text:
    TRINITY & B. V. RY. CO. v. McDONALD.
    (No. 35-2683.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    1. Carriers <§=>280(1) — Carriage of Passengers — Duty of Carrier — Negligence.
    Railroad companies are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them as would be used by a very cautious, prudent, and competent person under similar circumstances, the failure to exercise such care being actionable negligence.
    2. Negligence <$=>63 — “Actionable Negligence.”
    For negligence to be actionable, the injury must be observable and preventable, except when declared by positive law.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Actionable Negligence.]
    3. Carriers <§=>302(2) — Injury to Passenger — Use of Open Toilet.
    Railroad’s failure to furnish train with toilet having bowl or pan at the bottom of stool did not render it liable for injury to passenger’s eye from small hard substance blown through opening in stool, such injury not having been foreseen by railroad as result of the use of open toilets.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by John W. McDonald against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff affirmed by Court of Civil Appeals (160 S. W. 984), and defendant brings error.
    Reversed, and judgment rendered for defendant.
    N. H. Lassiter and Robt. Harrison, both of Ft. Worth, and Morrow & Morrow, of Hills-boro, for plaintiff in error.
    Walter Collins, of Hillsboro, and B. Y. Cummings and V. L. Shurtleff, both of Waco, for defendant in error.
   MONTGOMERY, P. J.

We take the following statement from the opinion of the Court of Civil Appeals which is -reported in 160 S. W. 984:

“Appellee [McDonald] sued the railway company to recover damages for personal injuries received by him while a passenger on appellant’s train. Plaintiff, in substance, alleged that while traveling as a passenger on appellant’s train operated between Hillsboro and Osceola, Tex., he had occasion to go into one of the toilet rooms situated in said coach and maintained by appellant; when he raised up the top of said toilet, the wind rushed up through the opening of said toilet with great force and a piece of steel, or particle of [some] character of metal, struck him in the eye and imbedded itself in the ball of the eyé, which caused the loss of said eye. Negligence was alleged in' having a toilet with an opening through it, instead of one with the opening closed in such manner as to prevent such substances being blown through, and in failing to equip said toilet room with modern and approved appliances for closing said opening, etc. Appellant answered by a general denial. A trial resulted in a verdict and judgment for $2,000, from which this appeal is prosecuted.”

The Court of Civil Appeals affirmed the judgment of the trial court.

The Trinity & Brazos Valley Railway Company applied for a writ of error to review the judgment of the Court of Civil Appeals, which was granted (170 S. W. xx).

The petition contains only one assignment of error, which is:

“The Court of Civil Appeals erroneously declared the substantive law of this case in holding that the evidence authorized the trial court to submit to the jury any question of negligence on the part of the appellant; it being apparent from the evidence that, as a matter of law, your petitioner was guilty of no negligence.”

The evidence shows that the plaintiff, McDonald, was injured in the manner and to the extent alleged by him.

The toilet room of the ear in which he was riding as a passenger was equipped with a stool with an opening through it, and was not provided with any means of closing the opening except by the lid or cover at the top of the stool. That part of the stool within the car is called by the witness the “hopper chute” or “bowl.” The top is about 14 inches in diameter and tapers to 6¾ inches at the bottom. Below the hopper chute and beneath the car is what is called a “bonnet” extending from the floor of the car downward about 20 inches and being about 9 inches square. This bonnet is directly beneath the opening in the chute, and so makes a continuous opening. This bonnet is provided with two ventilators near the floor of the car, one at each end, contrived and intended to create a downward current of air through the chute and bonnet while the train is in motion.

The train at the time of plaintiff’s injury was going north and consisted of engine and four coaches, and the toilet room in which plaintiff was injured was in the northeast corner of the rear car. The evidence showed that at the time of the injury the train was at a place where there was a sharp curve in the track.

Various witnesses for the railway company testified that coaches with toilet arrangements such as are described above were in use, and had been in use for many years, on practically all the railroads in the state. There was also testimony to the effect that most of the cars built in recent years were provided ■with toilets having a pan or bowls at the bottom of the stool, and facilities for flushing with water, so that by pushing a lever the pan is emptied and flushed and when the lever is released returns to its position. There was also evidence that some new cars were being constructed with the open toilet. The testimony, however, we think, shows that this more modern equipment was provided for sanitary purposes, and that there was no purpose of preventing accidents or injuries such as is shown in this case. The testimony, however, shows that, if the toilet had been equipped with a pan ás described above, the injury would not have occurred.

There was testimony that the wheels of the engine and cars when in motion sometimes grind off small particles of steel from the rails, and that these particles partaking of the motion of the wheels fly off at a tangent, the distance being uncertain, but estimated at from 2 to 8 or 10 feet, the direction being in the opposite direction from that of the train, and that the grinding off of particles is more liable to occur on curves than straight track. There was a volume of evidence by the railway company by men. experienced in the business to the effect that owing to the location of the toilet with reference to the wheels and rails, and to the steps and other parts of the car, it was in their opinion extremely improbable, if not impossible, that an accident of the character shown in this case could occur. The evidence of all the witnesses is that none of them ever heard of a similar or any other injury due to the use of an open toilet such as was in the car in which plaintiff was riding.

The particular testimony on which plaintiff relies as being sufficient to show that the railway company did or ought to have anticipated that some injury similar to the one suffered by plaintiff might occur by reason of the equipment was as follows:

E. A. Haver, a witness for defendant, on cross-examination, after having testified as to the construction of the car and the location of the toilet with reference to the steps and other parts of the car testified:

“That step I think would be the protection that would keep the small particles of steel thrown back here from going up that hole, and it helps a great deal. In the cars that I have helped to build the steps were built that way to protect the passengers from steel that might go up there, and I think it enters into it.”

Again he said:

“It was not my opinion that the main reason that these steps were built in this manner was to protect this opening from these steel particles, only partly.”

This witness, who was a car builder, testified further that in building the cars he did not construct the steps as they were built to prevent particles from entering the car through the toilet, but that he built them as instructed.

There was evidence by several witnesses that on some occasions they had observed that toilet paper would be carried upward and into the car by air currents, and there was some evidence that under certain conditions there was an upward current of air through the opening of the toilet.

.The foregoing, we think, sets out all facts necessary.

Opinion.

The facts as stated by us show that the plaintiff, McDonald, was injured in the manner alleged by him; that is, by a small particle of steel or other hard substance being carried by an air current through the opening in the stool and striking him in the eye with sufficient force to penetrate thé ball.

It is not contended that the doctrine of “res ipsa loquitur” applies to this case. The facts are not such as raise a presumption of negligence.

The only allegation of negligence is that the railway company was negligent in providing the open toilet instead of one equipped with a pan or bowl which would have prevented the injury.

“Railroad companies * * * are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances.” Railway Co. v. Halloren, 53 Tex. 53; 37 Am. Rep. 744; I. & 6. N. Ry. Co. v. Welch, 86 Tex. 204, 24 S. W. 390, 40 Am. St. Rep. 829.

Any failure to exercise the degree of foresight and prudence mentioned would be actionable negligence. If an injury occur not due to the carrier’s negligence, there is no liability.

The test in this case is therefore: Would a very cautious, prudent, competent person, situated as was the railway company in this case, in the exercise of the degree of care required of it, have anticipated that by reason of this open toilet a passenger might receive an injury similar to that received by the plaintiff? In other words, ought it to have anticipated that particles of metal (or other substance might be carried by air currents through the opening in the toilet with sufficient force to inflict an injury similar to that suffered by the plaintiff?

For negligence to be actionable injury must be observable and preventable, except when declared by positive law.

The rule with reference to anticipation of consequences applicable to this case may be thus stated: The defendant is liable for injuries proximately caused by his act or omission when injurious consequences to others could under the circumstances have been foreseen by a very prudent and cautious person in the defendant’s position, at the time, as a reasonable probability. Street on Negligence, p. 75.

The question then is: Is there any evidence which authorizes a finding that the railway company, under the circumstances of this case, ought to have anticipated that, by reason of the manner of construction of the toilet, any person might suffer an injury similar in its nature to that of the plaintiff?

We think the evidence shows only that the railway company ought to have anticipated that passengers or others using the toilet might suffer some discomfort or inconvenience by reason of the construction of the toilet.

The test we have given above is the one ordinarily given to juries in negligence cases of this character; but, in determining whether there is any evidence upon the issue in support of the verdict, we may well take into consideration other tests that have been applied by the courts.

In 20 R. O. L., it is said:

“The common experience of mankind is the criterion for determining what customary measures shall be taken to avoid injury to others. Every one may rightfully rely upon experience, and as a rule he is not charged with negligence in respect to acts which conform to a practice which has existed for years without resulting in any injury. Persons who are charged with a duty in relation to a particular matter or thing have a right to rely upon the sufficiency of a structure or contrivance such as is in common use for the purpose and which has been in fact safely used under such a'variety of conditions as to demonstrate its fitness for the purpose. When a structure or appliance such as is in general use has uniformly answered the purposes for which it was designed and used under every condition supposed to be possible in the business, it cannot in reason be said that a person has not acted with ordinary prudence and sagacity in not anticipating an accident which afterwards happens in the use of the thing notwithstanding it continued substantially in the same condition all the time.”

