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

text:
    BELL v. STATE.
    (No. 3289.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    1. Perjury (§ 25) — Indictment — Sufficiency.
    Under Pen. Code 1911, art. 309, providing that the giving of testimony immaterial to the inquiry is not perjury, an indictment, which failed to state that defendant’s testimony was material, was fatally defective, though it stated that it became a material inquiry before the grand jury whether he played or saw others play the games which he testified to not playing or having seen played.
    [Ed. Note. — For other eases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.

    For other definitions, see Words and Phrases, First and Second Series, Perjury.]
    2. Perjury (§ 25) — Indictment—Materiality to Inquiry — Immunity—Caed Games.
    An indictment for perjury committed by defendant, in testifying before the grand jury that he had not played any card games, was not subject to a motion to quash on the ground that his statement could not have concerned a material inquiry because of Pen. Code 1911, art. 582, providing that’ any person examined before a grand jury shall not be liable to prosecution for any offense about which he may be required to testify.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.]
    3. Perjury (§ 21) — Indictment — SuffiCIENCY.
    In view of Code Cr. Proc. 1911, art. 439, requiring a grand jury witness to swear to make true answers to the “questions propounded” to him, and article 440, providing that the grand jury may ask the witness in general terms whether he has knowledge of the violation of any particular law by any person, an indictment for perjury committed in testifying before a grand jury need not state the specific offense which the grand jury-was investigating.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 72-75; Dec. Dig. § 21.]
    4. Perjuey (§ 21) — Indictment—Constructs N — SuFFICIEN C Y.
    An indictment, charging that defendant committed perjury in his testimony before the grand jury, where it was a material inquiry whether any game of cards had been played “at any place other than a private residence occupied by a family in C. county,” was not objectionable as showing that the grand jury did not confine its investigation to offenses committed in C. county, but instead attempted to extend it to any and all places outside of such county.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 72-75; Dec. Dig. § 21.]
    5. Perjury (§ 24) — Indictment—Construction.
    In an indictment for perjury, committed in testifying before the grand jury, an allegation that defendant stated, “I have never played a game of cards in the last two years,” did not render the indictment defective on the ground that the words quoted were not susceptible of the construction placed on them by the indictment, which was that he meant to state that he had not played any game of cards at any place other than a private residence occupied by a family, within the two years immediately next preceding, in the county where the grand jury was sitting.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 81; Dec. Dig. § 24.]
    6.Perjury (§ 26) — Indictment—Requisites.
    An indictment for perjury committed by defendant in testifying falsely before the grand jury, that he had not played any games of cards, was not defective for failure to allege the places and times he had played such games or that he did not know that the players were not in a residence occupied by a family.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Charley Bell was convicted of perjury, and appeals.
    Reversed and dismissed.
    A. E. Hampton, of De ILeon, and Good-son & Goodson, of Comanche, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was indicted and convicted of perjury. In view of the grounds of the motion to quash the indictment, it is necessary to give a substantial copy of it. It has the usual necessary preliminary allegations as to the court, the organization of the grand jury, etc., and that appellant on or about October 24, 1913, in said state and county, at a regular term of said court, naming the presiding judge, appeared before the said grand jury of said court at that time after it had been duly and legally organized, impaneled, etc., with a certain person as foreman thereof, duly appointed as such, and, while that grand jury was in session, presented himself and made his personal appearance to testify as a witness before said grand jury, and the foreman, as he was duly authorized, did administer to him the oath as a witness, said oath being the one required by law and so administered for the ends of public justice, he was then and there duly sworn and took a corporal oath as such witness before said grand jury. It then alleges:

“Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the criminal laws of the state of Texas, and the ends of public justice, whether he,-the said Charley Bell, had played at any game of cards at any place other than a private residence occupied by a family in Comanche county, Tex., within the last two years next preceding the said 24th day of October, 1913, and whether or not he, the said Charley Bell, had seen any other person play at any game of cards at a place other than a private residence occupied by a family in Comanche county, Tex., within the last two years next immediately preceding the said 24th day of October, 1913, and whether or not he, the said Charley Bell, had bet or wagered any money or other thing of value or the representative of either at any game of cards except, in a private residence occupied by a family in Comanche county, Tex., within the last two years next preceding the said 24th day of October, 1913, and whether or not he, the said Charley Bell, had seen any other person or persons bet or wager any money or other thing of value or the representative of either at any game of cards except in a private residence occupied by a family in Comanche county, Tex., within the last two years next immediately preceding the said 24th day of October, 1913. And the said Charley Bell, as such witness before said grand jury, and under tie sanction of said oath so administered to him as aforesaid on the day and date first above written and in the county of Comanche- and state of Texas, did deliberately, willfully and corruptly testify and say in substance and effect, ‘I have never played a game of cards in the last two years,’ meaning thereby to say and state and swear, and thereby saying, stating, and swearing that he, the said Charley Bell, had not in Comanche county, Tex., played at any game of cards at any place other than a private residence occupied by a family within the last two years immediately preceding the said 24th day of October, 1913; (and meaning thereby to say, state, and swear and thereby saying, stating, and swearing that he the said Charley Bell had not bet or wagered any money or other thing of value or the representative of either at any game of cards except in a private residence occupied by a family in Comanche county, Tex., within the last two years next immediately preceding the said 24th day of October, 1913, and meaning thereby to say, state, and swear, and thereby saying, stating, and swearing that he, the said Charley Bell, had not seen any other person or persons bet or wager any money or other thing of value or the representative of either at any game of cards except in a private residence occupied by a family in Comanche county, Tex., within the last two years next immediately preceding the said 24th day of October, 1913); and meaning thereby to say, state, and swear, and thereby saying, stating, and swearing that he, the said Charley Bell, had not played at a game played with cards with Joe Wisdom, Boone Brown, and W. H. Stringfel-low in the pasture of T. N. Mohon in Comanche county, Tex., and about the month of August, 1913. (and on which game of cards so played money was bet and wageréd), and meaning thereby to say, state, and swear, and thereby saying, stating, and swearing that he the said Charley Bell had not played at another and different game of cards in which other game he, the said Charley Bell, W. H. Stringfellow, and Joe Wisdom, about the month of August, 1913, in the woods just west of De Leon in Comanche counts', Tex., and meaning thereby to say, state, and swear, and thereby saying, stating, and swearing that he, the said Charley Bell, had not at another and different time, but about the same time, played in another and different game with cards with W. H. Stringfellow and a man from Cisco in the old Ayers field in Comanche county, Tex., and meaning thereby to say, state, and swear, and thereby saying, stating, and swearing that he, the said Charley Bell, had not played at another and different game of cards about the month of September, 1913, with W. H. Stringfellow, J. Matt Ross, and W. C. (Eat) Scott in a certain rock quarry near De Leon in Comanche county, Tex. Whereas, in truth and in fact, as he, the said Charley Bell, then and there well knew, he, the said Charley Bell, had played at games played with cards within the last two years next immediately preceding the said 24th day of October, 1913, and whereas in truth and in fact he, the said Charley Bell, had played at a game played with cards with Joe Wisdom, Boone Brown, and W. H. Stringfellow in T. H. Mohon’s pasture in Co-mahche county, Tex., and on or about the month of August, 1913,. and whereas in truth and in fact he, the said Charley Bell, had at'another and different place and about the same time played at another and different game played' with cards with W. H. Stringfellow and Joe Wisdom in about the month of August, 1913, in the woods just west of De Leon in Comanche county, Tex., and whereas in truth and in fact he, the said Charley Bell, had played at another and different game of cards with W. H. String-fellow and a man from Cisco in the old Ayers field about the month of August, 1913, in Comanche county, Tex., and whereas in truth and in fact he, the said Charley Bell, had played, at another and different game of cards with J. Matt Ross, W. C. (Fat) Scott, and W. H. String-fellow in about the month of September, 1913, at an old rock quarry in Comanche county, Tex. And which said statement and statements so made by the said Charley Bell before and to said grand jury was and were deliberately and willfully made and was and were deliberately false, and he, the said Charley Bell, then and there well knew when he made the same, against the peace and dignity of the state” — which was duly signed by the foreman.

