text:
    HOLMES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.
    Rehearing Denied June 4, 1913.)
    1. Burglary (§ 16) — Accomplices — Who Are.
    A witness testifying for the state, on a trial for burglary of a depot building and the stealing of beer and whisky therein, to the finding on his premises of whisky after the burglary and putting the whisky into his barn, but not reporting the facts to the officers, is not an accomplice.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 3; Dec. Dig. § 16.]
    2. Burglary (§ 16) — Accomplices — Who Are.
    A witness testifying that on the morning after the burglary he walked to accused’s stable and talked to him and an accomplice, and advised them to look out because of tracks around the depot building, and that the accomplice immediately changed his shoes and gave the witness whisky out of a bottle, is not an accomplice.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 3; Dee. Dig. § 16.]
    3. Criminal Law (§ 628) — Indorsement of Names op Witnesses on Indictment — Rights oe Accused.
    Where the failure to enter the names of the witnesses on the copy of the indictment served on accused was to avoid trouble, and the omission was ordered by the court without the knowledge or consent of accused or his counsel, the omission did not constitute reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1409-1411, 1413-1419; Dec. Dig-. § 628.]
    4. Jury (§ 90) — Qualifications—Sustaining Challenges.
    The sustaining of the state’s challenge to a juror because Ms sister had married accused’s brother was not erroneous.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 413-418, 422; Dee. Dig. § 90.]
    5. Criminal Law (§ 1166%) — Harmless Error-Sustaining Challenge to Juror.
    Error in sustaining the state’s challenge to a juror is not ground for reversal, where no prejudice is shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    6. Pardon (§ 9) — Conditional or Full Pardon.
    A pardon of one convicted of burglary, which grants to the convict a full pardon and restores him to full citizenship to take effect at the expiration of the term of imprisonment, is a full pardon taking effect on the termination of the sentence.
    [Ed. Note. — For other cases, see Pardon, Cent. Dig. §§16-22; Dec. Dig. § 9.]
    7. Witnesses (§ 349) — Impeachment—Former Offenses.
    On cross-examination by accused of a state’s witness, it was proper to refuse to permit witness to be asked as to Ms statements while in jail as to burglaries committed by him, but he could be asked whether he had committed more than 20 burglaries in a stated time.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1135-1139; Dec. Dig. § 349.]
    8. Witnesses (§ 287) — Redirect Examination.
    Where an accomplice testified on cross-examination that the state had agreed to let him oil for four years in the penitentiary on four cases they had against him, provided he would testify for the state in the case, the court properly permitted the state on redirect examination to ask him if any one had tried to get him to testify to anything except the truth.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. § 287.]
    9. CRIMINAL Law (§ 1091) — Aepeai>-Bili, of Exceptions— Sufficiency.
    A bill of exceptions complaining of the admission of evidence must show the facts so that the court can tell from the bill alone that error has been committed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2S28-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    10. Criminal Law (§ 1111) — Bill of Exceptions — Approvai^Effect.
    The court approving a bill of exceptions does not thereby approve as facts the objections stated in the bill.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894r-2896; Dec. Dig. § 1111.]
    11. Burglary (§ 38) — Evidence—Admissibility.
    Where on a trial for burglary the state showed by an accomplice that accused stated while in the building burglarized that he was trying to get some ribbon and had got some ribbon for his girl, and showed the larceny of ribbon, testimony that shortly after the burglary the girl accompanied by accused had ribbon of the kind stolen was admissible.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 70-73, 80; Dec. Dig. § 38.]
    12. Criminal Law (§ 1169) — Appeal — Harmless Error — Erroneous Admission of Evidence.
    The error, if any, in admitting evidence of a fact established by other evidence received without objection is not reversible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    13. Witnesses (§ 286) — Redirect Examination.
    Where on a trial for burglary the state showed the larceny of ribbon and a state’s witness testified that a few days after the larceny she saw a young woman in accused’s company wearing 20 yards of ribbon of the kind stolen, and the witness on cross-examination stated that she had bought ribbon for her daughters, it was not error to permit the state on redirect examination to ask whether she had ever bought as much as 20 yards at one time.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. § 286.]
    14. Witnesses (§ 380) — Impeachment of One’s Own Witness.
    Under Code Cr. Proc. 1911, art. 815, providing that a party introducing a witness may attack his testimony, injurious to the case, the state surprised at the testimony of a witness on cross-examination may on redirect examination ask the witness as to statements made by him a few minutes before he was called to testify to contradict his cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1210-1219; Dec. Dig. § 380.]
    15. Criminal Law (§ 511) — Accomplice’s Testimony — ‘Corroboration. ’ ’
    By ' “corroboration,” under the rule that the testimony of an accomplice must be corroborated, is meant that the corroborative evidence must alone connect accused with the offense, but it need not be sufficient of itself to establish his guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. § 511.

    For other definitions, see Words and Phrases, vol. 2, pp. 1627-1628.]
    16. Criminal Law (§ 511) — Accomplice’s Testimony — Corroboration.
    The testimony of an accomplice may be corroborated by circumstantial evidence, and it is not essential that the testimony of the accomplice be corroborated in every detail, or as to every material fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent; Dig. §§ 1128-1137; Dec. Dig. § 511.]
    17. Criminal Law (§ 511) — Evidence of Accomplice — Sufficiency of Corroboration._
    Evidence held to sufficiently corroborate the testimony of an accomplice to sustain a conviction of burglary.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1128-1137; Dec. Dig. § 511.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Kit Holmes was convicted of burglary, and appeals.
    Affirmed.
    Jones & Jones, of Mineóla, and M. D. Car-lock, of Winnsboro, for appellant. C. E. Lane, Asst. Atty. Gen., and J. H. Beavers, of Winnsboro, for the State.

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

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

   PRENDERGAST, J.

Appellant was convicted of burglary, and his punishment fixed at three years in the penitentiary. The indictment was filed November 15th, and he was tried December 16, 1912. The uncon-tradicted testimony shows that the depot building of the Missouri Kansas & Texas Railway Company at Alba, in Wood county, was burglarized on the night of August 8, 1912. W. L. Mathis was the agent of the said railway company at said point and as such he had the actual possession, charge, and control of said depot at the time it was burglarized, and it was so burglarized and certain property stolen out of it that night without his knowledge and consent, etc.

Si Davis, a witness for the state, and who was an accomplice, and so charged by the court, testified: “I know the defendant, Kit I-Iolmcs. On or about the 8th day of August, 1912, in Wood county, I went to the defendant and asked him if he wanted some whis-ky, and said, ‘Let’s get some whisky out of the depot.’ He agreed to do so. I told him I would come to the stable and wake him up, so about 1 or 2 o’clock in the morning I went to the stable and woke the defendant up. We went down to the depot of the Missouri, Kansas & Texas Railway Company and secured two iron bars and prized around quite a while before we got in. We finally got in the south door by putting the crowbars under the bottom of the door and prizing it open and got in. We took seven packages of whis-ky and a case of beer. I took the whisky and carried it and hid it over in Mr. Wood-son’s sorghum field. The defendant took the beer. About the time we was fixing to go X saw somebody coming along. He was a fellow who worked at the market, and had some dogs. X told the defendant to come on, yonder was somebody and we had better get away. He said he was trying to get some ribbon, and had gotten some ribbon for his girl. We then got .away. The next day I brought him up a bottle of whisky and he gave me some of the beer. The beer was hid back of the stable in a pile of refuse from the stable.” Cross-examined: “I did not see the ribbon but only know he got the ribbon from what he said. He told me he was trying to get some ribbon for his girl. I do not know who first mentioned it about going to the depot, but I think maybe I did.”

Said witness Mathis testified: That on August 8, 1912, at night, said depot at Alba was burglarized; that it was broken open; two crowbars were used in prizing the south door of the depot open; the door was a sliding door; the bottom worked in a groove made by some 2x4’s; the top kept in place by a roller; the crowbars were put under the door and prized open so as to admit the parties to the burglary. On cross-examination: That the next morning after the burglary he examined around the depot and found that a small package or caddy of tobacco and looked like some rolls of ribbon had been taken out of a box that was broken open, and seven packages of whisky and one case of beer containing 3 dozen bottles of beer; that he found the empty beer case out near the depot; he found the crowbars, but did not find the whisky and alcohol; he did not know how much ribbon they got; that the ribbon box broken open was shipped to Mrs. Schovall, she declining to take it, and directed that it be returned to the consignor, and before it was returned it was broken into as stated; that he did not know whether anything was taken out of the box or not; that he saw ribbon in the box and noticed an empty space large enough for two or three bolts of ribbon, and just supposed that some ribbon was taken. On redirect: That there was a piece of the box that the ribbon was in torn off, and he could see a space where it looked like two or three bolts of ribbon had been taken.

