text:
    GULF STATES TELEPHONE CO. et al. v. EVETTS.
    (No. 5631.)

    (Court of Civil Appeals of Texas. Austin.
    May 10, 1916.
    Rehearings Denied June 21, 1916.)
    1. Appeal and Error &wkey;>1033(5) — Instructions — Right to Complain.
    In a telephone lineman’s action for personal injury, where the court, at his request, instructed that the burden was on him to show that when he executed the release offered by defendant he did not have sufficient mental capacity to understand the nature of his act, the defendant could not complain thereof because it imposed a greater burden than the law required.
    P3d. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056; Dec. Dig. @=3 1033(5).]
    2. Appeal and Eeeoe <&wkey;882(12) — Right to Complain — Party Inviting Eeeoe.
    In such case, and even if the instruction was technically erroneous, the defendant was in no position to complain thereof, where a similar charge requested by it was given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3602; Dec. Dig. &wkey;> 882(12).]
    3. Teial <&wkey; 143 — Taking Case from Juey.
    _ Where the evidence upon the issues raised in a lineman’s action against his employer for personal injury was such that the jury could find a different verdict, the defendant’s requests for a peremptory instruction upon the issues were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. &wkey;143.]
    4. Release <&wkey;4h-UNDERSTANDiNG op Eeeect.
    Where an injured lineman was incapable of knowing and appreciating the effect of the release, he was not competent to authorize his brother to execute it for him.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 1; Dec. Dig. <©=34. ]
    5. MASTER AND SERVANT &wkey;>222(l) — MASTER’S Liability— Sape Place to AVoek — Inspection — Lineman.
    The master must furnish a reasonably safe place for his servant to work, and a telephone lineman was not required to inspect a pole to ascertain whether it would be dangerous to climb it before obeying the commands of his superior.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 648; Dec. Dig. <&wkey;222(l).]
    6. Trial <&wkey;252(ll) — Instructions—Assumption op Fact.
    In a lineman’s action for personal injury from a shock from electricity escaping from an electric light wire to a guy wire attached to a telephone pole, a charge, assuming that he knew that the electric light wire was charged with electricity, was properly refused, where the evidence failed to show such knowledge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. &wkey;252(ll).]
    7. Trial <&wkey;350(6) — Special Issues — Materiality.
    In lineman’s action for injury from shock from electricity from an electric light wire in contact with a guy wire attached to telephone pole, request to require jury to say whether contact of wires was due to the lowering of the guy wire or the raising of the electric light wire was properly refused, as the issue was immaterial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 830; Dee. Dig. @=3350(6).]'
    8. Trial <&wkey;260(8) — Requested Instructions —Given Instructions.
    Defendant’s requested charges were properly refused, where the court had charged generally upon the phases of negligence covered thereby.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. @=3260(8).]
    9. Master and Servant <&wkey;291(l) — Injuries to Servant — Actions—Requested Instructs ns — Refusal.
    Defendant telephone company’s requested charges on certain phases of negligence were properly refused, when the answers sought to be elicited thereby, if favorable to the defendant, would not have authorized a judgment for it ov.er against its codefendant, an electric light company.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1133; Dec. Dig. <&wkey;> 291(1).]
    10. Release <&wkey;57(l) — Validity — Sufficiency of Evidence — Understanding.
    In a lineman’s action for personal injuries, where it appeared that his release to his employer was executed a few days after his injury, while he was in bed under the_ influence of medicines and suffering from- his injury, and where • there was evidence tending to show that he was then incapable of understanding the nature of his release, the Court of Civil Appeals would not set aside a verdict for plaintiff and grant a new trial on the ground that the evidence was insufficient to show that plaintiff, when he executed the release, did not understand its nature and effect.
    [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 106, 107; Dee. Dig. &wkey;57(l).]
    11. New Trial &wkey;>44(l) — Discretion of Trial Court — Misconduct of Jury — Amount of Verdict.
    The denial of a motion for a new trial on the ground of misconduct of the jury because one of them said that they should not fix their verdict at a certain amount, because the attorneys would get half of it, and another juror who knew nothing about what the attorney’s fee in the case would be and whether it had been paid or not, cautioned the first, stating that they could not consider that, and where a motion by one of the jurors to give a larger verdict was lost, was not an abuse of the trial court’s discretion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80, 105; Dec. Dig. &wkey;44(l).]
    12. Damages @==132(2) — Excessive Damages —Injury to Arm.
    A verdict of $15,280.30, awarded to a lineman, 24 years of age, earning from $1.50 to $2 per day, with a reasonable expectation of greater earnings in the future, shocked by electricity, knocked unconscious, and severely burned about arm, breast, and hand, and who suffered great pain for a considerable time, and who at the trial six months afterwards still had a fever, and whose arm was likely to be permanently useless and a menace to his health, whose weight was reduced and whose nervousness prevented sound sleep, in the absence of any showing that the jury were actuated by improper motives In reaching the amount of the verdict, would be allowed to stand.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 373; Dec. Dig. &wkey;>132(2).]
    13. Trial <&wkey;251(8) — Instructions — Conformity to Pleadings.
    In a telephone lineman’s action for injury by electricity from the wire of an electric light company joined as a defendant, the company’s requested charge that it was not bound to provide a reasonably safe place for plaintiff to work, and could not be held liable for the negligence, if any, on the part of his employer in failing to do so, was properly refused, where no such issue was raised by the pleadings.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 593; Dec. Dig. &wkey;251(8).]
    14. Master and Servant <&wkey;291(l) — Negligence oe Employer — Liability oe Another.
    Such charge was properly refused, because in no event could the electric light company he responsible for the negligence of plaintiff’s employer, a telephone company.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1133; Dec. Dig. <i&wkey; 291(1).]
    15. Electricity <&wkey;14(l) — Wires — Negligence.
    Notwithstanding the wires of an electric company were originally properly constructed, it was bound to maintain them in such condition as to prevent their coming in contact with other wires that might be thereafter stretched across the street, and also to keep them, properly insulated.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 7; Dec. Dig. &wkey;>14(l).]
    16. Trial <&wkey;200(l) — Requested Instruction —Given Instruction.
    A requested instruction was properly refused, where the court had given a proper charge upon its subject-matter.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;2G0(l).]
    17. Trial <&wkey;143 — Taking Case from Jury-Evidence.
    In a telephone lineman’s action for personal injury, joining an electric light company as a co-defendant, the refusal of the light company’s request for a peremptory instruction was proper, where the jury could pass a different verdict upon the evidence upon the issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. &wkey;143.]
    18. Trial <&wkey;240 — Argumentative Instruction.
    An argumentative instruction was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. &wkey;3240'.]
    Appeal and Error from District Court, McLennan County; E, J. Clark, Judge.
    Action by John W. Evetts against the Gulf States Telephone Company and W. W. Dey-erle, owner and manager of the McGregor Electric Light Company, with prayer by each of the defendants that in case of judgment against it, it have judgment over against its codefendant. Judgment for plaintiff against both defendants jointly, and the Gulf States Telephone Company appeals, and the Light Company brings error.
    Affirmed.
    Henry B. Marsh of Tyler, and Scott & Ross and Pat M. Neff, all of Waco, for appellant. Williams & Williams, of Waco, for ap-pellee.

      Application for writ of error pending in Supremo Court.

   Statement of the Case.

RICE, J.

This suit was brought by appel-lee against the Gulf States Telephone Company, a private corporation, hereafter called the Phone Company, and W. W. Deyerle, the owner and manager of the McGregor Electric Light Company, hereafter referred to as the Light Company, to recover damages sustained by him on the 17th of October, 1914, while in the employ of fhe former as a lineman, predicated on the alleged negligence of both of said companies. Prior to the accident, each of the companies had constructed a line of poles and wires over and along the principal streets of the town of McGregor in the. operation of their business, and, among others, along West Sixth and Jackson streets, the former running east and west and the latter north and south, and intersecting each other. The Phone Company’s poles were erected and its wires extended along the north side of West Sixth street, while the Light Company’s poles were set and its wires extended along the south side of that street. The Phone Company had stretched a guy wire from a pole on the north side of West Sixth street, diagonally southwest across said street to another pole standing near the intersection of Jackson and West Sixth streets, which guy wire ran below three and above one of the wires of the Light Company, with which it later came in contact. This guy wire was not insulated, and the insulation had worn off of the light wire for about 12 inches at such point of contact, thereby permitting electricity to escape from the light wire to the guy wire. On the day in question appellee was ordered by his foreman to climb the pole on the north side of West Sixth street, to investigate som'é trouble supposed to be about the cable above this wire, and, while passing the guy wire, which had become charged with 1,100 volts of electricity from the light wire, came in contact therewith, and received an electric shock, severely burning him and permanently injuring his left arm, rendering the same useless.