Appellant made a motion to quash this indictment on a great many grounds. His motion is very lengthy and full. We think it wholly unnecessary to copy it. Instead, we will here in substance give all of his grounds. They are; (1) It fails to allege that the grand jury was investigating the violation of any law of the state which they were authorized to investigate, and about which he could be required to testify. (2) The grand jury did not confine its investigation to any offense committed in Comanche county, Tex., but, instead, attempted to extend it to any and all places outside of Comanche county. (3) That from the language appellant is' alleged to have sworn before the grand jury, it could not be alleged therefrom that thereby be meant to say, state, and swear the several things that are alleged that he did say, state, and swear in said indictment, and that no such innuendo was deducible from the language used by him. (4) It fails to aver. that he knew that the said several places where it alleges he played the several games were not in private residences occupied by a family and that they were not played in said county. (5) That the alleged testimony of appellant, “I have never played a game of cards in the last two years,” is insufficient and supports neither of the allegations of perjury and is totally variant from any of the predicates assigned.

In oral argument on the submission of this case, he presented two other grounds not raised nor passed upon in the court below, nor mentioned in his brief. These two questions are: (a) It is not alleged in the indictment that the words used by the witness before the grand jury were material, (b) That the alleged false statement was not a material inquiry, and could not be, since the statute specifically provides that one may not be convicted when he is forced to give testimony about the playing of cards in .which he is interested.

We will first take up his grounds made in oral argument.

The statute is: The statement of any circumstance wholly immaterial to the matter in respect to which the declaration is ■made is not perjury. P. O. 309. There is no specific allegation in this indictment that the said statement made, or testimony given, by appellant was material. As we understand, the statute, and all the decisions, make this an essential.

In Smith v. State, 1 Tex. App. 622, this court held;. ... ,

“It is alleged and argued, however, among the other reasons in arrest of judgment, that there is no sufficient averment of the materiality of the alleged false testimony, or matter falsely sworn to by the defendant, to the question of matter which was the subject of inquiry at the trial in which the perjury was committed. As a general rule, deducible from the leading authorities, we think that it may be stated that an indictment for perjury must not only show conclusively, but should charge affirmatively, that the testimony given by the defendant and alleged to be false was material to the issue on the trial of which he was sworn. Weathers v. State, 2 Blackf. (Ind.) 278; State v. Flagg, 25 Ind. 243; People v. Collier, 1 Mich. 137 [48 Am. Dec. 699]; State v. Hobbs, 40 N. H. 229; State v. Beard, 25 N. J. Law, 384; State v. Hayward, 1 Nott & McC. (S. C.) 546; Pickering’s Case, 49 Va. 628; State v. Davis, 69 N. C. 495; Wood v. People, 59 N. Y. 117; Nelson v. State, 47 Miss. 621; State v. Bowlus, 3 Heisk. (Tenn.) 29. The exceptions to the rule will be given below. Mr. Wharton, in his work- on Criminal Law, says: ‘It must appear upon the face of the indictment that the matter alleged to be false was material, but such materiality need not be expressly averred when it appears On record. * * * It is sufficient to charge generally that the false oath was material, on the trial of the issue on which it was taken; it is not necessary to show how it was material.’ 3 Whart. Am. Cr. Law, § 2263. See, also, People v. Burroughs, 1 Parker, Cr. R. (N. Y.)1 223; Rex v. Souter, 2 Starkie, 473; Campbell v. People, 8 Wend. [N. Y.] 636; State v. Marshall, 47 Mo. 378; State v. Mumford, 12 N. C. 519 [17 Am. Dec. 573]. And where the materiality of the evidence alleged to be false is shown by the nature of the case, no express averment of its materiality is necessary. Hendricks v. State, 26 Ind. 493; State v. Hall, 7 Blackf. (Ind.) 29; Galloway v. State, 29 Ind. 442; State v. Biebusch, 32 Mo. 276; Lamden v. State, 5 Humph. [Tenn.] 83.”

This case has many times later been expressly approved and followed. Mattingly v. State, 8 Tex. App. 349; Harrison v. State, 41 Tex. Cr. R. 276, 53 S. W. 863, and other cases. And the same thing held in Buller v. State, 33 Tex. Cr. R. 551, 28 S. W. 465; Cravey v. State, 33 Tex. Cr. B. 557, 28 S. W. 472. See section 650, p. 417, Branch’s Cr. Law, and eases cited by him.

These cases, and all other authorities on this question, clearly establish: (1) That it is necessary to either make this specific allegation' — which said testimony, or statement, was material to the issue. Or (2) when this specific allegation is not made, the materiality of the alleged false testimony (or statement) must appear from all the allegations taken together. In either event, the indictment on this point would be good.

The indictment herein does allege that “it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the criminal laws of the state of Texas, and the ends of public justice, whether he, the said Charley Bell, had played at any game of cards at any place other than a private residence occupied by a family in Comanche county, Tex., within the last two- years next preceding the said 24th' day of October, 1913, and whether or not he '* * '* had seen' any other person play,” etc., and then several other such'matters. It was proper to make all or any of these allegations; but they, nor either of them, supply the necessary allegation that what he testified was material to the issue. Nor do all the allegations taken together sufficiently show that what he testified was material to the issue, as held and illustrated in Buller v. State, supra; McMurtry v. State, 38 Tex. Cr. R. 521, 43 S. W. 1010; Miller v. State, 43 Tex. Cr. R. 368, 65 S. W. 908; Bosebud v. State, 50 Tex. Cr. R. 475, 98 S. W. 858; Morris v. State, 47 Tex. Cr. R. 423, 83 S. W. 1126, and other cases.

Evidently appellant and his attorneys, the trial judge, and district attorney were misled on this point by the form of indictment given by Judge White in section 333, in his Ann. P. C., and also by Judge Willson in section 135, p. 71 (4th Ed.) in his _ book of Forms. In each of these forms, said necessary allegation — which said testimony, or statement, was material to the issue — is omitted, but each in their next sections contains this specific allegation. We call the attention- of the trial judges and prosecuting officers specially to the said omission, so that they • will not hereafter • follow said forms without supplying said omission. This fatal defect in the indictment necessarily results in the reversal and dismissal of this case.

In view of any subsequent indictment of appellant, we will briefly discuss his other grounds. So far as objection “b” is concerned, we think the statute itself is a perfect and complete answer thereto. It is article 574, P. C.:

“Any court, officer or tribunal, ‘ having jurisdiction of the offenses enumerated in this chapter (the gaming laws), or any district or county attorney, may subpeena persons and compel their attendance as witnesses to testify as to the violations of any of the provisions of the foregoing articles (the gaming laws). Any person so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify; and, for any offense- enumerated in this chapter, a conviction may be had upon the unsupportéd evidence of an accomplice or participant.”

And article 582, P. C.:

“A conviction for the violation of any of the provisions herein may be had upon the unsupported evidence of an accomplice or participant, and such accomplice or participant shall be exempt from prosecution for any offense under this law-about which he may be required to testify.”

That the statute and decisions of this state completely and fully protected him from indictment for any offense under the gaming, laws, there can be no doubt. Griffin v. State, 43 Tex. Cr. R. 428, 66 S. W. 782, and eases therein cited; also, Elliott v. State, 19 S. W. 249; Taylor v. State, 50 Tex. Cr. R. 183, 95 S. W. 119; Ex parte Muncy, 163 S. W. 37. Perjury is not embraced in the‘gaming laws, and, of course, the statute above would not protect him if he committed perjury in his testimony, nor would it protect' fróm indictment'any other'person-with whom he played, nor any person whom he saw play.

now go to appellant’s objections to the indictment contained in his motion to quash, and brief. As to his first: Neither the statute nor any decision, known to us or cited by appellant, intimates that in a.n in-infor perjury is it essential that the indictment shall charge the specific offense which they were investigating. That that may be done may be true. Because it is not does not make the indictment defective and is no ground to quash it.

The oath of the witness is:

“I will true answers make to such questions as may be propounded to me by the grand jury, or under its direction.” Article 439, C. C. P.

If “the grand jury * * * think it nec-necthey may ask the witness in general terms whether he has knowledge of the vio-vioof any particular law by any person.” Article 440; Art. 465,' 465, C. P.; McDonough v. State, 47 Tex. Cr. R. 227, 84 S. W. 594, 122 Am. St. Rep. 684; Scott v. State, 160 S. W. 960. The cases of Meeks v. State, 32 Tex. Cr. R. 420, 24 S. W. 98, McMurtry v. State, 38 Tex. Cr. R. 521, 43 S. W. 1010, and Higgins v. State, 38 Tex. Cr. R. 539, 43 S. W. 1012, on this point were expressly overruled in said McDonough Case.