Mrs. Schovall, who lived at Alba, testified: That prior to the burglary she contemplated going into the millinery business at Alba and ordered a bill of goods from a Dallas house; that the bill of goods to the amount of $176.25 arrived at the depot at Alba the latter part of July, 1912; that she did not receive the goods but directed their return to the consignor; that there were ribbons in her order, some of them wide ribbons and some narrow; that they were of different widths; some were as wide as your hand or four or five inches, 'then some narrow; the colors were blue and white. This was what she ordered; that the wide ribbon comes 10 yards in a roll and is used by young ladies for making sashes to wear. She further testified that she was afterwards in the Dallas house which had shipped these goods to her, and they did not complain to her of anything being short when the goods were returned.

Several witnesses testified that a young lady by the name of Miss Minnie Loyd, who for several years before this burglary had lived in Mississippi, but before her removal to Mississippi with her parents had lived at Alba, in June, 1912, came to Alba on a visit to her kinfolks and others, and remained on this visit till early in November, but returned to Mississippi just before the grand jury met which indicted appellant in this case; that, during this whole time while this young lady was on this visit at Alba, appellant visited her, took her to picnics in his buggy all along during her visit there, and that he was the only man who did visit, go with, and pay attention to this young lady while she was on this visit; that when she left he took her to the depot in his buggy; the train left Alba at 7:02 p. m.; that he went on the train with her and left with her when the train departed sitting on the same seat with her; that there were two stops of the train within a comparatively short distance from Alba; that night between 8 and 9 o’clock he was seen at his livery stable. There was no secret about the return of this young lady to Mississippi; it being generally known in Alba that she was to leave at the time or about the time she did leave.

Mrs. Patten, a state’s witness, testified: That she knew said Minnie Loyd; had known her a number of years; knew her before she moved to Mississippi; that Miss Minnie formerly lived at Alba and came out some time before the burglary to visit Alba and stayed some time at her house. “On the day, of the Golden picnic Miss Minnie went to the picnic with Kit Holmes; that she stayed all day; that it was on Monday or Tuesday, three or four days after she came back from the Golden picnic, I saw her with some ribbon. She told me on Sunday before that she was going to buy or get her a sash or something like that. It was blue and white and was rolled upon the fingers and wrapped up in a white piece of paper. She got it out of her purse, a large hand bag about 14 inches long. This was several days after she got back from the Golden picnic. I do not know bow many days, but some three or four. * * * The picnic at Alba was on Thursday, Friday, and Saturday before the picnic at Golden, which is eight miles from Alba. I did not see the defendant at my house during the picnic at Alba, but saw him bn the Alba picnic grounds with Miss Minnie Loyd. Other young men besides the defendant were at my house while Miss Loyd was there; cannot say whom they came to see. I never saw any young man but the defendant go out with Miss Loyd while she was at my house. She and defendant went to the Golden picnic alone, in a buggy. She carried this purse, from which I saw her take the ribbon «with her to the Golden picnic. There were two pieces of ribbon, one blue and one white, and ten yards in each piece. Miss Loyd came from toward her trpnk ..ith the purse in her hand, and I suppose she got it from her trunk; she took the two pieces of ribbon from the purse and showed them to me. I had been in her trunk, and had never seen this ribbon before. She had sent to town by.me and got ribbon, but it was narrow, black ribbon.” Gross-examination: “I do not mean to say that I searched Miss Loyd’s trunk for ribbon. I never looked in there for ribbon. I just went in there when I wanted anything, like X would in my daughter’s trunk. The ribbon may have been in the trunk before, but I had never seen it in there. There are dry goods stores in both Golden and Alba. Miss Loyd was not at my house all the time after she returned from the Golden picnic and before she showed me the ribbon. I sometimes buy ribbon for my daughter. Miss Loyd went to and returned from the Golden picnic with the defendant. It was known generally in Alba that she was going to leave and go back to Mississippi. The defendant kept company with her while she was here; was with her several times; I don’t know how many times. She came from towards her trunk where her purse was with the ribbon in her hands and says, ‘Mrs. Patten, I want to show you some ribbon I have got.’ The ribbon was not rolled up like it comes but was rolled on the two fingers and was wrapped up in white paper. There is nothing unusual in young ladies having ribbon to make sashes to wear. Most all young ladies have ribbon for sashes, and this was ordinary ribbon. She told me some time ago that she was going to get her some ribbon to make her a sash. There was ten yards in each roll. It takes about five yards to make a sash, so there was enough to make four sashes, two blue ones and two white ones.” On redirect examination she said that she never bought for her daughters as much as 20 yards of ribbon at one time; that her daughters did not have a position like Miss Minnie Loyd.

Charles Austin, for the state, testified that he was city marshal of Alba at the time of the burglary in question and went to the depot the next morning; that he examined the door that had been broken open; that it had rained the night of the burglary; that he saw some tracks but could not tell much about them other than it looked like there were two tracks; he also examined the depot; saw where a box of notions had been broken open, a side of the box torn off, and some ribbon had been taken out; could not tell how much ribbon was gone; saw one piece or bolt of blue ribbon on the floor and some paper that was around the ribbon scattered on the floor; that he found an empty beer ease on the outside of the depot; that he saw defendant with Miss Loyd frequently on public occasions; never saw any other young man with her or defendant with any other young lady while Miss Loyd was there.

A. C. Alston testified: “I saw the box containing the ribbon next morning in the depot after the depot had been burglarized. The box had been opened and something taken out of it. I saw a bolt of ribbon on the floor.”

Mr. W. Williams testified: “I run the market. The young man that works for me comes to the market about 4 in the morning. He has some dogs that follow him. He gets there first and then I come down and relieve him and he goes to breakfast.”

W. F. Woodson, for the state, testified: That on Sunday after the depot was burglarized he was out in his sorghum patch and saw some tracks going out of the patch; he went out and found some whisky and alcohol; that he put the whisky in his barn; he knew about the depot being burglarized and some whisky having been stolen; that a month or so afterwards he found a jug of alcohol in another place in his sorghum patch; the stopper had come out of it and it had turned yellow; he reported this to the officers and got them to look at it and see 'what it was; he turned it over to the officers. On cross-examination: There were three quarts of the whisky he first found; that he took it to his barn, and himself and boys and son-in-law drank it; that he did not report that to the officers; he. knew the depot had been burglarized; that he lived near the depot and right adjoining Si Davis. On redirect examination: That he found three quarts of Craddock whisky and something like a gallon of alcohol in his sorghum patch; that he told everybody he met about finding the whisky; he did not keep it any secret; that he did not tell the Missouri, Kansas & Texas agent about finding it. “After the defendant was put in jail and returned to Alba, and shortly before this court met, the defendant in a conversation with me told me that Si Davis put the whis-ky in my sorghum patch; he said Si’s wife saw us when we found it.” On recross-examination he said: “Defendant said Si Davis told him he put it there, and that Si’s wife ‘saw us when we found it.’ The defendant jokingly said something to me about the price of my sorghum seed, and in this connection said what he did about the whis-ky. I knew of the burglary of the depot the next morning after it occurred, and heard that whisky was taken from the depot; and I supposed the whisky I found was some of it. Si Davis and the defendant had been in jail together before the conversation I had with the defendant.” On redirect examination he said: He thought the defendant said Si Davis told him that he put the whisky in his (witness’) patch; and upon recross-examination the following question was asked, “Now, Mr. Woodson, did defendant say Si put it there, or that Si said he put it there?” and the witness answered, “Well, I won’t be positive about that, but anyway he said Si put it there.”

Bob Murdock for the state testified: “I live at Alba; have known defendant and witness Si Davis for a number of years. On the morning after the burglary I walked into the defendant’s stable and was talking to him and Si Davis. X told them they had better look out; they was tracking out around there where the burglary had been committed at the depot the night before; and Si Davis immediately changed his shoes and jumped and cut some kind of monkey shines, and defendant laughed, and that there was all there was to it; and Si Davis gave me a drink of whisky out of a bottle; and defendant was there somewhere about the stable. I don’t know whether the defendant saw Si give me the whisky or not.”

