author: HARPER, C. J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. DURRETT.
    (No. 553.)

    (Court of Civil Appeals of Texas. El Paso.
    May 4, 1916.
    Rehearing Denied June 22, 1916.)
    1. Trial <&wkey;41(5) — Witnesses Under Rule— Violation — Discretion of Court.
    The fact that a witness talks to another during the trial, after the rule has -been invoked, does _ not disqualify him; but the court may, within its discretion in the enforcement of the rule, refuse to permit him to testify.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 105; Dec. Dig. <§=^41(5).]
    2. Evidence <&wkey;547 — Opinions — Experts — Admissibility.
    Testimony of doctors as to what was found by their first examination of plaintiff, as well as what they found in the last examination to make comparisons, not based upon the statements or voluntary acts of plaintiff, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2364; Dec. Dig. &wkey;>547.]
    3. Trial <&wkey;76 — Objections to Testimony-Time to Object.
    Objections to testimony should be made to the questions or by motion to exclude the answers giving the reasons, so that the trial court may rule on the objections made.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 172, ,183-190, 237; Dec. Dig. &wkey;76.]
    4 Appeal and Error <&wkey;1048(7) — Witnesses &wkey;>318 — Review—Harmless Error.
    In an action for personal injuries, the action of the court in permitting a physician, a witness for the plaintiff, to testify that he had testified for certain railroads in similar cases was error, where there had been no attempt to impeach him, but is not reversible where the bill of exceptions shows that defendant asked the witness if he was to be paid by plaintiff, and other physicians testified as to the extent of plaintiff’s injuries.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4160; Dec. Dig. <&wkey;>1048(7); AYitnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. <&wkey;>318.]
    5. Damages <&wkey;185(2) — Evidence—Personal Injury — Condition of Plaintiff.
    In an action for personal injuries, testimony that plaintiff became in a toxaemic condition from eating and drinking, and that this caused fever while in a hospital after the accident, in no way tended to prove that plaintiff was not laboring under a total disability proximately caused by the accident.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. § 506; Dec. Dig. &wkey;185(2).]

      6. Teial <&wkey;350(6) — Special Issues — Evi-dentiary Pacts.
    In an action for personal injuries received at a railroad crossing, defendant’s special issue “what was the distance from the crossing where the automobile attempted to cross to the caboose on the passing track?” requested on the theory that if the jury had found that there was from 60 to 70 feet of unobstructed track, it would be a finding that plaintiff was negligent, was properly refused; since it was an evidentiary fact to be considered by the jury with other facts, and in no event could be conclusive on the issue of negligence.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 830; Dec Dig. &wkey;3350(6).]
    7. Trial t&wkey;2G0(2) — Instructions—Requests —Matters Already Covered.
    Where given charges contain all issues required to be submitted under the pleadings and evidence, the refusal of the court to give special charges requested is not error.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 652; Dec. Dig. @=>200(2).]
    8. Railroads @=*340(5) — Injuries at Crossing — Evidence—Burden of Proof.

    In an action for personal injuries received at a railroad crossing, where there was nothing in plaintiff’s pleadings to indicate that he was negligent, and nothing in his evidence to suggest it, the burden is on the defendant to prove contributory negligence.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 1121; Dec. Dig. <i&wkey;346(5).]
    9. Appeal and Error <&wkey;8i>2(14) — Review-Invited Error.
    In an action for personal injuries received at a railroad crossing, where the pleadings and facts did not warrant the submission of the issue as to whether defendant was negligent in failing to ring the bell and blow the whistle 80 yards distant from the crossing, the error was invited by defendant’s requesting its submission by offering a special issue to the same effect.
    TEd. Note. — Por other eases, see Appeal and Error, Cent. Dig. § 3604; Dee. Dig. @=*882(14).]
    10. Appeal and Error @=>1062(2) — Harmless Error — Refusal of Issue — Cure by Finding.
    In an action for personal injuries received. at a railroad crossing, error of the court in failing to submit' question as to whether or not the driver of the automobile in which plaintiff was riding was the ag-ent or under the control of the plaintiff, so as to charge plaintiff with his negligence in causing the accident, was harmless, where the jury found that the driver was not guilty of negligence.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. &wkey;1062(2)J
    11. Negligence &wkey;93(l) — Imputed Negligence.
    Where plaintiff was injured at a railroad crossing while riding in an automobile, the negligence of his companion who was engaged in a joint enterprise with him could not be imputed to plaintiff.
    [Ed. Note. — Por other cases, see Negligence, Cent. Dig. §§ 147, 148; Dec. Dig. @=>93(1).]
    12. Damages @=>134(1) — Excessive Damages —Permanent Injuries.
    Where plaintiff was 40 years of age, was general manager of a telephone company, earning 1B12S a month, and had been recently reduced from $175 a month because his company was not making much money, that he had formerly earned Í|!20Ó a month, and was working for less money to build up the business of the company in which he owned stock and was interested, and that he was seriously and permanently injured, a verdict of $8,500 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 368, 386, 389-394; Dec. Dig. @=>134(1).]
    Appeal from District Court, Pecos County; W. C. Douglas, Judge.
    Action by R. T. Durrett against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    H. S. Garrett and C. E. Mays, Jr., both of San Angelo, and Williams & Jackson, of Pt. Stockton, for appellant. Howell Johnson and W. A. Hadden, both of Pt. Stockton, and Jones & Thurmond, of Del Rio, for appellee.

      Application for writ of error pending in Supreme Court.

   HARPER, C. J.

This is an appeal from a judgment in favor of appellee for $8,500 damages for personal injuries. Appellee charged the appellant with negligence proximately causing his injury in the following particulars: •

(a) In placing a train of box cars along a side track so that same obstructed the view of the main line track and the engine being operated thereon, by one approaching the crossing along the public road from the direction which he was traveling, and the view of those operating said engine of persons approaching the crossing and about to use the same.

(b) Failure to sound the signals for said crossing, by whistle and bell, at least 80 rods from said crossing as required by law.

(c) Failure to give any warning of any kind of the approach of said engine toward said crossing and of the purpose to pass over the same therewith, notwithstanding the obstructions to the view occasioned by said train of cars.

(d) Failure to blow whistle and ring bell on the engine at least 80 rods from the crossing, and to keep the bell ringing until the crossing had been passed.

(e) Failure to keep a lookout for persons about to use the crossing.

(f) Failure to station a watchman at said crossing under the circumstances and conditions existing at the time.

(g) Propelling the engine over the crossing at an excessive and dangerous rate of speed under the existing circumstances.

Defendant answered that, at the time of the accident, the plaintiff and E. P. Greber were engaged in the inspection of certain telephone lines and being transported by automobile, and that they were guilty of negligence in driving upon its railway track at the time and under the circumstances. That the driver of the automobile was guilty of negligence in not keeping a proper lookout which was imputable to plaintiff, and further denied that its servants were guilty of negligence in the manner and way charged.

The first and second assignments charge that it was error for the trial court to permit certain doctors to testify upon the trial of the case because by certain qualifying questions, in the absence of the jury, it was disclosed that they had on the night previous made an examination of the plaintiff for the purpose of enabling them to testify as witnesses, and not for the purpose of treating him professionally; that their testimony would be based upon this examination, therefore incompetent, etc.

The interrogation of the witnesses revealed that, at an early period of plaintiff’s injuries, they had made examinations, and that the purpose of the last examination was to make comparisons. They said that their testimony, if permitted to testify, would be based upon what they found, as well as what was said and done by the patient. If this was simply a question of whether a part of this testimony, afterwards given, was admissible, an objection to it at the time the questions were asked should have been sustained; but we have a very different question presented by these assignments. There is nothing here presented which disqualified the witnesses. Appellant, by proposition, suggests that the witnesses were under rule. The fact that a witness talks to another during the trial after the rule has been invoked does not disqualify him, but simply means that the court may, in the enforcement of the rule, refuse to permit him to testify, and this is within the sound discretion of the court.

Certainly, when the court had refused to enforce the rule as to these witnesses, their testimony as to what was found by their first examination and their opinions thereon, as well as what they found in the last examination, not based upon the statements or voluntary acts of plaintiff, would be admissible. And therefore, if there was any portion of their testimony not admissible, the objection should have been made at the time the questions were asked or after the witness had made his statement in motion to exclude, giving the reasons why any such was not admissible, thus giving the trial court a chance to rule upon the objections made. M., K. & T. Ry. Co. v. Johnson, 95 Tex. 409, 67 S. W. 768.

The third, that Dr. Berry, a witness for plaintiff, was permitted to testify in reply to questions asked by plaintiff that he had testified for certain railroads in similar cases, was error, because immaterial etc., the propositions being that there had been no attempt to impeach the witness, nor his testimony attacked in any way; therefore it was error to admit evidence in support of his credibility.

The bill of exceptions shows that the defendant asked witness if he was to be paid by plaintiff for coming to court, and the amount of his fee, etc. We therefore think the questions and answers complained of do not present reversible error, especially in view of the fact that we fail to see how such questions and answers could have or likely did affect the verdict. Other physicians testified fully as to the extent of plaintiff’s injuries.

The fourth:

“The court erred in refusing to permit the witness, Mrs. Parmeter, to testify that within two or three days after plaintiff went to the hospital at Port Stockton he became in a toxaemic condition, due to eating and drinking and lack of bowel movement, and that this caused fever, but that said toxaemic condition responded to treatment, was rejected on the objections of the plaintiff that the witness was not qualified to testify, and which action of the court was error, because it was shown by the witness’ testimony that she was qualified to testify as to such matter, and because said testimony was pertinent and material to show that the fever which the plaintiff had for the first few days after reaching the hospital was not due to the injuries he received or to any infection of the lungs or pleural cavity as contended by plaintiff, all as is more fully shown by defendant’s exceptions reserved at the time.”