We have considered the cases cited by ap-apon this point. The first one is Weav-Weavv. State, 34 Tex. Cr. R. 554, 31 S. W. 400. The indictment in that case was held bad became the false testimony did not em-emany offense. The false testimony al-alwas that A. Sprinkles “did not play at a game with cards in a house on Sprinkles’ place. Whereas, in truth and in fact he did” so play, etc.; the court saying:

“Whether A. Sprinkles had played cards ‘in a house’ on his own place or not was not. material, unless the house was one in which card playing was prohibited by a statute; in other words, in order to constitute this a material question, the card playing must be in violation of the statute. We have no statute which prohibits generally card playing ‘in a house.’ Games played with cards, to be a violation of article 355 of the Penal Code, must be played in such houses as are therein contemplated; and the indictment should have alleged facts which showed the gaming investigated by the grand jury was an offense against the law, in order to render the testimony material. If such playing occurred in a private residence, no offense would be committed, unless such private residence was a place for retailing intoxicating liquors. Penal Code, arts. 355, 356. Investigations of grand juries should only be directed to violations of law. Statements of persons testifying before such bodies, unless material in some respects to such investigations, cannot be the basis of perjury. The oath there administered, and testimony given in obedience to such oath, is required for the ‘ends of public justice,’ and the materiality of such evidence, when given, must be measured by the subject-matter under investigation. If the matter being investigated is innocent of the law, then the statement should not be held materially false, though in fact it was untrue.”

Our gaming statute has been materially changed since that opinion. It is now an offense to play cards, whether anything is bet thereon or not, at any place “except a private residence occupied by a family.” P. C. 548. The indictment herein, as quoted above, plainly avers, among other things, that, by what he said, he meant to say, state, and swear, and did thereby say, state, and swear that he had not in Comanche county played at any game with cards at any place other than a private residence occupied by a family within the last two years, and that he had not played such games with cards with the said several persons at the several times and places alleged therein, thereby supplying the very thing omitted in the Weaver Case and completely in compliance with what is held therein.

So of the case of Moore v. State, 32 Tex. Cr. R. 405, 24 S. W. 95, next cited by appellant. The only thing decided in that case in any way bearing on this is:

“The indictment contains but one count, in which perjury is assigned upon two statements, made before the grand jury at the same time, in regard to the same subject-matter. It is so well settled in this state, that proof of the falsity of either statement, if the statements were both materially and properly assigned, as was the case in this prosecution, will support a general verdict, that we deem it unnecessary to discuss the question.”

In another case cited by him, Donohoe v. State, 14 Tex. App. 638, as we understand it, is exactly applicable in this case, and is against, instead of for, appellant. It is needless to discuss the other cases cited by him.

As to his second ground: We think, without doubt, the allegations are not susceptible of the construction he claims, but, instead, it clearly and without doubt shows that they were restricting their investigations to card playing in Comanche county only and excluding such games therein as may have been played at a private residence occupied by a family. A mere reading of the indictment, we think, demonstrates this, and it is unnecessary to discuss it.

As to his third ground: We think his contention is equally without support so far as the allegations of the indictment are concerned. The language he is alleged to use was, “I have never played a game of cards in the last two years.” We think from this clearly could be alleged each and every thing that is alleged in the indictment that he meant, which were included in the charge of the court. The court in his charge eliminated all those matters which we have inclosed in parentheses thus () in copying the indictment above. Donohoe v. State, supra. If the statement had been true that he “had never played a game of cards in the last two years,” then he would not have committed perjury in so swearing, and it is a most reasonable allegation, from what he did say, that he had never played cards in Comanche county with any person or persons at any time or place not at a private residence occupied by a family.

As to his fourth ground: It was not necessary for the indictment to allege the places and several times he played such games, nor that he did not know that they were not in a residence occupied by a family. That was a matter of proof wholly unnecessary to allege.

So his fifth ground is wholly untenable. It is unnecessary to discuss it.

Because of the fatal omission in the indictment of the one necessary allegation above pointed out, the judgment is reversed and the cause dismissed.

DAVIDSON, J.

I concur in the reversal, but further believe there are other fatal defects which render the indictment wholly vicious. Some of these are discussed in Scott v. State, this day decided; some of the other questions are not. I deem it hardly necessary now to discuss the remaining questions.


source: Caselaw Access Project

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

license: Public Domain

text:
    SCOTT v. STATE.
    (No. 3230.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    Pee jury (§ 25) — Indictment—Sufficiency.
    An indictment charging that it became a material inquiry before the grand jury whether defendant played any game on which money was bet or saw any such game played, and that he testified that he had not played or seen any such game played, and stating in the traverse that he knew that he had played three different games with certain parties named but not shown to have been inquired about before the grand jury, was insufficient'for failure to allege that the testimony given by defendant before the grand jury was material to the inquiry.
    TEd. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Walter Scott was convicted of perjury, and appeals.
    Reversed and dismissed.
    See, also, 160 S. W. 960.
    H. E. Trippet, of Hico, and Eidson & Eid-son, of Hamilton, for appellant C. E. Dane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of perjury; • bis punishment being assessed at two years’ confinement in the penitentiary.

The indictment, omitting formal parts, alleges:

“It then and there became and was a material inquiry before said grand jury and necessary to the due administration of the criminal laws of the state of Texas and the ends of public justice whether he, the said Walter Scott,” has “theretofore at any time within the last two years next preceding the said 2d day of September, 1912, in Hamilton county, Tex., or within 400 yards of the boundary line between Hamilton county, Tex., and Erath county, Tex., played at any game played with dice upon which money was bet, and whether he, the said Walter Scott, had seen any game played with dice upon which money was bet in Hamilton county, Tex., or within 400 yards of the boundary line between Hamilton county, Tex., and Erath county, Tex.,” etc.

Then follows the statement that appellant as a witness before the grand jury did willfully, deliberately, etc., testify as follows, to wit:

“I have been engaged in no gambling of any character either with cards, dice, or betting on the ball game. I threw dice with Bill Cole in the_ buggy, but we did not bet on the throwing. This was in Hamilton county. I played dice with Acquilla Simmons on the Clairette road about six weeks ago, but we did not bet on the game. I played dice with one of Mollie Bailey’s showmen some time avo, but did not bet on that game. These are the only times I have played dice since I returned to this county about 18 months ago.”

Meaning thereby, etc., that he had not played at any game of dice upon which money was bet in Hamilton county, or within 400 yards of the boundary line between Hamilton county and Erath county, Tex., since his return to the county. Then follows the traverse wherein it is alleged:

“In truth and in fact as he, the said Walter Scott, then and there well knew, he, the said Walter Scott, had played and did in Hamilton county, Tex., or within 400 yards of the boundary line between Hamilton county, Tex., and Erath county, Tex., and on or about the 1st day of May, 1912, play at a game played with dice, commonly called craps, and especially had he, the said Walter Scott, played at a game played with dice commonly called craps and upon which money was bet with Billie Cole, Billy Rhoades, Vernon Smith, and other persons in Hamilton county, Tex., or within 400 yards of the boundary line of Hamilton county, Tex., and Erath county, Tex., within two years next preceding the said 2d day of September, 1912, to wit, on or about the 1st day of May, 1912; and, whereas, in truth and in fact, as he, the said Walter Scott, then and there well knew, he, the said Walter Scott, had played and did at another and a different game played with dice commonly called craps in Hamilton county, Tex., which said game was played on or about the 1st day of August, 1912, at the compress in the town of Hico in Hamilton county, Tex., with one Vernon Smith, and also money was bet on that game. He had also played at another and a different game played with dice commonly called craps with one Henry Rodgers and Tom Wood in a box car,” etc.