In T. & P. Ry. Co. v. Bigham, 90 Tex. 225, 38 S. W. 163, is is said:

“It ought not to be deemed negligent to do or fail to do an act, when it was not anticipated * ⅜ ⅜ ^hat ⅛ would result in injury to any one. To require this is to demand - of human nature a degree of care incompatible with the prosecution of the ordinary avocations of life. It would seem there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.”

These principles are universally recognized and have been applied in many cases in this state. ''

The difficulty is to apply them to a given state of facts, and we recognize fully that their application to one state of facts can rarely be a precedent for any other case, because it is hardly possible for two cases to be identical. Whether a certain result could be anticipated from a given act or omission is usually a question of fact, and becomes a question of law only when but one reasonable conclusion can be drawn from the facts.

We have, in the light of the principles which we have announced, read and re-read the entire statement of facts, and have concluded that there is no evidence in the record which authorized a finding by the jury of negligence on the part of the railway company in furnishing the open toilet and failing to provide a toilet with a bowl or pan at the bottom of the stool.

It is true the accident would not have happened had the latter equipment been provided, but we are pursuaded that it never occurred to any railway company or any railway employes that the improved method of equipment was intended as a safety appliance, or that the use of the open toilet was attended with any danger. All the evidence is that the pan and (provision of) facilities for flushing were for sanitary purposes only.

The open closet such as was provided by the railway company in this case, according to the testimony, has been in practically universal use for many years, and no such accident so far as shown has ever occurred before. The testimony shows that the open toilet is still in use in at least some of the cars of practically all the railroads in this section of the country.

The testimony relied on by the Court of Civil Appeals we do not think should be held sufficient to show ground for anticipation of danger on the part of the. railway company.

The evidence of the witness Haver that the steps of the car had a tendency or helped to prevent any particles of steel ground off the rail from entering the car through the open toilet, and his further statement that the steps were built in that way to protect the passengers from such particles, when read in the light of his own and all of the other testimony in the case, we think is insufficient to show negligence.

This witness had already testified that he had never known of any accident as a result of the open toilet. In reply to a question he stated that the steps of the ear would be in the way and prevent particles of steel thrown off from the wheels in front from entering the opening in the toilet, and in this connection he testified to the relative location of the wheels, steps, and toilet. He further testified that in his judgment a particle of steel from the rails could not be so thrown as to come into the car through the toilet. He further testified:

“That step I think would be the protection that would keep the small particles of steel thrown back here from going up that hole and it helps a great deal.”
He further said:
“I only give my personal opinion, and my personal opinion is that is a part of the reason for putting the step there.”

The testimony of Hayer relied on by the Court of Civil Appeals should, we think, in the light of the entire record, be treated as no more than the opinion of Haver. In the absence of some evidence tending to show that some such accident as occurred in this case had occurred, or that the circumstances were such as to have induced an apprehension that such might occur, we think that ground for anticipation of danger has not been shown. We have reached the conclusion announced after much hesitation, because it is contrary to the opinion of the trial court and of the Court of Civil Appeals upon a question of which they are as competent to judge as we, and for whose opinion we have the highest regard; but we have been unable to agree with them that the evidence in this case shows liability.

We think the judgment of the Court of Civil Appeals and of the district court should be reversed, and judgment here rendered for defendant.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McCLENjDON, j. PHILLIPS, C, J.

license: Public Domain

text:
    STEPHENVILLE, N. & S. T. RY. CO. v. SHELTON.
    (No. 34—2681.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    1. Master and Servant <g=>291(8) — Injuries to Servant — Instruction — Lack of Support in Evidence.
    In action against railroad for injuries to servant while lowering pipe into well, in view of evidence, instruction that if jury believed plaintiff himself slackened rope and threw it from around drum, and the foreman did not do so, plaintiff could not recover, held, properly refused. f

    2. Trial <§=>142 — Question for Jury — Inference from Evidence.
    The jury were the judges, not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.
    3. Master and Servant <@=>163(1) — Injury to Servant — Negligence of Foreman.
    If railroad’s foreman ordered plaintiff, assisting in lowering pipe into well by rope passing over a drum, to slacken rope, so that plaintiff’s strength became inadequate, and he was injured, railroad was chargeable with actionable negligence.
    4. Master and 'Servant <§=>217(28) — Injury to Servant — Assumption of Bisk.
    In action against railroad for injuries to servant while lowering pipe into well by rope, requested instruction that plaintiff could not recover if he knew assistance was inadequate, and yet undertook work of his own volition, while ordinarily prudent person would not, held properly refused, as erroneous, in view of Rev. St. 1911, art. 6645.
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by W. L. Shelton against the Ste-phenville, North & South Texias Railway Company, resulting in judgment for plaintiff, which was affirmed by the Court of Civil Appeals (163 S. W. 1034), and defendant brings error.
    Judgments of the trial court and the Court of Civil Appeals affirmed, on recommendation of the Commission of Appeals.
    Marshall Ferguson, of Stephenville, for plaintiff in error.
    Langford & Chesley, of Hamilton, for defendant in error.
   McCLENjDON, j.

This was an action for damages for personal injuries sustained by plaintiff while in the employ of defendant railway company. A judgment in favor of plaintiff was affirmed by the Court of Civil Appeals, Third District. 163 S. W. 1034. The alleged errors complained of in the Supreme Court are the refusal to give two special charges.

The evidence pertinent to the issues raised is substantially as follows: Plaintiff was employed by one Dan Hamilton, who was in charge of a pumping station for defendant, to assist in lowering pipe into a well. This was done by means of a rope, which passed in four coils over a stationary “drum” or “cathead”; the friction of the rope on the drum enabling the lowering of the pipe with less power than if the weight of the pipe were directly opposed to the man or men holding the rope. Plaintiff was holding the rope, bracing himself with one foot against a bar. Hamilton was stationed at the drum and directed the work. The acts of negligence alleged were: (1) That Hamilton suddenly threw the coils of the rope off the drum without• warning to plaintiff; (2) failure to-have sufficient help to sustain the great weight of the pipe; and (3) improper method of doing the work. Plaintiff and Hamilton were the only eyewitnesses to the occurrence who testified. Whether there was a third man stationed on top of a scaffold is not clear from the testimony. The evidence was sufficient to warrant a finding to the effect that the help was inadequate. Plaintiff’s version of the' accident was: “He [Hamilton] says to me, ‘Give me a little slack,’ and I did, and. he threw one coil off, and when he did that the whole business came off” — thereby throwing all the weight of the pipe upon the rope, which caused him to be jerked some 15 feet and injured as alleged. Hamilton, on the other hand, testified that he stepped around and put his hand over the coils and held them tight, and, when he did that, the plaintiff, instead of holding the rope tight, “threw the whole thing off and let it loose,” and he (Hamilton) could not handle it with his hands, and turned it loose as quickly as he •could, because it was burning him. “He just stepped up and throwed the rope off that way. If he had put his hand right there and held it, he could have done it; but, instead of doing that, he gave it slack all the way around, and I could not hold it.” He denied that he gave any orders to plaintiff to slacken the rope. On cross-examination, he testified: “I say that Shelton walked up here and deliberately took that rope off of that •drum.” Further, on cross-examination, he says, “He did not throw the rope off, but gave slack as he took it off”; and further, “When Shelton came over there and pulled that coil off, I was right here holding that drum or the three coils. I saw him do it, but it was so quick, 1 did not hardly realize what he was doing.” Later Hamilton admitted that he made a report to defendant just after the accident, in which he wrote “Overweight” in answer to a question calling for the cause of the accident.'

The first special charge, refusal of which is assigned as error, reads:

“You are instructed that, if you believe from the evidence in this case that plaintiff himself loosened or slackened the rope and threw same from around the drum head and that Hamilton did not do so, then plaintiff cannot recover.”
Under the evidence as above outlined, we do not believe that it was error to refuse this charge. Defendant contends that the evidence warrants but two versions of the accident — one, that given by plaintiff to the effect that Hamilton removed the coils of rope; and the other, the statement of Hamilton that, without any suggestion from him, plaintiff himself threw off the coils and was injured. We cannot accept this narrow construction of the evidence. The jury were not bound to accept in whole either the testimony of plaintiff or that of Hamilton.. They might have concluded that the real facts lay somewhere between the statements of the two witnesses. To hold that the bare facts that plaintiff himself slackened the rope and threw off the coils would defeat recovery would be warranted only where no reasonable conclusion could be drawn from such facts other than that they negative as a matter of law any actionable negligence on defendant’s part. The jury were, the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not. unreasonable. We think the jury may reasonably have found that Hamilton ordered plaintiff to slacken the rope; that plaintiff (and not Hamilton) himself slackened the rope and thereby loosened and threw off the coils; yet they may also have properly concluded from the evidences that, so long as the rope remained taut, the strength of one man was sufficient to hold it, but that, when slack was given, which was necessary to lower the pipe, the strength of one man was inadequate to the additional force generated by the momentum of the pipe, and that the inadequacy of help was at least a contributing cause to plaintiff’s injuries. Under such finding, which is entirely consistent with the facts grouped in the requested instruction, we think there would have been actionable negligence chargeable to defendant.