Prom the evidence in the record, we could consistently hold that the witness was not qualified to express the opinion called for, but, if she were, we fail to see how the fact that the plaintiff “became in a toxaemic condition a few days after the accident from eating and drinking” tends to prove any matter urged as a defense. If we concede that the then fever condition was caused as suggested, isuch evidence in no way tends to prove that the plaintiff is not now laboring under total disabilities which were proximately caused by the accident.

The fifth charges error in refusing to give this special issue at the request of appellant:

“What was the distance from the crossing, where the automobile attempted to cross, to the caboose on the passing track?”

The theory upon which this charge was requested is that, if the jury had found that there was 60 to 70 feet of unobstructed track along which the engine, which struck the machine in which plaintiff was riding, passed before it * struck the automobile, it would be a finding that plaintiff was guilty of negligence, and upon it a judgment should have been entered for defendant. This was a closely controverted question of fact, but merely an evidentiary fact to be considered by the jury with other facts in evidence in arriving at their answer to the question propounded by the court as to whether plaintiff was guilty of negligence, and in no event could it be conclusive of the issue of negligence.

The sixth, sixth-a, seventh, seventh-a, eighth, ninth, tenth, twelfth, fourteenth, nineteenth, twentieth, tw.enty-ninth, thirty-fifth, thirty-eighth, and thirty-ninth all complain of the refusal of the court to give special charges requested, and are overruled because the charge given contained all the issues required to be submitted under the pléading and evidence. The eleventh, twenty-first, twenty-second, twenty-sixth, twenty-seventh, twenty-eighth, thirtieth, thirty-first, thirty-second, thirty-third in one form or another urge that the answers of the jury to the questions propounded are not supported by the evidence, are contrary to the evidence, etc.; in other words, they raise the question of the sufficiency of the evidence to support the verdict. The answer is that we find sufficient evidence to support the findings of the jury upon the material acts of negligence charged.

The thirteenth urges that the court erred in charging the jury that the burden was upon the defendant to prove contributory negligence upon the part of plaintiff. There was nothing in plaintiff’s pleadings to indicate that he was guilty of contributory negligence and nothing in his evidence to suggest it; but, on the other hand, he has, by the evidence of his witnesses, clearly shown that he was not so guilty; when such is the case, the burden is upon the defendant. Railway Co. v. Shieder, 88 Tex. 162, 30 S. W. 902, 28 L. R. A. 538.

The fifteenth, sixteenth, seventeenth, and eighteenth are based upon objections of appellant to the questions submitted by the court upon the issue as to whether the defendant was guilty of negligence in failing to ring the bell and blow the whistle 80 yards distant from the crossing, upon the ground that the evidence did not warrant the submission of the question. We are of the» opinion that the pleadings and facts called for the submission of the issue, but, if not, appellant requested its submission by offering a special issue to the same effect, and, if error, it was invited.

The twenty-third, twenty-fourth, and twenty-fifth are to the effect that there is no evidence to authorize the court’s charge nor the verdict thereon upon the issue of actionable negligence because of excessive rate of speed at which the engine was being operated.

It could serve no purpose to quote the evidence, so we simply answer the assignments by saying that there is sufficient evidence to warrant the charge and to justify the verdict.

The thirty-fourth and thirty-fifth charge that the charge of the court is “deficient and erroneous” because it failed to submit the question as to whether or not the driver of the automobile was the agent or under the control of the plaintiff, so as to charge plaintiff with his negligence in causing the accident. The court submitted the following:

“Was Gentry Murray guilty of negligence in connection with the collision of the engine and automobile in failing to discover the approach of said engine in time’ to have avoided the collision? Answer: No.”

Murray was the driver of the machine which was hired by plaintiff. If he was not negligent it could make no difference whether he was the servant or agent of plaintiff or not, and the jury found that he was not guilty of negligence.

The thirty-seventh, thirty-eighth, thirty-ninth, and fortieth are that the court erred in refusing to submit to the jury the issue as to whether plaintiff and one Greber, who was also in the car at the time of the accident, wore engaged in a joint enterprise, for the reason that in such case, if the jury so found, his negligence would be imputed to plaintiff. We know of no authority for such a proposition of law, and appellant has cited none.

The forty-first is that the verdict for $8,500 is excessive. The evidence shows that appellee, at the time of his. injury, was 40 years of age; was secretary and general manager of a telephone company; his salary, at the time of his injury, was $125 per month, and had been recently reduced because his company was not making much money. Prior to that time, his salary had been $175 per month. He owned stock in the company and interest in it. Before coming to Et. Stockton, liis salary with those for whom he had been working was $200 per month. The reason he was working for less money was that he was trying to build up the business of his company so as to get it upon a paying basis, that he was seriously and permanently injured. We think the evidence would sustain a much larger verdict.

The assignments are therefore overruled, and the cause affirmed.
      @=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>P°r otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    HOUSTON TRANSP. CO. et al. v. TEXAS CO.
    (No. 7199.)
    (Court of Civil Appeals of Texas. Galveston.
    May 1, 1916.
    Rehearing Denied May 25, 1916.)
    Appeal and Erbob <&wkey;66 — Grounds op Appellate Jurisdiction — Final Judgment Below.
    No appeal will lie to the Court of Civil Appeals, where there has been no final judgment in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343; Dec. Dig. <§=G6.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by the Texas Company against the
    Houston Transportation Company and others, in which the defendant files a counterclaim. From a judgment for plaintiff, defendants bring error.
    .Appeal dismissed for want of jurisdiction.
    T. J. Lawhon, of Houston, for defendant in error.
   LANE, J.

The appellee the Texas Company brought this suit against the Houston Transportation Company and J. G. Tod, to recover upon eleven promissory notes executed and delivered by the Houston Transportation Company to appellee, and indorsed in blank by J. G. Tod, J. G. Tod answered and averred that, if be was liable on said notes, be was only liable as indorser, and prayed that be have judgment over and against bis eodefendant for tbe amount of suck judgment as may be rendered against bim. Tbe -cause was called for trial on the 3d day of February, 1915, and thereupon all tbe parties agreed in open court that plaintiff’s cause of action is- predicated and based upon certain promissory notes, described in its petition; that said notes were executed and delivered to plaintiff by the Houston Transportation Company and John G. Tod, defendants ; that said Houston Transportation Company is principal, and said John G. Tod is surety on said notes; and that plaintiff, the Texas Company, is entitled to have and recover of the defendants the Houston Transportation Company and John G. Tod, a joint and several judgment for the principal and interest due on said notes in tbe sum of $2,151.39, and that tbe defendants and each of them should take nothing on their cross-action or counterclaim filed in the suit. Said agreement is recited in the body of the judgment rendered. The cause was submitted to the court, without a jury, upon said agreement. Judgment was rendered by the court for plaintiff against both defendants, jointly and severally, for the sum of $2,151.39, and against defendants upon their cross-action; but no judgment was rendered in favor of the surety, John G. Tod, over against his codefend-ant as prayed for. From the judgment as rendered and entered, defendant Tod has appealed.

Appellee, by its attorney, T. J. Lawhon, has filed its brief in this court, wherein we find the following:

“We are not a partisan in taking the position that the judgment herein is not final and will not support this appeal. That we by inadvertence prepared judgment which, under the law, we feel cannot Be upheld as final, is, to us, most regrettable.
“The court will note the judgment finds as a fact: ‘That the defendants and each of them should take nothing on their cross-action or eounterelaim filed herein.’ And we were inclined to the opinion that this was a sufficient determination of all pleas and issues raised by the pleadings, but the Trammell-Rosen Case, 106 Tex. 132, 157 S. W. 1161, seems to settle this issue against us: ‘To be final, the judgment should further contain the declaration of the ■court pronouncing the legal consequences of the facts found.’
“The judgment in this case finds, as a fact, that the defendants should take nothing on their cross-action and counterclaim, but the decree pronouncing the legal consequences of the facts is silent.'
“Again, we sought consolation from that line of authorities which hold that a general judgment in favor of the plaintiff against the defendant by implication disposes of all questions raised by counterclaim or cross-action as much so as if expressly adjudicated in the judgment. This principle would be controlling here, if Tod were asserting a claim against the plaintiff; but such is not the case. He is asking relief against a codefendant, and, while the general judgment in fávor of the. plaintiff against Tod, by implication, determines and adjudicates all questions between them, it could by no analogy or reasoning be extended to a determination of claims asserted by and between the codefendants.
“We therefore have not been able to satisfy ourselves that the judgment herein is final. The authorities cited, together with the numerous cases cited in those opinions, contain practically all leading cases in this state on the proposition when a judgment is or is not final.”

As appellant Tod has filed no brief in this court, and as there has been no final judgment rendered in the court below, and as no appeal will lie to this court from a judgment not final, this appeal is dismissed for want of jurisdiction.