Motion was made to quash this indictment on several grounds. We are of the opinion this indictment is totally insufficient under the authorities. It will be noticed that the allegation was that it became a material inquiry that appellant played at a game on which money was bet. This does not allege directly or even indirectly that the alleged false statement was material to the issue. Buller v. State, 33 Tex. Cr. R. 553, 28 S. W. 465; McMurtry v. State, 38 Tex. Cr. R. 521, 43 S. W. 1010; Miller v. State, 43 Tex. Cr. R. 368, 65 S. W. 908; Rosebud v. State, 50 Tex. Cr. R. 475, 98 S. W. 858; Morris v. State, 47 Tex. Cr. R. 423, 83 S. W. 1126; and for collation of authorities see Branch’s Criminal Law, § 650. It could hardly be a material question whether defendant played at a game where money was bet or not. If it was a material question that he did or did not bet, he being a witness before the grand jury, then the allegation of materiality ought to have alleged directly that he did bet, and not whether he did or did not. It was not material to know whether he did or did not. It is material to know whether the game was played and money bet on it. Nor could it be material, as we understand that appellant did or did not bet on the game. He was a witness before the grand jury, and upon his testimony the grand jury may indict other parties for gambling, but not the defendant, because the statute, where a party to the game testifies, immunes that party from punishment. Nor was it material, as we understand the decisions, that appellant may or may not have seen parties play. The material question was whether the parties played, and not whether defendant saw them play. If it was material and necessary to allege that they did in' fact play, then it should have been alleged that he had seen them play. But as we understand the rule in Texas, the grand jury must inquire about offenses, and it was not an offense for defendant to see other parties play. It is an offense that the gaming law was violated, and, if appellant saw the other parties play, the question to be inquired of was as to whether or not these parties played, and the defendant would know whether they played or not. This rule was laid down in Gallegos v. State, 50 Tex. Cr. R. 192, 95 S. W. 123. The material questions alleged in the indictment were of the most general nature, confining itself to the following propositions: Whether the defendant had played at a game on which money was bet, and whether he had seen other parties play that character of game within two years prior to the 2d day of September. This is very general, to say the least of it, as to date, and entirely too general as to games, places, and parties. This indictment, we think, is insufficient because it does not allege this testimony given by appellant was material. The only materiality alleged is whether he played himself or had seen others play. Under the cases cited, this is not sufficient allegation of materiality. This identical question was decided in the McMurtry Case, supra. Quoting from that decision, we find this language:

“In addition to the objections heretofore stated with regard to the indictment, appellant claims that said indictment is defective because it does not allege that the testimony of appellant upon the points in issue was material; and he insists that the allegation in the indictment ‘that it became and was a material matter of inquiry before said grand jury whether, at the time and place laid in the indictment, appellant played at a game with cards,’ etc., is not sufficient; that the indictment should have further alleged that the testimony given by appellant on said issues was material. This contention seems to be correct. See Buller v. State, 33 Tex. Cr. R. 551 [28 S. W. 465]; Weaver v. State, 34 Tex. Cr. R, 554 [31 S. W. 400].”

Going to the traverse we find that it is alleged, as a matter of fact, that appellant knew that he had played at least three different games with the certain parties named in the traverse. The traverse covers a wider field than the questions asked or the testimony given by appellant. The material questions were very general, to wit, whether appellant had played at any game with dice on which money was bet, or had seen other parties play games at which money was bet. 1-Iis testimony was that he had been engaged in no gambling with cards, dice, or betting on ball games, admitting that he threw dice with Cole and played with Simmons and one of Mollie Bailey’s showmen. These were the matters about which he testified before the grand jury. The grand jury, so far as the indictment is concerned, never asked him about the games with the other named parties set out in the traverse. Of course, in order to hold a citizen to answer a charge of perjury, the facts upon which the state relies as being inquired about before the grand jury must have been inquired about before that body and called to the attention of the witness so- he may answer. There is nothing in the indictment indicating that he was asked about games played with parties mentioned in the traverse, and the traverse does not cover or refer to the instances about which he testified before the grand jury. He testified he played with certain parties, but did not bet. In order to make this indictment good, they should have traversed matters, about which he testified before the grand jury as set out in the indictment. The material inquiry alleged was whether or not he had played at a game where money was bet or had seen such games. He testified he played with certain parties but had not bet. The traverse covers an entirely different transaction and has no reference to the testimony before the grand jury.

This indictment is so fatally defective in so many ways we deem it unnecessary to discuss it further.

The judgment is reversed, and the prosecution is ordered dismissed.

PRENDERGAST, P. J.

In my opinion, the indictment herein is fatally, defective in these particulars only:

(1) Wherein it alleges it was a material inquiry, etc., whether appellant within two. years before September 22, 1912, “in Hamilton county or within 400 yards of the line between Hamilton county and Erath county played,” etc., this should have been “in Hamilton county and within 400 yards,” etc. And wherever in this connection the disjunctive “or” is used, the conjunctive “and” should have been used. The rule in Byrd v. State, 162 S. W. 362, does not apply. However, proof of either in Hamilton county, or within 400 yards of the line between said counties, would have been sufficient; it would not be necessary to prove both.

(2) No allegation avers that appellant bet-in any of the games he played, nor does any allegation aver wlio bet in any of tbe games be saw played. This should bave been averred. Or if tbe games be played in bimself alone were relied upon it should bave averred be bet thereon. If not those, but tbe games be saw played alone, were relied on, then it should aver who bet therein.

I think tbe indictment is not defective in any other particular.

Ño direct averment was made that tbe alleged false testimony upon which the perjury was based “was material to the issue”; but, taking all the allegations together, I think they show what is alleged he testified was material to the issue. See the opinion in Charley Bell v. State, 171 S. W. 239, this day delivered. However, I think it would always be better to make the specific allegation that what he testified was material to the issue.

On these grounds alone I concur in Judge DAVIDSON’S opinion reversing and dismissing this cause.

HARPER, J.

I concur in the reversal and dismissal of the case, because the indictment fails to allege that the testimony given was material to the inquiry, and I have doubts that the allegations are sufficient to supply this omission in the allegations. However, it is no offense to play at dice; it is only an offense to “bet” at a game played with dice. There is no allegation that his statement that he played at games of dice, but had not bet thereon was not true; there should have been, to have rendered the indictment valid, not only an allegation that he played at a game of dice, but that he bet on said same game. The “betting” in the game of dice, and not the mere playing, would be, the gra-va.men of the offense.

The other holdings in the opinion I express no opinion on.


author: MOUBSUND, J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. KNOWLES.
    (No. 5336.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 9, 1914.)
    1. Coukts (§ 169) — Jurisdiction—“Amount in Controversy. ’
    The attorney’s fee sought to be recovered-under authority of Bev. St. 1911, art. 2178, in an action for the value of a mule killed by defendants’ train, was a part of the “amount in controversy,” within the constitutional and statutory provisions establishing the jurisdiction of courts.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 433-425, 428-436, 443, 456, 458, 465; Dee. Dig. § 169

    For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.]
    2. Beoeivers (§ 183) — Railroads—Killing of Stock — Action Against Receiver — Petition.
    Where a petition not excepted to, in an action for the value of a mule killed by a train, though not specifically alleging that the mule was killed while the defendant receiver was operating the railway, alleged that it was killed through the negligence of defendants’ servants and employes in charge of the train, it stated a cause of action against the receiver, based on the ground that' the injury occurred after he became receiver.
    [Ed. Note. — For other cases, see Beceivers, Cent. Dig. §§ 361-366; Dec. Dig. § 183.]
    3. Bailroads (§ 447) — Injury to Stock-Refusal of Instructions.
    Where, in an action for the value of a mule killed from being struck by a train, the court instructed merely that plaintiff was required to show that defendants were guilty of negligence, without stating that such negligence must have been the proximate cause of the injury, it was error to refuse instructions defining proximate cause and stating that plaintiff could not recover, unless defendants’ negligence was the proximate cause of the injury, though such requested instructions ignored the issue with respect to the necessity of fencing the point where the injury occurred.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.]
    4. Railroads (§ 441) — Injury to Stock-Failure to Fence — Burden of Proof.
    . In an action for the value of a mule killed from being struck by a train after it has gone upon the track where the right of ivay was not fenced, the burden was on the defendants to show that such place was within the necessary switching and depot limits, where a fence would be a nuisance and was not required.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.]
    5. Railroads (§ 446) — Injury to Stock— Negligence-JProximate Cause — Question for Jury.
    Where, in an action for the value of a mule killed by defendants’ train, the evidence conflicted on whether signals were given and in regard to the distance between the locomotive and the mule when the mule approached and ran along the track, the question whether defendants were guilty of negligence, which proximately caused the injury, was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.]
    Appeal from San Patricio County Court; P. A. Hunter, Judge.
    Action by J. M. Knowles against .the St. Louis, Brownsville & Mexico Railway Company and others. From judgment for plaintiff, defendants appeal.
    Reversed and remanded, and rehearing denied.
    Claude Pollard, of Kingsville, and Robt. W. Stayton and David M. Picton, Jr., both of Corpus Christi, for appellants. B. L. Evans, of Sinton, for appellee.

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

   MOUBSUND, J.