The other charge complained of contains the following language:

“Although you may believe from the evidence that defendant did not have sufficient force to help do said work with safety, yet plaintiff cannot recover in this issue if he knew that the help was inadequate, and so knowing he undertook to do it of his own volition, and that an ordinarily prudent person would not, under the same or similar circumstances, undertake to do the work.”

This charge is clearly erroneous. Article 6645, R. S. 1911, eliminates the doctrine of assumed risk in this class of cases, where a person of ordinary care, with knowledge both of the defect and danger, would have continued in the service. The charge quoted above required the jury to find that plaintiff assumed the risk, should they find that a person of ordinary care, with knowledge of the defect alone, would not have continued in the service. We cannot say as a matter of law, if a person of ordinary care, who knew only of the defect, and not of the danger incident thereto, would not continue in the service, that it would necessarily follow that a person of. ordinary care, knowing both the defect and danger, would likewise not have continued in the service. We believe this charge was properly refused.

We conclude that the judgments of the district court and Court of Civil Appeals should be affirmed, and that all costs of all courts should be taxed against plaintiff in error.

PHILLIPS, C, J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <g^>For otter cases see same topic and KEY^NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    RUTHERFORD v. STATE.
    (No. 5281.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    Criminal Daw <§=>1070 — Appeal—Abatement.
    Where, pending appeal from a conviction of a felony, defendant died, and that fact was made to appear by an affidavit filed with the record, the state’s motion to abate the appeal will be granted.
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Rice Rutherford was convicted of assault to murder, and he appeals.
    Appeal abated.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This appeal is from a conviction for assault td murder, the punishment being assessed at a term in the penitentiary.

Pending this appeal appellant died. This is made-to appear by affidavit filed with the record. Under the authorities the state’s motion to abate the appeal will be granted.

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


author: MORiROW, J-

text:
    AMASON v. STATE.
    (No. 5275.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    Criminal Law <§=>1090(1) — Appeal — Review.
    Where the indictment is regular, nothing is presented for review in the absence of bills of exception and statements of fact.
    Appeal fromj District Court, Shelby County; Daniel Walker, Judge.
    Pate Amason was convicted 'of selling intoxicating liquors in local option territory, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORiROW, J-

This conviction was for the sale of intoxicating liquors in a locality in which such sale is prohibited by virtue of the local option statute.

In the absence of bills of exception and statement of facts, neither of which is found in the record, there is nothing presented for review; the indictment ’appearing1 regular.

The judgment of the lower court is affirmed.


text:
    AMASON v. STATE.
    (No. 5276.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    Appeal from District Court, Shelby County; Daniel Walker, Judge.
    Pate Amason was convicted of violating the local option law, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for violation of the local option law, the punishment being assessed at two years’ confinement in the penitentiary.

Appellant pleaded guilty. There is neither a statement of facts nor bill of exceptions contained in the record. None of the grounds of the motion for new trial are in any wise verified so that they may be considered by this court.

The judgment is affirmed.


author: MORROW, J.

text:
    JACOBS v. STATE.
    (No. 5266.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    1. Criminal Law <§=>1160 — Approved Jury Finding — Review.
    Issue as to sale of whisky in local option territory having been submitted to the jury in a charge not complained of, their finding upon conflicting evidence, approved by the trial court, will not be disturbed, in view of White’s Ann. Code Cr. Proc. arts. 734, 766, as to jury being judges of facts.
    2.'Criminal Law <§=>742(1) — Credibility of Witnesses — Province of Jury.
    State’s witness being competent, and having testified to a state of facts which, if true, established defendant’s guilt, credibility of the witness, in the light of impeaching testimony or contradictory facts, was particularly within the province of the jury.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Sam Jacobs was convicted of the sale of intoxicating liquors in violation of the local option law, and he appeals.
    Affirmed.
    Wm. Kennedy and James Kimbell, both of Groesbeeck, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for the sale of intoxicating liquor in violation of the local option prohibition law.

The prosecuting witness testified definitely that he purchased whisky, at the date alleged in the indictment, from the appellant. The sale was denied by appellant, and various circumstances were introduced to dis credit the testimony relied on by the state, and its witness was impeached upon collateral matters.

The issue was submitted to the jury in a charge which is not complained of, and their finding upon conflicting evidence having been approved by the trial court, this court is not authorized to disturb it. White’s Code Cr. Proc. art. 766, provides:

“The jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony.”

And in article 734, Code Cr. Proc., it is declared:

“The jury are the exclusive judges of the facts in every criminal cause.”

See cases, Vernon’s Code Cr. Proc. p. 689, note 15. This court has never assumed the authority to reverse a case where the evidence, though conflicting, is sufficient if believed by the jury.

The state’s witness being a competent witness, and having testified to a state of facts which, if true, establish the guilt of the appellant, his credibility, in the light of impeaching testimony or controverting facts, is peculiarly within the province of the jury. It is neither practicable nor lawful for the appellate court or the trial court- to tafee away from the jury the.authority conferred upon them by law to pass upon the weight and credibility of evidence. The trial court, in reviewing the matter on motion for new trial, may have some discretion' to set aside the verdict which he, after hearing the evidence, regards as unjust; but that discretion does not exist in an appellate court, the judges of which have neither seen the witnesses nor heard them testify. The law recognizes, and the courts have often affirmed, that where the evidence is conflicting the jury and the trial judge are in a position much more favorable than the judges of the appellate court to determine whether the verdict reflects the truth. See Johnson v. State, 200 S. W. 833.

The judgment is affirmed.


text:
    MOORE v. STATE.
    (No. 5004.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Criminal Law ⅞=>444 — Documentary Evidence-Authentication.
    A book kept by the seller of automobile tires, showing a tire with a number corresponding to that of a tire of the same kind found in defendant’s possession was sold to the owner of the car defendant was claimed to have stolen, is inadmissible, where ⅛⅞ salesman, who made the memoranda from which the record was entered in the book by another, did not testify, and the bookkeeper, who testified, knew nothing as to the accuracy of the memoranda.
    2. Criminal Law <®=>1169(1) — Review — Prejudicial Error — Evidence.
    In a prosecution for theft of an automobile, erroneous admission of a book kept by seller of tires, containing a record of a sale to the owner of a tire, the number of which corresponded to that of a tire of the same make found in defendant’s possession, held- prejudicial, considering its materiality and other evidence in the case.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    George Moore was convicted of the theft of an automobile, and he appeals.
    Reversed and remanded.
    J. A. I-Cibler and Shurtleff & Cummings, all of Waco, for appellant.
    Jno. B. McNamara, Co. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for theft of an automobile.

The automobile was left on the street by the owner, and the state relied upon circumstances testified to by an accomplice, and other circumstances tending to corroborate him and connect the appellant with the offense. The circumstances testified to by the accomplice were, in substance,, that there was found, at a livery barn belonging to appellant’s father, an automobile which was not in running order; that after it had remained there for some time appellant claimed to have brought it there, took possession of it, and had it repaired, and it was subsequently taken by the accomplice and another person to Ft. Worth; that while it was in the barn the accomplice, at appellant’s suggestion,, removed from it two new tires and put them on a car belonging to appellant.

One of the circumstances relied upon by the state to show appellant’s guilt, and connection with the crime, was the possession by him of one of these tires. A tire found in his possession was introduced in evidence. It was a Pennsylvania tire, No. C-409098. To identify this tire as one that was on the stolen automobile, the state introduced the books kept by a witness named Jenkins. The entry introduced from the book kept by him was to the effect that a Pennsylvania tire, No. C-409098, had been sold by the firm of which he was a member, or employe, to Goggan Bros, on the 16th day of January, at Waco. As a predicate for the introduction of this evidence, ‘this witness testified that his firm handled Pennsylvania tires, and kept a record showing the number of the tire sold, and the .name of the purchaser, and the date of the sale; that that record was in a book which was kept by him correctly; that his entry was made from memoranda taken from the daily sales tickets, which tickets were made by the various salesmen; that they were not received iy him direct from the salesmen, but the data on these tickets which came into his possession were entered by him on the book which was introduced in evidence, his custom’ being to enter them on the same or the following day. He said that he supposed the only person who would know whether the ticket was correctly made or not would be the salesman who made the sale.

The admissibility of the entry made ⅛ the book is challenged by a bill of exceptions, and we think that there was no sufficient predicate laid for its introduction. The subject of entries of this character is discussed at some length by Mr. Wigmore in his work on Evidence (volume 2, § 1530). The substance, in effect, of his statement of the law upon the subject, is that an entry upon a book correctly made from a sales ticket or memorandum is admissible only when the correctness of the memorandum from which the entry is made is established by legal evidence; that is, that the salesman who sold the tire in the present instance having personal knowledge of the’transaction, and havirg made a memorandum upon which the bookkeeper in making the entry acted, it is essential that proof be made that the data furnished by him in the memorandum was correct. Illustrating, he says:

“For example, if S. has made a written memorandum of a transaction done by Mm, and has given the writing to B., who has copied it and destroyed the original, then if S. swears the original to have been accurately made, and if B. swears the copy to be correct, the copy produced is thus by their joint testimony rendered an accurate record of the transaction.”