Dismissed.
      other cases see same topic and IlEY-NUMBKR in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    ROARING SPRINGS INDEPENDENT SCHOOL DIST. v. McABEE.
    (No. 8388.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 3, 1916.)
    1. VENUE &wkey;j22(l) — RESIDENCE OE DEPEND-' ANT.
    In a suit for a specific fund to which other litigants make claim, the venue of the action may be laid in any county in which any one or more of the proper or necessary defendants reside.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 35; Dec. Dig. &wkey;22(l).]
    2. Venue <&wkey;27 — Residence oe Situs op De-pendant — Assignment as Appecting Venue.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, providing that transfer or assignment of a chose in action shall not change the venue, in an action on contract against a school district in which the receiver of plaintiff’s assign- or is a party defendant, the school district may claim a transfer under article 1832 to the county of its situs notwithstanding nonresidence of such receiver.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 41; Dec. Dig. <&wkey;27.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by W. H. McAbee against the Roaring Springs Independent School District. Order denying defendant’s plea of privilege and judgment for plaintiff, and defendant appeals.
    Reversed and remanded, with directions.
    Decker & Clarke, of Quanah, for appellant. E. W. Napier, of Wichita Falls, for appellee.
   CONNER, C. J.

.Appellee instituted this suit in the county court of Wichita county to recover an indebtedness of $488.10, alleged to be due from the appellant, the Roaring Springs independent school district of Motley county, to R. S. Glenn, an architect, fox-plans and specifications of a public school building erected by the trustees of the district named. It was alleged that the board of trustees of the district had employed the said Glenn to prepare the said plans and had contracted to give him therefor the sum for which the suit was instituted, and that Glenn had later duly assigned the claim to him, the plaintiff in the suit. One Lester Jones was also sued as the receiver of the partnership of Glenn Bros. & Ferguson, of which the said R. S. Glenn was a member. The school district presented its plea of privilege to he sued in Motley county, and also answered to the effect that the contract made with Glenn was invalid by reason of the fact that, at the time the contract was made with the architect for the erection of the school building, it had no funds with which to make the payment specified. The plaintiff in reply alleged in the alternative that the school district nevertheless later in fact erected the school building and used the plans prepared and furnished by Glenn, and that therefore the district was equitably obligated to pay the reasonable value thereof. The trial resulted in a denial of the appellant’s plea of privilege, and in a judgment for appellee, evidently on his plea of quantum meruit, for the sum of $400.

We think the action of the court in overruling appellant’s plea of privilege to be sued in Motley county cannot be sustained. Appellant by virtue of the statute is a body politic, capable of suing and of being sued, and as such entitled to all of the rights of other litigants, among which is the right of being sued in the county of its existence and operation. Vernon’s Sayles’ Texas Civil Statutes, art. 1830, provides that “no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile,” except in the cases particularly mentioned. Numerous exceptions are then specified, but the only one by virtue of which it can be pretended that appellee was entitled to maintain his suit as against the appellant school district in Wichita county is exception 4 of the article, which reads:

“Where there are two or more defendants' residing in different counties, in which case the suit may be brought in any county where any one of the defendants reside. Provided that the transfer or assignment of note or chose of action shall not give any subsequent holder the right to institute suit on such note or chose of action in any other county or justice precinct than the county or justice precinct in which such suit could have been prosecuted if no assignment of transfer had been made.”

The proviso in exception 4 above quoted was added by an amendment of the Legislature in 1913, and was evidently intended to meet grievous complaints theretofore arising on the part of litigants sued out of the county of their residence on allegations that the plaintiff, by assignment from a person resident in the county of the suit, owned the claim alleged to be due from the nonresident.

In the suit now before us no reasonable contention can be made that appellant was not entitled, as it alleged in its plea of privilege, to be sued in Motley county, other than as appellee attempted to show that the receiver made a defendant resided in Wichita county where the suit was instituted. Appel-lee alleged; as stated, that Lester Jones had been appointed a receiver of the partnership firm of which R. S. Glenn was a member, and further alleged that said receiver was claiming the fund for which appellee sued. But, as we construe the record, this is not the ordinary case of a plaintiff suing for a specific fund to which some other litigant asserts a claim and whose right thereto under equitable rules may be determined in the plaintiff’s suit. In all such cases the rule in equity is that such claimants at least are proper parties, and in such cases we do not doubt that a plaintiff could file his suit in any county where any one or more of the necessary or proper parties resided; but here the plaintiff’s suit is not for the recovery of specific property or of a specific fund, but is upon an alleged contract, express or implied, to pay for certain plans and specifications made and furnished by R. S. Glenn, and the right of the plaintiff to recover upon this contract, too, is expressly based upon an alleged transfer or assignment of the claim by R. S. Glenn to the plaintiff. The plaintiff, thus, as we think, is precluded from suing in Wichita county by the very exception to the general rule upon which alone he could under any circumstances claim the right to sue in Wichita county.

We conclude that the court should have sustained the appellant’s plea of privilege, and should have, in accordance with the provisions of article 1832 of Vernon’s Sayles’ Texas Civil Statutes, transferred the cause to the county court of Motley county.

The judgment below will, accordingly, be reversed, and the cause remanded, with instructions to proceed in accordance with this opinion and of the statute last cited.

BUCK, J., disqualified and not sitting.
      <S=AFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: FRENDERGAST, P. J.

text:
    ARENSMAN v. STATE.
    (No. 4084.)
    (Court of Criminal Appeals of Texas.
    May 24, 1916.
    Rehearing Denied June 21, 1916.)
    1. Ceiminal Law <&wkey;829(l) — Trial — Instruction — Repetition. . .
    . The refusal of special charges, covering matters properly submitted, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829(l).]
    2. Criminal Law i&wkey;llll(3) — Appeal — Acceptance of Qualified Bills of Exceptions.
    Where appellant accepted allowance of his bills of exceptions as qualified and explained by the trial judge, he is bound thereby.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2894.; Dec. Dig. <@=1111(3).]
    3. Criminal Law &wkey;422(5) — Evidence — Statements of Conspirators.
    In a prosecution for arson, where the testimony was sufficient to authorize the jury to find that there was a conspiracy between defendant and his wife to burn a building and the wife’s millinery stock therein, and collect the excessive insurance, testimony of a witness, that while he was sick defendant’s wife told him in the absence of her husband that if times got dull she would burn and get the insurance before she would go broke, was admissible if the jury found the existence of a conspiracy.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 984; Dec. Dig. <@=422(5).]
    4. Witnesses <&wkey;52(7) — Disqualification —Husband and Wife.
    The statute prohibiting the state from making a wife testify against her husband had no application to the case.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 132-134; Dec. Dig. &wkey;52(7)J
    5. Criminal Law <&wkey;1028 — Appeal—Reservation of Ground of Review — Objection to Evidence.
    In a prosecution for arson, where defendant merely objected to testimony as to the contents of a letter and postal from his wife to a witness, but assigned no ground, so that the court made no ruling and defendant did not except to the admission of the evidence or any ruling of the court or the failure of the court to make a ruling, there was no error; proper predicate having been laid for the secondary evidence by showing that the papers were without the jurisdiction.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. <@= 1028.]
    6. Criminal Law <&wkey;520(l) — Evidence—Confession.
    Where defendant made written confession to the city marshal under promise of suspended sentence, which could not be given, so that the written confession was inadmissible, testimony of a witness embodying a confession or admission of defendant made later, after defendant was out on bond and had retained and consulted his attorneys, was admissible in the absence of anything indicating that the statements to the witness were not wholly voluntary.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1175, 1181, 1184; Dee. Dig. &wkey;520(l).]-
    7. Criminal Law <&wkey;406(l) — Evidence—Admission.
    In a prosecution for arson, testimony of the city marshal that defendant, after the fire, admitted that he lied when he denied he was in the building immediately preceding the fire, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894, 895; Dec. Dig. <&wkey;>406(l).]
    8. Criminal Law <&wkey;721]4(2) — Trial—Argument of County Attorney — Failure to Call Witness.
    Where there was a conspiracy charged between defendant and his wife to burn property for the insurance, the county attorney had a right to make an argument based upon the fact that defendant failed to introduce his wife as a witness for him.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. <&wkey;> 721%(2).]
    9. Criminal Law &wkey;>1159(3) — Appeal—Review — Misconduct of Jury — Question for Trial Court.
    Where defendant attacked the verdict on account of misconduct of the jury in discussing his failure to testify, testimony tending to support defendant’s contention, opposed to testimony tending to disprove it, raised a question of fact for the trial judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. <@= 1159(3).]
    10. Criminal Law <&wkey;841 — Trial—Charge-Objections.
    Objections to the charge must be made before reading to the jury, and specifically point out claimed errors or admissions therein; it being too late to do so after trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2022; Dec. Dig. &wkey;>841.]
    11. Arson <&wkey;41 — Triai>-Instruotion.
    In a prosecution for arson, where the uncon-tradicted evidence showed that defendant was on the ground if he actually committed the offense, and no intimation was made that any other party outside of himself or wife committed it, the inclusion of the words in the latter part of a charge on principals, “whether in point of fact all were actually bodily present or not,” was not erroneous.
    [Ed. Note. — For other cases, see Arson, Dec. Dig. <&wkey;41.]
    12. Arson <&wkey;41 — Trial—Instruction.
    In a prosecution for arson, where the court told the jury under what circumstances they could consider defendant’s wife’s statements in his absence tending to show by them a common design, purpose, or intent to burn “said stock of millinery,” he should have said “said building.”
    [Ed. Note. — For other cases, see Arson, Dec. Dig. <@=41.] ■
    13. Criminal Law <&wkey;809 — Trial—Instruction.
    In a prosecution for arson by burning a building for the insurance, the charge that the jury could consider defendant’s wife’s statements in his absence tending to show a common design, purpose or intent to burn “said stock of millinery,” when he should have said “said building,” was not misleading, where the court charged, when the testimony was admitted, that the jury could only thus consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1961-1967; Dec. Dig. <&wkey;> 809.]
    14. Indictment and Information <&wkey;174 — Principals — Acts of Accused.
    A principal offender may be charged directly in the indictment with the commission of the offense, though it may not have actually been committed by him, and it is never necessary to the validity of an indictment, or- the introduction of evidence establishing that the accused is a principal, that the indictment shall allege the acts which make him a principal.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 540-543; Dec. Dig. &wkey;174.]
    15. Criminal Daw i&wkey;>822(l) — Trial — Instruction — Construction as Whole.
    The whole of the charge must he considered where objections are made to excerpts or short paragraphs thereof.
    [Ed. Note. — For other cases, see Criminal Daw. Cent. Dig. §§ 1990, 1994, 3158; Dec. Dig. &wkey;822(l).]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    D. D. Arensman was convicted of arson, and lie appeals.
    Affirmed.
    Ratliff & Spencer and Frank J. Ford, all of Decatur, and Arnold & Taylor, of Henrietta, for appellant. M. W. Burch, Co. Atty., of Decatur, and C. C. McDonald, Asst Atty. Gen., for the State.
   FRENDERGAST, P. J.