It is alleged that the Phone Company was negligent in stretching said guy wire through the electric light wires, and in such close proximity thereto as to permit them to come in contact with each other, and in not having the guy wire insulated near the poles to which it was attached, so that its employés would not be exposed to danger in the event of contact; that it was also negligent in directing appellee to climb said pole, with the knowledge that said wires were in contact, and in not warning him of the danger that he was about to encounter, and in permitting said wires to remain in contact with each •other, and in thus failing to furnish appel-lee with a reasonably safe place in which to work.

The grounds of negligence charged against the Light Company were: (1) In constructing and maintaining its wires so as to permit them to come and remain in contact with the guy wire of the Phone Company; (2) in not having said wires sufficiently insulated to prevent the escape of electricity therefrom; (3) negligence in permitting one of its poles to lean at the top and thereby pull the light wire against the guy wire.

The Phone Company answered with specific denials of each of the acts of negligence charged against it; further set up that whatever injuries appellee suffered were inflicted by reason of the negligence of the Light Company, for which it was in no way responsible, and, further, that it was only a passive tort-feasor in the matter complained of, and that the Light Company was the primary and active tort-feasor — -praying that, in the event appellee should recover against it, it have judgment over against its codefendant therefor. It also pleaded contributory negligence and assumed risk, and set up in bar of appellee’s right to recover a release executed by him to it, wherein, for the sum of $50 cash paid and the assumption upon its part of all doctor and drug bills occasioned by his injuries, appellee released it from all claim for damages by reason of the injury.

The Light Company answered by general demurrer, express denials of the acts of negligence charged against it, and specially pleaded that its poles and wires were constructed long before the Phone Company’s poles and guy wire were placed and extended across said street, and therefore it could not have been negligent in regard thereto; that if the insulation on its wires was worn off at the point of contact, it was not occasioned by any negligence on its part, but on account of the negligence of the Phone Company, or some one else in no way connected with the Light Company. It further alleged that appellee himself had constructed the guy wire in the manner alleged while an employe of the Phone Company, and therefore he could not be heard to complain of the injuries received therefrom. It also alleged that at the time the guy wire was extended across the street through its wires, none of the insulation on the latter had been rubbed off, and if such insulation was ever thereafter rubbed off, it was by reason of the guy wire’s being so negligently constructed by appellee; alleging that appellee knew the condition of said wire at the time of his injury ; and, further, that the Phone Company was negligent in placing said guy wire between the electric light wires, which was the direct and proximate cause of the injuries sustained by appellee; and prayed for judgment 'over against the Phone Company, in the event any judgment should be rendered against it.

Appellee, in reply to the plea in bar, alleged that at the time of the execution of such release he was under the influence of medicine that greatly impaired his reasoning faculties, and rendered him incapable of appreciating the effect of the instrument signed, and the nature and extent of his injuries.

The case was submitted to a jury upon special issues, and judgment rendered for ap-pellee against both defendants jointly, based upon the findings of the jury, in the sum of $15,280.30, from which the Phone Company has appealed and the Light Company has sued out its writ of error.

The facts, briefly stated, show that the guy wire of he Phone Company was stretched through the light wires and in such close proximity thereto as rendered their contact not only possible, but probable; that it was not insulated, and was a good conductor of electricity; that for several months prior to the accident, the guy wire had been allowed to remain in contact with the light wire where it crossed same, at which place the insulation was worn off the light wire, which facts had been known to each of the managers of both companies for some time prior to the accident, and no steps had been taken by either to remedy such condition; that at the time of the accident the light wire was charged with 1,100 volts of electricity, which, by reason of such contact and lack of insulation, was transmitted to the guy wire.

The facts, also, we think, justify a finding that appellee, without knowledge of the fact that the guy wire was so charged with electricity, climbed the pole at the direction of his foreman for the purpose stated, and came in contact with such wire, from which he received the injuries complained of.

Opinion.

Separate briefs have been filed for both appellant and plaintiff in error, the former of which will be first considered. The principal questions involved in this appeal, outside of complaints as to charges given and refused, upon which a reversal is asked, are: (1) That appeliee was guilty of contributory negligence and not entitled to recover; (2) that ]ie was barred from recovery by reason of the execution of the release pleaded by appellant; (3) the misconduct of the jury in arriving at a verdict; and (4) that the amount thereof was excessive.

We think the charge on the subject of contributory negligence was sufficient to present this issue under the evidence, and that the court did not err in giving same, as complained of by appellant, for which reason all the assignments complaining thereof are overruled.

We disregard the first assignment, for the reason that it is not briefed in accordance with the rules governing this court.

The second question presented is as to the validity of the release executed by appellee to appellant, which was pleaded in bar of his right to recover. On this subject the court, in effect, charged the jury at the request of appellee that the burden of proof was upon him to show that at the time he executed the release in evidence he did not have sufficient mental capacity to know and understand and appreciate the nature, extent, effect and result of his act. This charge is complained of as erroneous by appellant under its second and third assignments. This instruction put the burden of proof on appellee on this issue, and appellant has no right to complain thereof because it imposed a greater burden than the law required. Even if it could he regarded as technical error, appellant is in no position to complain, since it requested, and the court gave, a charge in effect similar to the one assailed.

We overrule the fourth and fifth assignments, which are based upon the court’s refusal to give two special charges, each of which were, in effect, peremptory instructions in favor of appellant upon the issue presented, for which reason they should not have been given, because upon the issues raised there was evidence on which the jury could base a different verdict. See Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

If appellee, as the jury found from the evidence, was incapable of knowing and appreciating the effect and extent of the release signed, certainly he was not competent to authorize his brother to execute the same for him; which was a sufficient reason to decline to give the charge complained of in the fifth assignment.

Special charges Nos. 3 and 4, which form the basis of the sixth and seventh assignments of error, should not have been given. The third was properly refused because it, in effect, imposed upon appellee the duty of investigating and ascertaining whether it would be dangerous to climb said pole before doing so; whereas, the law imposes the duty upon tbe master of furnishing a reasonably safe place for his servant to work, and does not require the latter to make an inspection before obeying the commands of his superior. Second, because this charge assumed that appellee, Evetts, knew at the time he climbed the pole, that the electric light wire was charged with electricity, the evidence failing to show any such knowledge on his part. The fourth special charge was properly refused because it assumed that appellee knew, at the time he climbed the pole, that the electric light wire was charged with electricity, which was not true, and, further, because it was equivalent to a peremptory charge upon the issue involved.

The evidence showing that the guy wire and electric light wire were in contact with each other, appellant requested, and the court refused to submit, its sixth special issue to the jury, which required them to answer whether this contact was due to the lowering of the guy wire or the raising of the electric light wire, and its refusal is the basis of the eighth assignment. This requested instruction being upon an immaterial issue, the court properly refused the same.

Special charges Nos. 8 and 9, requested by appellant, upon which assignments 9 and 10 are predicated, were properly refused: First, because the court had charged generally upon the phases of negligence pleaded and shown by the evidence; and, second, if it be conceded that the answers sought to be elicited by each of said charges would have been favorable to appellant, it would not, in our opinion, have authorized a judgment for it over against the Light Company.

The twelfth and thirteenth assignments complain of the action of the court in overruling appellant’s motion for a new trial, for the reason, among others, that the evidence was insufficient to show that at the time of the execution of the release on the part of appellee he did not understand the nature and effect thereof. Without going into detail, it is sufficient, we think, to say that the release was executed within a few days after appellee’s injury, while he was in bed, under the influence of medicine and suffering from the wounds inflicted upon him. There is evidence showing and tending to establish the fact that at said time he was incapable of understanding tbe nature and effect of this release, for which reason we do not feel called upon to set aside the verdict of the jury, and therefore overrule these assignments.

The verdict of the jury is assailed on the ground of misconduct in this, that after retiring to consider the case, one of the jurors said, in effect, that they should not fix their verdict at $7,000 or $10,000, because tbe attorneys would get half of it Without going into a full review of the evidence submitted on this phase of the case on motion for new trial, it is sufficient to say that it appeared therefrom that one of the jurors, when this matter was mentioned, cautioned, the others, stating that they could not consider that, and nothing more was said about it. On cross-examination it appeared that the juror who made this remark knew nothing about wbat the attorney’s fees in the case would be — whether the same had been paid or not — and that his remark was based upon a mere conjecture. And it was further shown that a motion was made by one of the jurors to give a verdict for $22,000, but after considerable discussion as to various amounts by different jurors, tbe verdict rendered was finally agreed upon by all of them. The charge of misconduct in this respect was within the sound discretion of the trial court, who heard and considered the testimony of the jurors on the motion for new trial. Unless we can say that this discretion was abused, we have no right to disturb the verdict on this ground. See H. & T. C. R. R. Co. v. Gray, 105 Tex. 42, 143 S. W. 606, where it was held by tbe Supreme Court, Mr. Cbief Justice Brown delivering the opinion, that the trial judge was in better position to form a correct conclusion in examining the jurors than that court could from the record, for which reason it refused to disturb tbe verdict. In tbe same case (137 S. W. 731), where a similar question was under consideration, tbis court beld in an opinion rendered by Mr. Justice Jenkins that there was no merit in tbe contention as to tbe alleged misconduct of tbe juror Bishop, on the groubd that the statement was a mere expression of opinion, and not the statement of a fact purporting to be within the knowledge of the juror. For other cases discussing this 'question, see San Antonio Traction Co. v. Cassanova, 154 S. W. 1190; Galveston, H. & S. R. Co. v. Pinjenet, 142 S. W. 93; Foley v. Northrup, 47 Tex. Civ. App. 277, 105 S. W. 231; M., K. & T. Ry. Co. v. Brown, 140 S. W. 1175; Same v. Blalack, 128 S. W. 706.

