author: PRENDERGAST, P. J.

text:
    COFFMAN v. STATE.
    (No. 1920.)
    (Court of Criminal Appeals of Texas.
    March 18, 1914.
    Rehearing Denied April 15, 1914.)
    1. Criminal Law (§ 121) — Chang® of Venue-Discretion of Court.
    Under Code Cr. Proc. 1911, art. 626, authorizing the trial judge, when satisfied that a fair trial to accused cannot be had in the county in which the case is pending, to order a change of venue on his own motion, the discretionary right to order a change is vested in the trial court, and the Court of Criminal Appeals, while it has the authority to direct a change of venue, cannot specify the county to which the change should be had.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 241; Dee. Dig. § 121.]
    2. Criminal Law (§ 304) — Evidence—Judicial Notice.
    The Court of Criminal Appeals will take judicial notice that, at the time of the enactment of Code Cr. Proc. 1911, art. 681, requiring a change of venue in a criminal case to be made to the next adjoining county the courthouse of which was nearest that of the county in which venue was laid, there were no railroads in the country affording access from one county seat to another.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 2951%; Dec. Dig. 304.]
    3. Criminal Law (§ 304) — Evidence—Judicial Notice.
    The Court of Criminal Appeals will take judicial notice of the boundaries of the several counties.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 2951%; Dec. Dig. 304.]
    4. Criminal Law (§ 139) — Venue—Change of.
    As Code Cr. Proc. 1911, art. 631, requiring criminal causes upon change of venue to be removed to some adjoining county, was enacted before the construction of railroads, and as the right of accused is not to direct the county in which the change shall be had, but only to a fair trial the trial court may, under article 626, direct the change to be made to a county the courthouse of which, though not nearest to that of the county wherein the prosecution is pending, is most easily accessible therefrom; the statutory provision being for the convenience of witnesses in the days before railroads.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 256; Dee. Dig. § 139.]
    5. Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    There is no prescribed formula for a charge on circumstantial evidence, the charge being-sufficient if the ideas conveyed are correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§■ 1883-1888, 1922, I960; Dec. Dig. § 784.]
    6. Criminal Law (§ 822) — 1Trial—Instruc-ts NS — CONSTRUCTIO N.
    In determining the sufficiency of a charge, it must be construed as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994,. 1995, 3158; Dec. Dig. § 822.]
    7. Criminal Law (§ 820*) — 'Trial—Instructions— Construction.
    The language of a charge must have a reasonable construction, and the jury must be considered as reasonably intelligent and capable men.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1988; Dec. Dig. § 820.]
    8. Criminal Law (§ 784) — Trial—Instruction — Circumstantial Evidence.
    Where, in a homicide case, the charge on circumstantial evidence recited that “in this case the state relies for a conviction upon circumstantial evidence,” and that “to warrant a conviction of crime on circumstantial evidence,” etc., neither the omission of the word “also” after “circumstantial evidence,” nor the use of the word “crime” in the second excerpt, was erroneous, nor was the failure of the charge to conclude with the words “save the guilt of accused” improper, where it clearly informed the jury that the evidence must establish accused’s guilt beyond a reasonable doubt, and must exclude any other hypothesis.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*]
    9. Homicide (§§ 300, 309) — Trial—Questions for Jury.
    Unless the evidence fairly raises the issues of manslaughter and self-defense, they should not be submitted to the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§- 614, 616-620, 622-630, 649, 650, 652-655; Dee. Dig. §§ 300, 309.]
    10. Criminal Law (§ 781) — Instructions— Consideration of Evidence.
    Where the state introduced evidence of accused’s statements immediately after the killing and of others three or four hours later, a charge that declarations, made just after the killing, should be considered together, and that the state was bound thereby, is not improper as allowing the ¡jury to consider together the statements made just after the death with those made a few hours later, which were not res geste.
    [Ed. Note. — For other eases, see Criminal Law^ Cent. Dig. §§ 1864-1871, 1898; Dec. Dig. 781.

    11. Homicide (§ 340) — Appeal—Harmless Error.
    Where the evidence showed the offense, if any, to be murder in the first degree, the submission of the issue of murder in the first degree was not prejudicial to accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717," 720; Dec. Dig. § 340.]
    12. Criminal Law (§.785) — Trial—Instructions.
    In a prosecution for homicide’, where some of the state’s witnesses gave testimony, in a ha-beas corpus proceeding by accused, different from that at trial, a charge that the jury might consider the contradiction, which did not specifically name the witnesses, was not improper for that reason.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§1774, 1776-1781, 1889-1894; Dec. Dig. § 785.]
    13. Criminal Law (§ 1137) — Appeau-Es-toppel to Allege Error.
    On the second trial of a prosecution for homicide a witness who plainly sho.wed hei prejudice to accused referred to the imposition of the death sentence on the first trial. The court instructed her not to volunteer testimony, and informed the jury to disregard her statement. Meld, that while Code Cr. Proc. 1911, art. 843, declaring the effect of a new trial is to place the cause in the same position in which it was before any trial had taken place, rendered the witness’ statement erroneous, the error is not prejudicial where accused declined to withdraw his announcement of ready and to consent to a continuance as suggested by the state, but merely objected to the whole matter, for accused, having taken his chances on obtaining a favorable verdict below, cannot on appeal object to an error which he did not desire corrected.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dee. Dig. § 1137.]
    14. Criminal Law (§ 925) — Misconduct of Jurors — Ground for New Trial.
    Notwithstanding the statute that the failure of an accused to testify in his own behalf shall not be taken against him or commented on by counsel, the mere fact of comment, and nothing more by some of the jurors on accused’s failure to take the stand, will not necessitate a new trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2238-2247, 2250; Dec. Dig. 925.]
    15. Criminal Law (§§ 1064,' 1122FAp:peal —Record—Questions Presented.
    Where accused’s bill of exceptions to the refusal of special charges did not state any reasons why the charges which were set out should have been given, and neither did the motion for new trial, the refusal of such charges cannot be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2676-2684, 2940-2945; Dec. Dig. §§ 1064, 1122.]
    16. Homicide (jg§ 158, 169) — Tbiai^-Evi-dence — Malice—Motive.
    In a prosecution for uxoricide, evidence showing ill feeling between accused and his wife, and accused’s threats against her, is admissible on the question of malice and motive.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig.' m 293-296, 320-331; Dec. Dig. §§• 158, 166.]
    17. Homicide (§ 174) — Evidence—Admissibility— Subsequent Circumstances.
    In a prosecution for uxoricide, where deceased had been shot while in bed, evidence that the mattress had been burned, and the bedclothes washed, is properly received, where it was not intimated that accused’s mother, who took charge of the premises, did so to suppress evidence.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    18. Homicide (§ 175) — Evidence—Admissibility— Cause of Death.
    In a prosecution for uxoricide, where accused claimed that his wife had committed suicide, evidence of experiments showing that she could not have killed herself, as claimed, was admissible.
    [Ed. Note. — Por other cases, see Homicide. Cent. Dig. §§ 375-378; Dec. Dig. § 175.]
    Appeal from District Court, Grayson County; B. L. Jones, Judge.
    Louie Coffman was convicted of murder in the first degree, and he appeals.
    Affirmed.
    G. R. Smith, R. C. Merritt, and P. E. Wilcox, all of McKinney, for appellant. Rice Maxey, of Sherman, W. R. Abernathy, of McKinney, and 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

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

   PRENDERGAST, P. J.

On this trial appellant was again convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. This is the second appeal. The decision on the first is reported in 62 Tex. Cr. R. 88, 136 S. W. 779. His punishment on the first was assessed at death. The trial this time occurred in December, 1911. The record reached and was filed in this court May 14, 1912. It is to be deplored that the case has been held here so long without a decision thereof.

Prom thp other decision the general character of the case can be understood. It is unnecessary here to give any extended statement of the evidence. Wherever it may be necessary in deciding any question raised herein such statement will be made as is necessary.

In the opinion on the former appeal we held, in effect, that the lower court erred in not granting a change of venue, and ordered the trial court to change the venue. We did not intend thereby to direct or require that the venue should be changed to any particular county, nor to take away the discretion of the lower court on that question. The law expressly confides a discretion in such matters in the trial judge, when he changes the venue on his own motion. C. O. Pi art. 626. This court has no right or authority to take that discretion from a trial judge. While, as held uniformly, it is a sound judicial discretion, not an arbitrary personal one, yet this court cannot substitute its discretion for that of the trial judge, nor take it away from the trial judge. When our Codes were first adopted, the court, of his own motion, was not authorized to-change the venue. This power was first given by the act of 1876, now article 626, C. C. P. Before said authority and discretion was given to the trial judge, <5ur statute-(article 631, C. G. P.) in effect required that the change should be made to some adjoining county, the courthouse of which was nearest to the courthouse of the county ordering such change. At the time said original law was enacted, we judicially know that there were no railroads in the country affording access from one county seat to another, but universally, or practically so, the common dirt public roads were used and had to be used. No such conditions now exist, and especially in the territory where this crime is alleged to have been committed and the case tried. The object of the old law, requiring the change to the nearest county seat, was because of convenience to the parties and the-witnesses, and to save expense in the trial. The gist of an accused’s right to a change is that he shall not be tried in a county where, from prejudice or combination against him, he cannot get a fair and impartial trial, but that he shall be tried in some county where he can get such fair and impartial’ trial, hnd not merely that the change shall be made to the county seat of the nearest county.