In the present instance the salesman was not introduced, nor was the memorandum made by him introduced or accounted for, nor any evidence to show its correctness placed before the jury or the court upon the preliminary inquiry.

In this state of the record the accuracy of the entry made by Jenkins in his book showing the original transaction depends upon the accuracy of the information upon which he acted, and as to the verity of this information he claimed to have no knowledge. His action was based upon hearsay. There may exist in given cases circumstances which, when proved, would render an entry made in a book admissible in evidence, although the testimony of the salesman was not produced. To render it admissible, however, in the absence of the production of the testimony of the salesman, proof of the circumstances excusing the production is essential. Decisions of this court touching the phases of the subject will be found in Howard v. State, 35 Tex. Cr. R. 136, 32 S. W. 544; Wade v. State, 37 Tex. Cr. R. 403, 35 S. W. 663; McOonieo v. State, 61 Tex. Cr. R. 48, 103 S, W. 1047; Wyres v. State, 13 Tex. App. 57; Jacobs v. State, 42 Tex. Cr. R. 359, 59 S. W. 1111; Johnson v. State, 42 Tex. Cr. R.' 441, 60 S'. W. 667.

Considering the other evidence in the case, the proof of the possession by the appellant of one of the tires which was on the alleged stolen car at the time the owner missed it was of great importance. So material was it that the identification of the tire found in appellant’s possession with the one purchased by the owner of the car, by illegal testimony, constitutes an error of-such consequence that it requires a reversal of the judgment of conviction, which is ordered.
      —i]?m- other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=vFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WRIGHT v. STATE.
    (No. 5271.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    Criminal Law ⅜=^424(3) — Statement by Co-Deeen dant — Admissibility.
    Where defendant and another were arrested, charged with burglary, a statement made by the other, not in defendant’s presence, to the effect that he watched while defendant broke and entered, is inadmissible.
    Appeal from District Court, Wichita County ; Wm. N. Bonner, Judge.
    Alvin Wright was convicted of burglary, and he appeals.
    Reversed and remanded.
    Martin & Oneal, of Wichita Falls, for appellant.
    B. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at two years’ confinement in the penitentiary. »

There is a bill of exceptions found in the record to the testimony of the state’s witness Marlow, which is as follows:

“I had a conversation with Hope Nicely after the burglary had been committed. The conversation I had with the Nicely boy was after he was arrested and put in jail, and also after the defendant, Alvin Wright, had been arrested and was in jail. I wanted to talk to the Nicely boy, and I had him brought to my office on Eighth street from the jail. He was in the city jail, and the defendant was in the county jail, at this time. When Nicely was brought to my office, I told him I wanted to know the truth about this burglary, and he asked me if I would use what he told me against him, and I told him I would not. He then told me that he stood on the outside of the Parmeter building while the older boy, Alvin Wright, went on the inside and got the pistols; yes, he told me in this conversation that Alvin Wright went in the store and took the pistols out. At the time I had this conversation with the Nicely hoy in my office, the defendant, Alvin Wright, was not present; but he was in the county jail, and he could not hear what the Nicely boy told me. This was after the burglary had been committed, and the boys had both been arrested and placed in jail. I did not warn the Nicely boy before I talked to him, but I told him that X would not use anything he said to me against him. I did not tell him that X would not use it against any one else. He first denied being guilty, and it was after I told him that I would not use what he said against him that he told me that he was with the defendant, Alvin' Wright, and that he saw the defendant in the building while he waited on the outside, and that it was the defendant that got the pistols, while he watched outside.”

Quite a number of objections were urged to the introduction of this testimony. The Assistant Attorney General admits error in the introduction of said testimony. We find that under the law he is correct. This testimony was inadmissible against the appellant from any viewpoint of the law and jurisprudence of this state.

The judgment is reversed, and the cause remanded.


author: MORROW, J. LATTIMORE, J.

text:
    GARDNER v. STATE.
    (No. 5006.)

    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.
    On State’s Motion for Rehearing, Feb. 19, 1919.)
    1. IjAeceny <@=>64(<¾ — Theft of Goats — Inference from Possession.
    Granting that the fact that, in anticipation of an inspection, defendant caused goats, not belonging to him, to be taken out of his herd and placed in another pasture, constituted proof of possession of recently stolen property, which unexplained might, with other evidence, justify inference of theft, such inference was met by proof that goats came feto defendant’s possession through instrumentality of others who stole them.
    2. Larceny <®=>64(6) — Possession of Stolen Property — Explanation .
    Where defendant’s possession of stolen goats was fully explained by the state in a manner which showed that he was not present at their taking and took no part in the actual theft, his theft could not be inferred from possession.
    On State’s Motion for Rehearing.
    3. Larceny ®=»1 — Separate Offenses.
    There may be two separate and distinct unlawful takings of property, so as to make two separate offenses.
    Appeal from District Court, Edwards County; James Cornell, Judge.
    Buck Gardner was convicted of theft, and appeals.
    Reversed and remanded.
    A. E. Aiken, of Rocksprings, and Will A. Morriss, of San Antonio, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for-theft of goats. The appellant was in possession of a ranch containing several sections of land, which was inclosed with a pasture fence, and running at large in. the pasture, was his herd of 4,000 goats. Ira Kuy-kendall also owned a herd of about 8,000' goats in his pasture situated about 15 miles: distant from that of appellant. He lost about 70 head of his goats between the 1st and the middle of June, 1917. They were missed from his pasture, and on August 20th of the same year 32 of his goats were found in the herd of appellant. There is evidence that about the 1st of July, 1917, appellant, anticipating an inspection of his herd of goats,, caused about 150 of the goats of various brands, which were described as strays, cut out of his herd and put in another pasture. Somq of the goats in this lot1 had Kuyken-dall’s brand on them, his brand and that of appellant being quite similar; one being what is denominated as a “T” cross and the other an “H.” The identification of the goats was by the brands.

A witness for the state by the name of' Thomas testified that he had had a conversation with appellant in which appellant told him, in substance, that if he did not put some-goats in his pasture that he (appellant) was going to appear against him in court. Witness was under -charge of theft of other goats. This witness testified that subsequently he and a witness by the name of Davidson stole-about 70 goats from ICuykendall’s pasture, and that he (the witness) put them in appellant’s pasture. There was evidence that appellant had stated he had bought some goats-from Kuykendall.

The indictment contained three counts— one charging appellant as an accomplice, one-charging him with fraudulently receiving stolen property, and one charging theft. The court submitted the law of circumstantial evidence, and gave a charge in substance as follows: Goats, upon their accustomed range, are in contemplation of law in possession of their owner, and, though they may have-strayed from their accustomed range, they are still in contemplation of law in the p,os-session of the owner thereof. Likewise goats which may have been taken from the possession of the owner, and later abandoned by the person or persons taking, are yet in contemplation of law in possession of the owner. This charge is complained of as touching an issue or issues not raised by the evidence. It is also seriously insisted that, while there was evidence supporting the charge of accomplice and of fraudulently receiving stolen property, the evidence fails to support the finding of the jury convicting the appellant of theft. The law of principals was not submitted and not.involved.

It is insisted, however, that the evidence alluded to, in which appellant caused the cutting 'out of his herd goats which did not belong to him before their inspection, constituted a conscious possession of recently stolen property, from which the jury was authorized to draw the inferences necessary to sustain the charge of theft. Granting that the facts mentioned constituted proof of the possession of recently stolen property which unexplained might, with the other evidence, justify the inference mentioned, these inferences or presumptions of fact are met by the direct proof, introduced by the state through its own witnesses, explaining that the goats came into the possession of appellant through the instrumentality of Thomas and Davidson, who stole them from Kuykendall’s herd. The inferences are also met by appellant’s explanation, testified to by one of the witnesses, that he obtained the goats from Thomas. His possession of the goats having been fully and definitely explained by the state in a manner which showed that he was not present at their taking and took no part in the actual theft, his theft of them could not be inferred from such possession. See Lincoln v. French, 105 U. S. 614, 26 L. Ed. 1189.

Adverting to the charge instructing the jury with reference to the possession of goats strayed from their accustomed range, we infer that the trial court submitted the issue of theft on the theory that Kuykendall’s goats might have strayed from his range, some 15 miles distant from that of appellant, and been placed by appellant among his own goats, or that Thomas and Davidson, after taking the goats from Kuykendall’s pasture, had abandoned them, and they had come through appellant’s act into his possession, and on this theory to have given the charge referred to. There is some evidence to suggest that goats sometimes stray from their accustomed range, but, aside from proof or evidence of this habit, we find none that the goats in question had strayed from Kuyken-dall’s pasture, and none that they had been abandoned by Thomas. We therefore think that the complaint of appellant that the paragraph of the charge mentioned was not based upon the evidence is a just one, and will say that, unless evidence on another trial shall be more cogent tending to show appellant’s connection with the taking of the goats, the issue should mot be submitted at all.