J. M. Knowles sued the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, receiver for said railway company, alleging that the defendants, their agents, servants, and em-ployés in charge of a certain train, had negligently run over and killed a mule belonging to plaintiff. Plaintiff alleged that defendants are indebted to him in the sum of $220. He alleged that the mule was worth $200 at the time it was killed, which was on July 2, 1913, and that he was entitled to an attorney’s fee of $20 under the provision of the Texas statutes. In his prayer lie asks for judgment in the sum of $220, and his interest and costs. Defendants, by their answer, put in issue all of the allegations of the petition. The trial resulted in a verdict and judgment in favor of plaintiff for $220.

Appellants, though they did not raise the question below, contend that the court was without jurisdiction of the amount in controversy; this contention being based upon the theory that the amount sued for was exactly $220, and that $20 of this amount was an attorney’s fee provided for by statute, and should be held to constitute no part of the amount in controversy, but to be merely costs.

As our Supreme Court has held in the case of Railway v. Chambliss, 93 Tex. 62, 53 S. W. 343, that article 6603 (Rev. St. 1911) limits the recovery for animals killed by railroads in running over their tracks to the value thereof without interest, regardless of whether the suit is based upon the cause of action created by said statute or upon negligence, the prayer for interest cannot be considered, and it is necessary to decide the question whether the attorney’s fee is a part of the amount in controversy. Article 2178 (R. S. 1911), in allowing attorney’s fees, does not designate the same as costs; in fact, it expressly provides for the recovery of all costs, and in addition a reasonable attorney’s fee, not exceeding $20. It is also provided that in jury trials the jury shall determine what is a reasonable fee. It is true that the right to recover attorney’s fees is conditioned upon the jury awarding a recovery of the amount of the claim as presented, but it is clear that it is necessary to allege and prove the facts entitling plaintiff to recover attorney’s fee.

We conclude that the attorney’s fee sought to be recovered is a part of the amount in controversy, within the meaning of the provisions of the Constitution and statute establishing the jurisdiction of our courts. Wichita Valley Ry. Co. v. Leatherwood, 170 S. W. 262; Railway v. Werchan, 3 Tex. Civ. App. 478, 23 S. W. 30.

Appellants contend further that fundamental error was committed in rendering judgment against Frank Andrews, receiver of the railway company; such contention being based upon the theory that plaintiff’s petition contains no allegation sufficient’ to support the judgment. It is true the petition does not specifically allege that the mule was killed while the receiver was operating the railway, but it is alleged that said mule was killed .through the negligence of the defendants, their agents, servants, and employes in charge of the train. This pleading was not excepted to, nor did appellants deny that the receiver had charge of .the properties of the railway company a.t the time the mule was killed. No objection was raised during the trial, nor in the motion for a new trial, to judgment being rendered against the receiver on account of the nature of the pleading, nor was it contended that he was not in charge of the railroad at the time the mule was killed. The petition does not show that no cause of action exists against the receiver. On .the contrary, it is alleged that his agents and employés caused the injuries, and, indulging every reasonable intendment in favor of the pleading, we hold that it stated a cause of action against the receiver, based upon a ground that the injury occurred after he became receiver. The second assignment is overruled.

jury were instructed to find for plaintiff, unless they found from .the evi-evithat public necessity, convenience, or commerce required that defendants’ railway should be left unfenced at the place where the mule was killed, and if they found, apply-applysuch test, that the right of way should be left unfenced at such place, then, in order for plaintiff to recover, it was necessary for him to show, by a preponderance of the evi-evi“that .the defendants, their agents or employes, were guilty of negligence, or fail-failto use ordinary care, in the killing of said animal,” if they believed said animal was killed. No objection was made to submitting both of these issues nor on account of the failure of the court to submit only those ele-eleof negligence pleaded by plaintiff, but defendants did object to the charge on .the ground that it did not require a finding that the negligence must be the proximate cause of the injury in order to entitle plaintiff to re-reand in connection with such objection a special charge was presented in due time, which read as follows:

“You are instructed that if you should find that defendants, or either of them, were guilty of negligence, this would not entitle plaintiff to recover, unless such negligence was the proximate cause of the injury to or death of plaintiff’s mule.”

Another special charge was requested, defining proximate cause. These charges were refused, and such refusal is assigned as error upon this appeal. Appellee says these special charges should not have been given, because they ignored the issue with respect to the necessity of fencing at the point where the injury occurred. We see no merit in that contention. The charges, if given, would in no way have interfered with a finding in favor of plaintiff, provided the jury found that the right of way should have been fenced at the place where the injury occurred. The special charges related solely to the issue of negligence. It is impossible to say upon what issue the verdict was found, but we conclude,, from reading the evidence, that it is highly probable it was found upon the issue of negligence; and, there being evidence to the effect that the mule ran upon the track in front of the engine from a place and at a time making his injury unavoidable, it was very important to appellants to have the spe-dal charges given. The charge of the court merely required plaintiff to show, by a preponderance of the evidence, that defendants “were guilty of negligence, or failed to use ordinary care in the killing of said animal.” In view of said charge, which we do not approve, and of the evidence adduced, we conclude that the failure to give the special charges constitutes error requiring the reversal of the case. Railway v. Williams, 39 S. W.‘ 967; Railway v. Malone, 37 S. W. 640; Railway v. Blake, 43 Tex. Civ. App. 180, 95 S. W. 593; Railway v. Graham, 168 S. W. 55; International & G. N. Ry. Co. v. Matthews Bros., 158 S. W. 1048. The fifth and sixth assignments are sustained.

The seventh assignment relates to the sufficiency of the evidence to sustain a recovery for attorney’s fee. Appellee admits that such assignment is well taken, and has offered to file a remittitur of the attorney’s fees, if the other assignments should be overruled.

The third and fourth assignments question the sufficiency of the evidence to sustain the verdict. These assignments are overruled. The evidence does not show, as a matter of law, that the place where the mule was killed was not required to be fenced by the railway company. While it is admitted that lots have been laid out on each side of the track at such place, there is no evidence that streets crossing the railroad track exist and are used by the public. The testimony with regard to the use of this track by the servants of the company in doing the necessary switching and handling of cars is not as clear as it might be. On another trial these matters should be more carefully developed. The burden rests upon the railroad company to show that said place was within the necessary switch and depot limits at a place where a fence would be a nuisance -to the general public or a menace to the safety of the employes and servants of the company in doing the necessary switching and handling of the cars in the transaction of the business of such station. Louterstein v. Railway Co., 144 S. W. 310; Railway v. Schram, 138 S. W. 195.

The evidence was conflicting in regard to the giving of signals by bell and whistle, also in regard to the distance between the locomotive and the mule at the time such mule approached and ran along the track. It cannot be said, as a matter of law, that no negligence was shown which proximately caused the injuries to the mule.

The remaining assignments of error are duplicates of those which have been considered; appellants having briefed the paragraphs of the motion for new trial as well as the formal assignments of error. The eighth, ninth, tenth, and eleventh assignments are overruled. The twelfth, thirteenth, and fourteenth are sustained.

The former opinion delivered in this case is withdrawn. The judgment will remain as rendered by us, namely, that the judgment of the trial court be reversed, and the cause remanded. Appellants’ motion for rehearing is overruled.


author: FLY, C. J.

text:
    SEABROOK et al. v. FIRST NAT. BANK OF PORT LAVACA.
    (No. 5350.)
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1914.
    Rehearing Denied Dec. 9, 1914.)
    1.Judges (§ 45) — Disqualification—Relationship by Affinity.
    Where the wife of the district judge was a first cousin to the wife of one whom defendants were seeking to make a party, and a judgment against such person would affect the community rights of the cousin of the judge’s wife, the judge was disqualified, being related to his wife’s cousin by affinity, although not being related to her husband, whom defendants were desirous of making a party.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 208-212; Dec. Dig. § 45.]
    2.Husband and Wife (§ 268) — Community Interest — Nature of.
    A judgment recovered against a husband is a charge upon the community estate of the husband and wife, because within the spirit and intent of the Constitution and statutes she is a party to the suit.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 953-967; Dec. Dig. § 268.]
    3. Judges (§ 56) — Disqualification—Rulings.
    A disqualified judge cannot enter a decree or order agreed to by the parties, and any judgment rendered by him must be reversed.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 235-245; Dec. Dig. § 56.]
    4. Judges (§ 51) — Disqualification — Objections — Method of Raising.
    The question of the disqualification of the trial judge may be raised by a motion for new trial.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 224-231; Dec. Dig. § 51.]
    Appeal from District Court, Calhoun County; John M. Green, Judge.
    Action by the First National Bank of Port Lavaca against L. Seabrook and another. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded. •
    R. L. Daniel, of Victoria, for appellants. Wilson. & Hamilton, of Port Lavaoa, for ap-pellee.