This record shows, and the trial judge found and held, that the courthouse of Rock-wall county was 29 or 30 miles distant on a. direct line from the courthouse at McKinney in Collin county; that there was no direct' railroad connection between tbe two courthouses of said counties; that to reach the courthouse of Rockwall from McKinney by means of railway, the distance was at least 55 miles, and perhaps farther; that while the courthouse at Sherman in Grayson county, by a direct line, is about 3 miles farther than the courthouse in Rockwall, it can be reached by railway and interurban conveyance at a distance of some 22 to' 25 miles nearer. The evidence on the trial of this question before the trial judge further showed, in effect, that where the place of the alleged homicide occurred was in the northern part of Collin county. We know judicially that practically the whole of the south line of Grayson is the north line of Collin, and that Rockwall is on the extreme southeast corner of Collin. Appellant lived, and most, if not all of the witnesses must therefore have lived, much nearer the courthouse 'of Grayson than that of Rockwall. The evidence further shows that there was no reason why the change should not be made to Grayson, for there was no prejudice against appellant or his case in Grayson that would in the least deprive him of a fair and impartial trial therein. There is not an intimation in this record, so far as any prejudice against him or his case was concerned, that he did not have a fair and impartial trial in Gray-son county. In this connection we will quote what was said by this court in Bohannon v. State, 14 Tex. App. 302, as follows: “We are of the opinion, and so hold, in accordance with the former decisions of this court, that under article 576 (626) of the Code of Criminal (Procedure, which we have quoted, the judge had the authority, of his own motion, to send this case for trial to Austin county. He was clothed with this discretion by the express and unqualified words of the law, and this law was enacted under the express sanction of the Constitution. Const, art. 3, § 45. It is true that this discretion is a judicial, and not a personal, one (Walker v. State, 42 Tex. 360; Dupree v. State, 2 Tex. App. 613), yet, it being a discretion created and confided by the laic, it mil not be revised by this coutrt in the absence of <my showing that it has been abused to the prejudice of the defendant. Such has been the uniform practice of this court, established by numerous decisions, and from which we •see no reason to depart. Noland v. State, 3 Tex. App. 598; Johnson v. State, 4 Tex. App. 268; Labbaite v. State, 6 Tex. App. 257; Daugherty v. State, 7 Tex. App. 480; Cox v. State, 8 Tex. App. 254 [34 Am. Rep. 746]; Myers v. State, 8 Tex. App. 321; Grissom v. State, 8 Tex. App. 386; Webb v. State, 9 Tex. App. 490. It has been ably argued by counsel that it is dangerous to the liberties and rights of the citizen to confide to its district judges such unrestricted power as is conferred by the broad and unqualified language of article 576, above quoted, and that it should be limited by the provisions of article 581, following it We do not regard article 581 as being restrictive of'the powers conferred by article 576, and whether or not the power complained of is a dangerous one to be vested in district judges is not a question for this tribunal to determine. We will say, however,- that since the enactment of article 576 (626), no case has come under the observation of this court in which the discretion conferred had been, in our opinion, abused. And in the case we are now considering we fail to discover any abuse of this discretion, and there is no pretense, or at least no effort is made to malee it appear, that the defendant has in any respect been injured in his rights, or prejudiced, by the action of the court in sending the case to Austin county, instead of to Wharton county, for trial.” Again, Judge White, in section 675 of his Annotated Procedure, under article 618, C. O. P., requiring the change to be made to the nearest county seat of the adjoining county, correctly says: “It is only where the change of venue is granted upon application either of the state or the defendant that the verme is required to be changed to the nearest county. The rule does not apply where the change is made by the judge of his own motion, because he is expressly authorised, by article 61S (626), to send it to any county in the same, or an adjoining district. Frizzell v. State, 30 Tex. App. 42 [16 S. W. 751]. * * * And where the defendant made application for change on account of prejudice and influential combinations against him, and the court granted the application, but, over defendant’s objection, instead of sending it to the nearest courthouse, sent it to another county, assigning as his reason that a fair and impartial trial could not be had in the adjoining county with the nearest courthouse, held, that the judge had authority to malee such change of venue, the action being tantamount to a change made as of his own motion. Bohannon v. State, 14 Tex. App. 271; Woodson v. State, 24 Tex. App. 153 [6 S. W. 184]; Brown v. State, 6 Tex. App. 286; Preston v. State, 4 Tex. App. 186; Rothschild v. State, 7 Tex. App. 519; Cox v. State, 8 Tex. App. 254 [34 Am. Rep. 746]; Mondragon v. State, 33 Tex. 480.” (Italics above ours.)

When appellant presented his motion to change the venue, under the previous decision of this court, claiming it should be made to Rockwall, the court overruled the motion. Then, on his own motion, he changed the venue to Grayson county. The case thereupon was sent to Grayson. When there called for trial, at which this trial occurred, appellant made a motion to have the case transferred back to Collin, or, in effect, transferred to Rockwall, claiming that the court in Grayson had no jurisdiction. The court overruled this. None of these matters present any error. The venue was properly changed to and the case tried in Grayson.

Judge White, in his Annotated Procedure, § 813, subd. 5, p. 532, correctly states: “There is no prescribed formula for a charge on circumstantial evidence. Loggins v. State, 8 Tex. App. 434; Hubby v. State, 8 Tex. App. 597. If the ideas conveyed are correct, and so expressed as to be understood by the jury, the charge is sufficient. Chitister v. State, 33 Tex. Cr. R. 635 [28 S. W. 683]; Ray v. State, 13 Tex. App. 51; Taylor v. State, 9 Tex. App. 100; Rye v. State, 8 Tex. App. 153; Simms v. State, 8 Tex. App. 230. The charge in general use in this state seems, in the main, to have been taken from the celebrated Webster Case, which is as follows: Tn order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt; all the facts [that is, the facts necessary to the conclusion] must be consistent with each other, and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, and no other person, committed the offense charged.’ ‘It is not sufficient that the circumstances coincide with, account for, and therefore render probable, the guilt of the defendant. They must exclude to a moral certainty every other reasonable hypothesis except the defendant’s guilt, and, unless they do so, beyond a reasonable doubt, you will find the defendant not guilty.’ We have added the last two sentences to the charge in the Webster Case [5 Cush. (Mass.) 386], in view of the later decisions of our court. The rule in Webster’s Case was approved in the eases of Henderson v. State, 14 Tex. 503; Hubby v. State, 8 Tex. App. 597; Campbell v. State, 10 Tex. App. 560. A charge on circumstantial evidence, to be sufficient, must, in effect, instruct the jury that to warrant a conviction on such evidence the facts proved must be of a conclusive nature and lead, on the whole, to a satisfactory conclusion, and produce, in effect, a reasonable and moral certainty that the accused, and no other person, committed the crime charged, and exclude every other reasonable hypothesis consistent with defendant’s innocence, and that unless they do so find, beyond a reasonable doubt, the defendant should be acquitted. Smith v. State, 35 Tex. Cr. R. 618 [33 S. W. 339, 34 S. W. 960]; Crow v. State, 37 Tex. Cr. R. 295 [39 S. W. 574]; Boggs v. State, 38 Tex. Cr. R. 82 [41 S. W. 642].”

These are some of the rules well established in this state, pertaining to charges: “In determining the sufficiency of a charge, it must be construed as a jvhole and not'"by isolated extracts, excerpts, or paragraphs. It must be treated as an entirety, and regard must be had to the connection and interdependence of its several parts. A charge in a murder case should not and cannot properly all be given in one paragraph as a whole. It should necessarily be given in separate and distinct paragraphs. The charge and the language thereof must have a reasonable and not a strained and unreasonable construction, and the jury must be considered to be reasonably intelligent and capable men, sufficiently so to put such reasonable construction on the charge, and not a strained and unreasonable construction thereon.” Christian v. State, 161 S. W. 104.

The court correctly and fully charged on murder in the first and second degrees in this case. In submitting the case to the jury for a finding on murder in the first degree he required the jury to affirmatively believe beyond a reasonable doubt every essential fact necessary to be found against appellant to show murder in the first degree before they were authorized to convict him thereof, after fully and completely in the charge telling them what was, and every essential element of, murder in the first degree. In addition, he charged the reasonable doubt between the degrees of murder, and told them that if they were satisfied beyond a reasonable doubt that appellant was guilty of murder, but had a reasonable doubt of which degree it was, to give him the benefit of the doubt, and not find him guilty of a higher grade than murder in the second degree. And, in addition still, charged them that appellant was presumed to be innocent until his guilt was established by legal evidence to their satisfaction beyond a reasonable doubt, and in Case they had a reasonable doubt as to his guilt, to acquit him, and by their verdict say not guilty.