For the reasons stated the judgment is reversed and the cause remanded.

On State’s Motion for Rehearing.

LATTIMORE, J.

This case comes before this court upon the state’s motion for a rehearing.

For the first time, as far as we can tell from the record, it is insisted in the motion for a rehearing that under the evidence two separate and distinct takings of the alléged stolen property were shown, and that, if the appellant be not guilty under the original taking, the facts nevertheless show him to be guilty under a taking of the property in question after same had been taken originally by the confederate or confederates of the appellant, and by them either abandoned or left in some place, not shown by the evidence, from which the appellant procured them. The case was not tried in the court below apparently upon any such theory as this, and it is possible that upon another trial the state may be able to develop this feature of its case more fully, or the proposition of connecting the appellant with the original taking.

The former opinion of this court will be modified, in view of the state’s contention that the evidence is sufficient to show appellant’s connection with what it denominates the second taking of the property, and that portion of said opinion which states substantially that, unless the evidence on another trial shall be more cogent tending to show appellant’s connection with the taking of the goats, the issue should not be submitted at all, may be regarded as excluded from said opinion.

There is no question, under the decisions of this court, but that there may he two separate and distinct unlawful takings of property so as to make two separate offenses. Trimble v. State, 33 Tex. Cr. R. 397, 26 S. W. 727; Taylor v. State, 62 Tex. Cr. R. 611, 138 S. W. 615. If the state relies upon either the first or any subsequent taking of the property, such theory should be pertinently submitted to the jury and decided under appropriate instructions.

The motion for rehearing is overruled.
      <§rmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LONG v. STATE.
    (No. 4892.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Homicide <§=>300(7) — Sele-Deeense—Ade-quate Cause — Instruction.
    In a murder trial, where there was evidence of self-defense, an instruction on adequate cause arising from assault and battery by deceased, causing defendant pain and bloodshed capable of creating sudden passion, and rendering him incapable of cool reflection, was erroneous where it failed to apply the law to the facts and instruct in connection therewith on the law of manslaughter.
    2. Witnesses <§=>337(5) — Impeachment — Prooe oe Crime.
    Proof of crime, for the purpose of impeaching the defendant as a witness, should be confined to such offenses as are not too remote, and to those which are felonies or misdemeanors involving moral turpitude.
    3. Criminal Law <§=>722½ — Misconduct oe Counsel.
    In a criminal trial the discussion before the jury of evidence of other crimes introduced for the purpose of impeaching the defendant as a witness should not be extended to details not proved and not admissible.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Raymond Long was convicted of murder and appeals.
    Reversed and remanded.
    W. B. Featlierston, J. It Russell, and W. E. Myres, all of Cleburne, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant, under conviction of murder, his penalty being fixed at 15 years’ confinement in the penitentiary, prosecutes this appeal.

He shot Jack Carter and killed him. Immediately before the shot was fired the parties were engaged in a difficulty; they were both down on the-floor, deceased on top; parties separated them, or undertook to do so, and just after deceased arose to Ms feet, and while appellant was lying or sitting on the floor, the shot was fired. It is apparent that the homicide took place in a cabaret adjoining a saloon, which was resorted to by people of ill repute, and that appellant at the time was in company with his sister and some other women of that character; that the deceased interfered with the women, and, on appellant objecting, some words ensued, the deceased making an attack, either knocking or pushing appellant down on the floor. An issue of self-defense arose partly based upon threats by the deceased, and communicated to appellant, accentuated by a demonstration of the deceased at the time the shot was fired, and partly upon the testimony of thp appellant and others that a knife was used by deceased, and that immediately after arising to his feet the deceased reached for a wine bottle, with which appellant believed he was about to be assaulted. The manner in which the homicide took place was not the subject of great difference in the witnesses for the state and the appellant, except upon the question as to whether or not the deceased used a knife or was making any demonstration to use the wine bottle at the time he was shot. Appellant testified that in the difficulty he was cut by the deceased, and described it as a scratch on the right side; that deceased had a knife in his hand; that the injury produced pain, and that, in addition thereto, the skin was knocked off of his knee either by deceased kicking him or striking him with the knife handle.

The court in submitting the issue of manslaughter defined the term “adequate cause,” and enumerated the statutory matters designated as adequate cause, including the following, which is quoted from his-charge: “(1) An assault and battery by the deceased causing pain or bloodshed.” He-further told them any condition or circumstance capable of creating sudden passion, and which rendered the mind incapable of cool reflection, might be an adequate cause, and that any such circumstances, taken singly or collectively, might be considered. This is followed by a statement that the penalty for manslaughter was confinement in the penitentiary for not less than twoi nor more than five years, and that, if the jury entertained a reasonable doubt as to whether appellant wa.s guilty of murder or manslaughter, to give him the benefit of the doubt and find him guilty of manslaughter.

We find in the charge no application of the law to the facts of the case on the subject of manslaughter. The appellant requested some special charges on the subject, which were refused, and in a specific exception to the main charge challenged its correctness in failing to specifically and affirmatively charge-the law with reference to adequate cause resulting from an assault and battery causing either pain or bloodshed, and in his motion for a new trial complained of the failure of the court to apply the law to the facts touching the issue of manslaughter, and the failure to read to the jury appellant’s special charges upon the subject. The charge on manslaughter is incomplete, particularly'with reference to its failure to apply the law to the facts with reference to an assault by the deceased producing pain or bloodshed. On the subject we quote from Mr. Branch’s Ann. P. C. p. 1137, as follows:

“If a condition or circumstance made adequate cause by statute is in evidence, the charge should not only inform the jury that the same is adequate cause, but should apply the law to the facts, and instruct them, for example, that if the blow was struck, and that it caused pain ■or bloodshed, and that it aroused the defendant to such a degree of anger, rage, sudden resentment, or terror as rendered his mind incapable of cool reflection at the time of the homicide, that then he should not be found guilty of anything higher than manslaughter.”

Apparently the learned trial judge by inadvertence omitted to observe these principles in writing his charge. The facts of the case, however, requiring an adequate charge upon the subject, the omission is of a character which makes it necessary that a reversal be ordered.

We find no other questions in the record presented in a manner requiring consideration. We will say, however, that on another trial proof of other offenses for the purpose of impeaching the defendant should be confined to such as are not too remote, and-to those which are felonies, or misdemeanors involving moral turpitude. See Branch’s Ann. P. O. § 167, and cases listed. In the discussion of these crimes before the jury, details not proved and not admissible should not be referred to.

For the error pointed out the judgment of the district court is reversed and the cause remanded.
      ©xsEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LATTIMORE, J.

text:
    ALBERTSON v. STATE.
    (No. 5302.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    1. Criminal Law <&wkey;598(6) — Continuance-Absence oe Witnesses.
    Continuance -on ground of absence of witness was properly refused, where application for subpoena was filed only three days befor'e the trial, though defendant was indicted more than two weeks prior thereto, and there was no showing of issuance of subpoena, or service or attempted service upon witness, and no reason given for witness’ nonappearance.
    2. Indictment and Information i&wkey;183 — Variance — Misspelling in Indictment.
    In prosecution for swindling by obtaining stock of goods by means of note and mortgage on- property not owned by defendant, the mere variance of one letter in copying mortgage into the indictment, whereby the word “become” was spelled “becoke,” would not be material.
    3. False Pretenses <&wkey;26 — Swindling — Sufficiency of Indictment.
    In prosecution for swindling by obtaining stock of goods by execution of note and mortgage on property not owned by defendant, indictment failing to allege that injured party was induced to part and did part with goods, that he relied on mortgage, that note and mortgage were delivered to him and accepted in exchange for goods, or that he delivered to de-fondant title or possession of goods, was fatally defective.
    Appeal from Criminal District Court, Dal las County; C. A. Pippen, Judge.
    O. R. Albertson was convicted of swindling, and he appeals.
    Reversed and dismissed.
    Will S. Payne, of Dallas, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted in the criminal district court No. 2 of Dallas county for the offense of swindling and his punishment fixed at confinement in the penitentiary for a period of six years.

When this case was called, appellant asked for a continuance because of the absence of O. R. Williams, alleged to be in Eastland county, Tex. No showing is made by appellant in this record of the issuance of any subpoena, or that there was any service or attempted service upon said witness, nor is any reason whatsoever given for his nonappearance. Appellant was indicted on October 6, 1918, and application for subpoena for this witness was filed with the clerk on the 21st, or three days before the trial on the 24th. We see no error in the court’s action in -overruling the application for a continuance.

Appellant complains of the court’s action in overruling his objection to the introduction in' evidence of the written mortgage set out in the indictment, upon the ground of an alleged variance; same being that the word “become” in the printed portion of said mortgage, as same appears set out in the indictment, is the word “becoke.” In view of the disposition of the case in this opinion the point becomes immaterial, but we may say that the mere vaifiance of one letter in the copying into the indictment of the printed portions of a mortgage in a case of this character would not be held by us to be material variance. Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Thomas v. State, 18 Tex. App. 218.