J. D. Hill testified: That he lived at Alba and had for several years; that he was at the depot the night before the depot was burglarized. “I saw defendant with a case of beer. The next morning I went to the depot to get some whisky that I had ordered and I found that my whisky together with some others had been stolen from the depot. I went over to defendant’s place of business, the stable, and told him about losing my whisky, and he gave me a drink of whisky out of his bottle that was setting in the office.” On cross-examination: “I saw the defendant at the depot the evening before the burglary with four bottles of whis-ky. That is a box that looked like it contained about four bottles at the depot. He was loading it in a delivery wagon with a case of beer. I tried to get mine, but it was so late the agent wouldn’t let me have it.” On redirect examination the state asked the witness: “Is it not true that a few minutes before you was put on this stand as a witness you told the state that you did not see the defendant carry any whisky away from the depot the evening before, but only saw him with a case of beer?” The witness answered: “X did not tell you [speaking to the district attorney] that I did not see the defendant carry any whisky away from the depot. You did not ask me whether I saw him at the depot with whis-ky or not. You only asked me whether or not I saw him carry any away from the depot, and I told you ‘No.’ ”

By some six or eight witnesses appellant proved that they knew the general reputation of Si Davis for truth and veracity at Alba, and that it was bad. Appellant also showed that Si Davis then had pending against him four separate indictments for burglary, and that he had agreed with the state to testify for the state in this case in consideration that the state would let him plead guilty to two of the indictments, with a penalty of two years each; that the state would dismiss the other two cases against him; that in 1893 he had been convicted in Xlunt county and sent to the penitentiary two years for forgery, and that in 1902 In was sent from Hopkins county to the penitentiary for two years for burglary; that he served both sentences. The proper judgments and sentences of these two convictions were introduced. The state then proved and introduced in evidence two pardons, the one for the first offense by Governor XIogg and the other for the later offense by Governor Lanham.

The above is, in substance, the testimony in full.

The appellant requested 11 separate charges. All of them were refused. He preserved and has in the record 27 bills of exception. We have carefully considered all of his requested charges and all of his bills of exception. It is unnecessary to take them up in detail. We take it that appellant does not seriously claim that any material error was committed in at least most of the said assignments.

Neither of the witnesses Murdock and Woodson were accomplices, and there was no evidence which would justify the court to submit to the jury the question of whether or not they were accomplices. Si Davis was an accomplice, specifically so told by the court, and the proper charge in every way given requiring that his testimony should be corroborated. The court’s charge on the subject was just such charge, as has been uniformly approved in many cases by this court. It is unnecessary to collate the cases. This being so, none of appellant’s special charges on that subject should have been given. None of them are anything like as complete and accurate as that given by the court.

Appellant made no motion for a continuance, but he did make a motion urging that the case be not tried because a copy of the indictment had not been served upon him two days before the ease was called for trial. His motion is very meager; but, taking that in connection with the qualification by the judge of his bill to the action of the court in overruling his motion, it appears that his sole claim that a copy of the indictment had not been served upon him was the' fact that the names of the witnesses were not on the copy of the indictment which was served upon him. The judge qualified the bill as follows: “The indictment served on the defendant was an exact copy of the indictment presented by the grand jury and filed in court, with the exception that the witnesses shown on the back of the indictment presented by the grand jury were left off of the back of the copy of the indictment served on the defendant; Si Davis appeared as a witness on the back of the original indictment ; and the sheriff informed the court that the defendant, Hit Holmes, and the said witness were confined in jail together, and, if the said Holmes found out that the said witness had turned state’s evidence against him, he was afraid they would have trouble, in jail, and asked if it was necessary for the names of the witnesses to be written on the back of the copy of the indictment served on defendant; the court informed him that it was not, whereupon the clerk left them off of the copy served on the defendant. This action was taken with-put the knowledge or the consent of defendant or his counsel.” This does not present any reversible error. Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Walker v. State, 19 Tex. App. 176; Leslie v. State, 47 S. W. 367. It is needless to cite other cases. By another bill appellant complains in the same way in this case as he did in his other case, recently decided, that his special prosecutor, Mr. Beavers, was not required by the court to furnish him a list of the subscribers to the fee raised and paid Mr. Beavers for prosecuting him. This question was correctly decided against appellant in his other case.

The court did not err in sustaining the state’s challenge to the juror Patent, because the juror’s sister had married defendant’s brother. Even if this had not been a good cause for challenge, no injury whatever is attempted to be shown by appellant 'in his bill on that subject. Oates v. State, 149 S. W. 1194, and cases there cited. There is no variance between the allegations in the indictment and the proof as to the ownership of the depot under the law. Article 457, C. C. P.

Appellant showed by proper copy of the judgment of conviction and sentence that in 1893 said witness Si Davis had been convicted for forgery and sentenced and served two years therefor, and that in 1902 he had been convicted for burglary and served two years’ sentence. The state then produced and introduced in evidence a full pardon for the first offense by Governor Hogg and in the second offense by Governor Lanham. The pardon issued to said Si Davis by Governor Lanham provided: “Now, therefore, I, S. W. T. Lanham, Governor of Texas, do by virtue of the authority vested in me by the Constitution and laws of this state, hereby for reasons specified now on file in the office of the Secretary of State, grant the above-named convict a full pardon and restore him to full citizenship and the right of suffrage to take effect at the expiration of his term, to wit, the 11th day of July, 1904.” This pardon was dated June 28, 1904. The state proved that Davis served the full term of his sentence. Appellant’s objection to said Si Davis’s testifying because said pardon by Governor Lanham was a conditional one is therefore incorrect, as stated in the face of it. It was a full pardon and restored him to full citizenship, etc., but was to take effect 13 days after the date of it. C. C. P., art. 788, subd. 3; Easterwood v. State, 34 Tex. Cr. R. 407, 31 S. W. 294; and authorities cited in Judge White’s Ann. C. C. P. under said article of the Code.

The court did not err in refusing to permit appellant to ask the witness Si Davis, and the witness to answer, that he had told Lee Majors, the jailer, while he was confined in the jail at Quitman, that he had burglarized every town around there, except Quitman and Winnsboro, and he wanted to break jail so he could burglarize them. Neither did the court err in permitting appellant to ask said witness and him to answer that he had committed more than 20 burglaries in 12 months. Conway v. State, 33 Tex. Cr. R. 329, 26 S. W. 401; Wright v. State, 63 Tex. Cr. R. 436, 437, 140 S. W. 1105.

On cross-examination appellant asked the witness Si Davis and had him testify that the state had agreed to let him off for four years in the penitentiary on four cases they had against him, provided he would testify as a witness for the state in this case. The court did not err, therefore, in permitting the state on redirect examination of this witness on this point to ask him if the state’s counsel or any one connected with the state tried to get him to testify to anything except the truth, to which he answered, “No.”

After the style and number of this cause and the term of court, appellant’s ninth bill of exception is as follows: “Be it remembered that on the trial of the above-entitled and numbered cause when the same was called for trial on the 25th day of November, 1912, in the district court of said county, and while the state witness Mrs. Pearl Patten was on the stand testifying in behalf of the state, state’s counsel asked the witness-on her direct examination if she had at any time after the burglary alleged to have been committed or a few days thereafter seen Miss Minnie Loyd with any ribbon. To which the witness answered that a few days after the burglary Miss Minnie Loyd accompanied the defendant to Golden to a picnic, and some three or four days after they returned that she saw Miss Minnie with 20 yards of sash ribbon—-the kind young ladies usually buy to make sashes. Defendant objected to answer because the same was irrelevant and immaterial and because the same was not in his presence, and because the same was in no way connected with him or him with any ribbon, and because the same was not identified as the ribbon alleged to have been stolen. Because the same could not be used for any purpose against the defendant, of which objections was by the court overruled, to which ruling of the court defendant then and there excepted and files this his bill of exceptions and asks that the same be considered, examined, approved, and ordered filed as a part of the record herein. Approved and ordered filed with the qualification that the state contended that the ribbon seen by Mrs. Patten was same kind of ribbon taken from depot, and that it was given to Miss Loyd by defendant on their trip to Golden picnic.” This bill is clearly insufficient to require this court to review the question attempted to be raised by the bill. Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112, Ortiz v. State, 151 S. W. 1058, and authorities cited in these opinions. It is apparent - from the reading of this bill that the status of the case is not shown in any such way as that this court can,tell from this bill alone that any error has been committed. It will be also noted that appellant states as his objections merely that the answer was irrelevant and immaterial and not in his presence, and was in no way connected with him or with any ribbon, and that the ribbon was not identified as the ribbon alleged to have been stole». The uniform holding of this court is that the court in approving a bill does not approve as facts the objections stated in the bill. They are mere objections. Even if we could consider it, the evidence was clearly admissible.

The court did not commit any reversible error in permitting Mrs. Patten to testify that Miss'Minne Loyd left Alba to go back to Mississippi where she lived about the time of the convening of the court. This same testimony was given by several other witnesses without any objection whatever from appellant. In fact, it seems to have been proven by both parties and conceded as a fact without any question.

Appellant on cross-examination proved by the witness Mrs. Patten that she had two grown daughters and asked her if she ever bought ribbon for them, to which she answered that she did. The court did not err in permitting the state on this point, on redirect examination of said witness, to ask her: “Do you ever buy your daughters as much as 20 yards of ribbon at one time?” To which she answered that she did not. This was a proper cross-examination or reexamination of this witness on a matter drawn out by the appellant.