The court in charging on circumstantial evidence gave literally and fully the charge thereon as in the Webster Case, 5 Cush. (Mass.) 386, as shown- by Judge White above. This charge, or charges substantially following it, have been so universally and in so many cases approved and held correct by this court that it is unnecessary to collate and cite them. We think no well-considered case can be found which holds, or tends to hold, to the contrary. Appellant attacks this charge on several grounds; one, that the word “alone” is not contained therein following these words in the beginning of this charge: “In this ease the state relies for a conviction upon circumstantial evidence.” Also because it contains the word “crime” in this part of it: “In order to warrant a conviction of a crime on circumstantial evidence.” It did not omit to tell the jury in substance and in fact, as claimed by appellant, “that all the facts necessary to the conclusion sought to be established, must be consistent with each other and with the defendant’s guilt.” It did not conclude with these words, “save the guilt of the accused,” as contended by appellant it should. We regard all of these objections as hypercritical. Appellant in his contention on these points attempts to put an unreasonable and strained construction on the court’s charge. Instead, as the rule announces above, the language of the charge must have a reasonable construction, and the jury must be considered to be reasonably intelligent and capable men, sufficiently so to put such reasonable construction on the charge, and not a strained or unreasonable construction thereon. In our opinion, the jury were not misled by the omission of any of the words criticised by appellant as having been left out, nor by the use of the word “crime” in the charge. This latter word is universally used in the charge on circumstantial evidence, and was correctly used, and no such forced or unreasonable construction could have been put thereon by the jury as claimed by appellant. None of appellant’s criticisms of the court’s charge in this respect present any error.

We have carefully read and studied the statement of facts and the whole of it in this case. In our. opinion it raises neither manslaughter nor self-defense, and the court should not, as it did not, submit either of these issues to the jury. In our opinion "the evidence not only does not raise either of these issues, but excludes each of them. If by any possible strained or unreasonable construction of the evidence, or application of it, such an issue could be claimed to be even suggested, it was not of such force or effect as to either require or authorize the court to charge thereon. It is undoubtedly the law that when the evidence, from whichever side or from whatever source, pertinently raises any question of defense, or of a lower grade of offense alleged, it is the duty of the court to submit it. No one questions this rule. There have been some decisions in this state which held that, even when such question is squinted at, or there is a scintilla of evidence raising it, the court must submit it. But such a doctrine and such decisions have been so forcibly demonstrated to be wrong that we deem it unnecessary to discuss the question, or collate the cases. We will merely quote such eminent judges as Chief Justice Roberts of the Supreme Court of this state and Judge Hurt, formerly presiding judge of this court, as we did in Treadway v. State, 144 S. W. 667, 668, as follows: “Such a theory has long since been exploded by many of the opinions of this court, notably by the opinion of Judge Hurt in Davis v. State, 28 Tex. App. 560, 13 S. W. 997, wherein he quoted and approved the opinion of Chief Justice Roberts in Bishop v. State, 43 Tex. 390, to the same effect. He said: ‘Of what degree of force must the evidence be that tends to establish an offense, or tends to mitigate the offense charged in order to require a charge applicable thereto? Chief Justice Roberts says that, if its force is deemed to be very weak, trivial, or light, and its application remote, “the court is not required to give a charge upon it.” “If, on the other hand, it is so pertinent and favorable as that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.” Bishop v. State, 43 Tex. 390. Hence, unless the evidence tending to present a less degree of an offense, or any theory of defense, be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions. This position is in exact harmony with the first opinion in this cause, and in accord with Bishop’s Case, supra, and' a number of cases decided by this court, notably Cunningham’s Case, 17 Tex. App. 89, Elam’s Case, 16 Tex. App. 34, and Leeper’s Case, 27 Tex. App. 694,11 S. W. 644, decided at the present term. See, also, Johnson’s Case, 27 Tex. 758. Loose expressions upon this subject can be found in the opinions of this court, but the principle Is well settled, and is absolutely correct, whether this court has always adhered to it or not, that, in the absence of exceptions to the charge of the court, for this court to reverse the evidence tending to present a phase of the case or theory favorable to the accused must be so pertinent and favorable that it might reasonably — not possibly — be supposed that the jury could be influenced by it in arriving at their verdict. Unless the evidence be of such a character no injury appears, no injury is probable — not possible, but probable — ■ and, unless this appears, there is no ground for reversal; and to reverse in the absence of probable injury would be contrary to principle.’ This holding was before the Code of Criminal Procedure (article 723, old) was amended in 1897 (Acts 25th Leg. c. 21). Then this article required a reversal. Now and since 1897 the statute is the reverse of what it had been. It now says ‘the judgment shall not be. reversed unless the error * * * was calculated to injure the rights of the defendant.’ This statute has all the time been held to be remedial by this court. Again, in the opinion of this court by Special Judge Cobb, in Wilson v. State, 60 Tex. Cr. R. 3, 129 S. W. 614, he said: ‘It is not incumbent on the trial court, nor proper, to instruct upon manslaughter where there * * * is a mere suggestion or hint of facts that might show manslaughter — such a mere semblance of proof, or so slight proof as no sensible juror would hang a question upon. What must be shown or put in the balance of reasonable doubt before the issue of manslaughter is required to be placed before the jury? We regard the statute as plainly requiring that there must be some proof tending to show that the homicide was committed under the immediate influence of sudden passion ; that there was such cause of or provocation producing the passion as would produce in persons of ordinary temper a degree of anger, etc., sufficient to render them incapable of cool reflection; and that sucb condition of mind was in the slayer wben lie committed the deed.’ Maxwell v. State, 31 Tex. Cr. R. 144, 19 S. W. 914; Cannon v. State, 41 Tex. Cr. R. 490, 56 S. W. 351; Alexander v. State, 138 S. W. 738.”

We cannot sustain any of appellant’s attacks on paragraph 21 of the court’s charge, which was as follows: “The state has introduced in evidence certain declarations purporting to be made by the defendant just after the death of the deceased, and with reference to this evidence you are instructed that if you believe from the evidence that said declarations were made by the defendant, then such declarations must be taken together, and the state is bound by them, except in so far as you may believe from the evidence the same have been shown to be untrue. Such declarations are to be taken into consideration by the jury as evidence in connection with the other facts and circumstances in the case.” The evidence establishes that the deceased was killed just after 10 o’clock, or some time before 11 o’clock at night. Just after the shooting of ■deceased appellant began holloing, going to his nearest neighbor’s, Mack Tittsworth, who lived only 175 yards from him. Tittsworth had not gone to bed, but was sitting up and heard the shots. As soon as appellant reached Tittsworth’s he called for him, and at once said to him, “Run here, Mr. Tittsworth, Jessie, my darling wife, has shot me and killed herself.” Tittsworth at once went with appellant to appellant’s house, where his dead wife was. In going, he further told Tittsworth, in substance, that he was lying in the bed with his wife asleep; that he slept with his hands over his ears, each hand over one ear, and that while asleep his wife shot him in the hand, and he felt the wound, sprang out of bed, and she shot herself. Upon reaching the house Tittsworth found appellant’s wife lying at length in the bed with the cover up over her feet, and to about or above her waist, and had been shot in the face and , head with a shotgun, a most horrible and immediately fatal wound. Appellant, at the time, exhibited his left hand, showing that a shot had passed through it near the front, or forefinger. Very soon after Tittsworth reached appellant’s house, other neighbors, having been notified or alarmed also began to arrive. Among them was Mrs. Ownbey. As she went into the room where deceased was, appellant met her and said: “Oh, Mrs. Ownbey, it’s awful! It’s awful! This is what she did and then shot herself.” When he said, “This is what she did,” he showed or held up his hand to her. His hand was then well wrapped up, but seemed to be hurt. He then said to Mrs. Ownbey that his wife had retired in a bed in the other room that night, and that he had retired in the bed where she saw her dead body; that shortly after first retiring she came into his room and asked him to read to her, which he did, and she got in that bed with him while he read to her; that he dozed off to sleep, and was awakened by a noise and hurting in his hand and he made a light and as he made the light he heard the noise of the gun, and found her wounded, and ran for help. He also showed Mrs. Ownbey, as he did Mr. Tittsworth, how he slept with his hands up about his head. The testimony of these two witnesses shows what his claim is of how the killing of his wife occurred. After this statement by him to Mrs. Ownbey a considerable number of other neighbors came in. Where the killing occurred was 5 miles from Melissa in Collin county. The doctors and appellant’s father and mother lived at Melissa. Some time after the killing his father, mother, and the doctors were phoned for; they went out, reaching appellant’s just about 12 o’clock that night, more than an hour, and perhaps an hour and a half or longer, after the killing. Dr. Rutledge was one of the physicians sent for who went to appellant’s. He testified that an hour or longer after he reached there he dressed appellant’s hand; that was what he was sent for, and that was why he went there, and that appellant’s hand didn’t need dressing is the reason he didn’t sooner dress it. Some considerable length of time after Dr. Rutledge arrived on the scene, Tittsworth testified, he was out in the hall, when Rutledge and appellant were out there, and he heard appellant say to Rutledge, “Doctor, make your statement as light as possible; it’s la pretty hard case.” Mrs. Own-bey testified that this occurred some two, three or four hours after Dr. Rutledge got there, and that she heard this much of appellant’s statement to Dr. Rutledge at the time, “Doctor, make your statement as light as possible.” Taking all the testimony on the subject, the doctor's, as well as the others, it is certain that this statment, if made by appellant to Dr. Rutledge, occurred several hours after the killing, and could in no way have been understood by the jury to be “just after the death of deceased.” The other statements,’ made by appellant to Titts-worth and Mrs Ownbey, clearly were made “just after the death of deceased.” So that appellant’s objection to said paragraph of the court’s charge, in effect, that the jury were thereby permitted to take the last statement to Dr. Rutledge in connection with said first statements by appellant to Mrs. Ownbey and Tittsworth, is not well taken. In some cases it might be proper for the court to tell the jury in a charge of this kind, when called for, that the state has proved that appellant made certain statements, such as those first made to said two witnesses, but certainly it would not be error in the court to leave the question to the jury of whether or not the state had proved that the appellant made such statements. So that, when tlie court told the jury In this charge that the state had introduced certain declarations purporting to be made by the defendant, it could not injure the appellant, and did not mislead the jury. The first statements to said two witnesses by appellant certainly were res gestae. The one to the doctor in no event could be, and appellant concedes both of these propositions, and none of appellant’s criticisms of this charge are well founded.