In this case it is claimed that the accused, by means of a note and mortgage, obtained from the prosecuting witness, Ward, certain personal property which is described at some length in the indictment as consisting of certain flour, meal, lard, sugar, cans of tomatoes, cans of corn, peaches, apples, prunes, show case, counters, etc., and that the owner was induced to part with his possession of said property by i-eason of the giving and drawing of said note to secure which appellant executed a mortgage upon certain cattle which he did not own. The charging part of said indictment is here set out as follows, omitting the formal and descriptive portions:

“That one O. R. Albertson, on the 8th day of May in the year of our Lord, one thousand nine hundred and 18, with force and arms in the county and state aforesaid, then and there devising and intending to secure the unlawful acquisition of certain property, to wit: * * * Then and there the corporeal personal property of and belonging to J. F. Ward and with the further intent on the part of him, the said O. R. Albertson to appropriate said property when so applied to his own use, did then and there with the intent to defraud the said J. F. Ward, unlawfully and fraudulently obtain possession of said property from the said J. F. Ward, by means of false and deceitful pretenses, and fraudulent representations, then and there unlawfully made by Mm the said O. R. Albertson, in this, to wit: The said O. R. Al-bertson then and there obtained possession of said property from the said J. F. Ward by the giving and drawing of a certain note for the principal sum of four hundred dollars, executed by the said O. R. Albertson, and payable to J. F. Ward and to secure the payment of said note, the said O. R. Albertson did then and there make and execute the following instrument in writing, to wit: * * * And the said O. R. Albertson, did then and there fraudulently state and represent unto the said J. F. Ward that he was the owner of the said twenty-one head of cattle, mentioned in the aforesaid written instrument and did falsely and fraudulently state and represent that said twenty-one head of cattle were located in Dallas county, Texas, as stated 'in the said written instrument.
“Whereas, in truth and in fact, the said O. R. Albertson was not then and there the owner of said twenty-one head of cattle. And the said pretenses and representations so made and devices as used by the said O. R. Albertson to the said J. F. Ward in order to acquire the title and possession of said personal property from the said J. F. Ward were false and fraudulent when so made, and he the said O. R. Albertson then and there well knew the said pretenses, devices and representations to be false and fraudulent when he made and used them as aforesaid.
“Contrary to the form of the statute in such cases made and provided, against the peace and dignity of the state.”

It will be seen, from an examination of the charging parts of said indictment above set out, that it is nowhere, alleged that the injured party, Ward, was induced to part, and that he did part, with the title and ownership of said property. This has'been repeatedly held by this court to be a necessary allegation. Bink v. State, 50 Tex. Cr. R. 445, 98 S. W. 863; Curtis v. State; 31 Tex. Cr. R. 39, 19 S. W. 604; Lewis v. State, 75 Tex. Cr. R. 509, 171 S. W. 217; Cummings v. State, 36 Tex. Cr. R. 152, 36 S. W. 266; Robinson v. State, 60 Tex. Cr. R. 353, 132 S. W. 354. It will be further observed that there is no allegation that the alleged injured party, Ward, relied in any manner upon the alleged false pretenses. This has also been held to be a necessary allegation. Johnson v. State, 57 Tex. Cr. R. 347, 123 S. W. 143; Hightower v. State, 23 Tex. App. 451, 5 S. W. 343; Mathena v. State, 15 Tex. App. 473.

It will also be observed that said indictment alleges that the accused obtained possession of the property of the alleged owner by the “giving and drawing of a certain note for the principal sum of $400, * * * and to secure the payment of said note said Al-bertson did then and there make and execute the following instrument in writing [setting out the mortgage].” From this it will be seen that the pleader alleges that the accused obtained possession of the property of Ward by giving the note for $400, and to say the least it is very doubtful whether there is any allegation that the execution of the alleged false mortgage was an inducement to part with such possession even. It will further be observed that there is no allegation that .the note and mortgage were executed by the accused, that the same were delivered by the appellant to the prosecuting witness, Ward, or that said Ward ever accepted the same from the appellant in exchange for his property, or that said Ward at any time delivered to appellant any title or possession of the property described in the indictment.

For these reasons, we think the indictment in this case is so deficient as to necessitate a reversal; and in this connection we desire to call attention to the fact that, while the property of Ward is described in the indictment with minuteness and sufficiency, there is nothing in the statement of facts to show that any such property was ever delivered to the accused, the only description of the property in said statement of facts being in the testimony of Ward, who says:

- “I sold the stock of groceries to the defendant and all the fixtures which were of the reasonable value of $400.”

It would hardly be contended that this was such property as that described in the indictment.

For the reasons above given, the case is reversed and dismissed, because of the defects in the indictment.
      <&^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILLIAMS v. STATE.
    (No. 4836.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Criminal Law <g=»400'(ll), 402(1) — Secondary Evidence — Predicate.
    A slip of paper made from data found upon cards or tags originally attached to automobile tires, which defendant had received in exchange for casings which were the fruits of the burglary, was secondary evidence, and inadmissible without proper predicate.

      2. Criminal Law @=402(1) — Secondary Evidence — Predicate.
    Evidence of witness with reference to slip of paper made from data found upon cards which had been originally attached to automobile tires received for casings procured by burglary, held not sufficiently specific to show admissibility, even if loss of cards had been fully accounted for.
    S. Burglary @=36 — Evidence op Possession op Property — Admissibility.
    Evidence that defendant had in his possession two new tires was admissible as a circumstance against him, although identity of such tires with those obtained in exchange for casings which were the fruits of the burglary was not definitely established.
    4. Criminal Law @=1169(1) — Admission op Incompetent Testimony — Reversible Error.
    Admitting in evidence a slip of paper made from data found upon cards originally attached to automobile tires which defendant had received in exchange for casings, the fruits of the burglary, without laying a proper predicate, held error of such importance as to require reversal.
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Ezra Williams was convicted of burglary, and appeals.
    Reversed.
    H. F. Weldon, of Wichita Falls, J. W. Chancellor, of Bowie, and W. W. Alcorn, of Den-ton, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for burglary. The theory of the state, supported by the testimony of the accomplice Ross, corroborated by circumstances proven by other witnesses, was that appellant and Ross broke open a private garage situated at Bowie, and stole from an automobile therein the casings that were on it; that they took them to Wichita Falls, and there disposed of them. Ross testified that two of the casings were exchanged with the owners of an automobile supply house in Wichita Falls, which other evidence discloses belonged to the witnesses Waites and Nickles. In the exchange Waites and Nickles, according to their evidence, delivered to the appellant and accomplice two new Fisk automobile tires. There was evidence that subsequently there were found in the possession of the appellant two new Fisk automobile tires, and upon this circumstance the state relied in part to connect him with the offense. The Fisk tires, at the time they were found in appellant’s possession, were still wrapped in the paper put on them at the factory. They each had molded on them the factory numbers, one having the number W-742528, the other having number E-352923. Waites and Nickles were customers of a wholesale supply house owned and managed by the witness Sanders, and were in the habit of buying a large number of tires from Sanders each month. From Sanders’ testimony it appeared that he had sold a number of Fisk tires to Waites and Nickles; that at the time of the transaction he made no record of the sale further than to retain in his possession the paper tags that were placed on the tires at the factory, which paper tags had indorsed on them the same numbers as those molded in the tires; and that he wrote on the tags which he retained the name of the purchaser. He was unable to recollect the numbers or other description of the tires in question, and was unable to produce the tags mentioned, but testified that according to his best recollection he had, when the question arose about the matter, delivered the tags to Waites and Nickles. Waites and Nickles were both used by the state as witnesses, and neither of them gave any testimony touching the tags or the number of the casings in question.

At the time the two tires were gotten from the possession of the appellant the witnesses Adams and Cunningham were present. The state introduced a slip of paper, with certain memoranda on it, which slip of paper is described in the testimony of Adams as follows:

“I have seen that slip before (examines slip of paper handed him by state’s counsel). Different parties wrote that. Mr. Nickles wrote the biggest part of it, particularly the upper part. He wrote the top, ‘34 by 4, plain modern, United States casing, and 32 by 3, plain modern.’ I suppose he meant Fisk tires, and two gray tubes,- 34 by 4; and he wrote this, ‘W-742528 and E-352923.’ As to who wrote the other, will say Mr. Cunningham wrote what you called to him to write — the address, 263 Ohio. And Mr. Cunningham wrote these when he got that couple of new tires at Ezra Williams’ home. They compared exactly.”

In this testimony we are furnished the only information that we have in the record concerning the manner in which the tires found in appellant’s possession were identified as the tires which it was claimed by the accomplice were received by him and appellant from the witnesses Waites and Nickles. The tags were not produced, and, as above stated, no inquiry was made from Waites and Nickles with'ref erence to their loss or their contents.