Appellant was convicted of arson and assessed the lowest punishment.

The state’s theory and contention was, which was denied by appellant, that he himself, or with his wife, as a principal, committed the offense, and before the offense was committed they had agreed and conspired to commit it. The evidence was largely circumstantial. Some testimony was introduced which tended to show, if it did not positively do so, that appellant made admissions sufficient to show his guilt. There was no conflict in the testimony on any material point. Neither appellant nor his wife testified, and he introduced no testimony other than two witnesses who testified to his good .reputation in another county where he lived some year and a half or two years before he was charged with this offense.

The state proved, and the jury were clearly authorized to find and believe, that in August, 1914, appellant’s wife and another lady bought out a millinery stock and fixtures in Decatur, paying therefor $50 cash and executing three notes for $50 each, for the balance. This partnership was dissolved in January following, Mrs. Arensman taking all the stock and fixtures and assuming all indebtedness. She then took out a policy for $300 insurance on the stock. She later made purchases on credit and also made sales on credit. She was unable to collect for sales she had made on credit. Appellant signed some of the notes with her, which she gave for the purchase of some of the stock.

About, or shortly prior to, January 1, 1915, Mrs. Arensman rented from Mrs. Beard the second story of a storehouse in the center of a solid block of storehouses, north of the square in Decatur, which fronted south, the courthouse being in the center of the square. This second story was cut up into four rooms. She conducted her millinery business in the two front rooms and rented the rear two to Mr. Inman, who occupied these two rooms with his. family until the latter part of May, when they removed to Oklahoma. Inman’s stepfather and mother part of the time occupied these two rooms with his family. When he removed his family, he and his stepfather both left part of their household goods stored in these two rooms. There was an entrance to this second story by stairs from both the front and rear, the rear on an alley. The fastening of the back door from the rear, stair was by an inside bar across the door underneath the doorknob or latch. Inman first went to Oklahoma, where he got work, the last of February, leaving his family in said rooms in Decatur. He got sick the last of March and returned to his rooms with his family, where ho was sick in bed for two weeks. This would put him there sick from the last of March to about the middle of April. While Inman was there sick, Mrs. Arensman was in to see him. They got to discussing the frequent fires in Decatur, and in the Conversation Mrs. Arensman told him she could not collect money for what she had sold and had some notes coming due which she was going to have to pay; that if times got dull she would burn up and get the insurance before she would “go broke.” Just at this time appellant himself applied to the insurance agents for a policy of insurance in addition to the $300 policy his wife then had on the millinery business, and procured the issuance of a- policy for an additional $200, which was issued to her on the millinery stock. The two policies at that time and continuously until the fire aggregated $500, one, $300, and said additional one, $200. Shortly prior to the fire, Mrs. Arensman tried to sell her business to other milliners, who inspected her stock at the time with the view of purchasing. She then asked $300 therefor. The prospective purchasers would not have been willing to have given her more than $150 or $175 therefor.

There can be no question but that said millinery stock and the store in which it was located were purposely set on fire and willfully burned on the night of June 7, 1915, some time between 9 and 11 o’clock, most of the testimony showing that it was near 11 o'clock. The appellant, his wife, and family lived together in a residence in the south part of Decatur. On the day preceding the fire that night, appellant several times passed up and down before an adjoining store to said building which was burned that night. Appellant and his wife, just after dark on the night of the fire, which must have been near 9 o’clock, were seen to come down the back stairway into the alley from said second story where said millinery business was conducted, which was much later than they ordinarily left said millinery store. Again that night, about 25 or 30 minutes before the fire, they were seen together to come out of said alley back of said store building, cross tbe street running north from the northwest corner of the square, and start as if they were going north. Instead of doing so, they immediately turned and went south on the sidewalk on the west of said street until they, got near the corner, then crossed that street diagonally, got on the sidewalk in the front of the block of buildings north of the courthouse, and continued directly to the front stair where said millinery stock was. They disappeared up this stair, but were not seen when they came out. The next time they were seen was from one to three minutes before the fire was discovered, when they were met on the sidewalk on the west side of the square, about the middle of the block, going south towards their residence. Two parties there met them. These two parties went north on this same sidewalk to near the northwest corner of the square, cut across the square to the sidewalk on the north, in front of said building and millinery business. Just as they passed the millinery store, they heard some noise which attracted their attention and remarks. They, however, proceeded east to near the corner of the square, when they again started diagonally across the street to the store on the northeast corner, when they stopped, and, upon looking back, discovered that said millinery store was on fire. They immediately ran back to this building, upstairs, and broke in one of the doors of said millinery store, when they discovered that a whole lot of paper and millinery goods were heaped in a pile against, or near, the partition wall between the two millinery rooms, and on fire. The smoke was then dense and the heat considerable. They fled and gave the alarm of fire, when a large crowd at once gathered, the fire company appeared, and succeeded in later extinguishing the fire before it consumed the entire building, though it consumed the roof, partition wall, considerable of the floor of the second story, and most, if not all, of the millinery stock.

The next day, the city marshal, C. C. Lewis, and appellant were in said second story of said building. The city marshal asked him if he had any enemies, or something like that, that would burn him out. He said he didn’t know that he had a single one. The city marshal then asked him if he was not in the building the night before, immediately preceding the fire. He at first said he was not. The city marshal said to him: “We are both Odd B'ellows. Don’t lie to me. I know you was in this building.” Appellant replied: “I will admit that I did lie. I was in this building” — that he had come up to get something, a paper or record.

Mr. Beard, the husband of Ella Beard who owned said store building, the next day after the fire, went from Ft, Worth to Decatur to see about it. That evening he met appellant and asked him if he had any insurance. Appellant replied:

“They tell me they are going to have an investigation, and if they are going to do that, rather than bother about the insurance, I will let the whole thing go.”

A few days after the fire and after appellant had been arrested and gave bond, he talked with Mr. Dixon and said to him that his attorneys had told him if the Odd Fellows would keep quiet, he could beat this— the witness didn’t remember whether he said “case” or what it was. The witness told him the Odd Fellows could not help him. He then said if they — called three names, Mr. Wasson, Mr. Birchfield, and Mr. Ben Watkins, and, while he did not call the witness’ name, yet linked him with these three other parties — would not tell what- they knew, or would keep quiet, it would be all right. The witness said to him that he had never confessed to him anything about burning the building, and he didn’t want him to. Appellant said he was not afraid of Wasson, but did not know about Birchfield and Watkins, and asked the witness to see them and speak to them about it and ask them not to tell. When the alarm of fire was given and parties gathered at the building to put out the fire, it was found that the said back door at the head of the back stair in the alloy was unfastened.

Appellant requested a large number of special charges which were refused. It is unnecessary to discuss them separately. We have examined them all. None of them should have been given. Wherever they cover any matter which was proper to submit, the court in his main charge properly submitted the question. I-Ie has several bills to the admission of certain testimony. Some of them embrace substantially the same character of testimony. It will not be necessary to take each up separately. What we will say as to one covers the others along the same line. Every one of his bills were qualified and explained by the judge when he allowed them. Some, he, in effect, refused to allow. Appellant accepted them with this action of the court and is bound thereby, as all the authorities so hold.

In his first bill, he objected to that part of Mr. Inman’s testimony, wherein he testified what Mrs. Arensman said to him while ’ he was sick, which is substantially above given. The bill, as allowed and approved by the court, shows that he objected to that testimony only on the grounds that it was hearsay, not in his presence; that there was no evidence of a conspiracy existing at the time; it was no part of the res gestee ; was highly inflammatory and prejudicial to his rights, and was requiring his wife to testify against him. The court further stated, in effect, that he admitted this testimony because he thought it tended to throw light upon and explain the subsequent conduct of appellant and his wife, the other evidence tending to show they formed a conspiracy to burn the building in question and were acting together in such design. That at the time he admitted it, he expressly then verbally instructed the jury that it was admitted and to be considered by them and given whatever weight they thought it entitled to receive, and not consider it for any other purpose, unless they believed from all the evidence that there was a conspiracy or agreement between appellant and his wife to burn said building, and that he would further give them a written charge when he charged them, and that he later gave such written charge, properly limiting this testimony. In our opinion, under all the authorities, this testimony was admissible. The testimony was amply sufficient to authorize the jury to believe and find that there was a conspiracy, or agreement, between appellant and his wife to burn said building and millinery stock, so that they could collect the said excessive insurance.