Appellant has some complaints to different paragraphs, and to some words therein used by the court in'charging on murder in the second degree. We have considered them all. None of them are well taken, even if murder in the second degree should have been charged upon. However, in our opinion, the evidence in no way raises murder in the second degree, and the court should not have charged thereon or submitted the same. This, however,-was to appellant’s advantage and in his favor, and not against him. Christian v. State, supra. The evidence in this case absolutely demonstrates that it was murder in the first degree, premeditated, deliberately planned, and a cold-blooded assassination by appellant of his wife, while she was lying asleep in the bed, or, at least, while she was lying prostrate and at full length in the bed, or, as claimed by appellant, it was a suicide by her. We do not propose to detail the evidence, nor to discuss it on this feature, but we do say that all the physical facts and the circumstances not only demonstrate that the state’s theory of this killing is correct, but it likewise demonstrates that that of the appellant was physically impossible. She did not commit suicide. The court, however, in his favor further told the jury in the eighteenth paragraph of the charge as follows: “On the other hand, even though you may believe from the evidence beyond a reasonable doubt that deceased met her death by reason of a gunshot wound, yet, if you further believe from the evidence that, with her own hands, or in any other way by her own act or by accident or by design on her part, or by some one else other than the defendant, lie gun was caused to be fired which resulted in her death, or if you have a reasonable doubt as to any of this, you will acquit the defendant and say by your verdict not guilty.”

The evidence did not call for, and the court should not have charged, article 1106 of the Penal Code.

Several of the state’s witnesses were attacked by appellant by showing that their testimony on this trial was different from what they had testified on another trial, and in a habeas corpus proceeding in this matter, and by showing that they made contradictory statements in some particulars outside of, or in addition to, their said previously sworn testimony. The court properly told the jury in a'general way, without specifically naming these witnesses—there were about seven of them—that they could consider said contradictions for the purpose of passing on the credibility of said witnesses, and the weight and credit they would give their testimony on this trial, and that they could not consider it for any other purpose. This covered the ground, and the court did not commit error therein by not giving the names of these several witnesses.

Appellant has some other complaints to some words and short sentences of the court’s charge on murder in the first degree. While we have considered them, it is unnecessary to state or discuss them. They show no reversible error.

The whole record in this case in various ways shows that appellant had a hearing on habeas corpus when he was first arrested, and that many witnesses testified at that time. It also shows that there had been a previous trial of this case in Collin county before the venue was changed to Grayson. A large number, if not all, of the witnesses were asked, while testifying, whether or not they had testified on this previous trial or habeas corpus hearing. There can be no particle of doubt but that this jury, from all this, had absolute knowledge, properly received during this trial, of this previous ha-beas corpus hearing and of the former trial of this ease in Collin county.

Miss Lizzie Barnes testified as a state’s witness, and gave more or less important testimony, showing in éffect, a hostile feeling by appellant toward deceased for some length of time, and, even while testifying for the state, had volunteered some testimony without being asked therefor. The court at the time admonished her, and told her to answer only questions asked her. It seems the court retired the jury in order to so properly admonish this witness. Of course, it was perfectly apparent to all parties that she was very hostile towards appellant, and doubtless felt outraged at the killing of her sister, and was somewhat obstreperous. After this occurred and the jury was returned, Judge Maxey, one of appellant’s attorneys, proceeded to cross-examine her. The bill then shows the following:

“Judge Maxey: You testified on the other trial of this case, didn’t you? A. I testified the time he got the death sentence. That’s the only time I testified.
“Judge Maxey: Will the court instruct this witness, or let her continue that.
“The Court: You must not make such a statement as that.
“The witness: Well, that is the only time I testified.
“The Court: You must just answer the questions. The jury will not consider that they ever heard that remark from the witness.
“Judge' Maxey: ‘You said that intentionally, purposely,' because you didn’t think it was proper to do it, didn’t you?
“Mr. Freeman: We object to that.
“The Court: I sustain the objection. I have ruled that out. Had the witness been permitted to answer this question, she would have answered it in the affirmative.
“Judge Maxey: I ask the court to instruct the witness. When matters are injected purposely by the witness before the jury, we don’t think it is right, and think the court ought to control it.
. “The Court: I am controlling it. Just answer those questions alone, and don’t answer anything outside.
“Mr. Smith: We desire to exeept to that answer; voluntary statement of witness.
“Judge Maxéy: We want the bill to show that the court has specifically instructed-the witness beforehand only to answer questions and not volunteer any statements, and in the face of that she makes the statement.
“Q. You testified on the former trial of this case in McKinney, didn’t you? A. Yes, sir.”

The balance of the bill is very lengthy! It is unnecessary to quote it. We will state its substance. The occurrence above noted occurred some hour or two before adjourning time Saturday evening. The court and the state’s attorneys, at least, if appellant and his attorneys were not, were very much perturbed about the matter. The court adjourned until the following Monday morning to consider and investigate what effect it would have on the trial. The court, upon convening the following Monday morning, in the absence of the jury, but in open court and in the presence and hearing of the appellant and the attorneys for both sides, proceeded to discuss the matter. He attempted to get an expression out of the appellant’s attorneys and out of the appellant as to what action they desired taken under the circumstances. The attorneys for the state expressed a willingness, perhaps a desire, that the appellant withdraw his announcement of ready and, because of what had occurred, continue the case, and in effect agreed that if appellant did do so, ihey would consent to such action being taken by the court. The state’s attorneys sought an expression from the court as to what action he would take in case the appellant acted on their suggestion to continue the case. The court declined to express himself further than that he would investigate the question further, and, in effect, that if he came to the conclusion it was such an injury as would result disastrously to a conviction, if one was had, he would grant the continuance. However, we infer this from the whole proceeding. Appellant and his attorneys, not only declined in effect the state’s said proposition, but stated they would not express themselves in any way other than as objecting to the whole matter.. We think we are justified clearly in concluding that appellant thought he had a reversible error. He was therefore willing that the trial should proceed ; in fact, did not want to continue it because he might get a verdict of not guilty. He took a chance and.lost; he must stand by his choice. The matter does not present reversible error. The court did everything reasonable and proper it could in the premises. No reflection is intended upon appellant or his attorneys in the choice they made. It doubtless would have been ours if placed under the same circumstances.

It is true our statute (article 843, C. C. P.) says: “The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.” No proper construction of this statute would be that merely because some obstreperous witness, on cross-examination by an accused, should purposely and intentionally or otherwise incidentally mention the fact of a former conviction and the penalty inflicted cause a reversal of the case, especially so when both the court and the state immediately did everything that was reasonably proper to do to prevent injury thereby. And, further, especially when appellant was given at once the opportunity to continue the case, and thereby avoid any injury to him and he declined. Certainly he is in no position to have this court reverse on any such ground. Every one is presumed to know the law. Certainly intelligent jurors, as every other intelligent person in this state, know that the state, by our Constitution and statute law both, has no right to a new trial in any contingency in a criminal case, but an accused exclusively has such right. It is therefore not at all unreasonable, but on the contrary under-the circumstances of this case, when it was time and again, as shown by this record, made manifest by both the state and the accused that this case had been formerly tried, that each juror trying this case must have known that appellant had been convicted in the previous trial, whether they knew the penalty or not. The penalty in the first trial was assessed at death. The jury in this case did not assess the penalty at death, but life imprisonment only, conceded by every one to be a less severe penalty.

In several cases this court has had occasion to pass upon the proper construction of the above statute. The true construction thereof was given in Smith v. State, 52 Tex. Cr. R. 351, 106 S. W. 1165, 15 Ann. Cas. 357, as follows: “We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, a verdict' ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant’s case. It is possible that there is some language in some of the decisions not wholly in accord with the views here expressed, but on full consideration this is believed to be the correct rule, and, tested by this rule, we believe appellant is without just ground of complaint.”