From the above testimony of Adams we infer that the slip of paper which was introduced in evidence, and described in his testimony, was made from the data found upon the cards or tags, which, according to the theory of the state, had been originally attached to the tires. This testimony was objected to as secondary evidence, introduced without the proper predicate, and we regard this objection as one that should have been sustained; and are further of the opinion that tlie evidence of Adams quoted is not sufficiently specific to show its admissibility, even if the loss of the cards had been fully accounted for. He does not purport to recall from recollection the numbers that are indorsed on the cards, or the other data that appeared thereon; nor does he undertake to say, nor does he state or otherwise prove, that the indorsements u£)on the slip of paper were the same as those that were upon the cards. From the record we find nothing that is legally sufficient to enable the jury to have decided that the numbers on the cards were the same as those which were on the slip of paper introduced in evidence and described by the witness Adams. Wyers v. State, 13 Tex. App. 57; Huff v. State, 23 Tex. App. 294, 4 S. W. 890; Wade v. State, 37 Tex. Or. R. 401, 35 S. W. 663; Johnson v. State, 42 Tex. Or. R. 441, 60 S. W. 667; Jacobs v. State, 42 Tex. Cr. R. 359, 59 S. W. 1111; McConico v. State, 61 Tex. Or. R. 48, 133 & W. 1047.

We do not think it would have been necessary for the state to have identified the tires in the possession of the appellant with those gotten from Waites and Nickles by the numbers, or to have used the cards in' evidence for that purpose, provided they could have produced other evidence, circumstantial or otherwise, to establish the identity. Under the circumstances developed from the evidence the fact that appellant had in his possession two new Fisk tires would, we think, have been admissible as a circumstance against him, although the identity with those obtained from Waites and Nickles in exchange for the stolen tires was not definitely established; but from' such testimony the jury might or ■might not have believed that they were the same tires. The state, however, having undertaken to definitely identify them by the fact that the numbers molded on the tires coincided with the numbers on the tags which had been taken oft the tires, and having introduced the slip of paper and Adams’ testimony in evidence for that purpose, it was doubtless construed by the jury, the court having admitted it, as a cogent fact going to establish the identity of the tires in appellant’s possession with those obtained in exchange for the fruits of the crime; and for this reason we regard it of such importance that its illegal admission in evidence constitutes an error requiring a reversal of the case, which is ordered.
      ©xx>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <g=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GILL v. STATE.
    (No. 5114.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Criminal Haw <©=>211(4) — Complaint — Mispelled Wokd.
    That the pleader in writing the complaint in a prosecution for misdemeanor theft spelled the word “corporeal,” “carporeal,” does not render the indictment invalid.
    2. Criminal Law @=>1063(3) — Appeal—Motion for New Trial.
    The denial of defendant’s application for continuance on the ground of absence of witnesses, residents of the county who were not summoned, will not be reviewed, where the motion for new trial did not complain of any injury or error in respect to them, and no affidavits of such witnesses were attached to the motion.
    3. Criminal Law @=>1151 — Appeal — Continuance.
    The refrisal of the trial court to grant a continuance to procure impeaching evidence is rarely reviewed.
    4. Criminal Law <©=>596(3) — Continuance— Impeaching Evidence.
    The refusal of the trial court to grant a continuance on account of the absence of a witness whose testimony would only have gone to the impeachment of one of the state’s witnesses held not an abuse of discretion, particularly where it would be doubtful whether the alleged evidence of the absent witness would be admissible, as it related to an immaterial inquiry.
    5. Larceny <©=>77(1) — Possession of Stolen Property — Instructions.
    In a prosecution for misdemeanor theft, an instruction on the law relating to the possession of property recently stolen held proper and not prejudicial to defendant.
    6. Criminal Law <©=>1059(2) — Charge—Exceptions.
    Under Code.Cr. Proc. 1911, arts. 735, 743, as amended by Acts 33d Leg. c. 138 (Vernon’s Ann. Code Cr. Proc. 1916, arts. 735, 743), relating to objections to the charge, an exception to the charge because paragraph 4 was on the weight of the evidence is too general to be reviewed.
    7. Criminal Law <©=>829(1) — Trial — Instructions.
    The refusal of a special charge covered by the charge given is not error.
    8. Criminal Law <©=>1064(7), 1086(14), 1091 (9) — Trial—Instructions.
    Under Code Cr. Proc. 1911, art. 737a, as added by Acts 33d Leg. c. 138 (Vernon’s Ann. Code Cr. Proc. 1916, art. 737a), to review denial of a special charge the record should show that it was presented to the trial judge before the main charge was read, that an exception was reserved to its refusal, and either in the bill of exceptions or the motion for new trial there should be given the reasons appearing in the record why instruction should have been given.
    9. Larceny <§=>68(1) — Identity oe Property —Jury Question.
    In a prosecution for larceny, ordinarily the question of identity of stolen property is for the jury.
    10. Larceny <§=>55 — Prosecution — Evidence.
    In a prosecution for the theft of a sack of wheat, evidence held sufficient to sustain a conviction.
    Appeal from Eisher County Court; M. A. Hopson, Judge.
    Tom Gill was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    J. D. Barker, of Roby, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for misdemeanor theft.

The pleader, in writing the complaint, in undertaking to write the word “corporeal,” wrote it “carporeal.” This mispelling did not render the indictment invalid. Branch’s An. P. G. § 490, and cases listed.

There was an application for continuance on account of absence of two witnesses who were not summoned, and the motion for new trial does not complain of any injury or error in respect to them. They are al-‘ leged residents of the county, and no affidavits from them are attached to the motion for new trial, or accounted for.

A second, or supplemental, motion for continuance was based on the absence of a witness whose testimony would have gone only to the impeachment of one of the state’s witnesses. The motion for new trial was not supported by his affidavit or does any reason for its absence appear. The refusal of the trial court to grant a continuance to procure impeaching evidence is rarely reviewed. Branch’s An. P. O. § 324. The alleged evidence of the absent' witness does not come within any exception to the rule. In fact, its admissibility for impeachment is doubtful, in that it relates to an immaterial inquiry. Considering the evidence adduced on the trial in connection with the application for continuance, we are of the opinion that there is no abuse of discretion of the trial court shown. Bronson v. State, 59 Tex. Or. R. 17, 127 S. W. 175; Todd v. State, 57 Tex. Or. R. 26, 121 S. W. 106; Branch’s An. P. O. § 305, 306.

Instructing the jury on the law relating to the possession of property recently stolen, the court gave the following:

“If you believe from the evidence that the property described in the information had been stolen from S. J. Richey, and that recently thereafter the defendant was found in possession of said property, and when his possession was first questioned he made an explanation of how he came by it, and you believe that such explanation is reasonable and probably true, and accounted for defendant’s possession in a manner consistent with his innocence, then you will consider such explanation as true and acquit the defendant. If, on the contrary, you believe such explanation was unreasonable and did not account for defendant’s possession in a manner consistent with his innocence, or you believe that same accounted for defendant’s possession in a manner consistent with his innocence, but the state has shown the falsity thereof,- then you will take the possession of defendant together with his explanation in connection with all the other facts and circumstances, if any, in evidence, and, if you believe beyond a reasonable doubt, you will find him guilty; otherwise you will acquit the defendant.”

We are unable to discern in what respect this instruction - infringed appellant’s right. It seems in accord with approved cases. Bacon v. State, 61 Tex. Or. R. 206, 134 S. W. 690; Roberts v. State, 60 Tex. Or. R. 24, 129 S. W. 611; Lovelace v. State, 45 Tex. Cr. R. 263, 76 S. W. 756; Wheeler v. State, 38 Tex. Cr. R. 73, 41 S. W. 615.

The only criticism made of it in the exceptions to the charge filed in the trial court, was “Because paragraph 4 of said charge is on the weight of the evidence.” The statute, article 735, O. O. P., requires that, before the charge is read to the jury, the defendant “shall present his objections in writing distinctly specifying each ground of objection,” and article 743 of same Code requires that “all objections to the charge shall be made at the time of the trial.” These provisions were made with the purpose of advising the trial judge, before his charge is given to the jury, of defects, affirmative or negative, which in the judgment of counsel for the accused occurred in the charge, and to afford the trial judge the opportunity to amend the charge enlightened by the views of counsel for the accused.

No form of objection is prescribed, and, in the nature of the case, none can be laid down; but the charge complained of and the objection made must be considered together, and, if it is sufficiently definite to make reasonably apparent to the trial judge the faults complained of, it will be regarded on appeal as a substantial compliance with the requirements of the statute. The statute demanding that the objection shall be “distinctly specified” is not ordinarily met by a general objection. The language used was construed by the Court of Civil Appeals in Cobb v. Johnson, 105 S. W. 847, before the statute mentioned was enacted, and held to require that, not only the particular part of the proceeding complained of, but also the particular matter constituting error, should be specified.

