts stated is Zeiss also liable for damages to Bowen? We think so. Zeiss knew of Speer’s offer to Bowen, of the latter’s acceptance, and of the condition imposed by Speer that the money should be iD his hands by the 28th. He, for his hank, agreed to loan, and did loan, Bowen the money to pay for the lots. He knew that Bowen was mailing to the Erost bank his check, payable to Speer, in payment for the lots, and the cashier of the bank of which Zeiss was president wrote to the Frost bank to cash the same when it was properly presented by Speer; and Zeiss knew it would be paid whenever Speer so presented it. Having knowledge of the facts, he hurried to San Antonio, and, although he knew that Bowen had until the 28th to accept and pay the purchase price, he, on the 26th, induced Speer to sell to him, and thereby to revoke his offer to Bowen before the expiration of the time given Bowen within which to accept.

We think under these facts Zeiss became liable to Bowen under the rule stated in Raymond v. Yarrington, supra, and other cases cited in the same connection.

It is our opinion that the court erred in not rendering judgment against both Speer and Zeiss for the damages sustained by Bowen, and, for this error the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.