It is seriously urged on the part of appellant that the verdict is excessive and entirely disproportionate to the injury sustained. We differ with appellant in this contention. The evidence showed that the appellee is a young man, 24 years of age, earning from $1.50 to $2 a day at the time of his injury, with a reasonable expectation that his earnings would be greater in the future; that he was seriously and severely burned about the arm, breast, and hand; that the shock knocked him unconscious, and in falling from the pole his trousers caught on one of the steps, from which he was shortly thereafter removed; that he suffered great pain and torture for a considerable time; that at the trial, which occurred more than six months thereafter, he still had fever from the effects of the injury; that his arm was devoid of feeling; that it would always he a menace to his health, and that it might finally have to be amputated; that it frequently became numb, and he suffered from the effects of cold; that prior to the injury he was stout and healthy, weighing 148 pounds, and since that time his weight had been considerably reduced; that it rendered him nervous and prevented his sleeping soundly. The effect of the evidence was to show that his arm would never be of any service, and was practically useless to him, and that he would likely continue to suffer from it as long as he lived. In the absence of anything showing, or tending to show, that the jury were actuated by improper motives in reaching the amount of the verdict, and where the same does not shock the conscience of the court, we think it should be allowed to stand. The following cases are referred to in support of this view: G., H. & S. A. Ry. Co. v. Still, 100 S. W. 182; Same v. Stevens, 94 S. W. 395; Railway Co. v. Blalack, 128 S. W. 706; Railway Co. v. Brown, 140 S. W. 1175; City of Galveston v. Ponainsky, 62 Tex. 135, 50 Am. Rep. 517; G., C. & S. F. Ry. Co. v. Greenlee, 62 Tex. 351; Michie’s Dig. vol. 13, p. 404, and eases cited. This being a matter entirely for the consideration of the jury, and nothing being shown to impeach the fairness of their conclusion in this respect, it becomes our duty to sustain their verdict.

There was no affirmative error in the charge of the court on the subject of contributory negligence, as complained of in the first and second assignments of error of the Light Company, plaintiff in error herein. Besides this, at the instance of that company the court gave a specific charge on this subject, for which reasons those assignments are overruled.

Plaintiff in error requested the court to instruct the jury, as part of the law of the case, that it was under no duty to provide a reasonably safe place for appellee, as an employé of the Phone Company, in which to work, and cannot be held liable for the negligence, if any, on the part of the Phone Company in failing so to do. This charge was properly refused: First, for the reason that no such issue was raised by the pleadings or evidence; second, because in no event could plaintiff in error be responsible for the negligence of the Phone Company, and the record discloses no effort to do so, for which reason the third assignment is overruled.

Plaintiff in error requested the court to charge that in the maintenance of its wires near the intersection of West Sixth and Jackson streets, it was only required to use ordinary care to avoid the escape of electricity from its wires to such other wires that it might reasonably anticipate would be erected and maintained at or near the intersection of those streets. In our opinion this charge was properly refused. Notwithstanding the wires were originally properly constructed, the duty remained with plaintiff in error to maintain them in such condition as to prevent their coming in contact with other wires that may have been thereafter stretched across said street, and also to keep them properly insulated. Furthermore, the court had given a proper charge upon the subject under consideration, for which reason the fourth assignment is overruled.

The court correctly refused plaintiff in error’s special charge No. 3, because the same was a peremptory instruction, was argumentative, and. on the weight of evidence, and also for the reasons heretofore stated in overruling appellant’s fourth and fifth assignments.

The sixth assignment assails the verdict of the jury on the grounds that it is excessive. As this feature of the case has heretofore been considered, we pretermit any further discussion of it here.

Finding no reversible error in the proceedings of the trial court, its judgment is in al] respects affirmed.

Affirmed.
      cg^oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cgzuFor other eases see same topio.and KEY-NUMBER in all Kej-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    H. C. DENNY & CO. v. LEE.
    (No. 5623.)

    (Court of Civil Appeals of Texas. Austin.
    May 11, 1916.
    Rehearing Denied June 28, 1916.)
    Estoppel <&wkey;92(3) — Geotjnbs — Acceptance of Benefits.
    Where the payee of a note, purporting on its face to be given for the price of one-third interest in property, transferred the note to the plaintiffs as collateral security for a loan and after the adjudication in bankruptcy of the payee, the maker and payee executed a deed and transferred possession of the property to the plaintiffs, in consideration of which the note was to be canceled and discharged, although the plaintiffs subsequently purchased the property and note from the payee’s trustee in bankruptcy, they were es-topped to deny the validity of the agreement by which the maker was released from liability on the note.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 262; Dec. Dig. &wkey;92(3).]
    Error from District Court, Bell County; John D. Robinson, Judge.
    Suit by H. 0. Denny & Co. against W. J. Lee. From a judgment for defendant, plaintiffs bring error.
    Affirmed.
    John B. Durrett, of Belton, for plaintiffs in error. W. W. Hair and Winbourn Pearce, both of Temple, and A. L. Curtis, of Belton, for defendant in error.

      Application for writ of error pending in Supreme Court.

   KEY, C. J.

H. C. Denny & Co. brought this suit against W. J. Lee and sought to recover upon a promissory note for $5,000 executed by Lee and made payable to the order of R. E. Rankin and transferred by the latter to Denny & Co. The note was dated October 16, 1906, was due five years after date, and showed upon its face that it was for the purchase money of the property known as the Bell County Roller Mills, and was secured by a vendor’s lien upon that property. In his answer the defendant pleaded the cancellation and discharge of the note in the manner hereafter referred to. The plaintiffs assert that at the time of the agreement among the plaintiffs, defendant, and R. E. Rankin, by which the defendant claimed to have been discharged from liability upon the note, Rankin had been declared a bankrupt, and his estate was in course of administration in the proper federal District Court, and therefore the agreement referred to did not have the effect of discharging the defendant Lee from liability upon the note, and that in due course of the bankruptcy proceedings the note was sold by the trustee in bankruptcy and was bought in by the plaintiffs, Denny & Co. They did not plead the penden-cy of the bankruptcy proceeding at the time the agreement was made.

The trial court instructed the jury to return a verdict for the plaintiffs for the amount of the note, interest, and attorney’s fees, unless they found for the defendant under the following instruction:

“If you find from the evidence that on or about the 29th day of May, 1908, W. J. Lee and R. E. Rankin executed a deed to Chas. F. Denny for ■the benefit of H. C. Denny & Co., to what is commonly known as the Bell County Roller Mill property, the same being situated at that time on certain lots on fractional block 47 of the original town of Belton, Bell county,' Tex., and if you further find from the evidence that it was agreed by and between W. J. Lee, R. E. Rankin, and H. C. Denny & Co., that in consideration of said conveyance the $5,000 note herein sued on was canceled, satisfied, and discharged, and if you further find that in pursuance of said agreement and the execution of said deed the said H. C. Denny & Co. accepted the same and went into possession of said property as owners thereof, then you will return a verdict for the defendant.”

The jury returned a verdict for the defendant, upon which the court rendered judgment in his favor, and the plaintiffs have brought the case to this court by writ of error.

The proof shows that at the time the note sued on was executed R. EX Rankin, who was then the owner of the Bell County Roller Mills property, made a contract with the defendant, W. J. Lee, by which the latter became the purchaser of a one-third interest in the property referred to, upon an agreement that it was to be operated as partnership property. However, no deed was executed by Rankin conveying to Lee his one-third interest. Thereafter, on March 7, 1907, R. E. Rankin and W. J. Lee borrowed $10,-000 from the plaintiffs, H. C. Denny & Co., for which they executed three notes, each for one-third of the amount borrowed, and at the same time they executed a deed of trust upon the Bell County Roller Mills property to secure the loan referred to, and the $5,-000 note sued upon in this case was transferred by Rankin to Denny & Co. to be held as collateral security for the $10,000 and the three notes executed therefor. On the 28th day of March, 1908, R. B. Rankin was adjudged a bankrupt, and on the 29th day of May, 1908, an agreement was entered into among R. E. Rankin, W. J. Lee, and Denny & Go., as a result of which 'R. E. Rankin, W. J. Lee, and his wife, Alice Lee, executed a deed conveying to Denny & Co. the Bell County Roller Mills property, the consideration recited in the deed being the payment, satisfaction, cancellation, and discharge of the balance owing by R. B. Rankin and W. J. Lee upon the three notes hereinbefore referred to, given for the $10,000 borrowed by Rankin and Lee from Denny & Co. and secured by deed of trust upon the mill property.