There are many decisions reflecting the views of this court with reference to the sufficiency of exceptions to the charge of the court. The act of 1913, article 735, O. C. P., doubtless was not intended to materially change the character of exceptions required; hut its main object was to change the time at which the objection should be made, requiring it before the charge was read instead of in motion for new trial. The decisions relating to the form of objections required under former statutes are collated in White’s Code Grim. Proc. p. 550, § 845. Prom these it is apparent that the objection made in the instant case constituted a mere suggestion, rather than a specification of faults objected to, and when considered in connection with the charge was entirely too general to require review. See Martin v. State, 38 Tex. Cr. R. 463, 43 S. W. 352.

The special charge requested on the subject of the explanation of the possession of property recently stolen was .not required in view of the court’s charge on the subject, and the exception to its refusal is not so presented as to require consideration. The law requires that where a charge is requested the record should show that it was presented to the trial judge before the main charge was read, that an exception was reserved to its refusal, and either in a bill of exceptions or the motion for new trial there should be given .the reasons appearing in ■ the record which require that it should have been read to the jury. C. C. P. art. 737a; Berg v. State, 64 Tex. Cr. R. 612, 142 S. W. 884; Bain v. State, 73 Tex. Cr. R. 528, 166 S. W. 505.

Richey, the owner of the alleged stolen property, testified that he missed a sack of wheat; that the sack had holes in it, and he found on the ground wheat apparently spilled from the sack, when it was taken from his premises and put in a wagon, and he traced the wagon in the same manner for some distance, and went to appellant’s home and there found his sack of wheat, which he claimed to identify partly by its mixture with barley cane and weeds, and by the sack which had holes in it which were sewed up with a certain kind of twine, which he claimed to recognize.

Appellant claimed to have bought the wheat from a witness who kept a store, who denied the sale. The appellant assails the sufficiency of the evidence on the ground that the identity of the stolen property was not shown. There was testimony controverting the manner in which the sack was patched, and there were some samples of the wheat ■exhibited to the witness Richey, which he said he could not identify with certainty as coming from his sack.

The identity of the stolen property is generally treated as a question for the jury, and taking into consideration the quantity and mixture of the wheat coinciding with that lost by Richey, his positive testimony relating to the identity of the sack which was exhibited to the jury, and the evidence disproving appellant’s explanation of his possession, we do not feel authorized to disturb the verdict. Lynne v. State, 53 Tex. Cr. R. 376, 111 S. W. 729; Suggs v. State, 65 Tex. Cr. R. 67, 143 S. W. 186; Bagley v. State, 3 Tex. App. 166; Polin v. State, 65 S. W. 183.

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

      <§^F.or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JOHNSON v. STATE.
    (No. 5123.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    Cbiminal Law @=^649(3) — Postponement and Continuance — Absence op Counsel.
    Where defendant, who had been on bail nearly a year, asked continuance, stating he was without counsel, and immediately thereafter his counsel appeared, although not informed of trial date, and cause was set for another day, and during trial defendant’s counsel after moving for postponement left to engage in trial of another case in which he had been employed subsequent to setting case, held that defendant was not deprived of counsel.
    Appeal from District Court, McLennan ^County; R. I. Munroe, Judge.
    Alva Johnson was convicted of theft, and appeals.
    Affirmed.
    J. A. ICibler, of Waco, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft and allotted five years in the penitentiary.

The only question presented for revision is the contention that appellant was deprived of counsel in violation of his legal rights. The matter came up on motion for a new trial in the court below, find there was a bill of exceptions reserved; Looking over this bill of exceptions, it occurs to us that the trial judge in his qualification fairly states the facts and the matter presented.

The indictment was returned at the September term, 1917. The case was set for trial in December, 1917, but was continued by operation of law until the January term, and was then continued until the March term, 1918. On October 1, 1917, the defendant gave bond, and from that time until his trial he was at liberty. The case was set for trial March 20, 1918, when defendant appear-' ed in court without an attorney, and stated he had no attorney and was not ready for trial. He said that he had employed an attorney at Wichita Falls and had paid him some j money, but the attorney had later advised him he could not represent him, and had returned the money. The court informed him that he had had full opportunity to get an attorney, and ordered the trial to begin. At this juncture Mr. Kibler entered the courtroom and announced that he represented the defendant; that he had represented the defendant at his examining trial about a year before, and had been paid part of his fee by apppellant, and had promised him the balance of the fee agreed upon, but had never paid it; that from this failure the defendant doubtless concluded that Mr. Kibler no longer represented him. Mr. Kibler admitted that appellant had not consulted him in many weeks about the case, and had not informed him that it was set for March 20th. Mr. Kibler also stated to the court that at this time, March 20th, he was engaged in the trial of a civil case in the Seventy-Fourth district court, and could not possibly be in the Fifty-Fourth district court to represent the defendant, and asked for a postponement, and the court indicated he would grant one. It was then agreed between Mr. Kibler and the assistant county attorney representing the state that the case should be reset for Monday, March 25th. On the morning of March 25-th, the state announced ready for trial, whereupon the defendant, by his attorney, presented a motion for postponement on the ground that he was engaged in the trial of a case in the county court. The county court case was not mentioned at the resetting of this case March 20th. Mr. Kib-ler, as set forth in his motion, stated that the county court case had been entered upon Saturday afternoon, March 23d, and had been recessed until Monday afternoon, March 25th. He stated also that he had been lately employed in the county court case, and that the original lawyer, who still represented the litigant in that case, was Mr. Tom M. Hamilton. Mr. Hamilton was then actively engaged in the trial of the case, and was the leading counsel in the case. Mr. Hamilton had represented him alone on a former trial, which had resulted in a hung jury. The court stated to Mr. Kibler that this case was set by agreement with, and at the special instance of, Mr. Kib-ler, without mention of the county court case; that Mr. Hamilton was an able lawyer and could properly represent the party in the county court; that the state’s witnesses were here, one from a distant point, and he did not see any good reason for compelling them to make another trip to court. Whereupon he ordered the trial to proceed. The trial was begun, and most of the state’s testimony introduced. At 2:39 that afternoon, Mr. Kibler announced that he would have to go to the county court, and asked that the case be continued until the next morning. The court overruled the motion on the grounds already mentioned, and for the further reason that it would require keeping the jury together and the witnesses in attendance longer than was necessary. Thereupon the attorney left the courtroom and took no further part in the case. After the state had concluded its testimony, the defendant was offered an opportunity to testify or introduce such proof as he desired. He did neither. He did not apply to the clerk for a subpoena for a witness, and at no time did he claim to have any witnesses that he desired in his behalf. During the absence of the defendant’s attorney, as during his presence, the court carefully guarded his rights, and he received a fair, legal trial.

This is practically a correct statement of the situation as we understand this record. •Under this we are of opinion appellant does not bring himself within the rule that would require a reversal of this judgment for want of counsel. The whole matter seems to depend largely upon the fact that, after resetting of the case for March 25th, appellant’s counsel had been employed in a county court civil case to aid Mr. Hamilton, the leading lawyer in that case, to try it. That the civil case begun trial on the 23d, which was Saturday, and for some reason was set over for further consideration until 2:30 p. m. on Monday, the 25th. Appellant’s case was called Monday morning, and when the hour of 2:30 arrived the attorney for appellant absented himself from the courtroom to participate in the trial of the civil case in the county court. Under these circumstances we are of opinion that appellant was not deprived of his counsel in such way that it would bring it within the rule that would authorize or require this court to reverse. This is not brought within the rule laid down in Dougherty v. State, 33 Tex. Cr. E. 173, 26 S. W. 60, and Kuehn v. State, 47 Tex. Cr. E. 637, 85 S. W. 793.

It is not necessary to decide the question of the authority of the district judge to compel the attendance of the attorney in this case until the completion of the trial. He did not so compel, nor undertake to do'so. The attorney voluntarily left the courtroom to engage in the trial of a civil case in the county court. Appellant was not deprived of his counsel by reason of sickness, or any matter that could not be overcome, at least reasonably overcome. Taking the whole showing made, we are of opinion that appellant has not been deprived of the right of counsel as is contemplated by the law to cause a reversal of this judgment.

This being the only question in the record, the judgment will be affirmed.


text:
    Ex parte STEDHAM.
    (No. 5314.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    Criminal Law <®=>1131(4) — Discharge oe Defendant — Dismissal of Appeal.
    Relator, who was arrested for violating the anti-vice law and remanded in habeas corpus proceedings, having been discharged since notice of appeal was given to court on appeal, motion of Attorney General' to dismiss appeal should be sustained.
    Appeal from Criminal District Court, Dallas County; Charles A. Pippen, Judge.
    Habeas corpus proceedings by Delia Sted-ham, charged with violation of the anti-vice law. Relator was remanded, and gave notice of appeal.
    Appeal dismissed upon motion of Attorney, General.
    Reid Williams, of Dallas, for relator.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Relator was arrested under a charge of violating the anti-vice law, and applied for a writ of habeas corpus to the district judge, who, upon the hearing, remanded her. Notice of appeal was given to this court. Thereafter she was discharged from custody, and is now at large. Under this showing we believe the motion of the A&-sistant Attorney General to dismiss the appeal should be sustained. It . is unnecessary to discuss this question. We think under the facts stated in the affidavit supporting the Assistant Attorney General’s motion it should be sustained.

The appeal is therefore dismissed.