Article 815, C. C. P., expressly provides that a party introducing a witness may attack his testimony when the witness’ evidence is injurious, to his cause, in any manner, except by proving the bad character of the witness. The court did not err in permitting the state to ask the questions complained of on redirect examination of its witness Hill.

As stated above, the court’s charge on the corroboration of the accomplice witness Si Davis was full and correct. Appellant’s special objection to the eleventh paragraph of the court’s charge, which is as follows: “By ‘corroboration’ is meant that the corroborative evidence, to be sufficient, must, of itself, and without the aid of the acconi-plice testimony, in some degree, tend to connect the defendant with the commission of the offense-for which he is on trial; but it need not be sufficient of itself to’ establish his guilt. It must tend, directly and immediately, to connect the defendant with the commission of the offense”—is not well taken. This charge is in accordance with the many decisions of this court, even if the word “corroboration” had to be defined at all. Hoyle v. State, 4 Tex. App. 239; Hosier v. State, 6 Tex. App. 501; and other cases cited by Judge White in section 997 of his Ann. C. C. P.

The testimony of an accomplice may be corroborated by circumstantial as well as positive testimony. Apparently insignificant circumstances sometimes afford most satisfactory evidence of guilt and ’ of corroboration of an accomplice’s testimony. It is not essential under the law that the evidence of the accomplice must be corroborated in every detail, or to every material fact. The corroborative evidence is sufficient, as stated by the statute, when it tends to connect the defendant with the offense committed. In our opinion the evidence in this case by the accomplice Davis is sufficiently corroborated by the testimony of other witnesses and the circumstances proven in this case. Jones v. State, 4 Tex. App. 531; Nourse v. State, 2 Tex. App. 316; Simms v. State, 8 Tex. App. 243; Clanton v. State, 13 Tex. App. 157; Redd v. State, 53 S. W. 618; Payne v. State, 40 Tex. Cr. R. 290, 50 S. W. 363; Darlington v. State, 40 Tex. Cr. R. 333, 50 S. W. 375; Nash v. State, 61 Tex. Cr. R. 259, 134 S. W. 714; Warren v. State, 149 S. W. 130; Reynolds v. State, 17 Tex. App. 413; Noftsinger v. State, 7 Tex. App. 301; Myers v. State, 14 Tex. App. 35.

We have carefully gone over the whole record and all of appellant’s claimed errors in this case and in our opinion none of them present reversible error. The judgment will therefore be affirmed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    THOMPSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    Rehearing Denied June 4, 1913.)
    1. CRIMINAL Daw (§ 614) — Continuance-Absence of Counsel.
    Where accused had been granted one continuance because of the absence of witnesses, and one of his attorneys was present at the trial and ably conducted his defense, the court did not err in denying a continuance because of the absence of another of his attorneys.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    2. Rape (§ 43) — Evidence—Remoteness.
    Where the mother of a girl, alleged to have been raped, wrote the father and waited for him to return home before having the girl examined by the family physician about ten days after the offense, the physician’s testimony as to the fact of penetration was not so remote as to be inadmissible. ,
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 66; Dec. Dig. § 43.]
    3. Rape (§ 43) — Evidence—Admissibility.
    On a trial for rape on a girl under 15 years of age, the testimony of the girl’s mother that she examined her daughter’s bloomers and found them cut and also found “white stuff like the passage of a man” on them was competent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    4. Criminal Daw (§ 448) — Evidence—Conclusion.
    On a trial for rape on a girl under 15 years of age, the testimony of the girl’s mother that she found “the passage from him” on her daughter’s bloomers was incompetent.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    5. Criminal Daw (§ 1169) — Appeal—Harmless Error.
    The admission of such testimony was harmless, where it was manifest from the whole of the mother’s testimony that she did not intend to lead the jury to believe that she knew who put the stain on the drawers.
    [Ed. Note. — For ’Other cases, see Criminal Daw, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Will Thompson was convicted of rape on a girl under 15 years of age, and he appeals.
    Affirmed.
    W. A. Anderson, of San Angelo, and D. W. Sandusky, of Colorado, Tex., for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of rape on a girl under 15 years of age and his punishment assessed at eighteen years’ confinement in -the state penitentiary.

Appellant, when the case was called for trial, filed a motion to postpone or continue the case on account of the absence of one of his attorneys. This was the second application, the case having been continued at a prior term on his motion on account of absence of certain witnesses. As one of appellant’s’attorneys, was present and, so far as we are able to judge from this record, ably conducted his defense, the court did not err in overruling the application.

The father of the girl alleged to have been raped was absent from home at the date of the offense. Her mother wrote for him, and on his return home, as soon as he could get his family physician, he had the girl examined, and the physician positively testifies to penetration. While this was some ten days after the alleged offense, it was not so remote as to render it inadmissible.

The mother of Velma Ash testified to examining the bloomers of her daughter and found them cut. This was admissible and the court did not err in so holding. However, the bill states she testified she “found the passage from him on them.” It was also permissible for her to state that she found “white stuff like the passage from a man on the bloomers,” and this is what the court states he understood the witness to testify; but, in approving the bill, he approves it as prepared by appellant’s counsel, and this would have her to say she “found the passage from Mm on them.” It was improper to permit her to so testify, but her whole testimony shows she was not present at the time the offense was committed, did not find the passage on the drawers until next morning, and we do not think it such error as will necessitate the reversal of the case under the evidence adduced on this trial. Dater on she states when she found this stain on the bloomers “it had dried,” and makes it manifest that she did not intend to lead the jury to believe that she knew who put the stain on the drawers, and this inadvertent expression in the use of the words “from him” in connection therewith, while erroneous, adds no strength to the case for the state, and under such circumstances such error has been held to be harmless error.

The testimony is such that it unquestionably supports the verdict and finding of the jury, and the heavy penalty assessed was doubtless occasioned by the fact that appellant was a mature man, a seeming friend to the family, one who had been the guest of the father; one who “dropped in” at all hours of the day, and then when the father was called from home took advantage of this occasion to attempt the ruin of his daughter. This doubtless was deemed by them as so reprehensible as to indicate that he was de^ void of those instincts which go to make good citizenship.

The judgment is affirmed.


text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Criminal Law (§ 534) — Confessions—Corroborative Evidence.
    Where defendant, in his prosecution for unlawfully carrying a pistol, made a written confession that he had taken a pistol from one of the witnesses, shot at another witness, and then hid it, and that it was the pistol found by the police, evidence of independent facts germane to the question whether he was carrying a pistol was admissible, as corrobor.ative of the confession.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1202-1205, 1222-1224; Dec. Dig. § 534.]
    Appeal from Tarrant County Court; R. E. Bratton, Judge.
    M. G. Wilson was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted, of the offense of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

There is but one real issue in this case, and that is whether or not certain portions of the testimony was admissible; and, as it all can be disposed of at one time, we will make a short statement of the testimony.

H. P. Pepper testified that he, appellant, and Lee Black were coming down the stairway in the Rosen Hotel; that appellant and Lee Black stopped on the landing, while he and others went on down the stairway; that those who stopped on the landing shot at those who went downstairs, and witness Pepper was shot in the arm with a 44-caliber ball.

Henry Lane testified that on this morning he saw two men coming from what was shown to be the direction of the Rosen Hotel, across Commerce street, with pistols in their hands; that one of the men placed the pistol he had under a shovel near the north side of the Majestic Theater.

Officer Schwain testified that on information he received from Henry Lane he found a pistol concealed under a shovel near the north side of the Majestic Theater, and identified the pistol, which was introduced in evidence.

Officer Stanley testified that just about this time he arrested appellant at a point near the Majestic-Theater.

Wood Williams testified that his pistol had been taken out of the saloon the night before without his consent; that the pistol found under the shovel near the Majestic Theater by Officer Schwain and introduced in evidence was a 44-caliber pistol, and he identified it as his pistol; and that appellant had admitted to him that he was the person who took his pistol out of the saloon.

These would be circumstances authorizing the conviction of defendant, if the written confession made by appellant to the assistant county attorney had not been introduced, and the testimony of each of these witnesses was germane to prove the main fact sought to be proven; that is, appellant was on that occasion carrying a pistol. All and each particle of the testimony tended to and did corroborate the written confession made by appellant, wherein he admitted he had taken Williams’ pistol out of the bar; that he shot at witness Pepper, carried the pistol to a point near the Majestic Theater, and hid it; that it was this pistol found by Officer Schwain. Therefore the state did not rely alone upon the written confession of defendant, but this confession was proven to be true by independent facts and circumstances.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    WOMACK v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Criminal Law (§ 1159*) — Appeal—Review-Credibility of Witnesses.
    A verdict depending on the question of veracity between two witnesses cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Dutch Womack was convicted, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted for illegally selling intoxicating liquors in Johnson county on August 1, 1912, after an election and putting the prohibition law in force in Johnson county in April, 1904. 1-Ie was convicted, and his penalty was fixed at the lowest for a misdemeanor.