The defendant, Lee, averred in his answer that a further consideration for the execution of that deed was an agreement among all three of the parties to the effect that the $5,-000 note sued upon in this case, and then held by Denny & Co. as collateral security for the three notes executed by. R. E. Rankin and defendant, Lee, was to be canceled and discharged. That issue was submitted to the jury, decided in favor of Dee upon evidence which supports that decision, and therefore the case must be disposed of in this court upon the assumption that the agreement of cancellation and discharge was made as alleged by the defendant. Subsequent to that agreement, the plaintiffs, Denny & Co., made the necessary affidavit to prove up their '$10,-000- claim against R. E. Rankin in the bankruptcy court, including the alleged fact that their demand against Rankin for $10,000 was secured by a trust deed on the Bell County Roller Mills property, and by the note involved in this suit, which had been deposited with the plaintiffs as collateral security. Thereafter, and in due course of bankruptcy proceedings the Roller Mills property and the $5,000 note here involved were sold and conveyed to the plaintiffs by the trustee in bankruptcy by a deed of conveyance executed June 23, 1909. The defendant, Lee, alleged and proved that the proceedings referred to were inaugurated and consummated without any notice to him, and also charged that they were fraudulent as against him.

Without referring specifically to the assignments of error, it is sufficient to say that the ground upon which a reversal is sought is clearly stated in the following proposition copied from the brief filed by counsel for plaintiffs in error:

“After an adjudication in bankruptcy has been made, the title to all the property of the bankrupt as of that date passes to the person who is subsequently chosen trustee: the trustee of the estate, upon his appointment and qualification, is vested by operation of law with the title of the bankrupt to his property as of the date he was adjudged a bankrupt; and all titles claimed through or under him subsequent to adjudication are by force of law, and without regard to the knowledge or motives of the one so claiming, overthrown and defeated.”

As a general rule, the soundness of that proposition may be conceded; but we regard this case as an exception to it. The only interest which the plaintiffs first had in the note here involved resulted from the fact that it had been delivered to them as collated al security for the $10,000 which they loaned to Rankin and Lee. Lee’s liability to the plaintiffs upon the note so held by them as collateral security was not primary, but secondary only; and whenever the debt for which that note was held as security was discharged, the plaintiffs’ right to enforce payment of the collateral security terminated. According to the finding of the jury, the plaintiffs entered into an agreement with Lee to the effect that, if he and Ms wife would join Rankin in the deed conveying the Roller Mills property to the plaintiffs, his liability to the plaintiffs upon the note involved in this case would terminate. He and his wife executed that deed, and the undisputed proof shows that the plaintiffs immediately thereafter took possession of the prop-«rty thereby conveyed, and have held it as their own ever since.

As no bankruptcy proceedings were pending against either Denny & Co. or W. J. Lee, it cannot be successfully contended that the agreement referred to did not have the effect of releasing the latter from the then existing liability to the former, in so far as the $5,000 note was concerned; but this case involved, another and more difficult question. But, conceding that after making the contract referred to Denny & Co. had no further interest in the note, the fact remains that it was apparently an asset of R. E. Ran-, kin’s estate, which estate at the time the contract was made was being administered by the bankruptcy court, and therefore Rankin had no power to make a contract for the release of Lee which would prevent that court from dealing with the note as an asset of the bankrupt estate; and that court, in the exercise of its jurisdiction over Rankin’s estate, made an order directing the trustee in bankruptcy to sell both the mill property and the note; and the latter having reported that Denny & Co. had offered to take the mill property and the note in satisfaction of the claim which they had proved up against the estate, the court authorized the trustee to accept that offer, which was done, and the trustee made a deed conveying the mill property and the note to Denny & Co. That deed recites an additional consideration of $175, but the undisputed testimony oft appellants’ witness C. E. Denny indicates that such recited consideration was not in fact paid; but we do not regard that fact as of any particular importance.

Appellant’s contention is that as the note in question was made payable to R. E. Rankin, and was regularly sold before its maturity by the trustee in bankruptcy, and bought in by appellants, they thereby acquired title to it, and that their right to enforce its payment cannot be defeated by reason of the contract formerly entered into by themselves, Rankin, and Lee, for the reason - that, as Rankin’s estate was then being administered by the bankruptcy court, he had no power to contract for the release of Lee. While that question is not altogether free from difficulty, we have reached the conclusion that appellants’ contention is unsound. It must be born in mind that the note in question showed upon its face that it was given for the -purchase price of a one-third interest in the mill property. There was other testimony showing clearly that appellants knew that fact at the time the contract was made by which appellants and Rankin agreed, in substance, that if Lee and his wife would join Rankin in a deed conveying the mill property to appellants he should be released from liability upon the note. That agreement was the consideration moving appellee and his wife to execute the deed, by which he was divested of his title to the mill property and such title was vested in appellants. Knowing all these facts, appellants accepted the deed referred to, took possession of the mill property, and have enjoyed its use ever since, and therefore they are estopped from denying the validity of the agreement by which they and Rankin undertook to release appel-lee from liability on the note. In other words, if appellee had declined to convey his in-, terest in the mill property to appellants, then, upon payment of the note in controversy, he would become the absolute owner of a one-third interest in the mill property; whereas, on account of the execution by him of the deed referred to, the consideration for 'the note has failed, and if he is compelled to pay it now he loses the consideration for which it was given, and, as disclosed by the record, obtains no benefit whatever, except that he received a salary of $100 a month for about 18 months while acting as manager of the mill, which, no doubt, is fully offset by the fact that appellants have had the exclusive use and benefit of all the property ever since the contract referred to was made. So it appears that all the equities are in appellee’s favor. In fact, the books do not reveal many cases which appeal more strongly to the conscience of a chancellor for the interposition of equity powers to prevent the consummation of what would otherwise be a gross wrong. It would, we think, be a violation of a cardinal rule of equity to permit appellants to enjoy the benefits which'have resulted to them, and at the same time deny the validity of the contract through which they obtained such benefits.

This disposes of the only questions presented to this court for decision; and as we decide them against the plaintiffs in error, it follows that the judgment should be affirmed ; and it is so ordered.

Affirmed.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: KEY, O. J.

text:
    DOSS et al. v. CHAMBERS et al.
    (No. 5706.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 1, 1916.)
    1. Costs. <&wkey;9S — Taxation — Appeal — Successful Party.
    In civil cases the general rule is that, when an appellant obtains judgment in the appellate court on the merits in his favor, he also obtains judgment against his adversary for all the costs; but, if no costs can be collected from the adverse party, the appellant is liable to all court officials for costs incurred by him.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 369-875, 38A-387; Dee. Dig. &wkey;93.3
    2. Costs <&wkey;93 — Taxation Asainst Successful Party.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3667, providing that costs in all contested election cases shall be taxed according to laws governing costs in civil cases, where the contestant secures a judgment on appeal in his favor, and although the costs cannot be collected against the contestees, the contestant can be taxed only with the costs incurred by him.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 369-375, 384-387; Dec. Dig. &wkey;93.]
    Appeal from 'District Court, Milam County; J. C. Scott, Judge.
    On motions for rehearing by defendants and by plaintiffs.
    'Defendants’ motion overruled, and plaintiffs’ motion granted.
    For former opinion, see 188 S. W. 260.
    Morrison & Lewis, of Cameron, for appellants. J. W. Garner and E. A. Camp, both of Rockdale, and E. A. Wallace, of Cameron, for appellees.
   KEY, O. J.

Appellees have presented a motion for rehearing, which has been duly considered and is overruled. The main questions therein presented were sufficiently discussed in our former opinion.

Appellants have also filed a motion for rehearing, which complains of that part of the judgment of this court which taxes all the costs against them, and we have reached the conclusion that their complaint is well founded, and that our judgment in that respect is erroneous. The cases cited in our former opinion do not go to the extent of holding that in cases of this kind it is proper to tax all the costs against the successful litigant. It is provided by statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3067) that:

“The costs in all contested election cases shall be taxed according to the laws governing costs in civil cases, except when otherwise specially provided.”

The general rule in civil eases is that, when an appellant obtains a judgment in the appellate court deciding the case on its merits in his favor, he also obtains a judgment against his adversary for all the costs; but, if no costs can be collected from the adverse party, he is liable to the officers of the several courts for the costs incurred by him. As to contested elections, where the adverse party is certain county officers designated by statute, as in this case, then it is provided by statute that no costs shall be taxed against such contestees. But no statute has been cited, and we have found none, which provides that, in the contingency just referred to, any other costs should be taxed against the successful litigant, except those incurred by .him.