Mr. Branch in his annotation of our Penal Code, under article 78, on principals (page 352 et seep), has collated many cases from this court and laid down propositions thereby established applicable to the questions herein. We will state and quote liberally from him. He says (page 353) :

“If either the husband or wife * * * is on trial for the completed offense, proof of the acts or declarations of either, though made in the absence of the other, is admissible against the other, if done or made pending the conspiracy and in furtherance of the common design. Smith v. State, 46 Tex. Cr. R. 275, 81 S. W. 936, 108 Am. St. Rep. 991; Smith v. State, 48 Tex. Cr. R. 240, 89 S. W. 817.”

That such agreement, or conspiracy, is contemplated and provided for by our statutes themselves is fully shown by Judge Henderson, in the opinion of the court in said latter ease just cited.

Again, Mr. Branch says (page 352):

“When a conspiracy is shown, proof of the acts and declarations of coconspirators is admissible to show the common design, purpose, and intent of all the conspirators, whether such acts and declarations were made before or after the formation of the conspiracy, or whether the same were made before or after the defendant on trial entered into the conspiracy”

—citing a large number of the decisions of this court, unnecessary to copy here, specifically holding what he announces as the rule.

L4] Again, he says (page 353):

“Proof of what was said and done by any of the conspirators, pending the conspiracy and in furtherance of the common design, is admissible against the one on trial, though said or done in his absence.”

He cites a still larger number of the decisions of this court exactly in point and clearly establishing the rule stated by him. The statute prohibiting the state from making the wife testify against the husband has no application to this question or in this case.

Appellant prepared a bill, wherein he claimed he made some objections to the court’s admitting Inman’s testimony to the contents of a letter and postal from Mrs. Arensman to him, notifying and requiring him to remove his and his stepfather’s goods stored, as stated above. The court, in effect, refused the bill, stating that, when said witness was testifying, appellant merely objected but assigned no ground therefor, and for that reason he made no ruling, and appellant did not except to the admission of the evidence or any ruling of the court or the failure of the court to make a ruling. However, he further states that, if the proper objection had been made, he would have admitted the testimony, because the proper predicate had been laid for the secondary evidence, and that the letter and postal, if not lost, were in Oklahoma, outside of the jurisdiction of this court. As thus explained, this bill, if not refused outright, shows no error.

As explained and allowed by the court, his fourth bill, to the exclusion of a letter from Mrs. Inman to Mrs. Arensman, shows no error.

Appellant’s fifth bill shows he objected to the testimony of said Dixon. The court, in explaining and qualifying the bill, states:

“The only objection made to said testimony was that it embodied no confession or admission of the defendant, and that theretofore defendant Arensman had made a written confession to the city marshal, Claude Lewis, and that said written confession had been excluded by the court because it was obtained by promising the defendant a suspended sentence; that there is no evidence that that promise made by an officer was ever removed from the defendant’s mind; and that there is no evidence to show that he was not laboring under the same impression, even when he talked with his lawyers.
“The defendant had, two or three days before his arrest on this charge, made a written confession of his guilt in this case in the presence of Claude Lewis, city marshal, and the county attorney. This confession was excluded -by the court, because, under the evidence submitted to the court in the absence of the jury, the court thought the same was induced to be made by the promise of a suspended sentence, said promise being made by the city marshal in good faith, however, he not knowing at the time that the suspended sentence law did not apply to convictions for arson. But the foregoing statements of the defendant were made some time after his arrest and after he was out on bond and had retained and consulted with attorneys; besides, there is nothing in the testimony or in any other evidence 'to indicate that the statements of (to) the witness Dixon were not wholly voluntary.”

Said Dixon’s testimony was admissible. So was the testimony of the city marshall, Lewis, as to what appellant admitted to him, shown above.

Appellant has two bills to the argument of the county attorney. As explained and qualified by the court, neither shows any error. The county attorney clearly had the right, under all the authorities, to make an argument based upon the fact that the appellant had failed to introduce his wife as a witness for him. That she was implicated as a principal would not prevent such argument.

In his motion for a new trial, appel•lant attacked title verdict, on account of claimed misconduct of the jury in discussing Ms failure to testify. The court beard all the jurors testify on the subject. Their evidence is properly preserved in appellant’s ninth bill. We have fully considered this ■bill and the evidence of the jurors. Excerpts from the testimony of several of them can ’be culled, which would tend to support appellant’s contention. lake excerpts can be •culled from the testimony of these same jurors which would tend to disprove his contention. • The testimony of many of the other jurors would also tend to disprove his contention. This, of course, raises a question of fact, which must be decided by the trial judge. He sees and hears the jurors, and is better able to determine the truth of the matter than this court can possibly be from reading a statement of their testimony. We fully discussed this character of question in the opinion on rehearing in Lamb v. State, 169 S. W. 1160, and in other cases, both before and since then. In our opinion, the district judge was clearly authorized to find as he did and deny a new trial, and under the •circumstances and law we would not be justified in reversing this case on that point.

Appellant made several objections to the court’s charge. We have carefully considered them all. Our statute now, which has been uniformly followed by tMs court in many decisions, requires that the objections to the court’s charge shall be made before it is read to the jury, and that such objections shall specifically point out claimed errors or omissions therein, and that it is too late to do so after the trial. In some instances, appellant now, after the trial, points out specifically what he claims are errors in the court’s charge; but his objections which the trial judge passed upon did not point out and direct his attention then to these matters. Doubtless if they had, he would have changed his charge to meet the objections. Thus in his charge on principals, he quoted what is denominated a favorite charge on principals, quoted by Mr. Branch in section 685 of his Ann. P. C. Complaint is now made, but was not then made, that the court in the latter part included these words: “Whether in point of fact all were actually, bodily present or not,” etc. Doubtless if the court’s attention had been called thereto by appellant’s objections at the time, he would have omitted this language. However, in this ease, it would present no error, because the uncontradicted evidence would show that appellant was-on the ground if he actually committed the offense, and no intimation is made from the testimony that any other party, outside of him or his wife, committed the offense. He in no way set up alibi, and the evidence in no way tended to show that he was a mere accomplice. So, in another place, where the court told the jury under what circumstances they could consider his wife’s statements, etc., in his absence, which tended to show by them a common design, purpose, or intent to burn “said stock of millinery” when he should have there said “said building.” This could in no way have misled the jury, for when the testimony was admitted, the judge specifically, orally charged them that they could thus consider it, only if it was shown that it was the common design, purpose, and intent of both appellant and his wife to burn “said building.” There can be no doubt that if the judge’s attention had been called at the time to the fact that he had used said words, “stock of millinery,” instead of “building,” he would at once have corrected this. Besides, the uncontradicted evidence showed that fire was set to the millinery, which necessarily burned the building.

It has always been held that a principal offender may be charged directly in the indictment with the commission of the offense, although it may not have been actually committed by him, and that it is never necessary to the validity of an indictment, or to the introduction of evidence establishing that an accused is a principal, that the indictment shall allege the acts which make him a principal. Section 676, Branch’s Ann. P. 0., and cases there cited.

It is elementary that the whole of the charge must be considered when objections are made to excerpts or short paragraphs thereof. Appellant excepted to some of the paragraphs of the court’s charge, claiming that they were on the weight of the evidence. We think none of these objections are sustained by the record. We think the charge nowhere expresses any opinion as to the weight of the evidence or assumes that any given fact may be true; but, on the contrary, every issue of fact necessary to be submitted was left entirely to the jury for the jury alone to decide; and every fact essential to appellant’s conviction by the charge was required to be believed by the jury beyond a reasonable doubt before they were authorized to convict.

We think the charge an admirable one, and fairly and fully presented everything that was necessary or proper in the case. We see no necessity of quoting the charge, or any part of it, or of taking up separately appellant’s objections thereto.

The judgment will be affirmed.

HARPER, J., not present at consultation.
      @=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gx^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes •


author: PRENDERGAST, P. J.