Again in Baines v. State, 43 Tex. Cr. R. 498, 66 S. W. 851, of this statute this court said: “While strictly construed, the statute would appear to prohibit the barest allusion to a former conviction, yet we do not take it that this would constitute reversible error. Campbell v. State, 35 Tex. Cr. R. 160 [32 S. W. 774]; Brantly v. State, 42 Tex. Cr. R. 293 [59 S. W. 892]. Evidently the intent and purpose of the statute was to guard appellant against the use by the state of his former conviction as an evidence of his guilt, and it may be that any intentional allusion to a former conviction ought to afford ground for reversal; but where it is evident there was no intention to allude to a former conviction, and the matter was referred to accidentally, and for no ulterior purpose, in such case it ought not to afford ground for reversal.”

Again, in Arnwine v. State, 54 Tex. Cr. R. 213, 114 S. W. 796, it appeared that some of the jurors trying that case had also tried and convicted another in a companion ease, and, in effect, they all knew of the former conviction and the penalty assessed. This court in the Arnwine Case at page 221 of 54 Tex. Cr. R., at page 800 of 114 S. W., said: “It seems that this jury which tried appellant in this case also rendered a verdict in the other case. If this was done, doubtless it was done by agreement of appellant. This being true, then the jury knew all about the verdict in the former case. Furthermore, if the jurors on their voir dire, before the jury was organized, had been asked if they knew of the former verdict, this would not have disqualified them for sitting on the trial of this case. A mere statement of the fact, already known to them, of appellant’s former conviction is not such discussion of the former conviction as could, in the nature of things, have prejudiced him. The statement of such fact in the jury room was not new information, and stated no testimony which the jury did not already know. The authorities heretofore, on the discussion of jurors in former verdicts, have not been uniform, but under the late authority of Smith v. State, 52 Tex. Cr. R. 344, 106 S. W. 1165 [15 Ann. Cas. 357], we held that unless the testimony or the evidence shows that the jury were improperly influenced by a discussion of the former verdict and the evidence dehors the record, we will not reverse the case for said discussion.”

In Morrison v. State, 39 Tex. Cr. R. 523, 47 S. W. 371, this court said: “It is not deemed necessary to discuss what effect the announcement in the jury room that appellant had previously been convicted, and his punishment assessed at 20 years in the penitentiary, may have had upon the jury. The mere statement of that fact in the jury room may not have operated to the prejudice of appellant. Before a ease would be reversed on this ground, some prejudice must tfe shown. The bare statement that a former jury had tried the case, and rendered a certain verdict against defendant would not Ordinarily cause a reversal.” See, also, Salazar v. State, 55 Tex. Cr. R. 313, 116 S. W. 819.

Appellant complains, that the court erred in refusing his motion for new trial because the jury discussed and considered the fact that the defendant failed to testify. Our statute permits an appellant to testify in his own behalf, but says the failure'to so testify shall not be taken as a circumstance against him, nor shall it be alluded. &> or commented on by counsel in the cause. We think it is now settled in our state that a mere casual reference to his failure to tes-tify, by either the state’s counsel or any of the jurors in considering their verdict, dq.es not present reversible error. Every juror has absolute knowledge when the accused does not testify that he has not. He is present, and must be, during the whole trial, and the jury knows he has not testified when he does not. The court in this case in his charge told the jury that his failure to testify could not be used as a circumstance against him, and that they could not use his failure to testify as a circumstance against him, or consider it for any purpose whatever. In considering appellant’s motion for new trial on this ground the court heard only four jurors testify on the subject. After hearing them he overruled the motion, thereby holding that the evidence was insufficient to authorize or require him to grant the new trial on that ground. He heard the jurors testify and saw their manner of testifying. Without reciting it, the evidence of these jurors was such as to justify him in overruling appellant’s motion. We think the court did not err on this point. Long v. State, 48 Tex. Cr. R. 175, 88 S. W. 203; Johnson v. State, 53 Tex. Cr. R. 339, 109 S. W. 936; Sample v. State, 52 Tex. Cr. R. 506, 108 S. W. 685, 124 Am. St. Rep. 1103; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Parrish v. State, 48 Tex. Cr. R. 347, 88 S. W. 231; Combs v. State, 55 Tex. Cr. R. 334, 116 S. W. 595; Leslie v. State, 49 S. W. 73; Mason v. State, 81 S. W. 718; Smith v. State, 52 Tex. Cr. R. 344, 106 S. W. 1161, 15 Ann. Cas. 357, supra.

Appellant complains that the court refused to give several of his special charges, numbering them. The only way this was presented in the lower court was the meire fact that appellant requested such charge and the court refused it. He then took one bill of exceptions, included all of bis special charges by merely copying them and numbering them, and then, in the same way, presented the question again in his motion for new trial. No reason in the requested charge nor in the exception showing its refusal, nor in the motion for new trial, is stated why any or either of these special charges should ■ have been given by the court. It is settled in this state that when such is the case this court cannot review the refusal to give such a charge. Byrd v. State, 151 S. W. 1068, and cases therein cited; Ryan v. State, 64 Tex. Or. R. 628, 142 S. W. 883, and eases there cited; Berg v. State, 64 Tex. Or. R. 612, 142 S. W. 884, and cases cited. It is unnecessary to collate the many decisions to the same effect. However, we have looked over all of appellant’s charges, and where proper to have been given, the court substantially embraced them in his main charge. So that in no event did the refusal of the court to give such charges show reversible error.

None' of appellant’s bills complaining of the argument of the county attorney show any reversible error. It is unnecessary to state or discuss them. Pierson v. State, 18 Tex. App. 524; House v. State, 19 Tex. App. 239; Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544. It is unnecessary to cite the many other cases to the same effect.

Each side, by several witnesses each, introduced testimony to various facts and circumstances showing and tending to show a state of ill feeling, mistreatment, and threats ' by appellant towards his wife and by her towards him. Appellant objected whenever the state introduced such testimony showing, or tending to show, appellant’s said state of mind and feeling towards his wife. It is unnecessary to state the various bills, the testimony objected to, and the grounds thereof. All of this testimony was admissible for the purpose of showing malice and motive on appellant’s part. Judge White, in section 1072, in his Annotated Code of Civil Procedure says facts tending to show a motive, though remote, are admissible in evidence. Dill v. State, 1 Tex. App. 278; Jones v. State, 4 Tex. App. 436; Rucker v. State, 7 Tex. App. 549; Mathis v. State, 34 Tex. Cr. R. 39, 28 S. W. 817; McKinney v. State, 8 Tex. App. 639; Hall v. State, 31 Tex. Cr. R. 567, 21 S. W. 368; Gonzales v. State, 31 Tex. Cr. R. 511, 21 S. W. 253. Eor many other eases noted by Judge White, see the above section and section 1231 of his Annotated Penal Code. The court qualified appellant’s bills on this subject, to the effect that he admitted .this testimony for the purpose of showing relationship and state of feelings between the defendant and his deceased wife for a period of time extending from about one year prior to the time of the homicide down to a short time prior thereto.

It would have been proper for the court to have permitted Mr. S. O. Scott to state that while he did not testify on the former trial, he was sworn, placed under the rule, and was willing to testify, but was not called by either party, but this is not a matter of any grave importance, and would neither justify nor authorize this court to reverse because thereof.

There was no error in the court in permitting the state to prove by the various •witnesses what became of the mattress, to the effect that it was later burned; and of the bedclothes whereon deceased lay when she was killed, to the effect that they were washed. Because of the issue between the state and the appellant it would have been admissible to have introduced these articles on the trial, if the mattress had not been burned and the bedclothes had not been washed, for the purpose of showing and illustrating the effect of the other testimony in the case, but the court properly charged the jury as to these matters, in response to appellant’s special charges thereon, that they could not take the fact that the defendant’s mother, or any other person, took charge of the pillow slips and bedclothes on the bed upon which the deceased lay after her death, and did not produce the same in evidence, as a circumstance against him. The record in no way discloses that the state sought to show that said disposition had been made of said bedclothes by appellant, nor that the others who did it did so from any improper motive or any improper purpose.

Nor was there any error in permitting some of state’s witnesses to testify the distance a person would have had to be from the deceased to have shot her where she was shot with the shotgun with which she was killed, nor any other experiments they had made, or experiences they had had, showing the effect of such shots, or the distance a person would necessarily have had to be to have had the effect and made the wound this shot did on the deceased. •

It has not been necessary to take up each of appellant’s bills of exceptions, nor his several grounds of the motion for new trial, nor his special refused charges. What we have discussed embraces all of the material matters. As stated above, the record is voluminous. Able counsel on both sides have filed lengthy and forcible briefs, each seeking to maintain the positions they assert, and many authorities have been cited by them. We have deemed it unnecessary to take up and discuss these authorities. All of them have had our consideration. We have given all this a most thorough and careful consideration, and have reached the conclusion that there is no error shown in this record that would authorize or justify this court to reverse this case.