The only question raised is by motion for new trial that the verdict of the jury is contrary to the law and the evidence. The party to whom the sale is alleged to have been made swore positively that he bought a half pint of whisky .from appellant and paid him therefor. Prohibition was admitted to be in force in Johnson county since April 19, 1904. The appellant swore that he did not sell the whisky to the witness, as testified by him. It was a question of veracity between the two. The jury believed the state’s witness, and did not believe appellant. The jury were the exclusive judges of this.

The judgment is affirmed.


author: DAVIDSON, P. J.

text:
    Ex parte ROSS.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)

      Bail (§ 52) — Exgessiveness.
    Petitioner, having been charged with robbery by the use of firearms in connection with certain others, denied his. guilt and claimed that he was the subject of a conspiracy on the part of others to send him to the penitentiary. One of the cases had been tried, and resulted in a disagreement, and petitioner was admitted to bail in the sum of $20',009, which he was unable to give. Held, that the bail fixed was excessive, and should be reduced to $5,000.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 209; Dec. Dig. § 52.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Habeas corpus by L. E. Ross to obtain a reduction of bail. Granted, and bail fixed at $5,000.
    John T. Hill and Chas. Owen, both of El Paso, for appellant. O. E. Lane,'Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Applicant was charged with robbery by the use of firearms. It is shown in the record that applicant and one or more others by the use of pistols committed the offense of robbery. Several persons were “held up” at the same time, and robbed by the same persons, and all in the same room. In other words, the transaction was one; all the parties being robbed at the same time and place. Growing out of this several indictments were presented— some 18 or 20. As we gather from the record, there was a separate offense charged for robbery as to each individual, and several cases charging conspiracy between applicant and others to commit the robbery. There was a trial before a jury on one of the cases, but no conclusion was reached by the jury. They were discharged without verdict.

The court fixed applicant’s bond at $20,'000. This he was unable to give, and resorted to writ of habeas corpus for the purpose of reducing the amount. The evidence discloses that he could give a bond of $5,000. We have not mentioned the applicant’s side of the case. He denies having committed the robbery, or participating in it, and claims that he is the subject of a conspiracy on the part of those who were seeking to destroy him and send him to the penitentiary. We are not passing on the merits of the case, nor intending to convey any idea we may have of the facts or credibility of the witnesses. We are of the opinion that the bond is excessive. The trial court should have reduced the bond. We are not intending to discuss the question of jeopardy in case of conviction; but, taking the case as presented, we are of the opinion the bond is excessive. Wherefore the judgment is reversed, and bail granted in the sum of $5,000. Upon the giving of this bond in the terms of the law, applicant will be discharged from custody.

The judgment is reversed, and bail fixed in the sum of $5,000.


author: BROWN, C. J.

text:
    RIGHT OF WAY OIL CO. et al. v. GLADYS CITY OIL, GAS & MFG. CO. et al.
    (Supreme Court of Texas.
    June 11, 1913.)
    1. Railroads (§ 69) — Eight os Was — Deeds —Subsurface Minerals.
    Under Kev. St. 1895, art. 4473, providing that the right of way secured to any. railroad in the manner provided by law (which manner of acquisition is either an agreement with the owner or condemnation as provided by articles 4445-4447) shall not be construed to include the fee-simple title to the land, a deed conveying to a railroad company, for the purpose of constructing, operating, and maintaining its railroad right of way over and upon the above-described lands, so long as the land is used for railroad purposes, does not grant subsurface minerals, being limited by the statute and the phrase “right of way.”
    [Ed. Note. — Por other cases, see Eailroads, Cent. Dig. §§ 161-165; Dec. Dig. § 69.]
    2. Railroads (§ 69) — Eight off Way — Deeds — SuBsuEffACE “Minerals.”
    Under a deed conveying land to a railroad company for a right of way, together with the right to take all timber, earth, stone, and mineral, the word “mineral” will be construed on the theory of the ejusdem generis to mean surface minerals, giving no right to drill oil or gas wells on the right of way, in view of Rev. Civ. St. 1911, art. 6484, giving a railroad the right to appropriate either by deed or condemnation a right of way together with timber, earth, stone, or other material.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 161-165; Dec. Dig. § 69.

    Por other definitions, see Words and Phrases, vol. 5, pp. 4513-4515; vol. 8, p. 7722.]
    3. Mines and Minerals (§ 51) — Trespass-Measure off Damages.
    The measure of damages for taking oil from land through mistake as to ownership would be the value of the oil at the surface less, if the trespasser acted in good faith, the cost. of extracting; but, where the trespasser neither, pleads nor proves that cost, he cannot complain that the value of the oil at the surface was adjudged against him.
    •[Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. §§ 137-141; Dec. Dig. § 51.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by the Gladys City Oil, Gas & Manufacturing Company and others against the Right of Way Oil Company and others. Prom a judgment of the Court of Civil Appeals (137 S. W. 171) reversing a judgment for defendants, defendants bring error.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Wear, Orgain & Butler and W. D. Gordon, all of Beaumont, and O. S. Parker, of Los Angeles, Cal., for plaintiffs in error. D. Edward Greer, Chenault O’Brien, and George Chilton, all of Beaumont, for defendants in error.

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

   BROWN, C. J.

This statement will be sufficient for the decision of the questions submitted to this court:

The plaintiffs in error are the Right of Way Oil Company, the Texas & New Orleans Railroad Company, and Oswald S. Parker, trustee. The Gladys City Oil, Gas & Manufacturing Company, the J. M. Guffey Petroleum Company, and the Gulf Pipe Line Company are defendants in error.

We copy from the well-prepared application for writ of error the following clear and comprehensive statement of the case:

“This suit was filed in the district court of Jefferson county, Tex., November 24, 1909, by the Gladys City Oil, Gas & Manufacturing Company and J. M. Guffey Petroleum Company, as plaintiffs, against the Right of Way Oil Company, Texas & New Orleans Railroad Company, the Gulf Pipe Line Company, and Oswald S. Parker, trustee, being a suit by plaintiffs to establish their ownership and right of possession of a tract of land part of the John A. Yeatch survey in Jefferson county, Tex., and for the title and possession of all oil produced therefrom, and for an injunction restraining the defendants, Texas & New Orleans Railroad Company, Right of Way Oil Company, and Oswald S. Parker, trustee, from drilling oil wells on said land and taking oil therefrom, and from asserting any right or claim thereto, and against the Gulf Pipe Line Company for the oil taken from said land by the other defendants and by them run into its pipe line. Pleadings of the parties are voluminous, and are contained in transcript, pages 2 to 40, inclusive; but it was alleged by both plaintiffs and defendants below, and admitted, that defendants below, plaintiffs in error here, held under a deed from -S. H. Veatch to East Texas Railway Company, the Texas & New Orleans Railroad Company having succeeded to the title conveyed by said deed to East Texas Railway Company, and having made an operating contract for the developing of oil on the tract of land conveyed by said deed with Oswald S. Parker, trustee, and the Right of Way Oil Company having developed oil upon said land under the assignment of said operating contract. The effect of said deed is controlling in the case; plaintiffs in error contending that, under said deed, they have the right to develop, take, and use oil from the strip of land described in said deed, and defendants in error contending that no such right exists, but that the title and right to said oil is in them. The facts, as well as the pleadings, are quite fully stated in the opinion filed herein ■by the Court of Civil Appeals, and will not be restated here; however, the case depending upon the meaning of the deed from S. H. Veatch to East Texas Railway Company, we deem it proper to set same out in full, same being as follows: ‘State of Texas, Sabine County. Know all men by these presents: That I being the owner in fee of the following described tract of land, lying in Jefferson county, Texas, to wit: An equal undivided one-third of a tract of land containing 19,-481,003 square varas, originally granted and titled by the government of Mexico to John A. Veatch as a colonist of Zavalla’s Colony, near a place called- Sour Springs in said county, and lying between the J. W. Bullock and Pelham PImnphries league surveys, except 177 acres in the N. W. corner of said Veatch survey heretofore conveyed by my father John A. Veatch. For the consideration of one dollar to me in hand paid, and .the further consideration of the benefits and advantages that will accrue to me by the construction of a railway over said tract of land, have and do hereby grant, sell and convey unto the E'ast Texas Railway Company, for the purpose of constructing, operating and maintaining its railroad, the right of way, two hundred feet in width, over and upon the above-described tract of land; together with the right to take and use all the timber, earth, stone and mineral existing or that may he found within the right of way hereby granted. To have and to hold to said East Texas Railway Company and its successors, so long as the same or any part thereof may be occupied and used for the purpose of constructing, operating or maintaining its said railway. In witness whereof, I hereby sign my name, the 29th' day of July, 1881. S. H. Veatch. Witness: James B. Nerrew.’ (Acknowledgment follows.)
“Trial was had before the court without a jury, and judgment rendered on January 12, 1910, in the district court of Jefferson county in favor of the defendants, who are plaintiffs in error here, quieting them in their title and possession of the 200-foot right of way strip of land described in the above deed in accordance with the terms thereof, and establishing their right to take and appropriate all of the minerals, including oil extracted therefrom, etc. (Tr. pp. 40 to 42.) Plaintiffs in the court below appealed to, and the judgment of the trial court was reversed by, the Court of Civil Appeals for the First Supreme Judicial District at Galveston, and judgment therein rendered, as set forth on pages 25 to 26 in the opinion of the Court of Civil Appeals, as follows, to wit: ‘First, that the Texas & New Orleans Railway Company have a right of way across the Veatch survey of 100 feet in width, except that part thereof through the Gladys City tract, as to which it has a right of way 2001 feet in width. Second, that the Gladys City Oil, Gas & Manufacturing Company has the fee-simple title to this land, subject to the easement, as aforesaid, of the Texas & New Orleans Railway Company, so long as the same may be used -by it as and for railway purposes. Third, that the Texas & New Orleans Railway Company has no right to the oil or other minerals beneath the surface of said strip comprising its right of way as aforesaid, nor to sink wells and extract the same, but that such oil is the property of the Gladys City Oil, Gas & Manufacturing Company, and of its lessee, the J. M. Guffey Petroleum Company. Fourth, that the said Gladys City Oil, Gas & Manufacturing Company and the said J. M. Guffey Petroleum Company have no right to go upon said right of way and occupy the same, for the purpose of sinking wells and extracting the oil. Fifth, that the said appellants recover of the appellees the value as found by the trial court of the oil extracted by the Right of Way Oil Company through the well bored by it on the right of way aforesaid. And, sixth, that the Gulf Pipe Line Company have judgment over against the Right of Way Oil Company for whatever amount it may be required to pay under judgment against it. Let the judgment be so entered. Reversed and rendered. [Signed] Reese, Associate Justice.’
“Motion for a rehearing was duly filed in said court by the appellees therein, who are plaintiffs in error here, which motion was overruled by said Court of Civil Appeals on, to wit, May 4, 1911.
“First Ground of Error.
“The Honorable Court of Civil Appeals erred, to the prejudice of appellees, in sustaining the first assignment of error of appellants, and in holding, in effect, that the deed from S. H. Veatch to East Texas Railway Company set out in that court’s findings of fact, on page 7 of its opinion, granted merely^ right of way for railroad purposes, and did not convey any right to take and use oil or other minerals within said right of way and beneath its surface, and in the adoption and application of the principles of law upon which such conclusion is based, same being the principal issue in this case, and embodied particularly in that part of said court’s opinion found on pages 12 to 19, inclusive.”
The following articles ,of the Revised Statutes of 1S95 are in these words:
“Art. 4445. If any railroad corporation shall at any time be unable to agree with the owner for the purchase of any real estate or the material thereon required for the purposes of its incorporation or the transaction of its business, for its depots, station buildings, machine and repair shops, or for the right of way, or any other lawful purpose connected with or necessary to the building, operating or running its road, such corporation may acquire such property in the manner provided in this chapter.
“Art. 4446. No railroad company shall enter upon, except for a lineal survey, any real estate whatever, the same being private property, for the purpose of taking and condemning the same or any material thereon, for any purpose whatever, until the said company shall agree with and pay the owner thereof all damages that may be caused to the lands and property of said owner by the condemnation of said real estate and property, and by the construction of such road.”

' Article 4447 provides the procedure for condemnation. It will be seen, however, that the initiative is placed upon the corporation and the manner prescribed by law is an agreement with the owner, which necessarily means that the law requires the corporation to proceed by offer to agree upon and pay the damages, and, if the parties cannot agree, then condemnation may be resorted to.

We copy article 4473: “The right of way secured or to be secured to any railroad company in this state, in the manner provided by law, shall not be so construed as to include the fee-simple estate in lands, either public or private, nor shall the same be lost by the forfeiture or expiration of the charter, but shall remain subject to an extension of the charter or the grant of a new charter over the same way without a new condemnation.”

“The manner provided by law” is either by agreement with the owner or condemnation; therefore, if the owner by agreement conveys the “right of way,” it is secured to the railroad company in the manner provided by law and will be governed by the statute, and cannot be construed to confer a fee-simple title to the land.

There are but these questions presented: (1) Did the deed convey the railroad company the oil beneath the surface? (2) If plaintiff is entitled to recover for the oil taken from the ground, did the court err in giving judgment for the value of the oil after it was delivered from the well, or should the cost of producing it have been deducted?

The granting clause of the deed reads, “have and do hereby grant, sell and convey unto the East Texas Kailway Company, for the purpose of constructing, operating and maintaining its railroad, the right of way, two hundred feet in width, over and upon the above-described tract of land.” The interest granted in the land is the right of way. What right did the railroad company acquire? As we have seen, by the use of the terms, “right of way,” a “grant of the right of way,” the company did not acquire the fee in the land. It got but an easement, which would have been the effect of the deed independently of article 4473, copied above. In Calcasieu Lumber Co. v. Harris, 77 Tex. 23, 13 S. W. 455, this court said: “When, therefore, the railroad company under its charter and the promoter of the private railroad under the act of 1832 were authorized to take private property for the use of their roads, the rights they acquired were a right of way and facilities necessary to the efficient use of that right. They were not empowered to use the exclusive right of way granted to each for any other independent purpose than that for which it was granted. The fee remained in the private owner, and outside of the authorized use, which must be public or incidental to the public use, the proprietary right is in the original owner. * * * The words ‘right of way,’ if not defined, are expressive of the very nature of the right ordinarily held by railway companies in the lands over which their roads run; a right to use the land only for railway purposes; an easement.” The extract clearly defines the terms “right of way,” which is but an easement in the land. The authorities are unanimous on this proposition. 3 Elliott on K. K. § 938; Stuyvesant v. Woodruff, 21 N. J. Law, 133, 57 Am. Dec. 156; Olive v. Sabine & E. T. Ry. Co., 11 Tex. Civ. App. 208, 33 S. W. 139. All authorities agree that the grant of a “right of way” confers only an easement in the land. But land to be used as a right of way may be conveyed in fee; therefore the character of the title conveyed must be determined by the words used and the attending facts and circumstances.

Under article 6484, Revised Statutes 1911 (article 4425, R. S. 1895), a railroad company might appropriate for right of way not exceeding 200 feet in width, of any tract of land, and might appropriate the timber, earth, stone, or other materials on adjoining lands. The same effect is given by the statute whether the land be condemned or conveyed by deed, and in neither case is the “right of way” over the land to be so construed as to secure the fee-simple estate in the lands either “public or private.” Article 6532, R. S. 1911. Thus it is by statute declared that the railroad company by condemnation could have acquired all that this deed expresses, except what might be derived from the word “mineral.” It is significant and tends to show that the deed was'intended to take the place and have the effect of condemnation conferring the same rights under like limitations. The term “right of way” has a definite meaning which is clearly expressed by Chief Justice Stayton in Calcasieu Lumber Co. v. Harris, supra.

If the word “mineral” be omitted from the deed, there could be no doubt that it vested in the railroad company only an easement which venid not include the mineral — oil beneath the surface. We must therefore inquire as to the proper construction of the clause with that word in its connection with the other language. The intention of the grantor must prevail, for which we must seek in the language used by him, with any light which may be shed, upon the terms used by a full consideration of the entire transaction as shown by the attending facts, giving to the language the construction most favorable to the grantee. We concede this in the present case for the sake of this argument, but we are doubtful of the correctness of its application under the facts in this record.

The rule of construction, “ejusdem gener-is,” is thus stated: “General words following particular words will not include things of a superior class.” There is this further restriction of general words following particular words, that the general words will not include any of a class superior to that to which the particular words belong.

The sole reliance of the railroad company and the defendant in error for title to the oil is in the use of the words, “and mineral.” The particular words, “timber, earth, stone,” designate the most common minerals, and are followed by the general word, “mineral,” and the latter word should be applied to the same class; that is, such as may be found upon or near the surface, as gravel and the like. It is contrary to all precedent to give it the effect to include the superior class, “mineral oil,” which is to be found at great depth and is of much greater value.