So we conclude that no authority exists for taxing against appellants any costs, except those incurred by them, and the judgment rendered by this court will be reformed in that respect. It may be true that our ruling in this regard will result in depriving some of the officers of some of their costs; but that affords no sufficient reason for taxing such costs against a litigant who has been compelled to go into court to secure the rights he was entitled to under the law. The law makes him responsible for such costs as were incurred at his instance, but it does not require him to pay the costs incurred at the instance of his adversary; and therefore the result may be, as it is in some other instances, that certain officers will receive no compensation for services they have rendered. But it must he borne in mind that they do not render such services for the litigant who is finally successful, that the Legislature has the power to require officers to render certain services without compensation, and it accomplished that result when it expressly declared that in cases of this kind no costs should be taxed against the contestees, and failed to provide for their payment by the government.

Motion granted.


author: HARPER, J,

text:
    BERGIN v. STATE.
    (No. 4105.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Criminal Law <&wkey;542 — Evidence—Testimony on Former Trial — Admissibility.
    Testimony of one given at a former trial with due opportunity for cross-examination is admissible on a subsequent trial after death of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1232, 1236; Dec. Dig. <&wkey; 542.]
    2. Criminal Law i&wkey;723(3) — Conduct of Trial — Argument of Counsel.
    It is no ground for reversal that the assistant criminal district attorney argued “that the ■only way to stop red-handed murders was to write verdicts of guilty that will stand out as the noonday sun.”
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1676; Dec. Dig. &wkey;>723(3).]
    3. Homicide <&wkey;340(4) — Trial—Instructions.
    Submission of issue of murder is not error, where the jury finds the defendant guilty of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 720; Dee. Dig. &wkey;340(4).]
    4. Criminal Law <&wkey;823(2) — Triai>-Instbuc-tions — Invading Province of Jury.
    The charge, “If you believe from the evidence beyond a reasonable doubt that defendant with a deadly weapon assaulted deceased,” is not objectionable as implying that the knife used was a deadly weapon, in view of further instruction that, unless the knife used was a deadly weapon, accused was guilty of no graver offense than manslaughter, since a charge must be read as a whole, and if thus taken it correctly presents the law, there is no ground for complaint.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. &wkey;823(2).]
    5. Homicide &wkey;>195 — Evidence—Admissibility.
    Evidence of acts and conduct of deceased was admissible to aid the jury in determining whether accused was justifiable in knifing him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 420; Dec. Dig. <&wkey;195.]
    6. Criminal Law &wkey;>811(3) — Trial—Instructions.
    It cannot be said that the court gave undue prominence to the issue of provoking the difficulty, where he presented it but once.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1971; Dec. Dig. &wkey;>811(3).]
    7. Homicide <&wkey;276 — Question for Jury-Provoking Difficulty.
    Evidence held to warrant submission to jury of issue whether accused provoked the difficulty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 569; Dec. Dig. &wkey;276.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Ned Bergin was convicted of manslaughter and he appeals.
    Affirmed.
    Meek & Kahn, of Houston, for appellant. C. O. McDonald, Asst. Atty. Gen., John H. Crook-er, Cr. Dist. Atty., and E. T. Branch, both of Houston, for the State.
   HARPER, J,

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary.

There are but two bills of exception in the record, although in addition thereto there were several exceptions reserved to the charge as given and the failure of the court to give one special charge requested.

In the first bill it is contended that the court erred in permitting the state to reproduce the testimony of Joe Roberts. It was proven that Joe Roberts was dead, and that prior to his death he had testified at the examining trial of appellant, at which time he had ample opportunity • to and did cross-examine the witness. In Branch’s Penal Code, § 76, the authorities are collated holding the court did not err in this ruling.

In the next bill it is shown that the assistant criminal district 'attorney in his closing argument said:

“That the only way to stop red-handed murders in this community is to write verdicts of guilty that will stand out as the noonday sun.”

Such remarks have frequently Been held to present no ground for reversal of a case under facts similar to those in this case. Sue v. State, 52 Tex. Cr. R. 122, 105 S. W. 804; Vann v. State, 48 Tex. Cr. R. 11, 85 S. W. 1064; Choice v. State, 54 Tex. Cr. R. 517, 114 S. W. 132.

The first exception to the court’s charge is that he erred in submitting the issue of murder. As the jury found appellant guilty of manslaughter, there is no necessity to discuss this contention. Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 398.

Appellant contends that the court’s charge of manslaughter assumes the knife shown to have been used was a deadly weapon. This contention cannot be sustained; for the language used is not subject to such construction. The court instructed the jury:

“If you believe from the evidence beyond a reasonable doubt that the defendant with a deadly weapon,” etc.

This .required the jury to find beyond a reasonable doubt that the knife was a deadly weapon. In the very next paragraph of the charge he instructs the jury that, if the knife used was not a deadly weapon, he would be guilty of no graver offense than manslaughter. A charge must be read as a whole, and if thus taken it correctly presents the law, there is no ground for complaint.

The court corrected his charge to correspond to exceptions 3 and 4; therefore we will not discuss them.

In Exception No. 5 it is contended that the court should have instructed the jury that “verbal provocation, if any there were, by the defendant towards the deceased, did not justify the deceased in committing an assault upon him (appellant),” and that the court erred in failing to give his special charge presenting that issue. The deceased was not on trial, but appellant was on trial for the assault he made on deceased. Of course, evidence of the acts and conduct of deceased was admissible to aid the jury in determining whether or not appellant was justified in cutting him, and this phase of the case was fully presented in the court’s main and the three special charges given at appellant’s request.

The third special given charge fully covers appellant’s sixth and seventh exceptions to the court’s main charge.

The eighth and last exception to the charge is:

“That the court erred in submitting the issue of provoking the difficulty in his charge; 'that such a charge is not called for and is repeated too often and too prominently, and virtually takes away from the defendant the right to act in self-defense.”

In connection with this paragraph of the charge, the court instructed the jury:

“If defendant did no acts or used no words intended to and reasonably calculated to provoke a difficulty, then you will not consider the question of provoking the difficulty.”

As the court instructed the jury fully on the law of self-defense, and gave appellant’s charges on that issue when he instructed the jury as above, it certainly cannot be said, if a charge on provoking the difficulty was called for by the evidence, it took away appellant’s right of self-defense. And as the court presented the issue only once, it cannot be said he made it too prominent, or that it was referred to too often. If the evidence called for no such charge, of course, the exception should have been sustained, and it would have been error not to have done so. . There were three eyewitnesses to the transaction who testified, Will Roberts, Joe Roberts, and S. T. Cordua. The deceased was at his place of business, and Will Roberts testified:

“When the defendant walked up there he said, ‘Here I am again, Andy; have me arrested again;’ and Andy [deceased] said, T did not have you arrested Barney; that is a mistake;’ and the defendant said, ‘Yes; you did; the cops told me you did have me arrested;’ and the deceased said, ‘You tell those cops, and you, too, if you say I had you arrested, you are Gd-d liars.’ They chewed the rag like any two men, and the deceased told him to go on way from there; T don’t want you around here; you let me alone; I ain’t bothering you; I don’t want to have any trouble with you;’ and the defendant stood there and chewed the rag with him, a fellow could not hardly remember what he said, both cursing and going on. They argued there and cursed and went on about Andy having him arrested. Andy told him to go away from there, T don’t want you around here; I don’t want any trouble with you;’ and the defendant stood there, and just as the defendant made the remark, and Barney made the remark, ‘You know what I ought to do to you,’ and when he said that, Andy stepped to the shanty and got this piece of iron, and as he came back on out Barney made the remark, ‘You know what I ought to do to you?’ He said, ‘No; you ought to go on away from here and let me alone,’ and Barney said to him, ‘No; I ought to stamp the G-d — —n s-1 out of you;’ and that is the time deceased hit at him with the poker. I never did see defendant go in his pocket, and did not see any knife, and Andy made the remark and said, ‘Yes; G- d-n you.’ He went into his pocket — I never seen no knife at all — and he pulled his hand out of his pocket, and he said, ‘Yes; you pulled your G--d — -d knife on me.’ The deceased said, ‘You got y’our knife out.’ Defendant said ‘No,’ he did not have his knife out, and opened his hands, no knife being visible. Before he came out with the iron poker the defendant had put his hand in his pocket. Then deceased said he had pulled a knife on him, and then deceased went in the shanty and got the iron pokei’. When he came out he kinder sidled up to defendant that way, and stepped back, and the defendant said something else to him, I cannot remember just now what it was, and the deceased hit him and hit him a glancing lick on his head, and he dodged out in the street and fell on his behind out in the street, the defendant did, and the deceased followed him up, and when Barney was getting up the deceased picked up a chair and made a pass at him, and when he did the defendant ducked under him and cut him that way. He did not strike him with the chair; he had it raised this way, and Andy dropped the chair down and stepped back and said, ‘Oh, my God!’ When the defendant cut him he stepped back around the chair that was sitting there around this way, and when I seen him, saw the blade, he had it in his hand that way; I just could see the blade of the knife. The blade of. the knife was about, two inches long. I believe that Barney did make the remark, ‘You know what I think of you,’ and the old man did not say anything, and the defendant said, ‘I think you are a no ’count son of a b-h.’ I believe that the defendant did make a remark like that, and then he told him he ought to stamp the G-d-n s-1 out of him; the defendant there said that, talking to that old man there. The old man was there at his place of business; he had work there.”