It, therefore, becomes our duty, as we see it, to affirm this ease; and it is so ordered.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    TEXAS & N. O. R. CO. v. WEEMS et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 18, 1914.
    Rehearing Denied April 2, 1914.)
    1. Carriers (§ T04) — Delay in Transportation— Sufficiency op Evidence.
    In an action against a railroad company for breach of contract to furnish refrigerator cars in which to ship peaches, as a result, of which they fell off the trees and decayed during the period of delay in furnishing the cars, where, though there was evidence that the peaches were worth a certain price, less the cost of the crates and of picking, packing, and delivering at the cars, there was no evidence as to the cost of the crates, picking, etc., there was no basis for the court’s finding as to the amount of damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 439-447, 459-461; Dec. Dig. § 104.]
    2. Appeal and Error (§ 1172) — Reversal in Part — Matter in Controversy.
    Rule 62a for Courts of Civil Appeals (149 S. W. x), providing that if an error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by the error, did not apply in an action for damages for the breach of a contract, where there was no evidence showing the amount of the damages, and the mew trial would not be had on the question of damages only, since the “matter in controversy” was the sum demanded as damages, and the error affected the whole and not merely a part thereof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4555-4561; Dec. Dig. § 1172.] • '
    Error to District Court, Cherokee County; Jas. I. Perkins, Judge.
    Action by J. B. Weems and others against the Texas & New 'Orleans Railroad Company. Judgment for plaintiffs, and defendant brings error.
    Reversed and remanded.
    Jno. T. Garrison and Baker, Botts, Parker & Garwood, all of Houston, and Imboden & Perkins, of Rusk, for plaintiff in error. Norman & Shook, of Rusk, for defendants in error.

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

   WILLSON, C. J.

The suit was by defendants in error to recover the value of certain peaches which, they alleged, were lost to them because of a breach by plaintiff in error of its contract to furnish them refrigerator cars in which to ship same to a market. A trial before the court without a jury resulted in a judgment in favor of defendants in error for the sum of $800.

One of the defendants in error testified that plaintiff in error failed for three days to furnish them cars, as it had agreed to, and that during that time 4,000 or 5,000 crates of their peaches fell off the trees, decayed, and so were lost to them. He further testified that the peaches were worth between 30 and 40 cents a crate, “less the cost of the crates and picking and packing,” and of delivering same at the point where he said, plaintiff in error had undertaken to place the cars. There was no testimony showing the cost of the crates, picking, etc. Plaintiff in error insists, and we agree, that in the absence of such testimony there was no basis for the finding of the court as to the amount of damages suffered by defendants in error. The judgment, therefore, must be reversed.

Defendants in error insist that if the judgment is reversed for the error just referred to, the cause should be remanded only for the purpose of determining the amount of their damages, and, as supporting their contention, cite rule 62a for the government of this court (149 S. W. x), which directs that, “if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by the error.” But we think the rule is not applicable to the case. The “matter in controversy” here is the sum demanded by defendants in error as damages (20 A. & E. Enc. Law, p. 234), and the error affects the whole, and not merely a part, of it. Therefore we think the cause should be remanded for a new trial as to all the issues involved in that controversy, and will so order.


author: MOURSUND, J.

text:
    WESTON et al. v. PATTERSON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 8, 1914.)
    Appeal and Error (§ 773*) — Dismissal — Failure to File Briefs.
    Where a case on appeal was set for submission on April 1st, and appellant did not file its brief until March 23d, nor deliver a copy to appellee until March 24th, appellee was not required to .brief the case within the limited time, but could have the appeal dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]
    Appeal from District Court, Real County; R. H. Burney, Judge.
    Action between A. G. Weston and others and.W. B. Patterson and others. Appeal by Weston and others dismissed for want of prosecution.
    Jno. W. Hill and W. D. Love, both of Uvalde, for appellants.
   MOURSUND, J.

This case was set for submission on April 1st. Appellant filed his briefs in this court on Mlarch 23d, and delivered a copy thereof to attorneys for appel-lees on March 24th. Appellees have filed a motion to dismiss the appeal because of appellant’s failure to comply with the rules with reference to filing briefs, alleging that they have not been given sufficient time in which to answer appellant’s brief. When the appellee insists upon the enforcement of the rules, and the court cannot say that it is evident that ample time remains to appellee in which to answer, the appeal should be dismissed. Hamilton v. McLane, 147 S. W. 284, and eases cited.

We Lave examined the brief, and, after considering the same, and the facts shown by the motions, we conclude that it was not incumbent upon appellees to undertake to brief the case in the limited time left them after receipt of appellants’ brief. We have been exceedingly liberal in passing upon questions of this kind, in order to prevent dismissals, but the practice appears to be growing steadily among the members of the bar of filing briefs after the time prescribed by the rules, and this court is continually called upon to pass on motions to dismiss. Too much of the time of this court is taken up in deciding questions of this kind, and in waiting on appellees to file briefs after motions to dismiss have been overruled.

The motion is granted, the appeal is dismissed for want of prosecution, and appellant is permitted to withdraw transcript.


author: JENKINS, J.

text:
    BARRON et al. v. MAPES.
    (Court of Civil Appeals of Texas. Austin.
    March 25, 1914.)
    Brokers (§ 86) —Actions — Commissions — Sufficiency of Evidence.
    Evidence, in an action for commissions for procuring a purchaser for cattle, held not to sustain a judgment against one of defendants, in that it did not show that he had any interest in the cattle or authorized the employment of plaintiff to sell them.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    Appeal from Tom Green County Court; Oscar Erink, Judge.
    Action by George A. Mapes against James Barron and others. Erom a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    W. A. Anderson, Lee Upton, and Jas. P. Dumas, all of San Angelo, for appellants.

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

   JENKINS, J.

This case originated in the justice’s court, from which it was appealed to and tried in the county court. Appellee, plaintiff in the court below, filed a written petition. Appellants assign error on the overruling of the general demurrer to this petition. The petition would inot have been good, had the case originated in the county or district court; but, under our liberal form of pleading in the justice’s court, there was no error in overruling the general demurrer.

The court did not err in refusing to peremptorily instruct a verdict for the appellants, for the reason that the evidence is sufficient to require the case to be submitted to the jury as to two of the appellants.

We sustain appellants’ assignment of error to the effect that the evidence is insufficient to sustain the judgment against Lee Hall. The evidence shows that James Barron stated to appellee that he, Marvin Hall, and Lee Hall owned some cattle, for which they desired him to find a purchaser. There is no allegation that these parties were partners. The evidence shows that he did find a purchaser for some of the cattle; but there is no evidence that Lee Hall owned any interest in these cattle, that he authorized the other two appellants to employ appellee to sell them, or that he had any knowledge of appellee’s having done so. In fact, the evidence makes no reference to Lee Hall, except that Barron stated that he was one of the owners of the cattle. This statement was not made in the presence of Hall.

Eor the reason that the evidence is insufficient to sustain the judgment as to Lee Hall, the case is reversed and remanded.

Reversed and remanded.


author: TALBOT, J.

text:
    FONDA v. COLQUITT.
    (No. 7138.)
    (Court of Civil Appeals of Texas. Dallas.
    April 11, 1914.)
    1. Appeal and Error (§ 1002*) — 'Verdict— Conclusiveness.
    A verdict on conflicting evidence, and supported by evidence, and rendered under proper instructions, will not be disturbed on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. § 1002.*]
    2. Homestead (§ 128*) — Contracts for Sale of Homestead — Breach—Damages.
    A contract executed by a husband alone to convey the homestead is not unlawful, notwithstanding the Constitution declares that a married man shall not sell the homestead without the consent of the wife, evidenced by the wife joining in the conveyance arid by her separate acknowledgment thereof, and an action lies for damages against the husband for breach of the contract where he assured the purchaser that the wife would join in the deed, and she subsequently refused so to do,
    [Ed. Note. — Eor other cases, see Homestead, Cent. Dig. §§ 224-232; Dec. Dig. § 128.*]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by John M. Colquitt against E. R. Eonda. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    D. H. Morrow, of Dallas, and John Church, of McKinney, for appellant. H. C. Connor, of Sulphur Springs, and H. B. Thomas, of Dallas, for appellee.
   TALBOT, J.

This suit was instituted by appellee to recover of appellant $500, as damages for breach of a written contract to purchase certain lands. The contract was entered into between the appellant and appel-lee on March 10, 1913. It recites that the appellee agrees to sell to the appellant, E. R. Eonda, and wife 350 acres of land situated in Hopkins county, Tex., and that appellant agrees to purchase said land, and pay therefor $14,850, as follows; One lot and residence in block 2800 on Ross avenue, number of residence 2803, at the price of $18,000, appellee to assume an incumbrance tbereon of $6,000, and appellant to assume on the Hopkins county land $2,850. The said contract stipulates that in case either party thereto fails or refuses to comply therewith, that “the party so failing shall pay to the other party the sum of $500; which sum is agreed upon as actual damages for said failure.” The said property agreed to be conveyed by appellant as consideration for his purchase of ap-pellee’s lands was the homestead of appellant and his wife, and she refused to sign a deed conveying said property to appellee, and appellant declared to appellee or to his agent “that the trade was oft.” The evidence is conflicting as to whether or not it was expected or intended, at the time the contract was signed by appellant and appellee, that Mrs. Fonda should sign it, but it is sufficient to sustain the conclusion that it was not so intended. A trial by jury resulted in a verdict and judgment in favor of appellee for the sum of $500, and Fonda appealed.