That construction is made more certain by the purpose for which the grant was made, which is thus expressed: “Por the purpose of constructing, operating and maintaining its railroad, the right of way, two hundred feet in width, over and upon the above-described tract of land; together with the right to take and use all the timber, earth, stone and mineral existing or that may be found within the right of way hereby granted.” The “timber, earth and stone” would be useful in constructing, operating, and maintaining the railroad, and the “mineral,” being given for the same purpose, must be construed to include only the same class, and cannot possibly mean petroleum oil.

We conclude that the Court of Civil Appeals properly rendered judgment for the Gladys City Oil, Gas & Manufacturing Company.

It is claimed by the plaintiffs in error that the burden was upon the plaintiffs to prove the cost of bringing the oil to the surface in order to establish the sum for which they were entitled to judgment. This is an ingenious argument, but not sound. If it were the law that the plaintiff in such case was entitled to recover only the value of the oil less the cost of producing it, there would be more force in the contention. But the law is that the owner of the soil owned the oil beneath the surface as a part of the land, and his title was made more definite when the oil was lifted to the surface. Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559.

If, however, the person who produced the oil acted in good faith, he would be entitled to have deducted the cost of bringing it to the surface and to the market. The contention of plaintiff in error is in effect that the owner must concede the good faith of the trespasser and prove that which is known only to his adversary, the cost of producing the oil. The contention is unsound. In the ease cited above this court said: “The law will determine the rights of the parties, but equity will adjust the account between them upon the doctrine which applies to innocent purchasers in good faith who make improvements upon land which add to its value. The owner gets his property, and £he innocent occupant is remunerated for his labor and money expended in making the improvements.”

There was neither pleading nor evidence to authorize the court to deduct the cost of bringing the oil to market; therefore the Court of Civil Appeals did not err in rendering judgment for the sum that defendant received by the sale of the oil, and the judgment of the Court of Civil Appeals is affirmed.


author: PHILLIPS, J. HAWKINS, J.

text:
    SMITH et al. v. WORTHAM, Secretary of State.
    (Supreme Court of Texas.
    June 11, 1913.)
    1. Mandamus (§ 10) — Secretary of State-Existence of Legal Right.
    Courts will not control the Secretary of State in rejecting a corporate charter because its purpose clause is not justified unless the purpose named is clearly authorized by law.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 37; Dec. Dig. § 10.]
    2. Corporations (§ 14) — Purposes for Which Formed — Automobile Club — “Other Innocent Sports.”
    Under Rev. Civ. St. 1911, art. 1121, subd. 36, permitting the formation of bicycle clubs and “other innocent sports,” a corporate charter naming in its purpose clause an automobile club, the purpose and object of which shall be to promote innocent sports by means of automobiles, is insufficient, since a definite innocent sport must be named, which the charter does not do.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 16-22; Dec. Dig. § 14.]
    3. Corporations (§ 14) — Construction — Ejusdem Generis — “Other Innocent Sports.”
    Under Rev. Civ. St. 1911, art. 1121, subd. 36, permitting the formation of corporations for bicycle clubs and “other innocent sports,” the rule of ejusdem generis does not apply, since the term “bicycle clubs” was used in the sense of a distinct and individual innocent sport, complete within itself and separate in its identity.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 16-22; Dec. Dig. § 14.]
    4. Constitutional Law (§ 62) — Delegation of Power — Secretary of State.
    Rev. Civ. St. 1911, art. 1121, subd. 36, permitting the formation of corporations for bicycle clubs and “other innocent sports,” is not invalid because delegating by the quoted clause legislative power to the Secretary of State to determine what corporations may be formed.
    [Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. §§ 94-102; • Dec. Dig. § 62.]
    Hawkins, J., dissenting.
    Original petition for mandamus by F. M. Smith and others against John L. Wortham, Secretary of State.
    Petition denied.
    Leake & Henry, of Dallas, and W. F. Ramsey, of Austin, for relators. B. F. Looney, Atty. Gen., and O. M. Cureton, Asst. Atty. Gen., for respondent.

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

   PHILLIPS, J.

This is a proceeding to compel the respondent to approve the application for a corporate charter of the Dallas Automobile Club Building Association. The proposed charter states the following as the purpose for which the corporation is to be formed: “To support and maintain an automobile club, the purpose and object of which shall be to promote innocent sport by means of automobiles.” The relators. contend that with this designation of its purpose they are entitled to form the corporation under subdivision 36, art. 1121, Revised Statutes 1911, which authorizes the formation of corporations for the purpose: “To support and maintain bicycle clubs, and other innocent sports.” The respondent refused to approve and file the charter, and now resists the application for a mandamus upon the following grounds:

(1) That the rule of ejusdem generis should be applied in the construction of subdivision 36 of article 112R under which the meaning of the general words, “and other innocent sports,” is restricted by the particular designation of “bicycle clubs” ; that accordingly the general words of the clause may be availed of for the formation of corporations for the purpose of supporting and maintaining only such innocent sports as may be indulged in by the use of instrumentalities performing substantially the same office as bicycles; and that automobiles are not within such class.

(2) That if this rule of construction be not applied, so much of the subdivision as authorizes the formation of corporations other than for the purpose of supporting and maintaining bicycle clubs is unconstitutional as a delegation to the Secretary of State of legislative authority in the right to determine what are innocent sports.

(3) That the purpose of the corporation is not sufficiently stated to enable him to determine whether that which it proposes to support and maintain is an innocent sport. In this connection the respondent admits in his answer “that any innocent sport indulged in by means of an automobile would, in his opinion, if it be held by this court that he is bound in law to pass upon such question, be an innocent sport.” This admits, however, only that which would necessarily be true under the premise stated, and is therefore of no force as an aid in the determination of the question presented.

The authority of this court to compel by mandamus the performance by the Secretary of State of an official act exists only in those instances where he is under a clear legal duty to perform the particular act. Judicial revision of his action in rejecting a charter of a corporation tendered him for approval on account of its purpose clause is not justified unless the purpose named is clearly authorized by law.

The obvious intention of the Legislature in the enactment of subdivision 36 of article 1121 was to provide for the formation of corporations for the purpose of supporting and maintaining those certain sports commonly recognized and classed as “innocent sports.” No attempt was made to designate all of them by name, but in the language employed there is a clearly expressed recognition of their several hinds and individual existence as forms of amusement or recreation. This is manifest, since the purpose authorized is not the’ support and maintenance of innocent sport in the abstract. If the clause were couched in such terms and simply read “to support and maintain innocent sport,” it would exclude the idea of any need of further particularization either in respect to the means to be used or the distinctive sport intended, and the phrase would itself suffice as the purpose clause of such a corporation. Under such a statute the charter in question would undoubtedly be sufficient. Instead, however, of dealing with the subject in this way as it might have done with the same general end in view, the structure and terms of the subdivision plainly indicate that the Legislature had distinct sports in mind in its enactment and framed it accordingly. Proof of this lies in the use of the term “bicycle clubs” clearly in the sense of a definite innocent sport. The language is not apt, but it could have been used in no other sense, since the general words “and other innocent sports,” which immediately follow, necessarily impose such characterization upon it. The phrase “and other innocent sports” could only imply a preceding designation by name of some one or more innocent sports. The effect of this phrase is the same as though, for illustration, instead of the term “bicycle clubs” being used, some well-recognized innocent sport, such as baseball, had been named and the entire clause had read: “To support and maintain baseball, and other innocent sports.” With a term thus used in the opening words of the subdivision in the sense of a specification of a particular innocent sport, for the support and maintenance of which corporations may be formed, the general words “and other innocent sports” can be logically construed only as having reference to other particular or individual innocent sports and as intending a designation by name of the sport or sports contemplated, in.the charter of any corporation formed under their authority. The result of any other construction is to deny them effect That they cannot themselves be sensibly employed for the purpose clause of a corporation, as the general words of certain other subdivisions of the statute may be, is manifest. Unless, therefore, they have reference to definite innocent sports, they perform no service in the statute. The purpose clause of the charter in question designates nothing that is recognized or can be classed as an innocent sport and makes no attempt to do so, and we are accordingly without authority to revise the respondent’s action in refusing to approve the charter.

We do not agree with the respondent’s contention that the doctrine of ejusdem generis should he applied in the construction of this subdivision of the statute. It has no application where the specific words exhaust the class of objects referred to, whereby the general words must bear a different meaning or be denied effect. Our view is, as above stated, that the term “bicycle clubs” was used in the sense of a distinct and individual innocent sport, complete within itself and separate in its identity. It therefore gives no color to the general words of the clause which refer to other innocent sports equally distinctive and individual in their nature. Neither do we regard the clause as in any sense involving an attempt to confer legislative authority upon the Secretary of State.

The mandamus is refused.

HAWKINS, J.

(dissenting). Stating the proposition in different order and words, the majority opinion in this case holds, substantially :

(1) That unless the purpose set forth in the proposed articles of incorporation or charter is clearly one which is authorized by law we are without authority to compel the Secretary of State to file it. In that statement of the law I heartily concur.