The testimony of Joe Roberts and S. T. Cordua is in substance the same, although it might be said to vary in some slight details. But by all the evidence it is made evident that appellant went to deceased’s place of business, and made some remarks about deceásed having had him arrested, and suggested that he have him arrested again, and that this was the inception of the difficulty on this occasion; and if he did not intend to provoke deceased into a difficulty, we¡ are at a loss to understand why he went to the place where he knew deceased was a night watchman and accosted him in this way and used' the language he did. We think this authorized the court to submit the issue to the jury for their determination, and the court did not err in so doing.

These are all the exceptions reserved to the charge at the time same was presented to appellant, and all that were reserved prior to the time the same was read to the jury, and the verdict rendered. In the motion for a new trial he seeks to raise other objections to the charge, but since the amendment to article 743, it has been uniformly held this cannot be done, unless fundamental error is presented. Vernon’s Proc. art. 743, and authorities cited thereunder in section 50.

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


author: DAVIDSON, J.

text:
    FREEMAN v. STATE.
    (No. 4152.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Criminal Law <&wkey;1091(4) — Appeal and Errob — Scope — Preservation op Exceptions.
    A bill of exceptions to admission of testimony alleged to relate to conversation with accused while in custody and without warning, which does not state the conversation or its purport, nor show why it was brought within the statute forbidding confessions or admissions while under arrest, is totally insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. <@=»1091(4).]
    2. Criminal Law <&wkey;534(2) — Evidence—Confessions — Admissibility.
    Though an admission was made by accused while under arrest and without warning, it is admissible, under specific provision of Vernon’s Ann. Code Cr. Proc. 1916, art. 810, when it states the place the knife with which the crime was committed may be found and it was found there.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1202-1205, 1222-1224; Dec. Dig. &wkey;534(2).]
    3. Criminal Law <&wkey;726 — Trial—Argument.
    Argument that acquittal would be saying “Thou shalt kill” is not improper, when it is made in answer to argument of accused’s counsel that the jury ought to acquit, if only to stamp with disapproval as a disgrace to his race the deceased white man, killed in a locality occupied by negro prostitutes.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. &wkey;>726.]
    4. Homicide &wkey;340(4) — Instructions—Malice.
    Though a charge on express and implied malice might not be correct, it was nonprejudicial, where the jury convicted of manslaughter, taking malice from the case.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 720; Dec. Dig. &wkey;340(4).]
    5. Criminal Law <&wkey;922(7) — Appeal—Time pob Objections.
    Exception to alleged erroneous charge set up for first time in motion for new trial is too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2214; Dec. Dig. &wkey;o922(7).]
    6. Criminal Law <&wkey;840 — Trial—Right to Inspect Charge — Waiver.
    Accused or his counsel may waive right to examine the charge before it is given to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2021; Dec. Dig. <&wkey;>840.] Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Sallie Freeman was convicted of manslaughter, and she appeals.
    Afiirmed.
    J. Vance Lewis, of Houston, for appellant. C. C. McDonald, Asst. Atty Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of manslaughter; her punishment being assessed at five years’ confinement in the penitentiary. As usual, the facts are in conflict. The court submitted every issue raised by the testimony. The jury was warranted in finding appellant guilty of manslaughter. They could have acquitted. It would serve no useful purpose, in our judgment, to give a detailed statement, or even state the testimony.

While the witness Stevenson was on the stand he was asked the following question: “Tell the jury what conversation you had with her [the defendant].” The objections urged are that at the time of the conversation defendant was in custody and had not been warned that any statement she might make would be used against her. This is defendant’s bill. The bill is totally insufficient. It does not state the conversation, or what it was about; it does not undertake to show that it was brought within the statute forbidding confessionsi or admissions while under arrest. The bill, however, is qualified by the judge, and shows that the witness Stevenson testified that—

“he asked the defendant where the knife was with which- the cutting was done, and that she told him where it was, and that by virtue of what she told him the knife was recovered. This testimony was admitted under the provisions of article 810, Code of Criminal Procedure, upon the theory that the statement of the whereabouts of the knife with which the cutting was done was subsequently found to be true, having been found at the place where the defendant said she put it. When so qualified, I approve the bill.”

This is tbe court’s statement. Under this qualification this testimony was admissible.

Another bill shows that the same witness was—

“permitted to offer through Sergeant J. O. Stevenson evidence obtained while she was in custody and under arrest, without first warning her that any statement that she might make would be used against her.”

Appellant excepted. What the testimony was, or what the grounds of objection to what the witness testified, are not stated. The same qualification is added to this as to the previous bill.

Another bill recites that the county attorney used the following language:

“We have a commandment which I believe is gravest of all, and is, ‘Thou shalt not kill;’ but if you return a verdict of not guilty in this case, as to the defendant, who is a menace to society, you might as well say and tell her, ‘Thou shalt kill’ every white man who happens to traverse in the neighborhood such as where the defendant lived.”

Objection was urged to the remarks of the county attorney thus made to the jury, because calculated to enrage the jury against defendant. This bill is qualified as follows:

“This argument was made in response to the argument of the attorney for the defendant, J. Vance Lewis, to the effect that a white man who would so lower himself as to go down into a place where negro prostitutes resort he deserved to be killed, and that such a white man was a disgrace to his race, and a jury ought to put its stamp of disapproval on such a person by acquitting the defendant, who was a negro woman, and condemning the practice of white men, the deceased being a white man, associating with negro women.”

The court also adds:

“It is my further impression that the court instructed the jury to disregard the remarks of the county attorney to which exception was taken, but no request for such instruction was made in writing, nor was the jury intended to be misled; the remarks simply being invited by the remarks of the defendant’s attorney.”

The court adds that whether he instructed the jury to disregard the remarks of the county attorney objected to he does not remember. As this matter is presented by the bill and the qualification to it, we are of opinion there is no reversible error.

There was an. exception taken to the charge of the court on express and implied malice, and upon manslaughter and aggravated assault, because the evidence is insufficient to support said charge. This exception was not made until after the conviction, and was first set up in the motion for new trial, as is shown by the qualification to the bill; but, had it been timely taken, we are of opinion that the court’s charge is correct. Appellant was acquitted of murder, and the question of malice passed out of the case. The charges on manslaughter and aggravated assault fully presented all the issues raised by the testimony adduced on the trial.

Another bill recites that the court erred in submitting to the jury the main charge of the court without first having submitted the same to her or her attorney, and giving to hel- or her attorney an opportunity to prepare and file with the court objections to the same in whole or in part. The court states in his qualification of this bill that to the best of the court’s recollection he called counsel to the bar before delivering the charge to the jury and tendered thém the charge, explaining the different aspects of the case upon which the court had charged, and counsel both for the state and defendant waived examination of the charge. Appellant had a right to waive this if he so desired. The statute was intended to give counsel an opportunity to object to the charge, or make such suggestions to the court as desired, if they were not satisfied with the instructions written by the court. He, of course, could waive this. The statute does not compel the filing of exceptions. It requires the court to submit his charge to counsel. Parties may waive this.

No reversible error being found in the record, the judgment is affirmed.
      ©^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    NEWMAN v. STATE.
    (No. 4143.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.
    Rehearing Denied Oct. 4, 1916.)
    Í. Criminal Law <&wkey;112S(2) — Appeai>-Ke-view.
    Where no excuse is given in the motion for new trial on the ground of newly discovered evidence for not exercising proper diligence, but, in the oral argument before the Court of Criminal Appeals, defendant’s counsel states grounds as an excuse for not exercising diligence prior to trial, the court must consider the record as made in the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2953; Dec. Dig. &wkey;1128(2).] 2. Criminal Law <&wkey;939(l) — New Trial — Diligence in Procuring Evidence.
    New trial will not be granted for newly discovered evidence where no sufficient diligence in attempting to procure the evidence for trial is shown, nor any excuse given for failure to exercise diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig, §§ 2318, 2321-2323; Deci Dig. &wkey;939(l).]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Pearl Newman was convicted of murder, and she appeals.
    Judgment affirmed.
    J. Yance Lewis, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

No bills were reserved to the introduction of any testimony, and no exceptions were reserved to the charge as given, and no special charges were requested. Appellant’s entire contention is based on alleged newly discovered testimony. In the first place, the motion for new trial setting up newly discovered testimony is sworn to by no person, but if we consider the ground, appellant is wholly lacking in diligence, and no excuse is given in the motion for not exercising proper diligence. In the oral argument before this court appellant’s counsel would state some grounds as an excuse for not exercising diligence prior to the trial, but we must consider the record as made in the trial court, for that is what the trial .court had before it when he overruled the motion. Again, the alleged newly discovered testimony would not tend to support the testimony of appellant on the trial, but would make an entirely different state of facts to that testified to by appellant. In fact there would be an almost direct conflict in her testimony and the alleged newly discovered testimony. As no sufficient diligence is shown, nor excuse given, there was no error in overruling the motion.