We would not be warranted in holding that the verdict and judgment of the lower court are contrary to the court’s charge, and unsupported by the evidence, as is contended by appellant. Upon the issue as to whether it was understood and intended, at the time of the execution of the written contract of sale and purchase, that Mrs. Fonda should sign said contract, the evidence, as before stated, was conflicting. Appellee testified: “When the contract was drawn, I asked Mr. Fonda if his wife should not sign it, and he said, ‘No,’ it was not necessary for her to sign it, as she understood the proposition, and had agreed to sign it, but that she would sign the deed, and that there would be no trouble about it whatever. I did not know it was intended that Mrs. Fonda was to sign it. I didn’t understand that it was necessary for her to sign the contract. After Col. Fonda had signed the contract, I asked him if it was necessary to have his wife sign it, and he said that it was not. Nobody requested the defendant to take the contract to his wife and get her to sign it, that I know of. I know that I didn’t reguest him to do so, and neither did my brother.” D. T. Colguitt testified: “I saw the defendant sign the contract, and X asked him if it would not be better for his wife to sign the contract. He said, ‘No,’ that it was not necessary for Mrs. Fonda to sign it. My brother (plaintiff) suggested if it was necessary for Mrs. Fonda to sign the contract, and Col. Fonda said, ‘No,’ because she would sign the deed all right. Neither my brother nor I asked him to take the contract to his wife and ask her to sign it. After the defendant said it was not necessary for his wife to sign the contract, nothing was said about taking it to her to sign. * * * The contract does show for itself that the wife is mentioned as one of the parties to the contract, but she was intended to be erased, and it was never erased in any of the copies of the contract. We forgot to take her name out, and she was not mentioned in the contract intentionally. * * * 1 didn’t expect Mrs. Fonda to sign this contract when I drew it, and reference to her in the contract was put in there by the stenographer, and should not have been put in there.” Martha McFarland testified: “Mr. Fonda said it was not necessary for his wife to sign the contract. Mr. John (meaning plaintiff) asked him if it was necessary for his wife to sign it * * * and Mr. Fonda said it was not necessary for her to sign the contract, but she would sign the deed; and she understood the whole thing. He said she would carry out the contract.”

This testimony, as we understand the record, is contradicted alone by the testimony of the appellant, and, if it be conceded that appellee’s right to recover turned upon whether or not it was intended by appellant and appellee; when ■ the contract in question was signed, that Mrs. Fonda should sign it, a question we need not decide, certainly the evidence quoted is amply sufficient to sustain the jury’s finding that such was not the intention.

The Constitution of this state declares that the owner, if a married man, shall not sell the homestead without the consent of the wife given in such a manner as may be prescribed by law, and our statute provides that such consent shall be evidenced by the wife joining in the conveyance, and signing her name thereto, and also by her separate acknowledgment thereof, taken and certified to before the proper officer and in the mode pointed out. The form given for this acknowledgment requires that the wife shall be examined by the officer privily and apart from her husband; that the instrument shall be fully explained to her; that she acknowledge such instrument to be her act and deed, and declare that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it. In Jones and Wife v. Goff, 63 Tex. 248, it is held that the homestead cannot be made the subject of an executory contract for its sale by the husband and wife, even though the wife’s acknowledgment of its execution may be taken in the manner prescribed by law for its actual conveyance by deed; that, up to the last moment before the title passes, the married woman may, by retracting what she contemplated doing, retain it, and hence that essential element in the conveyance of the homestead — namely, the right of the wife to retract — is wanting in an executory contract to convey, and, where she refuses to carry out such contract, it is beyond the power of the court to supply that essential element. So, had Mrs. Fonda signed and acknowledged the contract made the basis of this suit in the manner required in case of its conveyance by deed, and thereafter refused to convey, she could not have been compelled by law to do so because of the execution of the contract. But it seems to be well settled that, while a bond or contract executed by the husband alone to convey the homestead could not be enforced against the wife in an action for specific performance, yet it. would not be an unlawful undertaking, and an action would lie for damages against the husband for its breach. Brewer v. Wall, 23 Tex. 589, 76 Am. Dec. 76; Cross v. Everts, 28 Tex. 524; Goff v. Jones, 70 Tex. 577, 8 S. W. 525, 8 Am. St. Rep. 619; Krebs v. Popp, 42 Tex. Civ. App. 346, 94 S. W. 115. There is no evidence pointed out or discovered by us in the record that tends to show that, at the time of the execution of the contract involved in. this case, appellant’s wife would not join in a deed conveying the property mentioned in said contract. On the contrary, the evidence shows that ap-pellee was assured by appellant that his wife was willing to make the trade and would join in the deed.

There was no error in refusing the special charge asked by appellant and made the basis of his third assignment of error. This charge, in so far as it was correct and applicable to the facts of the case, was sufficiently covered by the court’s main charge.

We have found no reversible error, and the judgment is affirmed.


text:
    STATE FAIR OF TEXAS v. COWART.
    (No. 1279.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 30, 1914.
    Rehearing Denied April 16, 1914.)
    1. Appeal and Eeeob (§ 773) — Filing op Beieps — Dismissal.
    Where appellant did not file his briefs in accordance with Rev. St. 1911, art. 2115, and rule 39 for the Courts of Civil Appeals (142 S. W. xiii), serving the brief on appellee only nine days before the time for submission, and ap-pellee was unable to prepare a brief owing to the shortness of the time, appellant’s appeal will be dismissed, where the only excuse was lack of time on the part of his counsel because of other business, for an appellee is not only entitled to 20 days in which to prepare his brief, but to have the case disposed of on the day set for submission.
    . [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    2. Stipulations (§ 19*) — Enfobcement.
    Under rule 46 for Courts of Civil Appeals (142 S. W. xv), requiring all stipulations waiving any of the requirements for the preparation of an appeal to be in writing, signed by the parties or their counsel, an appellant who failed to file his briefs within the time required cannot, where there was disagreement as to its terms, take advantage of an oral stipulation waiving the rules for the filing of briefs.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 55-63; Dec. Dig. § 19.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action between J. T. Cowart and the State Fair of Texas. From a judgment for the former, the latter appeals.
    Appeal dismissed.
    J. J. Eckford, R. G. Watson, and George Wright, all of Dallas, for appellant. J. B. Warren, of Houston, for -appellee.

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

   WILLSON, C. J.

We think the motion to dismiss the appeal because of the failure of appellant to comply with the law (article 2115, R. S. 1911) and the rules (rule 39 for the government of Courts of Civil Appeals [142 S. W. xiii]) with reference to the filing of briefs must be sustained.

The record was filed in the Court of Civil Appeals for the Fifth District on August 19, 1913. The cause was transferred to this court by an order of that court made February 10, 1914, and the record was filed here February 14,1914. Thereafterwards, by an order made February 19, 1914, the cause was set down for submission on March 5, 1914. It seems a copy of appellant’s brief was never filed in the court below, and copies of same were not filed here, and a copy was not delivered to appellee until February 24, 1914. The brief filed by appellant, as stated, contains 93 pages of printed matter, presenting 34 assignments of error. It appears from appellee’s motion that his counsel were unable to prepare and file a brief on his behalf within the nine days elapsing between the time the copy of appellant’s brief was delivered to him and the time the cause was set down for submission. So it appears that if the motion should be overruled and the cause should be disposed of on the submission taken thereof, appellee will be deprived of a right the law' confers on him to file a brief in reply to that filed by appellant; or, if the submission of the cause should be set aside and it should be set down for submission on another day, he will be deprived of a right the law confers on him to have the cause disposed of when reached in its order by this court. The excuse urged by appellant for not sooner filing its briefs in the appellate court is lack of time on the part of its counsel to prepare same because of other business engagements. The 'excuse clearly is not sufficient, and unless it should be said that appellee was in the attitude of having waived the filing of the briefs before the time they were filed, there is no doubt the appeal should be dismissed; for in the absence of such a waiver, appellee was entitled to 20 days after he was notified of the filing, in the court below, of a copy of appellant’s brief, and before the submission of the cause in -this court, in which to prepare and file briefs here, whereas only 9 days intervened between the time a copy of appellant’s bri’ef was delivered to him and the time the cause was set down for submission.

In his motion appellee says his counsel verbally “waived the filing of briefs in the lower court, and agreed that appellant might file its briefs at any time before January 1, 1914, provided it was presented to counsel for appellee 30 days before the submission day.” In its reply to the motion appellant says that it was agreed between its counsel and counsel for appellee, “while discussing the statement of facts,” “that the filing of briefs in the lower court would be waived. At this time, which was in July, 1913, appellant’s counsel knew that it would be impossible for him to work on the briefs before December, and so stated to appellee’s counsel. Appellant’s counsel does not understand the agreement to be that its briefs were to be filed by January 1st, but information was then given appellee’s counsel that he could not get to it before that time.” Rule 46 for the government of Courts of Civil Appeals (142 S. W. xv) requires “all agreements of parties or their counsel relating either to the merits or conduct of the case in the court, or in reference to a waiver of any of the requirements prescribed by the rules, looking to the proper preparation of an appeal or writ of error for submission,” to be In writing, “signed by the parties or their counsel.” It will be noted that, according to appellee’s contention, the verbal agreement on his part to waive the filing by appellant of a copy of its brief in the trial court as required by law was on the condition that the brief be filed in the appellate court before January 1, 1914, and that his counsel be furnished with a copy of same 30 days before the day on which the cause was set down for submission; while, according to appellant’s contention, the waiver was absolute. If the agreement was as appellee states it, were it in writing and therefore enforceable by this court, it could enforce it and preserve to appellee all his rights in no other way than by striking the briefs from the files. But, as before stated, appellant says the agreement was not as appellee states it, but was a waiver without condition as to the time of filing the briefs here. In this attitude of the matter, the agreement being a verbal one, we are not called upon to determine its terms. The course we should pursue, in the face of the dispute as to what the agreement was, is to ignore it altogether and dispose of the motion as it should be disposed of in the absence of an agreement. Manowitz v. Gaenslen, 142 S. W. 963.