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

   FLY, C. J.

This is a suit by appellee against L. Seabrook and J. J. Randle on a promissory note for $1,500, executed by appellants, and payable to appellee on demand, bearing 10 per cent, interest from date and 10 per cent, attorney’s fees. Appellants answered that the execution of the note grew out of a transaction between them and W. C. Noble and Willett Wilson in connection with the purchase, development, and sale of properties which were certain additions to the town of Port Lavaca; that their agreement with Noble and Wilson, for themselves and as officers of the bank, was that the proceeds from the sale of lots should be deposited in the bank in the name of J. J. Handle, and that all vendor lien notes and other securities should be deposited in the same way, and that the first money received from the sale of lots should be applied to the payment of the note sued on; that large sums of money and securities realized from the sale of lots had been deposited in the bank, and the latter had in its possession more than sufficient funds to pay off the note, and, if such funds were not in the bank, they had been appropriated by N'oble and Wilson, and it was prayed that they be made parties. Appellee filed a general demurrer and 33 special demurrers to the answer, which were sustained, and judgment rendered in favor of appellee for the amount of the note, interest, and attorney’s fees.

On motion for a new trial, appellants assailed the judgment of the court on the ground of disqualification of the judge. The judge testified:

“I am the district judge of the Twenty-Fourth judicial district, before whom the cause of First National Bank of Port Lavaca v. L. Seabrook and J. J. Handle (No. 1707) was tried. My wife and the wife of W. C. Noble, whom the defendants seek to make a party to said cause, are first cousins.”

In other words, the wife of the district judge and Mrs. Noble are related to each other within the third degree, and if Mrs. Noble’s interest in the community estate of herself and husband would be affected by a judgment against him, even to the extent of costs, the trial judge was disqualified. Her interest in any community property would undoubtedly be affected by a judgment against her husband. Schultze v. McLeary, 73 Tex. 92, 11 S. W. 924; Duncan v. Herder, 57 Tex. Civ. App. 542, 122 S. W. 904; Jirou v. Jirou, 130 S. W. 493. In the case of Duncan v. Herder the Court of Civil Appeals declined to follow the case of Winston v. Masterson, 87 Tex. 200, 27 S. W. 768, and a writ was refused by the Supreme Court. The Winston-Masterson Case seems to be in conflict with other opinions of the Supreme Court on the same subject.

Noble was not related to the district judge by affinity. Speaking on this subject, the Supreme Court held, in the cited case of Schultze v. McLeary, that the trial judge was not related by affinity to the husband of his wife’s sister in any degree. It was also held in the Ohio case of Chinn v. State, 47 Ohio St. 575, 26 N. E. 986, 11 L. R. A. 630:

“Affinity is that tie which arises in consequence of marriage betwixt one of the married pair and the blood relations of the other; and the rule of computing its degrees is that the relations of the husband stand in the same degree of affinity to the wife in which they are related to the husband by consanguinity, which rule holds also e converso, in the case of the wife’s relations. Thus_, where one is brother by blood to the wife, he is brother-in-law, or by affinity, to the husband. But there is no afiinity between the_ husband’s brother and the wife’s sister, which is called by the doctors affinitas affinitatis, because then the connection is formed, not between one of the spouses and the kinsmen of the other, but between the kinsmen of both.”

While it is true that the trial judge was not related by affinity to Noble, whom appellants sought to make a party to the suit, he was related within the third degree by affinity to Mrs. Noble, and if her interests would have been affected in any way, even to the extent of costs, by a judgment against Noble, then the judge would be disqualified to pass on the question of making Noble a party to the suit. Her interest would be affected by any judgment obtained by appellants against Noble, as it would be a charge upon the community property of Noble and wife, because she, within the spirit and intent of the Constitution and the statute, would be a party to the suit. Jordan v. Moore, 65 Tex. 363; Schultze v. McLeary, herein cited; Railway v. Elliott, 22 Tex. Civ. App. 31, 54 S. W. 410.

It was undoubtedly a. ruling on the interests of Noble, when the court sustained the exceptions to the answer wherein it was sought to make him a party, and this court has no authority to inquire into the propriety or impropriety of the ruling. The court may have ruled correctly, but disqualification of the judge is not tested by the correctness of his rulings. It has been held that a disqualified judge cannot even enter a decree or order agreed to by all parties. Jouett v. Gunn, 13 Tex. Civ. App. 84, 35 S. W. 194. The question of disqualification could be raised on motion for new trial. Railway v. Looney, 42 Tex. Civ. App. 234.

The judgment is reversed, and the cause remanded.


text:
    DENTON v. ENGLISH.
    (No. 5335.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 4, 1914.
    On Motion for Rehearing, Dec. 5, 1914.)
    1. Boundaries (§ 46) — Boundary Agreements — Fraud—Concealment oe Facts.
    If defendant, who knew that the state surveyor had surveyed and established plaintiff’s boundary line some distance east of a fence, failed to tell plaintiff of his survey in obtaining a boundary agreement fixing the boundary line at the fence, thereby depriving plaintiff of a quantity of land, he was guilty of fraud justifying a rescission of the boundary agreement, and hence, where there was evidence of this fact, the jury were justified in finding that the boundary agreement was procured by fraud.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.]
    2. Evidence (§ 333) — Documentary Evi-DENC35 — Public Records — Surveys.
    Under Rev. St. 1911, art. 3694, providing that copies of the records of all public officers and courts certified by the lawful possessor thereof shall be admitted as evidence, article 5397, donating the excess in surveys to the public free school fund and requiring the Commissioner of the General Land Office to ascertain the existence and extent of such excesses and to provide and direct necessary surveys or corrected surveys, and the article providing that all hooks, papers, etc., required by law to be kept, filed, or deposited in any office of the executive department shall constitute a part of the archives of such office, the report of the state surveyor concerning a survey made by him of the boundary of a railway survey which made it apparent that there was vacant land adjoining such survey, which report was filed in the General Land Office, was an archive therein and was admissible in trespass to try title between private parties involving the location of such boundary line.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.]
    3. Evidence (§ 333) — Documentary. Evidence-Public Records — Surveys.
    Where a document containing a report of the acts of the state surveyor concerning a survey made by him also contained argument and opinions, such argument and opinions were not admissible in evidence in trespass to try title and should have been excluded if properly objected to.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.]
    4. Trial (§ 85) — Reception oe Evidence-Evidence Admissible in Part — Objections.
    Where in trespass to try title, though a report of the acts of the state surveyor concerning a survey made by him also contained, argument and opinions not admissible in evidence, the only objections to the report went to the report as a whole and did riot call the court’s attention to the objectionable parts thereof, no duty rested upon the court to exclude such objectionable parts, especially where the assignments of error on appeal attacked the whole report, since, when a writing is offered in evidence, parts of which are admissible and parts inadmissible, the whole writing should be admitted unless the inadmissible parts are specifically pointed out.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    5. Appeal and Error (§ 499) — Bill oe Exceptions — Matters to be Included — Objections to Testimony.
    Assignments of error complaining of the admission of testimony will not be considered, where the objections to the testimony are not stated in the bills of exception reserved to its introduction.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    6. Witnesses (§ 268) — Cross-Examination —Scope.
    Where, in an action involving a disputed boundary, a witness for defendant testified that he went with the county surveyor to properly locate surveys, plaintiff was entitled to cross-examine him as to his knowledge of the matter.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    7. Evidence (§ 317) — Admissibility—Hearsay Evidence.
    In an action involving a disputed boundary, the testimony of a witness that he was with the surveyor who made a survey and that he found the corner of the survey by trees called for in the field notes was not hearsay, but related to knowledge gained by him on the ground.
    [Ed. Note. — F'or other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    8. Appeal and Error (§ 1051) — Harmless-Error — Admission oe Evidence.
    Such testimony could not have been prejudicial, where other witnesses testified to the same matters and such corner was unquestioned and was established beyond a reasonable doubt to be where such witness said he found it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    On Motion for Rehearing.
    9. Appeal and Error (§ 994) — Review — Questions oe Fact.
    The Court of Civil Appeals is not the judge of the credibility of the witnesses or the weight to be given their testimony; that prerogative belonging to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.]
    Appeal from District Court, Dimmit County ; J. F. Mullally, Judge.
    Action by Ed English against G. Denton. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 157 S. W. 264.
    W. H. Davis, of Crystal City, and R. E. Hannay, Jr., and R. P. Ingrum, both of San Antonio, for appellant. Vandervoort & Johnson, of Carizo Springs,' N. A. Rector, of Austin, and West & McMillan, of San Antonio, for appellee.