The judgment is affirmed.


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

text:
    JOHNSON v. STATE.
    (No. 4074.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.
    On State’s Motion for Rehearing, June 21, 1916.
    On Appellant’s Motion for Rehearing, Oct. 4, 1916.)
    On State’s Motion for Rehearing.
    1. Seduction <@=»42 — Evidence.
    In a prosecution for seduction, where it was not shown that prosecutrix, who had worked in a laundry, associated with another girl who worked in such laundry, or knew anything about the associates or conduct of such other girl, the court was correct in excluding the answer of prosecutrix to the question, on cross-examination, whether such other girl became pregnant and made some man marry her.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 73-75; Dec. Dig. <&wkey;42.]
    2. Seduction &wkey;>42 — Evidence.
    The court properly excluded letters and poetry of an indecent and obscene nature written by prosecutrix to defendant more than a year after the commission of the alleged offense; defendant not offering any testimony as to the general reputation of prosecutrix for chastity.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 73-75; Dec. Dig. <&wkey;42.]
    On Appellant’s Motion for Rehearing.
    3. Witnesses <&wkey;350 — Impeachment — Evidence.
    The court properly refused to permit defendant to ask prosecutrix if she had not been charged in justice court by complaint, some three or four years before, with the theft of a diamond ring, and if, as a matter of fact, she did not steal it and confess to the officers that she had stolen it, no indictment having been presented against prosecutrix, though several grand juries met and adjourned subsequent to the time complaint was made against her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. &wkey;350.]
    4. Criminal Law i&wkey;1169(5) — Appeal — Haemiess Error.
    Where the court withdrew from the jury defendant’s testimony, on cross-examination, that he had one of the baby’s pictures, there was no reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. <&wkey;1169(5).]
    5. Criminal Law <&wkey;419, 420(1) — Evidence.
    Where defendant did not offer to prove, or claim to have seen anything improper about prosecutrix’s conduct, or to have had any personal knowledge of any act of intercourse with another, while the court did not deny defendant the right to prove by any witness he might have been able to produce any act of intercourse with prosecutrix, the fullest latitude in that direction being given him, the court properly refused to allow defendant to answer the question asked by his attorney, “Did you know, or did you hear, of any one having had intercourse with the prosecuting witness?”
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 973, 975, 976, 980-983; Dec. Dig. &wkey;419, 420(1).]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Nelson A. Johnson was convicted of seduction, and he appeals.
    Judgment affirmed.
    Heidingsfelder’s, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., E. T. Branch, and T. J. Harris, all of Houston, and O. C. ■ McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

Prosecutrix testifies to protestations of love by defendant and her reciprocation; that she had never had intercourse with any other man prior to her first act of intercourse with defendant. She says this continued for nearly three years. She gave birth to a child. Its paternity she attributes to defendant. Appellant admits the intercourse, but denies the seduction and promise of marriage. Under his theory the testimony did not dignify the offense as being higher than that of illicit intercourse which would constitute fornication. There are some facts and .circumstances in the case elicited from her which tend to show that she may not have been as pure and chaste as the state contends. Some of her association and acts tend to somewhat impair her purity of thought and mind. She denied, however, that she understood the environments to be of an impure nature. It is not the purpose of this opinion to go into a detailed statement of those matters.

This brings up one of the bills of exception which shows defendant offered to prove that one of the girl associates of prosecutrix fell by the wayside and gave birth to a child; that this girl subsequently married the author of her shame. There is also evidence about some other matters. The appellant then offered to prove on cross-examination of the girl that she associated with the girl who married her betrayer subsequently, and after she had .given birth to the child. We are of opinion that on another trial this testimony should be admitted. This happened before prosecutrix says her illicit intercourse began with appellant. It has been held in several cases that the unchaste character of the associates of prosecutrix can be shown as affecting her chastity.

There are quite a number of bills of exception to the refusal of the court to permit appellant to introduce in evidence letters written by prosecutrix to himself. The bill shows the court had admitted letters written by defendant to her. These letters should have been introduced. The contents of the letters are remarkably vulgar, obscene, unchaste, and impure, so much so that the trial judge for that reason would not permit them to go to the jury. Another ground why he refused to admit the letters was that they were written after the alleged seduction.

There is also another bill showing some prose and poetry that is as obscene and dirty as is possible to have been written. In all of the eases of seduction that have come before this court no language in any of them has approximated the vulgarity and obscenity of those offered in evidence and rejected by the court. Prosecutrix had testified she had never had intercourse with any other man, but the letters show a familiarity with indecencies and impurities that is not compatible with the thoughts or words of purity or chastity. It may be questioned that in any brothel of the lowest order more indecent language could be uttered. ' The fact that these matters occurred'after the alleged se-Auction is not a reason why they should not be introduced. They bore directly upon the chastity and the credibility of the witness. The jury could well consider that a woman who would use such language as set out in those letters and the expression used in the poetry was of an impure and unchaste mind. They were so impure that the trial judge would not permit them to be read in his court. These matters are, however, all perpetuated in bills of exception. Seduction does not consist in the mere promise to marry, followed by acts of sexual intercourse. The woman must be pure and chaste to be the subject of seduction. It would hardly be contended that an impure and unchaste woman could be seduced by the promise alone of marriage. If so, then the promise to marry a lewd woman would form the basis of seduction. This statute was intended to protect the virtuous and the pure. It was intended to punish the seducer of chaste women. The unchaste and the prostitute are not the subject of seduction. In order to constitute seduction, the purity of a woman must be overcome, led away, and then illicit intercourse occur by reason of promise of marriage. However pure the woman may be under this statute, seduction will not be consummated alone by the act of intercourse. There must still be the further constituent element shown; that is, the chastity. If she is led away by her affection, or for any reason she submits, it would not be seduction unless the promise of marriage also enters into the case. Immorality, fornication, and adultery do not form a basis of seduction. The jury might well believe from reading these letters that she was not, at the time of her first intercourse, a pure and chaste woman. The rejection of this testimony by the court on account of the vulgarity and obscenity is creditable to his high sense of chivalry, but the defendant was on trial for seducing a chaste woman, and any fact that shows her to be of an unchaste and impure character is introducible to show that fact, whether it occurred within a reasonable time before or subsequent to ' the alleged seduction. It has also been held in this state, and correctly, that long-continued intercourse of an illicit nature between the prosecutrix and her alleged seducer may be also evidence of the fact that she was not seduced, and it tends to show the converse. It has the effect, or may, to show that it was not seduction, but fornication. What the result of the verdict would have been with this testimony before the jury may be a matter of speculation. We cannot tell about its result or effect on the jury, because it was not permitted to go to them. The very reason the court gives for exclusion is one of the strongest reasons for its inclusion. Its vulgarity and obscenity does not afford a ground for rejecting the evidence. It affords a stronger reason why the letters should have been introduced. The writer does not care to place in the jurisprudence of the state the contents of these letters. It would serve no useful purpose, but it may have been of great value to the defendant to show the condition of the woman’s mind at the time of her alleged seduction. On another trial this testimony will be admitted in evidence.

There is another bill of exceptions reserved to the action of the court, which will not occur upon another trial. It shows while the appellant was upon the witness stand he was asked with reference to a picture of the child of the prosecutrix. The judge stated that it would be legitimate in connection with certain matters which might tend to induce the jury to believe it was his child by reason of the resemblance to appellant. Subsequently, however, he withdrew the matter from the jury. This character of testimony under the authorities of Texas is not permissible.

We are of opinion 'that the court was in error, with reference to the letters especially, and the court should have awarded appellant a new trial.

The judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

PRENDERGAST, P. J.

Upon the urgent insistence of counsel for the state, we have again carefully reviewed this case and the questions upon which it was reversed in the original opinion. We have .reached the conclusion that we were in error in the original opinion.

It is unnecessary to recite all of the testimony. That of the alleged seduced girl makes out a clear and strong case against appellant. She is positively corroborated, and amply so, by several witnesses and many circumstances as to every material fact necessary. The promise of marriage was not only positively testified to by the prosecuting witness, but also by her sister and father and an intimate friend of appellant himself. Appellant shows by his own testimony that-he frequently saw and knew the girl by sight some 2 or 3 months before he was introduced to her in April, 1911, and that from that time on until June 25th following, when he accomplished her ruin, he assiduously devoted himself to her, calling upon her several times a week and frequently taking her out to different functions, swearing:

“I gradually worked up to the proposition of having intercourse with that girl. * * * I was trying all the time, every time I went out there.”