text:
    FERGUSON v. STATE.
    (No. 4072.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.
    Rehearing Denied June 23, 1916.)
    1. Forgery <&wkey;21 — Degrees—Statutory Provisions.
    As the statute on principals applies to all offenses, so far as forgery is concerned, it is exactly the same as if specifically embraced in and a part of the forgery statute.
    [Ed. Note. — For other cases, see Forgery, Cont. Dig. § 57; Dec. Dig. &wkey;21.]
    2. Forgery <&wkey;37 — Admissibility of Evidence.
    In a prosecution for forgery in inducing the making of a false note, testimony that the person, whose name was forged, delivered cotton as a credit on a note previously made by him, was not objectionable, irrelevant, immaterial, incompetent, or as an “inquiry about a transaction happening long after the execution of the note.”
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. &wkey;37.]
    3. Criminal Law &wkey;>1120(3) — Appeal and Error — Bill of Exceptions.
    A bill of exceptions which did not contain the answer of the witness to a question objected to showed no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931, 2932; Dec. Dig. &wkey;> 1120(3).]
    4. Forgery <&wkey;37 — Evidence — Admissibility.
    In a prosecution for forgery in inducing the making of a false note payable to the bank of which defendant was vice president, testimony of a witness on examination of the books of the bank, that they did not show a credit on another note of the person whose name was forged payable to the bank, was admissible.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. &wkey;37.]
    5. Forgery <&wkey;37 — Evidence — Admissibility.
    Testimony as to notes made by the person whose name was forged and payments thereon was admissible and material.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. &wkey;37J
    6. Witnesses &wkey;>271(l) — Cross-Examination —Scope—Forgery.
    Where a witness had testified that defendant was not present on the date the false note was signed, exhibition to the witness on cross-examination of various notos and documents of different dates not offered as exhibits, which he had witnessed and questions concerning his recollection of their dates, was not improper, although separate and distinct transactions and having no connection with the note under inquiry.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 95S, 959; Dec. Dig. i&wkey;271(l).]
    7. Criminal Law &wkey;>1168(2) — Appeal—Bill of Exceptions.
    A bill of exceptions, showing that court sustained appellant’s objection to a question asked a witness, shows no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3124, 3129-3136; Dec. Dig. &wkey;116S(2).]
    8. Criminal Law &wkey;>1124(2) — Appeal—Bill of Exceptions.
    A bill of exceptions to overruling by court of a motion for new trial, where the motion is on many grounds and none of them stated in the bill, will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2946; Dec. Dig. <&wkey;>1124(2).]
    9. Criminal Law <&wkey;109Q(14) — Appeal — Preservation in Lower Court of Grounds for Review.
    Where requested special charges merely appeared copied in the record, nothing in them or in connection with them showing at what time they were presented, acted upon, or why they should have been given, and no bill of exceptions was taken to the court’s refusal to give them, the court will not review the court’s action.
    [Ed Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2818, 3204; Dec. Dig. &wkey;> 1090(14).]
    10. Criminal Law &wkey;>1144(14) — Appeal — Presumptions — Instructions—Statute.
    Where the court’s original charge was delivered to defendant’s attorneys for examination, and the court made some corrections to conform to objections made, there being nothing in the record to the contrary, it will be assumed that the court complied with the statute and resubmitted the charge to defendant’s attorneys after making the corrections.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2767, 2901, 3032; Dec. Dig. &wkey;1144(14).]
    11. Criminal Law &wkey;>792(3) — Instructions —“Principal.”
    An instruction which, in giving the general definition of a principal, quoted the statute to the effect that any person ivho advises or agrees to the commission of an offense and is present when it is committed, whether or not he aids in the illegal act, is a principal, was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. &wkey;> 792(3).
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    12. Criminal Law <&wkey;792(3) — Instructions —‘ ‘Principal” — Statute.
    An instruction which quoted substantially article 77, of the statute (Pen. Code 1911) on principals, providing that any one, employing another who cannot be punished to commit an offense, becomes a principal, omitting the reference to poison or preparing means whereby a person may injure himself, was not error.
    [Ed. Note. — For’ other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. <&wkey;> 792(3).]
    13. Criminal Law &wkey;>792 (3) — Instructions —Principal.
    An instruction quoting from Pen. Code 1911, art. 932, under which the prosecution was had, the words “all persons engaged in the illegal act are deemed guilty of forgery,” was not error, as it was applicable to the testimony.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dee. Dig. <&wkey; 792(3).]
    14. Forgery &wkey;>6 — Intent — Authority to Make Instrument.
    Where a person making an instrument in writing acts under an authority which he has good reason to believe, and does believe, to be sufficient, he is not guilty of forgery. •
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 26; Dec. Dig. &wkey;>6.
    For other definitions, see Words and Phrases, First and Second Series, Forgery.]
    15. Criminal Law &wkey;>1172(7) — Appeal — Harmless Error — Instruction.
    An instruction, that where a person making an instrument in writing acts under what he believes, or has reason to believe, is sufficient authority is not guilty', although not called for hy the testimony, was harmless error, since it was favorable -to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3160; Dee. Dig. <§=>1172(7).]
    16. Forgery &wkey;>48 — Instructions.
    In a prosecution for forgery in inducing the making of a false note and passing it, an instruction as to passing a forged instrument was not error.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 124-128; Dec. Dig. &wkey;48.]
    17. Criminal Law <&wkey;1172(8) — Appeal — Harmless Error — Instruction's.
    In a prosecution for forgery in inducing the making a false note and passing it, where the defendant was not convicted of passing the instrument, error in an instruction as to passing a forged instrument was harmless.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 3161; Dec. Dig. &wkey;>1172(8).]
    18. Criminal Law <&wkey;1172(l) — Appeal — Harmless Error — Instructions.
    Error in using the word “possibly” in an instruction -which told the jury that it need not be proved in a trial for forgery, that the forgery was intended to, or did, injure any person, but it is sufficient that “possibly” some one might be injured, was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154; Dec. Dig. <§=> 1172(1).]
    19. Indictment and Ineormation <§=>94 — Ce-pense Charged — Forgery — Inducing Op-een se.
    In a prosecution for forgery in inducing the making of a false note, an indictment for forgery under and in the words of Pen. Code 1911, arts. 924, 932, which provide that making shall include writing or causing to be written, alleging that defendant unlawfully, without authority, and with intent to injure and defraud, did willfully make a false instrument, without alleging that defendant caused to be written the signature on the forged note, was sufficient to support a conviction, on proof that he caused it to be made, since the acts which make a defendant a principal need not be alleged in the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. &wkey;>94.]
    20. Forgery <&wkey;21 — Persons Liable — Agency — “Principal.”
    Where a person commits forgery by an agent he is guilty as a principal, whether or not the agent is also guilty.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 57; Dec. Dig. &wkey;21.]
    21. Criminal Law <&wkey;1134(l) — Appeal—Review-Scope.
    On appeal the court is not compelled to discuss all questions discussed by appellant’s attorneys in their briefs.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2986, 3056; Dec. Dig. <&wkey;> 1134(1).]
    22. Criminal Law <&wkey;739(2) — Question por Jury — Alibi.
    In a prosecution for forgery in inducing the making of a false note, the question whether accused had proved an alibi held for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Dee. Dig. <§=3739(2).)
    23. Forgery <&wkey;44(2) — Evidence — Sufficiency.
    In a prosecution for forgery in inducing the making of a false note, in which defendant attempted to prove an alibi, it appearing that the note was signed by a clerk at the direction of the defendant who was vice president of the bank, made payee in the forged note, evidence held sufficient to support a verdict of guilty.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 117%, 118; Dec. Dig. &wkey;44(2).]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    H. W. Ferguson was convicted of forgery, and he appeals.
    Affirmed.
    Perkins, Perkins & Perkins, of Rusk, W. B. Wynne, of Wills Point, Guinn, Imboden & Guinn, of Rusk, and E. C. Gaines, of Austin, for appellant. C. C. McDonald, Asst.' Atty. Gen., and Norman, Shook & Gibson, of Rusk, for the State.
   PRENDERGAST, P. J.

Appellant was convicted of forgery, and his punishment assessed at four years in the penitentiary.

The indictment is in two counts. The first, with proper allegations, avers that appellant forged the name of G. W. Earle to a note for $145; the second, that he passed that forged note. The court submitted both counts to the jury for a finding. The jury found him guilty of forgery only.

The court did not err in overruling appellant’s motion to quash the indictment (bill No. 1), nor in permitting proof of the forgery of the note copied in the indictment (bill No. 2), because it was claimed there was a variance between the name of Earle, whose name was forged. The record shows no variance whatever.

Appellant has some bills of exceptions to the admission of testimony. They are very meager. The state urges that under the long and well-established rules they are wholly insufficient to require or authorize this court to consider them. While we think the state’s contention is true, yet we will consider all of them in the light of the whole record.

This prosecution and conviction was had under articles 924, 932, P. C., in connection with our statute on principals. ‘ Our statute on principals applies to all offenses. And so far as forgery or passing a forged instrument in concerned, they are exactly the same as if they were specifically embraced in and a part of our forgery statute.

Article 924 is:

“He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred, or in any manner have affected, any property whatever.”

Article 932 is:

“He is guilty of making, under art. 924, who, knowing the illegal purpose intended, shall write, or cause to be written, the signature, or the whole, or any part of a forged instrument. All persons engaged in the illegal act are deemed guilty of forgery.”

The uneontradicted testimony clearly shows that appellant for some time before January 1, 1914, until some time in July, 1915, was the active vice president of tlie Guaranty State Bank, at Mt. Selman, Tex., and as such, lie Bandied the bank’s business almost exclusively. On January 28, 1914, G. W. Earle borrowed from said bank through appellant $125, and at the time executed to said bank his note for $145, due October 1, 1914. On October 31, 1914, Earle carried to appellant a bale of cotton to sell and apply the proceeds on said note. He turned the bale of cotton over to appellant for that purpose, and took his receipt therefor. Appellant, at the time, advised Earle not to sell the cotton that day but to hold it for awhile in order to get a better price, appellant at the time agreeing to sell it for Earle and apply the proceeds as a credit on said note. This was agreed to between them. Later, appellant did sell the cotton, and, after taking out what he claimed was an attorney’s fee due by Earle on said note, there remained $21.08 net to be credited on that note. On December 28, 1914, Earle paid to appellant $15, cash, to be credited on said note, and got a receipt from appellant therefor. Earle was unable to make further payments on said note. On April 27, 1915, he saw appellant, and at the time it was agreed between them that Earle should make a new note to the bank for the difference between said note and the remainder, after allowing said $15 credit and the credit for the proceeds of said cotton. Appellant had sold said cotton at the time, but then claimed to Earle that he had placed said $145 note in the hands of an attorney for suit and collection, and that he did not then know what the attorney’s fees and court costs would be, but the two then estimated that the new note, after allowing these credits, would amount to $90 or $100. Thereupon it was agreed between them that Earle should then sign a blank note to be filled out by appellant with the correct balance after deducting said two credits, as soon as he could get the $145 nóte back and ascertain the attorney’s fees .and costs, and then send the said $145 note to Earle. Thereupon Earle did sign a note in blank payable to said bank, dated April 27, 1915, due October 1st following. Some time later, but the date not disclosed with certainty, appellant filled out said blank note, making it for $130, without deducting at all the proceeds of said cotton; and he himself kept that note, as well as the $145 note, in his possession. He never at any time sent to Earle said $145 note, and did not turn over to the bank either of said payments of $15, or $21.08, the proceeds of said cotton.