The conclusion reached by us that, on the facts stated, the law and the rules require that the motion should be sustained is supported by the following, among other authorities that might be cited: Krisch v. Richter, 125 S. W. 935; American Warehouse Co. v. Hamblen, 146 S. W. 1006; Tel. Co. v. White, 140 S. W. 125; Ry. Co. v. Martin, 132 S. W. 834; Hamilton v. McLane, 147 S. W. 284; Hunt v. Glasscock, 27 Tex. Civ. App. 322, 65 S. W. 209; and Dodd v. Presley, 81 S. W. 811.

The appeal is dismissed.


author: HARPER, J.

text:
    MANN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    Appeal from District Oourt, Hill Oounty; Horton B. Porter, Judge.
    W. A. Mann was convicted of pursuing the business and occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of pursuing the business and occupation of selling intoxicating liquors in prohibition territory. The record before us contains neither a statement of facts nor any bills of exception. The motion for a new trial alleges some matters which, if properly supported by affidavits, might present questions for review; but, in the absence of any supporting affidavits, no evidence of any character accompanying the record, the judgment must be affirmed. The judgment is affirmed.


text:
    SIMS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    Appeal from Tarrant County Oourt; Jesse M. Brown, Judge. Luther Sims was convicted of misdemeanor, and he appeals.
    Affirmed.
    O. E. Lane, A§st. Atty. Gen., for the State.
   HARPER, J.

Prom a judgment convicting him of a misdemeanor, appellant gave notice of appeal. He, however, has not completed the record, for therein is no statement of facts; nor does the record contain any bills of exception. Under such circumstances, the judgment must be affirmed._


text:
    SINGER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    Appeal from Tarrant Oounty Court; Jesse M. Brown, Judge.
    Abe Singer, alias Joe Burke, was convicted of a misdemeanor, and he appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of a misdemeanor, and his punishment assessed at a fine of $25. The case was tried by the court, a jury having been waived. No statement of facts nor any bill of exceptions accompany the record, and under such circumstances no question is presented for review. The judgment is affirmed.


text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    Appeal from Johnson Oounty Oourt; J. B. Haynes, Judge.
    Bud Smith was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of violating the prohibition law, and his punishment assessed at a fine of $25 and 20 days’ imprisonment in the county jail. A jury was waived, and the issues submitted to the court. The defendant admits that the prosecuting witness, J. W. Peters, approached him and stated he wanted some whisky. Appellant says he told Peters he had no whisky, but thought he could get him some; that he went and purchased the whisky from one Pettigrew, who is now a refugee from justice. This explanation, if true, would show that he was merely acting as agent for Peters; but the court did not apparently believe it, and the testimony -of Peters supports the judgment. The judgment is affirmed.


author: HODGES, J.

text:
    BASS et al. v. MARSH.
    (Court of Civil Appeals of Texas. Texarkana.
    March 10, 1914.
    Rehearing Denied March 26, 1914.)
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by W. H. Marsh against H. F. Bass and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Las-seter & Mellwaine and N. A. Gentry, all of Tyler, and F. B. Martin, of Longview, for appellants. Marsh & Mellwaine, of Tyler, for appellee.
   HODGES, J.

The appellee instituted this suit against the appellants to recover a tract of 110 aeres of land, described as a portion of survey No. 1170, patented to him November 26, 1912. In their answer the appellants claimed the land sued for as a part of the Dial survey, patented in 1857. It appears from the plat attached to the statement of facts that the Dial survey is a long, narrow strip forming the base and perpendicular of a right-angled triangle. That portion of the tract involved in this suit lies next to the east boundary line of Smith county, that line being the east boundary line of the survey. West of the Dial survey, 363 varas distant, is the east boundary line of a large tract called the Barnes Clark survey, patented in 1848. It is contended by the appellants that the field notes of the Dial survey cover all of the territory between the county line and the Barnes Clark survey. The case was tried before the court without a jury, and a verdict rendered in favor of the appellee. The only question presented in, this appeal is whether the facts supported the judgment rendered. The court filed the following findings of fact and conclusions of law, which we adopt:

“(1) That on November 4, 1848, the state patented to Barnes Clark one league and labor of land. (2) That the east boundary line of the Clark survey is well marked, and the northeast corner thereof established, and not contradicted by either plaintiff or defendants. (3) That on October 27, 1857, the state patented to I. Dial a tract of land beginning at the northeast corner of James Camburn, on the west line of Rusk county; thence north 3,744 varas on said line, from which a black jack 8 inches in diameter bears S. 60° E. 5.6 varas, and another 10 inches in diameter bears N. 17° E. 9.6 varas; thence west 154 varas a post on the east line of the Barnes Clark league, from which a black jack 12 inches in diameter bears N. 77° E. 1 vara, and another 10 inches in diameter bears S. 20° E. 17 varas; thence south 3,744 varas on said line, crossing Wild’s creek at 3,037, to the southeast corner of said league, on the north line of Camburn survey. (4) That the I. Dial survey was actually run on the ground. (5) That the distance between the west boundary line of Rusk county, which is the east boundary line of I. Dial, and the east boundary line of the Barnes Clark league, is 363 varas. (6) That the surveyor who ran out the I. Dial land, while he called for the east boundary line of the Barnes Clark, did not in fact go to said east boundary line, but stopped 206 varas short of it, evidently being mistaken as to the true location of said east boundary line of the Clark, and ran south from a point 206 varas east of the east boundary line of said Clark for the west boundary line of the Dial. (8) That the state of Texas patented to W. H. Marsh the strip of land in controversy, together with other land not in suit, on November 26, 1912. I hereto attach a plat of the Marsh survey, as well as surrounding surveys, for reference.
“Conclusions of Law. Upon foregoing conclusions of fact, I find the land in controversy was not included in the patent to I. Dial, and was public land, and belonged to the state of Texas prior to November 26, 1912, and was subject to patent on said date, and that, belonging to the state, limitations did not begin to run in plaintiff’s favor until November 26, 1912. I therefore adjudge the land to plaintiff.”

It would sei’ve no useful purpose for us to discuss in detail the facts upon which the court based his findings and conclusions. We have carefully examined the record, and think there is ample support for the judgment rendered; and it is accordingly affirmed.


author: HALL, J.

text:
    HAYES et al. v. ROBINSON BROS.
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1914.)
    Appeal from Lubbock County Court; E. R. Haynes, Judge.
    Action between C. C. Hayes and others and Robinson Bros. From a judgment in favor of the latter, the former appeal.
    Affirmed.
    W. D. Benson and Bean & Klett, all of Lubbock, for appellants. Jas. R. Robinson and Roscoe Wilson, both of Lubbock, for appellees.
   HALL, J.

Affirmed.


text:
    QUANAH, A. & P. RY. CO. v. STONE.
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.
    Rehearing Denied April 11, 1914.)
    Appeal from Hardeman County Court; W. S. Banister, Judge.
    Action by C. H. Stone against the Quanah, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Fires, Decker & Clarke, of Quanah, for appellant. J. C. Marshall and W. H. Ratliff, both of Quanah, for appellee.
   HALL, J.

Affirmed.


author: PER CURIAM.

text:
    TEXAS, G. & N. RY. CO. et al. v. HUDGINS.
    (Court of Civil Appeals of Texas. El Paso.
    March 12, 1914.
    Rehearing Denied April 2, 1914.)
    Appeal from Midland County Court; J. H. Knowles, Judge.
    Action by J. W. Hudgins against the'Texas, Gulf & Northern Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Reformed and affirmed.
    See, also, 165 S. W. 62. A. S'. 'Rollins, of Amarillo, for appellants.
    Chas. Gibbs, J. M. Caldwell, and Earl Anderson, all of Midland, and S. P. Weisiger of El Paso, for appellee.
   PER CURIAM.

Reformed and affirmed. .


text:
    TEXAS, G. & N. RY. CO. v. SWART et al.
    (Court of Civil Appeals of Texas. El Paso.
    March 12, 1914.
    Rehearing Denied April 2, 1914.)
    Appeal from Midland County Court; J. H. Knowles, Judge.
    Action by E. W. Swart against the Texas, Gulf & Northern Railway Company and others. From a judgment for plaintiff, the defendant named appeals.
    Reformed and affirmed.
    See, also, 165 S. W. 62. A. S. Rollins, of Amarillo, for appellant.
    Chas. Gibbs, J. M. Caldwell, and Earl Anderson, all of Midland, and S. P. Weisiger, of El Paso, for appellee.
   PER CURIAM.

Reformed and affirmed.

End 03? Cases in Yol. 165