      For other oases 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 Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is, in form, an action of

trespass to try title to a strip of land 5,700 varas long by 491 varas wide, alleged to be off of the east ends of surveys 39, 46, and 51 in block 6, International & Great Northern Railway Company lands in Dimmit county, Tex. It is in reality a controversy over the location of a boundary line. Appellant claimed that the land in controversy did not form any part of the surveys named, and also pleaded a boundary agreement to fix the line along a certain fence between the lands of W. I-I. Warner on the west of the fence and the lands, of appellant on the east of the fence. Appellee pleaded, in reply to the allegations of appellant, the fraud of appellant in procuring the boundary agreement from him; that neither he nor Warner, his immediate vendor, knew anything of the true location of the line; and that appellant knew that the true bound-dary line was in a different place from that agreed upon. The cause was tried by jury, resulting in a verdict and judgment for ap-pellee. This is a second appeal, the former opinion of this court being reported in 157 S. W. 264, which is referred to as containing a full statement of the issues in this case.

The testimony justified the jury in finding that the boundary agreement was obtained by fraud and that the true boundary Une is 5,700 raras long and 491 Taras east of the fence at the north end and 475 Taras at the south end, and that it belonged to appellee, and was a part of surreys 39, 46, and 51 in block 6, International & Great Northern Railway lands.

The first and second assignments of error are oyerruled. Appellant knew that the state surreyor had surreyed the land and had established a boundary line different from the one in regard to which he after-wards procured the agreement from appellee. He knew of the boundary established by Leckie, who made the surrey for the state, because he applied for and purchased from the state the racant land made apparent by the surrey. He knew that the Leckie surrey threw the east lines of block 6 and block 10, 475 to 491 raras further east than they were thought to be when appellee built his fence, and he knew that when he obtained the agreement from appellee that the boundary line was not along the fence and that he was depriring appellee of about 490 acres of land. Appellee did not know that Leckie had placed the line where he did and appellant failed to disclose that fact to him. The eridence showed that the Leckie surrey fixed the true boundary line. The question of fraud was raised by the testimony and was properly submitted to the jury. This question was fully determined on the former appeal of this case. As said in our opinion:

“A failure to disclose a material fact affecting the subject-matter of a contract, howerer unintentional and blameless, often constitutes a sufficient ground for the annulment of a contract procured thereby. When there is intentional fraud connected with the concealment of the fact, equity will always relieve the party who has been injuriously affected by it. If, as appears from appellee’s testimony, appellant, who knew about the Leckie survey, concealed that fact from appellee and thereby induced him to sign the agreement as to boundary, his action would amount to such fraud as would justify a rescission of the contract.”

Appellant applied for and obtained the survey and knew where the lines were placed in that survey, but he told appellee that the true line was along the fence. 1-Iis attorney advised him to obtain the boundary agreement from appellee, and he did it. 1-Ie claimed to hare told appellee about the survey, but appellee denied it, and it is highly improbable that appellee would have agreed to a boundary which deprived him of nearly 500 acres of land, if he had known the same facts that appellant knew. The jury were justified in finding that the boundary agreement had been procured by fraud.

The report of the state surveyor was filed in the General Land Office and became an archive therein. The survey was made by the state and had reference to public lands of the state. The report of the surveyor was one permitted, if not required, to be filed in the General Land Office. “All the books, papers, records, rolls, documents, returns, reports, lists, and all other papers that have been, are now, or that may hereafter be required by law to be kept, filed or deposited in any of the offices of the executive department of this state, shall constitute a part of the archives of the offices in which the same are so kept, filed or deposited.” The survey was made under orders of the land commissioner, given by virtue of the authority vested in him by the statutes of the state. Article 5397, Rev. Stats. That statute makes it the duty of the land commissioner to ascertain by all means practicable the existence and extent of all excesses in surveys and to provide for surveys or corrected surveys. The reports of those surveys, as a matter of course, are kept, filed, or deposited in the General Land Office. The report was admissible in evidence. Article 3694.

There were portions of the document, however, that were not a report of the acts of the surveyor, but consisted of argument and opinions, and those parts of the paper were not valid testimony and no doubt would have been rejected by the court if they had been called to his attention. The only objections urged to the admission of the report were:

“Because the aforesaid report constituted but mere declarations of the surveyor, was hearsay and argumentative, and because it was not shown that it was an official survey, nor was it shown that the surveyor was dead; but, on the other hand, it was admitted that W. H. Leckie, the surveyor, was still living at Runge,' Tex., and for the further reason that the report offered in evidence was not in itself complete in that the report calls for a map attached called ‘Green’s Map’ and marks the same ‘Exhibit B.’”

The objections were aimed at .the whole report, and no effort was made to call the attention of the court to the hearsay or .the argument in the report. In the propositions under the two assignments of error the whole report is attacked as being hearsay and argumentative. All of the report is not hearsay, all is not argumentative. I.t was not the duty of the court to cull the objectionable parts of the report; that duty rested upon appellant. Even in this court the objectionable portions of the report are not pointed out.

In the case of Schunior v. Russell, S3 Tex. 83, 18 S. W. 484, cited by appellant, the court mentions the fact that each part of the report of the surveyor that was objected to was specifically pointed out. The rule is well established that when a writing is offered in evidence parts of which are admissible and parts inadmissible, unless the latter are specifically pointed out, the whole should be admitted. Railway v. Gallaher, 79 Tex. 685, 15 S. W. 694; Railway v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; Schulze v. Jalonick, 18 Tex. Civ. App. 296, 44 S. W. 580; Sanford v. Finnigan Co., 169 S. W. 624, not yet officially reported. For the reasons given, the third, fourth, and fifth assignments of error will be overruled.

The sixth, seventh, ninth, and tenth assignments of error will not lie considered because tbe objections made to tbe introduction of tbe testimony sought by appellant are not stated in tbe bills of exception reserved by appellant. Tbis is .tbe uniform practice of tbe bigber courts of Texas, from tbe earliest reports of tbe Supreme Court down' to tbe present day. Styles v. Gray, 10 Tex. 503; Saunders v. Kincaid, 168 S. W. 977; Solomon v. National Bank, 168 S. W. 1029.

Tbe witness Cartledge stated that be was with tbe surveyor at “Cathedral Rock,” a well-known object situated on one of tbe surveys; that be found tbe southwest corner of tbe survey by mesquite bearing trees called for in the field notes. This was objected to by appellant. Cartledge bad testified for appellant and tbe evidence referred to was brought out on cross-examination. He bad •testified that he went with tbe county survey- or to properly locate the surveys, and appellee bad the right to cross-examine him on bis knowledge of the matter. His testimony was not hearsay, but was as to knowledge gained by him on the ground. Tbe answers of Cart-ledge could not have injured appellant because tbe same matters were testified to by Barker, Maddox, and Yandervoort Tbe southwest corner of survey 6, in block 7, was unquestioned and was established beyond a reasonable doubt to be where Cartledge said he found it..

Tbe charge of tbe court is not attacked, nor is tbe sufficiency of the evidence to sustain the verdict brought in question, except on the issue of fraud. Appellant does not claim that tbe southwest corner of survey 6, being tbe northwest corner of survey 7, was not situated in tbe place in which it was located by Cartledge; but, on a mere technical objection to testimony which could not have influenced tbe verdict, a reversal of tbe judgment is sought.

Tbe judgment is affirmed.

On Motion for Rehearing.

Tbis court was fully justified in finding that tbe attorney of appellant advised him to obtain tbe assent of appellee to tbe boundary agreement. It is inconceivable that an attorney should go with bis client to Austin to ascertain tbe details of tbe survey made by tbe state, and should then prepare a boundary agreement and still not advise bis client as to getting it executed. This court did not bold expressly or by innuendo that tbe attorney was guilty of fraud in advising a boundary agreement and preparing tbe same for bis client. Tbe fraud, if any, did not consist in advising tbe client to obtain a boundary agreement, but in tbe suppression of facts intentionally or innocently. There is nothing in the record that indicates that tbe attorney advised his client to suppress facts that would have placed appellee upon bis guard.