On or about April 19,1915, appellant, without any authority of Earle, had Mr. Burns, who was then cashier of said bank, to make out and sign Earle’s name to a new note to the bank for $145, bearing said date, due October 1, 1915, and had that note placed in the bank as a genuine note. At the time he had this done, he claimed to Burns that he had the authority from Earle to do this. Burns believed from what appellant then told him that he had this authority, and had no notice that appellant had no such authority. About December 10, 1915, Earle, who lived some considerable distance from Mt. Selman, went to see appellant there to have a complete settlement with him or the bank. He had considerable trouble and delay in getting appellant to a settlement. While thus seeking a settlement that day, Mr. Rankin, who was then a bookkeeper in the bank, met appellant on the street, and appellant told him that Earle was there to pay some on his note and told him not to show Earle said $145 note, dated April 19th. Dr. Gee was at that time president of the bank. Later in the evening, Earle succeeded in getting appellant into the bank to procure a settlement. When he did, appellant told Dr. Gee that said $145 note, dated April 19, 1915, was a bogus note — that it was made for the purpose of getting by the bank examiner. While Earle was then seeking a settlement and appellant was delaying it, Earle went to the bank and called on the president for a settlement. The president presented to him the said $145 April 19th note. Earle, upon looking at it, immediately denounced it as a forgery. That was the only note against him, then in the possession of the bank. When Earle did get appellant into the bank, he, appellant, Dr. Gee, and Rankin were the only persons therein. When Dr. Gee showed him the April 19th note, he examined it, and in appellant’s presence again denounced it as a forgery. Appellant then touched Dr. Gee, and they went in the back end of the bank and had a private conference. Dr. Gee then returned to Earle, and then for the first time presented to him said $130 note, when Earle told him that that was his genuine signature to that note. Dr. Gee swore that on this occasion appellant told him that said $145 note of April 19th was a bogus note. That it had been fixed up to pass the bank examiner. That “we” fixed it up to pass the bank examiner. That on this occasion appellant had in his hands and produced said $130 note and also produced the genuine $145 note, dated January 28th, 1914. Earle refused to have anything to do with said April 19, 1915, $145 note.

The testimony further shows that at the time appellant had Burns to write out and sign Earle’s name to said $145 note, dated April 19, 1915, appellant was actually present in the bank and was either actually present right at, and saw Burns when he did this, or was, at least, in the bank near him when Burns did this. Burns swore: That, after the discovery by Earle of said forged note, appellant had a conversation with him, with reference to Earle’s signature to the forged note, and the frame-up was appellant wanted him to testify that they met Earle in the road one day, and Earle then authorized them, or him, to sign his name to the note. That Burns was to swear that he and appellant met Earle in the road one day and he gave Burns authority to sign said last $145 note. Further:

“I never met Earle in the road, though, and he never gave me authority to sign his name to said note. The reason that he (appellant) told me for me swearing that we met Earle, and he gave me authority to sign his name to the note, was to get authority to sign his name to it. I didn’t have any such authority at the time X signed the note, but Hr. Ferguson said Earle told him to renew the note. Earle was a negro.”

The testimony establishing the facts as above recited were disputed by no other testimony. Appellant did not testify. His defense was alibi, and he contended that the claimed forged note was not executed for the purpose of defrauding any one; in other words, that the making of said alleged forged note was without the intent to injure or defraud. His wife, his clerk, Mr. Cole, and others testified that he was not in Mt. Sel-man on the day said alleged forged note was dated, nor until at least a day later; that he went to Dallas a day or two before that date and remained out of Mt. Selman for two or three days.

We will now take up each of appellant’s other bills.. In one (No. 3) he objected when the state asked said Earle this question: “Now, I will ask you about this credit of $21.08 on this note, bale of cotton $21.08. Did you actually deliver this cotton to Mr. Ferguson?” His objection to this was that “it was an inquiry about a transaction happening long after the execution of the note that defendant was being prosecuted for, and about a separate and distinct note of $130, payable by Earle to said bank, and was irrelevant, immaterial, and incompetent.” The bill in no way shows what the answer of the witness was, and for that reason alone would show no error, but, even if he did tell that he actually delivered the cotton to appellant, it would have been admissible.

In another bill (No. 4) he objected to this testimony of the witness Bankin:

“As to what the Guaranty State Bank of Mt. Selman received on the 10th and 11th of December, 1915, on account of these Earle notes, there doesn't seem to be anything shown on the books. We received the $130 note from Mr. Ferguson on that date—the bank did. The books don’t show that the bank received $21.08 on account of G. W. Earle on either the $130 note or the $145 note. This book I have here and have examined is the teller’s cash. It is the office of this book to show the daily transactions of the bank.”

His objections to this testimony are mere objections alone and are not certified by the judge as facts or true. The objections were that the books were not kept correctly and the state had failed to show that the witness was acquainted with the books, and without this proof the excerpts from them were inadmissible, and that it was an inquiry about a credit on a $130 note and was immaterial and irrelevant. The bill does not show that the witness testified to any entries in the book. He simply testified that the books showed no entry of a credit of $21.08. Any one would Have been competent to so testify if he had examined the books • for that purpose. It is not like testifying of entries in the books, but was to show what was not in them. Strong v. State, 18 Tex. App. 24; Wilson v. State, 61 Tex. Cr. R. 628, 136 S. W. 447.

All the testimony about said notes and payments thereon was admissible and material. The state had the right to show all about them.

After appellant’s clerk and witness Cole had testified so positively that appellant was not at Mt. Selman on the date said alleged forged note bore, and the details of why he claimed he remembered the date so accurately, the state on cross-examination, for the purpose of testing his accuracy as tO' dates, exhibited to him some notes and written documents of different dates, which, it seems, he had witnessed, and then asked him several questions about Ms recollection of the dates these several documents, etc., were executed. The state did not offer any of them in evidence, but used them merely to exhibit to the witness and cross him, as stated. The bill (No. 5) shows no error in the court’s action in permitting tMs character of cross-examination over his objections that it was a separate and distinct transaction, and had no connection with the Earle note under inquiry, etc. .

In another bill (No. 6) it is shown the state continued in this cross-examination of Mr. Cole for said purpose, and asked him about a certain R. R. Warren note. When appellant objected to this, the court sustained his objection, as shown by the bill. This bill shows no error.

The only other bill is merely to the overruling by the court of his motion for a new trial. We never consider such bills when, as in this case, the motion for a new trial is on many grounds, none of them stated in the bill.

Appellant requested several special charges. They merely appear copied in the record. Nothing in them or in connection with them shows at what time they were presented to the judge nor acted upon by him, nor any reason why they should have been given. He in no way took a bill to the court’s refusal to give either of them. Under such circumstances, it has been the uniform holding of this court in a great many cases that such matters cannot be reviewed by this court. It is unnecessary to collate these cases, but see Ross v. State, 170 S. W. 305, and a large number of cases since then, following that decision; also, Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 878; Byrd v. State, 69 Tex. Cr. R. 35, 151 S. W. 1068, and a large number of cases since then, following these decisions.

When the court’s charge as originally prepared was delivered to appellant’s attorneys for examination, they at the time made several objections thereto. It is certain from an inspection of the charge that after these objections were made, the court made corrections to conform to some of said objections at least. We must assume, as there is nothing in the record to indicate to the contrary, that the court complied with the statute, and after making these changes resubmitted his charge to his attorneys, and nothing shows that they made any further objection thereto or took any bill of exceptions whatever to the failure or the refusal of the court, to further correct or modify his charge. Under the circumstances, it is doubtful if we are called upon to pass upon any of said objections, but we have considered them all. As to his first, clearly the court changed his charge to comply therewith, for what he there objected to is not in the charge as shown by the record.

There was no error in the court, giving the general definition of who was a principal, to quote the statute to the effect that any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal thereto, whether he aids or not in the illegal act. The facts of this case called for that specific charge, and it is applicable herein. Nor did the court err in quoting substantially in his general definitions article 77, one of the articles of our statute on principals, omitting therefrom that part with reference to poison or preparing means whereby a person may injure himself, etc. Nor did the court err in one sentence of his general definitions, telling the jury, “all persons engaged in the illegal act are deemed guilty of forgery,” for that is a specific portion of the statute of forgery (article 932, P. O.), under which this prosecution and conviction were had, and was entirely applicable to the testimony.

Surely appellant has no ground to complain of that paragraph wherein the court to'ld the jury that when a pérson, making an instrument in writing, acts under an authority which he has good reason to believe, and actually does believe, to be sufficient, he is not guilty of forgery, though the authority be in effect insufficient and void. Such is not only a true proposition of law, but was called for by the testimony. Even if the testimony did not call for it, it was in his favor and would benefit, not injure, him.

The sixteenth paragraph as to passing a forged instrument was also correct and applicable herein; but whether it was or not, as appellant was not convicted of passing the instrument, such charge even if error became immaterial. Eor the same reason, his objections to the twenty-second paragraph pass out. The twenty-first paragraph to which he objects, on the subject of principals is clearly and distinctly the law and fully applicable to this case.