(2) That subdivision 36 of our general incorporation law, Revised Statutes, art. 1121, which authorizes the creation of corporations “to support and maintain bicycle clubs, and other innocent sports,” does not attempt to confer legislative authority upon the Secretary of State. In that conclusion, also, I concur.

(3) That the doctrine of ejusdem generis does not apply to said subdivision 36; or, in other words, that the clause “other innocent sports,” as used in the statute should not be restricted to innocent sports produced or indulged in by means of a mechanical agency belonging to the same genus or class as bicycles. In that conclusion, also, I heartily concur, for the reason so clearly stated in the majority opinion, and also for other reasons which involve the well-known origin and historical application of the rule of ejusdem generis.

(4) That nevertheless the “purpose” of the proposed corporation, which the proposed charter declares shall be “to support and maintain an automobile club, the purpose and object of which shall be to promote innocent sport by means of automobiles,” is not set forth in said charter with sufficient particularity or certainty to enable the Secretary of State to determine what the corporation is to do, or whether that which such corporation is to support and maintain is or is not an innocent sport. In that conclusion of my Associates I cannot concur.

Revised Statutes, art. 1122, provides: “A charter must be prepared setting forth: (1) The name of the corporation. (2) The purpose for which it is formed.”

So the real question is as to the proper construction of this subdivision 2.

Section 3 of the Final Title of our Revised Statutes declares that their provisions “shall be liberally construed with a view to effect their objects and to promote justice.”

It is generally held by courts and by text-writers that a substantial compliance with general incorporation acts, and particularly with provisions thereof requiring that the charters shall state the “purpose” of the proposed corporation, is all that is necessary; and especially is this true as to corporations which are not formed for profit. So I think that fair and reasonable rather than a harsh and rigorous interpretation and construction should be given to this word “purpose,” and thus conclude that the purpose clause of the proposed charter substantially meets the requirements of law; while my Associates, in determining the force and meaning of the word “purpose,” resort to what seems to me to be a very strict and entirely too technical rule of construction, and thus they conclude that the purpose clause of said charter is not sufficiently specific to meet the demands of said subdivision.

The statutory requirement that the “purpose” of the corporation shall be stated in its charter was intended for the protection of the incorporators and stockholders, and the public, in order that they may be advised as to the character of its corporate activities, and to enable the state, through its proper officers, to collect proper filing fees and franchise taxes, and to supervise and control the use and to punish the nonuse of its franchise to do. All of these purposes are sufficiently subserved and conserved, it seems to me, by the purpose clause which is set out in the charter before us. It expressly declares, in effect, that the purpose of the proposed corporation shall be to support and maintain an automobile club ; that the purpose and object of such club shall be to promote sport; that such sport shall be limited to such as may be produced or indulged in by means of automobiles, and shall be further restricted to sport which is innocent. The very fact that the contemplated sport is to be by means of automobiles only sufficiently differentiates this proposed corporation from any which might legally be created under the clause “to support and maintain bicycle clubs” ; and the fact that the purpose and object of such proposed automobile club is “to promote innocent sport” sufficiently indicates that the charter is based upon the concluding clause of said subdivision 36.

The word “innocent” as applied to sports has a well-known and general signification. “Innocent” means “lawful; permitted; 'as, an innocent trade.” Webster’s New International Dictionary. It means “free from legal or specific or moral wrong.” Century Dictionary. Said subdivision 36 is somewhat confusing, in that it treats in the same way “bicycle clubs,” wbicb expression conveys a concrete idea, and “other innocent sports,” wbicb expression carries an abstract idea. But tbe “club” idea seems to have been prominent in tbe legislative mind in connection with “innocent sports,” and I think that subdivision 36 should be construed just as if it read: “To support and maintain bicycle clubs for innocent bicycle sports and other clubs for other innocent sports.”

Tbe majority opinion concedes that there are “certain sports commonly recognized and classed as innocent sports,” and that “tbe obvious intention of tbe Legislature in the enactment of subdivision 36 of article 1121 was to provide for tbe formation of corporations for tbe purpose of supporting and maintaining” them. It also concedes, in effect, that subdivision 36 should be construed just as if it read: “To support and maintain bicycle sports and other innocent sports.” But tbe denial by the majority of this court of the writ of mandamus in this case is based, as I understand their opinion, upon tbe failure of tbe proposed charter to make “a designation by name of the sport or sports contemplated in tbe charter.” I think that view of tbe matter leaves out of consideration tbe fact that tbe purpose clause in the charter does practically make a designation by name of the proposed sport, to wit, automobile sport.

Under tbe proposed charter any and all automobile sports wbicb are innocent are within tbe statutory and charter powers of tbe proposed corporation; while all sports produced otherwise than by means of automobiles, and even all automobile sports which are not “innocent,” if such there be, are barred by the statute and by the charter as well. In the absence of a statute calling expressly for a more specific statement of the corporate purposes in the charter, why should one be demanded as a condition precedent to filing the charter?

Is not “automobile sport” as definitely “a designation by name” as is “bicycle sport”? I think it is. And it seems to me to involve a strained and very technical construction to hold (as I understand my Associates do) that in order to come within the law it is necessary for a charter, under the “other innocent sports” clause of said subdivision 36, to go further and specifically designate, by some additional name or names, the particular kind or kinds of innocent automobile sports which the corporation proposes to promote; as, for instance, “automobile racing.” I cannot believe that our statute in its present form makes so rigid and drastic a requirement. After a diligent and painstaking search which has embraced all accessible authorities, I am unable to find that any court or text-writer in the United States has ever before held that a general incorporation law should be construed so strictly; and no such authority has been cited in the exhaustive brief of the Attorney General, or in the argument at bar, or in the majority opinion.

There is another view of this matter which tends to confirm my conclusion as to the proper disposition of this ease, and that is the construction which the Secretary of State who was in office when our general incorporation act first became a law, and his successors in office for more than a generation have placed upon it. Not all, by any means, but several subdivisions of said statute are couched in language which, it seems to me, was intended, and should be permitted, to serve as sufficient expressions of corporate “purpose”; for instance, subdivision 24, which reads thus: “The purchase and sale of goods, wares and merchandise,” etc. So far as I am advised, such has been the uniform rule of construction and the custom of that office with regard to various such subdivisions of said statute, including subdivision 36. Have all such charters, many of which are still active, been improvidently issued, and should they, for that reason, be canceled in suits by the state?

In G., H. & S. A. Ry. Co. v. State, 81 Tex. 602, 17 S. W. 74, this court, speaking through Mr. Associate Justice Gaines, afterward its distinguished Chief Justice, said: “We recognize the rule that in cases of doubt the contemporaneous construction of any department of the government is entitled to great weight, and is sometimes given a controlling influence.”

In Tolleson v. Rogan, 96 Tex. 432, 73 S. W. 524, this court, speaking through Mr. Associate Justice Williams, said of a construction which the head of another executive department had placed upon a certain statute: “While, as this court has frequently held, actions of such officers in plain opposition to law cannot be upheld, it is equally true that they are entitled to great weight in determining the true construction of doubtful and indefinite regulations made for their guidance.”

“The construction given to a statute by the officers appointed to execute it, and acted upon for a long term of years, though not conclusive, is entitled to great consideration by the court.” Ency. Dig. of Tex. Reports, C. 0. 974, and cases cited; Endlich, Interpretation, § 357, and cases cited; Black, Interpretation, 221-223, and cases cited.

Upon the whole, I think the writ of - mandamus should be awarded, as prayed for. However, what I have said should be understood as restricted to the facts of this particular case, and' not as intended to approve or encourage looseness in the preparation or in the filing of charters. On the contrary, I have long thought that the proper practice is to make the purpose clause of a charter as full and complete as is practicable. But this case involves a status which has already become fixed, and must be determined, one way or the other, upon the question of law which it presents.


text:
    FURNISH v. ROBISON, Land Com’r.
    (Supreme Court of Texas.
    June 4, 1913.)
    Mandamus (§ 172) — Issues of Fact — Jurisdiction oar Court.
    The Supreme Court cannot try disputed issues of fact raised by the petition and answer in mandamus, and the case must be dismissed.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 381-385; Dec. Dig. § 172.]
    Petition for mandamus by W. S. Furnish against J. T. Robison, Land Commissioner.
    Dismissed.
    Seth S. Searcy, of San Antonio, for relator. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondent.

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

   BROWN, C. J.

Relator seeks a writ of mandamus to the respondent requiring him to reinstate a purchase of school land which had been awarded to relator and thereafter declared forfeited. Respondent answered, setting up facts which would defeat the relator’s right. This presents a case involving disputed issues of fact, which this court cannot try.

It is therefore ordered that the case be dismissed.

HAWKINS, J., did not sit in this case.