Appellant testified to facts which show .that there was no suppression of tbe facts, but be is contradicted by appellee, and tbe jury chose .to believe appellee. Tbis court has not made any charge of fraud against appellant. He may be perfectly innocent, but in compliance with law we have merely held that tbe testimony of appellee, which the jury credited, showed that appellant was in possession of facts bearing upon tbe boundary line, of which appellee was ignorant, and which, if known to him, would have prevented him from signing tbe boundary agreement. They were not dealing with each other on equal terms, and, however innocent appellant may have been, tbe fact remains that the jury found that appellee was induced to sign an agreement which be would not have signed had be known the facts. This court does not charge litigants with fraud, but merely declares the effect of evidence and sustains tbe verdict of a jury finding fraud, as it is compelled to do if there is any evidence to sustain it. Tbe members of this court are not made tbe judges of the credibility of tbe witnesses or tbe weight to be given their testimony ; that prerogative belonging to the jury alone.

Tbe motion for rehearing is overruled.


author: HIGGINS, J.

text:
    MILLER et al. v. CAMPBELL.
    (No. 347.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 12, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Boundaries (§ 3) — Cales fob Corner or Line — Call for Distance.
    The rule that a call for a corner or line of an adjoining survey controls a call for distance is not of absolute application in all cases.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.]
    2. Trial (§ 296) — Instructions — Cure of Error.
    Any error, in an instruction in a boundary case in laying too much weight on the beginning corner of a description, was cured, where another paragraph of the charge expressly stated that no one corner had any greater force or dignity than another.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    3. Appeal and Error (§ 882) — Invited Error — Instructions.
    Error, in an instruction, cannot be complained of on appeal, where invited by plaintiff in error in special charges requested by him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 8S2.]
    4. Appeal and Error (§ 1064) — Harmless Error — Instructions.
    Error in the charge is not reversible, under the express provisions of Court of Civil Appeals rule 62a (149 S. W. x), unless it probably caused an improper judgment.
    [Ed. Note.. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]

      5. TRIAL (§ 240) — ARGUMENTATIVE INSTRUCTIONS.
    A requested charge, which is argumentative, and which, so far as proper, is covered by the main charge, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.]
    6. Trial (§ 194) — Instructions—'Weight of the Evidence.
    A requested charge, which is on the weight of the evidence, and which, so far as proper, is covered by the general charge, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-4.66; Dec. Dig. § 194.]
    7. Trial (§ 260) — Instructions — Refusal of Instructions Covered by Instructions Given.
    It is not error to refuse a requested charge covered by the general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    8. Appeal and Error (§ 690) — Questions Reviewable — Exclusion of Evidence — Bill of Exception — Sufficiency.
    The exclusion of evidence cannot be reviewed on appeal, unless the bill of exception shows that the witnesses would have testified to the facts sought to be proved, but excluded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.]
    9. Appeal and Error (§ 1075) — Questions Reviewable — Abandonment of Assignment of Error.
    An assignment of error abandoned by plaintiff in error, in open court, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4253; Dec. Dig. § 1075.]
    Error from District Court, Harris County; Norman G. Klttrell, Judge.
    Trespass to try title between Charles Miller and another and Ben Campbell. There was a judgment for the latter, and the former bring error.
    Affirmed.
    S. H. Brashear, W. G. Love, and W. J. Armstrong, all of Houston, for plaintiffs in error. Campbell, Sonfield, Sewall .& Myer and W. J. Howard, all of Houston, for defendant in error.

      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. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This was an action in trespass to try title to a tract of land patented to defendant in error, Campbell, and involved a question of boundary; the issue being the location of the east line of the S. W. Allen survey in Harris county.

The original field notes of the Allen survey called to begin at the northwest corner of John Austin’s two league grant; thence north 89 east with Austin’s north line at 1,905 varas to stake in prairie, being also the southwest corner of the John W. Lawrence survey; thence north at 110 varas past Lawrence’s northwest corner, crossing Montgomery road at 1,185 varas, etc. The Allen was surveyed about 1850. The O. P. Kelton survey lies east of the Allen and north of and adjoining the Austin. It is an older survey than the Allen. The John W. Lawrence was a survey in conflict with the Kelton, lying across the south end thereof. It was never patented and was abandoned. The west lines of the Lawrence and Kelton were coincident. The southwest corners of the Lawrence and Kelton were likewise coincident. The land claimed and sued for by Campbell was surveyed and patented to him about 1909, and consists of a tract of 50 acres lying north of and adjoining the Austin grant and west of and adjoining the Kelton.

The first and sixth assignments question the sufficiency of the evidence to support the verdict and judgment in Campbell’s favor; the contention, in effect, being that the call in the Allen field notes for the southwest corner of the Lawrence (which was likewise the southwest corner of the Kelton) and the northwest corner of the Lawrence (which was on the west line of the Kelton) must control the distance call of 1,905 varas for the south line of the Allen. ’ In other words, the calls for those corners in the Lawrence would place the east line of the Allen at a point coincident with the west line of the Kelton, without regard to the distance call mentioned. If this contention be well founded, it is manifest no vacancy existed between the Allen and Kelton, and the Campbell survey conflicted with the former.

A detailed discussion of the evidence is unnecessary, and we deem it sufficient to say that a careful consideration thereof has led to the conclusion that it was sufficient to warrant the jury in giving controlling effect to the distance call and locating the southeast comer of the Allen 1,905 varas east of the Austin northwest corner. This would leave a vacancy between the Allen and Kelt-on, which is covered by Campbell’s patent. Under certain circumstances, a call for a corner or line of an adjoining survey, as a matter of law, will prevail over and control a call for distance; but it is not a rule of absolute application in all instances, and it is not deemed to be applicable, under the evidence presented by this record. Goodson v. Fitzgerald, 40 Tex. Civ. App. 619, 90 S. W. 898; Crosby v. Stevenson, 156 S. W. 1110.

Error is assigned to a portion of the court’s charge which reads:

“There is no dispute as to where the west line of the Kelton survey is, and you will determine from all the evidence where the northwest corner of the John Austin survey is located, as the survey of Allen begins at that point.”

The proposition urged is:

“Where the location of the east line of the Allen survey was in controversy, and there was much evidence of other matters from which its location could be determined, as well as from the northwest corner of the Austin survey, or even regardless of said Austin northwest corner, it was error for the court to single out said location of the northwest corner of the Austin survey and call attention of the jury to the fact that the survey of the Allen begins at that point; the beginning corner being of no more dignity or importance necessarily than any other corner.”

For the sake of argument, it may be conceded that, standing alone, it is subject to the objection urged, but, in such event, it is not an error of a reversible nature for the following reasons:

First. The error was corrected by the fifth paragraph of the charge, which reads:

“In this connection, you are instructed, however, that no one corner of any survey has any greater dignity or force than any other corner, and that it is your duty to endeavor from ail the evidence admitted before you, whether by witness upon the stand or from depositions or from instruments or copies of instruments or maps offered in evidence (all of which you should consider), to ascertain and follow the footsteps of the original surveyor, so as to determine where he placed the east line of the Allen survey.”

Second. The error was invited by plaintiffs in error in special charges 1 and 2, requested by them.

Third. Under the provisions of rule 62a (149 S. W. x), it should not be treated as reversible error. Wells Fargo v. Benjamin, 165 S. W. 120; Railway Co. v. Geary, 169 S. W. 201.

The third, fourth, and fifth assignments, complaining of other portions of the court’s charge, are without merit.

Assignments 7 to 16, inclusive, complain of the refusal of various requested special charges. They were all properly refused for reasons which will be briefly indicated.

Charges Nos. 3 and 4, because they were argumentative, and in so far as proper, were covered by the main charge.

Charge No. 5 stated an incorrect proposition of law.

Charge No. 7 was improper, because it treated a distance call as of no force, and in effect was an instruction to wholly disregard the same.

Charge No. 8 was upon the weight of the evidence, and, in so far as proper, was covered by the fifth paragraph of the general charge

Charge No. 10 was argumentative, and the idea which it presents was made obvious by the general charge.

Charges Nos. 11, 12, and 16 were sufficiently covered by the general charge.

Charge No. 13 was upon the weight of the evidence, and embodied an incorrect legal proposition, as applied to the facts in this case.

The seventeenth assignment complains of the exclusion of certain testimony, and is overruled because the proferred testimony was irrelevant and immaterial; and, further, the bills of exception taken to its exclusion do not definitely show that the witnesses would have testified to the facts expected to be proven by them. The action of the trial court in excluding the evidence cannot be reviewed, unless the bill of exception definitely shows that the witnesses would have testified to the facts sought to be proven.

Plaintiffs in error, in open court, announced that their eighteenth assignment of error was abandoned; hence is not considered.

Affirmed.