The only other objection appellant made to the charge was in the use of the word “possibly” in the twenty-fourth paragraph, the whole of said paragraph being:

“You are charged that in the trial for forgery it need not be proved that the party committing such forgery, if any, did so with intent to injure or defraud any particular person or corporation ; or that any particular person or corporation was injured or defrauded by the forgery, if any there was; but it is sufficient if it appears that possibly some one might be injured or defrauded thereby.”

Probably it would have been better for the court to have omitted this word, but, clearly taking the charge as a whole, which must always be done, and the undisputed facts of this case, no injury could have occurred to appellant by reason thereof, as has been expressly held by this court in Lucas v. State, 39 Tex. Cr. R. 49, 44 S. W. 825.

Appellant’s contention now made, that he was indicted for one olfense and convicted of another, is untenable. The indictment alleged that he unlawfully, without authority, and with intent to injure and defraud did willfully and fraudulently make a certain false instrument, etc. The indictment follows the very language of the statute (articles 924, 932) above quoted, and the proof follows and establishes the offense as alleged. The statute is: He is guilty of forgery who shall make' a false instrument, etc., and he is guilty of such making who shall write, or cause to be written, the signature, or the whole or any part, of the forged instrument. It was wholly unnecessary for the indictment to allege that appellant caused to be written the signature or the forged note. The allegation made was all that was necessary. Under the allegation and the law, proof that he caused it to be written, and the signature thereto, was embraced in the allegation as made. Besides, “What a man does by his agent he does by himself.” Smith v. State, 21 Tex. App. 122, 17 S. W. 552; Strang v. State, 32 Tex. Cr. R. 220, 22 S. W. 680; Welsh v. State, 3 Tex. App. 421. And especially is this true when the agent he used was an innocent one, though it would make no difference so far as appellant was concerned whether he was a guilty or an innocent agent. If a guilty one, then both would be principals. Dillard v. State, 177 S. W. 99.

It is elementary that:

“The acts which make the defendant a principal need not be alleged in the indictment. A principal offender may be charged directly with the commission of the offense, although it may not have actually been committed by him. Cruit v. State, 41 Tex. 477; Williams v. State. 42 Tex. 392; Bell v. State, 1 Tex. App. 598; Davis v. State, 3 Tex. App. 93; Tuller v. State, 8 Tex. App. 501; Mills v. State, 13 Tex. App. 489; Farris v. State, 26 Tex. App. 105, 9 S. W. 487; Watson v. State, 28 Tex. App. 40, 12 S. W. 404; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Gallagher v. State, 34 Tex. Cr. R. 306, 30 S. W. 557; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 233, Ann. Cas. 1913D, 858; Oliver v. State, 65 Tex. Cr. R. 150, 144 S. W. 616; Madrid et al. v. State, 71 Tex. Cr. R. 420, 161 S. W. 95; Dillard v. State, 177 S. W. 102.” 1 Branch’s An. P. C. § 676; Arnes-man v. State, 187 S. W. 471, recently decided but not yet officially reported.

The oral arguments and the several briefs filed by appellant’s attorneys have taken a somewhat wide range in the discussion of this case; but we are not called upon to discuss 'all these questions discussed by appellant’s attorneys. We have carefully considered all the testimony. The Jury disbelieved appellant’s witnesses, wherein they attempted to prove an alibi for him. That unquestionably was for the jury, not this court. The evidence by the state was amply sufficient to disprove his alibi. There can be no question from this record that the evidence was amply sufficient to clearly establish appellant’s guilt.

The judgment will be affirmed.
      <g^>For other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes

      <g^jFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    RUTHERFORD v. STATE.
    (No. 4113.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.)
    1. Physicians and Surgeons &wkey;36(ll) — Unlawfully Peacticing — Punishment.
    Under Pen. Code 1911, art. 756, providing that the punishment for unlawfully practicing medicine shall be by fine of not less than $50 nor more than $500, and by imprisonment for not exceeding six months, a jury finding accused guilty in a trial for violation of the law must assess both a fine and imprisonment within the legally fixed maximum and minimum.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Dec. Dig. <&wkey;>6(ll).]
    2. Physicians and Suegeons <&wkey;6(9) — Practicing Without License — Indictment.
    An indictment for practicing medicine unlawfully should allege either that accused was temporarily residing in the county in which the prosecution was brought, if such was the fact, and if not a fact, then if his residence was unknown, the indictment should charge that he had not recorded a certificate authorizing him to practice in the county, and also that he had no certificate authorizing him to practice.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 9; Dee. Dig. <&wkey; 6(9).]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    J. S. Rutherford was convicted of unlawfully practicing medicine, and appeals.
    Reversed and remanded.
    Ratliff & Spencer, of Decatur, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully practicing medicine, and his punishment assessed at a fine of $100.

Article 756 of the Penal Code provides that the punishment for unlawfully practicing medicine shall be by fine of not less than $50, nor more than $500, and by imprisonment in the county jail for any period of time not exceeding six months. It is thus seen that the Legislature has fixed some imprisonment at a minimum punishment the jury can assess. The punishment assessed must be always within the minimum and maximum fixed by law. This court, and no other court in this state, can assess a punishment that the law does not authorize. Fowler v. State, 9 Tex. App. 149; Jenkins v. State, 28 Tex. App. 86, 12 S. W. 411; Brown v. State, 50 Tex. Cr. R. 626, 99 S. W. 1001; Dillard v. State, 177 S. W. 107.

This will necessitate a reversal of the case, but there is one other question, we think, which should be mentioned. While the court did not err in overruling the motion to quash the indictment on the grounds presented in the motion, yet we think on another trial the indictment either should allege and the proof show that appellant was temporarily residing in Johnson county if such be the fact; or if this be not a fact, then, as it is alleged appellant’s residence is unknown, the indictment should not only allege that he had not recorded a certificate authorizing him to practice in Johnson county, but should further allege that he had no certificate authorizing him to practice, and proof that he had recorded no certificate would be prima facie proof that he had none by virtue of the statute.

The judgment is' reversed, and the cause remanded.


text:
    COLEMAN v. STATE.
    (No. 4126.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.)
    1. Burglary <&wkey;22 — Indictment— Sufficiency — Definiteness.
    An indictment averred that accused broke and entered the house of C. Suderman with intent to commit the crime of theft. The evidence showed that the house belonged to Charles Suderman, the father of Charles W. Suderman, who lived with him, and that property of both was stolen. Held,, that the indictment was sufficient without averments that the house belonged to C. Suderman, Sr.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 55-61, 66; Dec. Dig. &wkey;>22.]
    2. Burglary <&wkey;45 — Prosecution — Jury Question.
    Where accused was proven to have been in recent possession of stolen goods, the question whether his explanation was sufficient is for the jury.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 110; Dec. Dig. <&wkey;>45.]
    3. Witnesses <&wkey;49 — Competency— Convicts.
    One convicted of a felony, whose sentence was suspended in good behavior, is until the suspension is revoked and sentence pronounced, a competent witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 116-118; Dec. Dig. &wkey;>49.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Dave Coleman was convicted of burglary, and he appeals.
    Affirmed.
    J. Yance Lewis, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

The indictment alleges that appellant broke and entered the house of “0. Suder-man,” with the intent to commit the crime of theft. The evidence shows that the house belonged to Charles Suderman, the father of Charles W. Suderman; that when the house was entered, some automobile tires belonging to the father were taken, and two pistols belonging to the son, Charles W. Suderman, were also stolen. When this developed, appellant contended that the indictmeut should have been more definite, and alleged that the house belonged to Charles Suderman, Sr., instead of alleging only that it belonged to C. Suderman; that there was a Charles Su-derman, Sr., and a Charles Suderman, Jr., as shown by the testimony; that the allegation was too indefinite, etc. The question here raised has been decided adversely to appellant’s contention. The indictment alleged the house to be occupied and controlled by “C. Suderman,” and when the evidence showed that it was the property of C. Suder-man, the father, it was wholly unnecessary to place “Sr.” after his name, even though he had a son named C. W. Suderman. Neither was there any variance in the proof and allegations, because the evidence showed that the father was named Charles Suderman and the son, Charles W. Suderman, and that the house belonged to C. Suderman, the father, and was in his control and custody, even though the property stolen belonged in part to the father and in part to the son. The allegation was that the house was broken and entered with the intention to commit the crime of theft. The property in the house, regardless of whom it belonged to, was in the care and custody of C. Suderman, the father.

The evidence of David Earls, the accomplice, was fully corroborated. He testified to appellant’s breaking and entering the house, while he stood on the outside; that when appellant came out of the house, he gave him one of the pistols, which he sold to Charley Stew. Charley Stew testified to purchasing the pistol from Earls, and it was identified as one of the pistols stolen from Suderman’s house. Another pistol was stolen at the same time and place, and the evidence of Leon I-Iabine shows he purchased this pistfol from appellant. Appellant admits he sold the pistol to Leon Habine, but claimed to have won it gambling. As the possession of the stolen pistols was traced directly into his hands, it was a question of fact, to be determined by the jury, whether or not they believed his explanation of his possession of the stolen pistol. The verdict evidences the fact that the jury did not believe he won it gambling, but that he took it from the Suderman premises.

The fact that David Earls had been also convicted of the offense of burglarizing-this house would not render him an incompetent witness until sentence had been pronounced. As the jury recommended that the sentence of Earls be suspended during good behavior, he remains a competent witness until the suspension shall be revoked and sentence pronounced, if occasion ever arises for such action to be taken.

As the court refused to approve the bill reciting the fact that the county attorney had used certain language, it is not verified in a way that would authorize this court to pass thereon.

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