After he succeeded in accomplishing her ruin, he and she both swear that from two to three times, and many times oftener, each week thereafter for a long time he continued to have sexual intercourse with her, she swearing that all this occurred under his repeated promises to marry her at a later date, which was fixed by agreement between them. This continuous relationship existed between tliem until September, 1912, when be left the state for Hot Springs, Ark., where he went for treatment for the cigarette habit. He remained away many months on this occasion, the girl claiming that he promised all the time to fulfill his promise to marry her as soon as he got physically and financially able to do so. When he returned to Houston, he resumed his former sexual relationship with the girl, and soon thereafter got her in “a family way.” She informed him of it, and continuously pressed him to carry out his promise and marry her, so she testified. He as persistently refused, but kept up his relationship with her until she was about 5 months “gone,” and when she persisted that if he would not marry her, a prosecution might ensue, he thereupon suddenly again left the state, and soon learned while out of the state that the officers were after him, and he skipped about over the country evading arrest for about 18 months. We think this record with practical and all reasonable certainty shows that he not only deliberately set about to accomplish the ruin of this girl, and did do so, under his promise of marriage to her, but that he persistently also set about to prostitute, not only' her body, but her mind and language also. He succeeded in debauching her body within about 3 months after he set about to do so, but it took him more than a year and a half by his vile and baneful tutorage to prostitute her mind and words, for it was some 16 months after he seduced and debauched her before he succeeded in having her to write to him a letter wherein any indecent or vulgar or profane word was used, and it was some time thereafter before he succeeded in having her to write other worse letters to him, and more than two years till he succeeded in having her write for him the vile and indecent poetry she did. It seems he took particular pains to preserve all these writings by her to him, for on this trial he produced them, had her identify them as having been written by her, and he offered them in evidence. Evidently it took him more than two years under his vile and baneful tutorage to induce this girl to write such documents to him. The latter ones especially are correctly characterized by Judge DAVIDSON in the original opinion.

The testimony further shows, and the jury by the effect of their verdict expressly found, that prior to the time this girl came into the clutches of appellant, she was a chaste and virtuous girl, not only in body, but in words and mind also, and that prior to his ruin of her she had never before had an act of intercourse with any one. The proof also fails to show that prior to appellant’s contact with her and training of her, as stated, she ever used any vile, vulgar, indecent or profane language.

The testimony shows that the alleged seduced girl, Ella Braun, for some time be-. fore, and a long time after, appellant’s connection with her began, was a working girl, thrown on her own resources; that she worked in a laundry in Houston. After she had given her testimony as a witness for the state, on her cross-examination appellant’s bill of exceptions No. 2 shows that he asked her:

“Q. Did you know Verna Gecosky at the laundry? A. Yes, sir. Q. Isn’t it a fact that she became pregnant and made some man marry her ?”

The state objected to this as immaterial. Neither the bill nor record otherwise shows, or attempts to show, that Ella Braun associated with said Gecosky girl otherwise than that they worked at the same laundry. They did not live together. They did not otherwise associate together, and no intimation is made that even while they worked in the same laundry Ella Braun knew anything about the associates or conduct of the Ge-cosky girl. In approving the bill the court qualified it by stating that the defendant did not, at any time during the trial, prove, or offer to prove, the general reputation of the prosecutrix for chastity was bad, nor was there any evidence in the entire record showing that before she was seduced by defendant she was other than a pure girl. This bill, and the entire record, in no way comes within the principles laid down in Caviness v. State, 42 Tex. Cr. R. 420, 60 S. W. 555, and Jeter v. State, 52 Tex. Cr. R. 212, 106 S. W. 371, nor any other case decided by this court. We were therefore in error in the original opinion in holding that the court erred in excluding the answer of the witness shown by said bill. The trial court was correct in excluding it.

It is true that it has frequently been held by this court that the course of conduct of an alleged seduced girl soon after the claimed seduction and before then, with others, and the language she uses or writes to others about the same time, are admissible, but it has never been held that such matters are admissible when they occur a long time after the alleged seduction, and are not shown to have any connection with the acts of such girl before the alleged seduction, or at some reasonable time soon thereafter. Appellant has a large number of bills to the action of the court in excluding said letters and poetry documents from the jury on the objection of the state. The bills are quite lengthy, and are qualified by a long statement of the judge to each one. It is unnecessary to quote or state the whole of such explanation. We will merely quote this much of it:

“The testimony shows that the prosecutrix was seduced on the 25th day of June, A. D. 1911, and the writing set out in this bill of exceptions was written not to a third person, but to her alleged seducer. The defendant did not offer any testimony from any source as to the general reputation of the prosecutrix for chastity. No witness who testified claimed- to have either had, or to have witnessed, any act of intercourse of prosecutrix with any person other than the defendant. The only attack on her chastity made by defendant consisted in asking her if it was not a fact that she had had intercourse with one Ohick Webb, but upon her denial no attempt or offer was made to prove that such was the fact, or that there was any foundation for such a question. The court did not believe that the writing served any legitimate purpose, and it was no defense, and did not tend to support any defense, and had .said writing been connected in any way with any testimony that might raise the issue of her chastity at the time the defendant seduced her, the court would have admitted it; but, the writing being disconnected and so long subsequent to the date of the seduction, the court was of the opinion that it had no probative force as tending to show that she was unchaste at the time of her seduction.” (Italics ours.)

We were in error in the original opinion in holding that these documents were admissible in evidence. Under the circumstances of this case, we think the action of the trial judge in excluding them was correct. We know of no ease that would go to the extent of holding such documents admissible under the circumstances as shown by the record herein.

We, therefore, grant a rehearing in this case, set aside the former reversal of the judgment, and now affirm it.

DAVIDSON, J.

I cannot agree to this af-firmance.

HARPER, J.

As the promise to marry and the first act of intercourse took place in June, 1911, and the first letter offered in evidence by appellant was not written until in September, 1912, and the others subsequent to that time, I concur in the affirmance of the case.

On Appellant’s Motion for Rehearing.

PRENDERGAST, P. J.

In his motion for rehearing appellant presents some of the same questions which were thoroughly considered and passed upon in the opinion affirming this case. It is unnecessary to again discuss any of them.

There were some questions raised, but not passed upon in the previous opinion. We will now discuss them.

Appellant claims the court erred in not permitting him to ask the prosecuting witness, Ella Braun, in substance, if she hadn’t been charged in the justice court by complaint, some three or four years prior to that time, of the theft of a diamond ring, and if as a matter of fact she did not steal it and confess to the officers that she had stolen it. We state this briefly. In approving the bill the court qualified it by stating that defendant’s counsel stated that he expected to prove these facts by this witness—

“but the court does not know, and is unable to certify as a fact, that the witness would have testified that she had admitted stealing any ring. The testimony was.excluded by the court for the reason that no indictment was presented against the witness; several grand juries having met and adjourned subsequent to the time that such complaint was made against her.”

The court’s ruling was correct. Wright v. State, 63 Tex. Cr. R. 431, 140 S. W. 1105; Williamson v. State, 74 Tex. Cr. R. 293, 167 S. W. 360, and other cases.

While appellant was on the stand the state asked him, over his attorney’s objections, if he had one of the baby’s pictures, and he answered that he had. The court subsequently expressly withdrew that testimony from the jury, and charged them not to consider it. This would be no such material matter as would justify this court to reverse, even if the court had not withdrawn the testimony; but, under the law as well established, as the court withdrew it, it would present no reversible error in any contingency. Miller v. State, 185 S. W. 38, and cases there cited.

In another bill appellant claims the court erred in not permitting him to answer this question asked by his attorney:

“Q. Did you know, or- did you hear, of any one having had intercourse with the prosecuting witness, Ella Braun?”

Upon the state’s objection, the court refused to permit him to answer this question. The court, in approving the bill, qualified and explained it as follows:

“That defendant never offered to prove, nor did he claim to have ever seen, anything improper about the conduct of the prosecutrix, or to have had any personal knowledge of any act of intercourse, nor did the court deny the defendant the right to prove, by any witnesses he may have been able to produce, any act of intercourse with prosecutrix. On the contrary, the fullest latitude was given to defendant to prove anything by legitimate evidence that might tend to show that prosecutrix was unchaste before he seduced her. The question as framed and asked as to what he had heard would have called for hearsay evidence.”

As qualified, this bill shows no error.

The court did not err in refusing to give two special charges requested by appellant. The court in qualifying each of his bills to the refusal of his charges stated that the testimony did not call for such a charge. The court in a correct charge submitted all the issues raised by the testimony. Appellant made no objection to the court’s charge.

The motion is overruled.

DAVIDSON, J.

I cannot concur in the disposition of this case. I do not care to write further.
      <Ss»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©u»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes