author: HABPEB, J.

text:
    POULTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Perjury (§ 32) — Evidence—Admissibility — Materiality of Testimony.
    Since in a perjury case, where defendant was charged with testifying falsely before the grand jury as to his brother’s age, it was incumbent on the state to show that the grand jury was inquiring into an alleged violation of law, evidence showing that an action was pending against the brother in the justice court, in which he had entered a plea of minority and swore that he was only 19 years of age, was admissible, but the result of that trial was inadmissible, as defendant was not bound thereby.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    2. Perjury (§ 32) — Evidence—Admissibility.
    In a perjury case, where defendant was charged with testifying falsely before the grand jury, the testimony of grand jurymen was admissible to show that defendant acted deliberately and willfully and did not testify through misapprehension or agitation.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    3. Criminal Law (§ 369) — Evidence—Other Offenses.
    Where defendant was on trial for perjury, evidence of other offenses committed by him in other counties, under different circumstances, and for which he had never been indicted, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    4. Criminal Law (§ 338) — Evidence—Character of Defendant’s Father.
    Where, in a perjury case, defendant’s father was not a witness, it was error to admit evidence showing that he had left another county under suspicious circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    5. Witnesses (§ 286) — Bedbrect Examination — Explanatory of Testimony on Cross-Examination.
    Where, in a perjury case, defendant, in questioning a witness as to having also appeared against a relative of his in the commissioners’ court, elicited the fact that other citizens had also appeared for the same purpose, it was not error to permit the state’s attorney on redirect to ask about these other citizens, though, if defendant’s question had related only to the witness, it would not.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. § 286.]
    6. Criminal Law (§ 338) — Evidence—Character.
    In a prosecution for perjury, it was prejudicial error to admit evidence that defendant’s father, several years before, had stolen a log chain; the father not being a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. JS 752, 753. 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    7. Criminal Law (§ 596) — Continuance-Cumulative Evidence.
    In a first application for continuance in a perjury ease on the ground of absence of witnesses, the fact that the testimony of such witness was cumulative does not render the application insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    Appeal from District Court, Parker County; F. O. McKinsey, Judge.
    Walter Poulter was convicted of perjury, and he appeals.
    Beversed and remanded.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, and Hood & Shadle, of Weather-ford, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   HABPEB, J.

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

It appears from the record that appellant’s brother, Ed Poulter, was sued in the justice court on a note, and he then filed a plea of minority and testified he was 19 years of age in March, 1911. The grand jury of Parker county, at the next term of the district court, was investigating the question of Ed Poulter’s age to determine whether or not it would indict him for perjury in connection with his testimony in the justice court when he swore he was only 19 years of age. Appellant was summoned before that body and testified that his brother, Ed Poul-ter, was born in 1892 or 1893, consequently not more than 19 years of age at the time Ed Poulter testified in the justice court. This testimony of appellant before the grand jury is the basis of the charge of perjury in this ease.

Mr. H. C. Shropshire was a material witness for the state; he having been the attorney for plaintiff in the suit in the justice court against Ed Poulter. The state proved by him that Ed Poulter testified in the justice court that he was only 19 years of age. There was no error in admitting this testimony, as it was incumbent upon the state to show that the grand jury was inquiring into an alleged violation of. the law at the time appellant testified before it. If the grand jury liad not been investigating an alleged violation of tbe law, tbe question asked appellant by tbe grand jury would not bave been as to a material matter. However, tbe fact that after Ed Poulter bad filed bis plea of infancy or minority, and testified be was only 19 years of age, tbe further fact that plaintiff withdrew bis announcement and the case was continued, and thereafter plaintiff recovered a judgment on tbe notes and foreclosure of tbe mortgage lien, was not admissible in this case, and neither was tbe judgment entry. This would and could but bave the tendency to show that tbe plea of minority was not true, and Ed Poulter was in fact 21 years old at tbe time. Whatever decision may bave been rendered in that case could not be binding on this appellant, as be was not a party to that suit, was not even a witness in tbe case. Of course tbe citation and tbe plea filed by Ed Poulter would be admissible as showing tbe issues involved and going to show tbe materiality of tbe testimony, but tbe result of tbe trial and tbe steps taken after Ed Poulter’s testimony as to this plea ought to have been excluded on objection of appellant. Neither can we see what purpose tbe introduction of tbe mortgage given by Ed Poulter would serve. In this case against Walter Poulter it is not a question of whether or not the plaintiff was entitled to recover judgment against Ed Poulter. The only part of tbe proceedings of tbe Ed Poul-ter suit in tbe justice court which would be admissible in this case, as hereinbefore stated, would be the citation in that suit, and this would show what issues were tendered by plaintiff. Then defendant’s plea showing what issues were tendered by him, bis testimony, or rather so much thereof as would show what be testified to in regard to bis age. Tbe merits of tbe justice court suit are not to be tried over in this case.

Tbe testimony of the grand jurymen was properly admitted, and these bills present no error. Tbe allegation in tbe indictment is that a suit was pending in justice court against Ed Poulter; that to avoid liability on tbe notes be entered a plea of minority and swore be was under 21 years of age, or only 19 'years; that tbe grand jury was investigating tbe truth of this testimony to determine whether or not to indict Ed Poulter for perjury; that, while making such investigation, appellant, Walter Poulter, was summoned before them and duly sworn and then testified his brother, Ed Poulter, was born 1892 or 1893. All tbe testimony of these grand jurymen was admissible to show that appellant acted deliberately and willfully in tbe matter, and that be did not testify through misapprehension or under agitation.

The bill of exceptions as to what Walter Poulter testified on cross-examination is not complete enough to bring that question before us on review, as only four questions and four answers are in the bill, and these would not show enough of tbe pro-I ceedings to enable us to pass on tbe matter. But, as tbe case will be reversed, we will say that, if it was an effort on tbe part of the-state to show that appellant had left another county under suspicious circumstances, the-testimony should not bave, been admitted. He was on trial for tbe offense of perjury in this case, and other offenses, if any be bad ever committed in other counties under different circumstances, and for which be had' never been prosecuted nor indicted, would not be admissible. Neither would tbe fact that his father had left Denton county at night and under suspicious circumstances be-admissible. His father was not a witness in-this' case. '

Tbe defendant -in cross-examination of' state’s witness Temple, to show bias, elicited; from tbe witness that be appeared before the-commissioners’ court to prevent John D. Poulter from getting a recommendation upon which to apply for license to practice law, and at tbe same time elicited tbe fact that a number of other citizens of Parker county also appeared for tbe same purpose. Under-such circumstances, it was not error to permit tbe state on redirect examination to ask tbe witness in regard to “these others” whom, defendant bad elicited bad appeared. If defendant on another trial narrows bis questions down to tbe witness Temple alone to attempt to show bis bias, then this testimony as to other “good citizens” also appearing would be inadmissible. But, if he makes bis-cross-examination as broad as on this trial, then there will be no error in admitting the-testimony on redirect examination.

It was also error to permit the state to-show by tbe witness Hardin that appellant’s father a number of years before bad taken Mr. Hardin’s log chain and denied having possession of it. Whether or not appellant’s father had stolen a log chain from Mr. Hardin would not be a legitimate inquiry in this case. He could not be held responsible for the acts and misconduct of all the members of bis family. His father was not a witness in his behalf in this case, and such testimony could and would be prejudicial to bis cause, for you cannot show that a man’s father was a thief without, to some extent at least, creating prejudice against him. If tbe purpose of tbe state was to tie tbe witness’ memory to some circumstance after a rigid cross-examination, be might be permitted to state that be went to Mr. Poulter’s to see about a log chain that was at bis bouse, but not state facts which would tend to show that appellant’s father had stolen the chain.

There are a number of other matters presented, but we do not deem it necessary to discuss them. The indictment is not subject to the objections made, and there is no variance in the proof and the material allegations contained in the indictment, as contended by appellant.

The only other matter called to our attention which would present error is tbe application for a continuance. This being the first application, the fact that Mr. Moran’s testimony -would be cumulative of that of -other witnesses who did appear and testify would not render the first application insufficient in law. The application states this witness would testify to facts material to the real issue in the case, the age of appellant’s brother at the time appellant testified before the grand jury, and that the testimony of Mr. Moran would tend to show that what he testified was true. There are other witnesses named in the application for continuance, but, as this matter will not likely be presented on another trial, we will not discuss it further.

The judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

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

license: Public Domain

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    Reversal — Conviction or Murder — Instructions.
    Conviction for murder in the second degree held unsustainable for error in the charge.
    Appeal from District Court, Upshur County; R. W. Simpson, Judge.
    Jasper Smith was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    M. B. Briggs, of Gilmer, R. M. Briggs, of Ashland, and Maberry & Maberry, of Gil-mer, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The jury gave appellant 45 years as a punishment under conviction for murder in the second degree.

The court submitted murder in the first degree, murder' in the second degree, manslaughter, and self-defense. Murder in the first degree, and the objections connected with that phase of the record will not be discussed, because of the acquittal of that degree of murder.

With reference to murder in the second degree, the court gave this charge: “The next lower grade of culpable homicide than murder in the first degree is murder of the second degree. Malice is also a necessary ingredient of the offense of murder in the second degree; the distinguishing feature, •however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proven to the satisfae-, tion of the jury, beyond a reasonable doubt, as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing.” Objection was urged to this, predicated upon the statement in the charge that “malice will he implied from the fact of an imlawfwl IcilUng Applying the law of this grade of the offense to the facts the court thus instructed the jury: “If you shall find, beyond a reasonable doubt, that the defendant, Jasper Smith, killed Henry Cornett, in Upshur county, Tex., on or about June 1, 1913, by shooting him with a gun, then if you find, beyond a reasonable doubt, that the defendant was npt justifiable in such killing, under the law of justifiable homicide hereinbefore given to you in charge, then if you find that the defendant did not act with his express malice aforethought, or if you have a reasonable doubt as to whether he acted upon his express malice aforethought, you will convict him of murder in the second degree, and assess his punishment at confinement in the penitentiary for any term of years not less than five.”

Objection was urged to this matter because the court did not in this connection instruct the jury with reference to manslaughter and justifiable homicide. In other words, the court instructed the jury that he would be guilty of murder in the second degree if the jury should find he killed Cornett, and was not justifiable under the law of self-defense, and that he did not act with his express malice aforethought, then they should convict him of murder in the second degree. This is not correct. In submitting murder in the second degree he should have plainly told the jury that, if he was not justifiable, they must find he was not guilty of manslaughter before they could convict him of murder in the second degree. It is not all unlawful killings that will imply malice. Manslaughter is an unlawful killing. Under this charge the jury could have readily convicted appellant of murder in the second degree, although they might believe he was guilty of manslaughter. The only exception placed in the charge is that if appellant was not justified on the one hand, and not guilty of murder in the first degree on the other, then he would be guilty of murder in the second degree. Therefore, if he was guilty of manslaughter, the jury could well have convicted him of murder in the second degree. This question underwent investigation and decision in the case of Roberts v. State, 156 S. W. 651.

While Eula Cornett was testifying for the state, she was permitted to testify that defendant had had carnal knowledge of her and caused her to become pregnant; the bill reciting the following circumstances in connection with it: “Q. Eula, what relation are you to the defendant? A. He is my brother-in-law. Q. Has he ever had carnal knowledge with you? A. Ves, sir. Q. Are you in a family way now? A. Yes, sir. Q. Who is the cause of you being in a family way; that is, who did that job? A. The defendant, Jasper Smith.” This all went before the jury over appellant’s objection that it was immaterial, irrelevant, and very prejudicial to his rights. The objections are in the nature of a general demurrer, and would not be well taken if this testimony could be admitted before the jury for any purpose; but if the testimony 'was not admissible for any purpose, then the general objections or general demurrers1 would be sufficient, and would be sustained, provided the testimony was not admissible, as before stated, for any purpose. No specific objections are urged, nor is the evidence set out further than detailed, showing the connecting facts, or what brought about its introduction, and the consequent ruling of the court. The testimony may have been admissible for some purposes; if it entered into the trouble between deceased and the defendant, and was the occasion of appellant hilling him, or served to show motive, intent, or purpose on his part, it might be admissible. If this evidence entered into the reasons why the deceased should have made an attach upon the defendant, or threats against his life, it might have been beneficial to the defendant from that standpoint, as tending to show the intensity of the threats, or to sustain the contention of appellant that deceased was attaching him, or threatening to do so, or to render more probable before the minds of the jury the fact that deceased had made threats to tahe his life, and was seeking to execute them at the time of the homicide. This much is said in view of the fact, if we looh to the statement of facts, it will be shown the witness Eula Cornett was the daughter of the deceased, and the sister-in-law of appellant; he having married Eula’s sister. We say this much in view of the fact, and hold the exceptions too general, as they are presented, to require revision of the question.

The matter with reference to newly discovered testimony is not discussed. The witness can be obtained at another trial.

On account of the charge held erroneous, the judgment is reversed, and the cause is remanded.

PRENDERGAST, P. J., and HARPER, J.

We do not agree to all the reasoning and statements in connection therewith, but do concur in the disposition of the ease.


author: PBENDEBGAST, P. J.

text:
    CURRINGTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Prostitution (§ 1) — Offenses—Statute.
    Acts 32d Deg. c. 23, providing that any person who shall procure, attempt to procure, or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution, or who by promises, threats, violence, shall cause any female to become an inmate of a house of prostitution, shall be guilty of a felony and be punished, etc., was intended to cover all acts, devices, etc., to induce any female to submit her body to other men for the purposes of prostitution, whether they succeeded or not, and it is immaterial whether she prior thereto, was virtuous or not; and to reach solicitors for such houses, as weh as those acting on their own initiative and behalf, whether they were connected, either directly or indirectly, at the time, with any such house.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.]
    2. Prostitution (§ 4) — Evidence—Reasonable Doubt.
    In a prosecution under Acts 32d Leg. c. 23, for endeavoring to procure a woman to enter a house of prostitution, the jury must find beyond a reasonable doubt the requisites of the offense.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dee. Dig. § 4.]
    3. Prostitution (§ 4) — Evidence — Burden of Proof.
    In a prosecution under Acts 32d Leg. c. 23, for attempting to procure a woman to enter a house of ill fame, the burden of proof was on the state.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dee. Dig. § 4.]
    4. Criminal Law (§ 308) — Evidence—Presumption of Innocence.
    In such prosecution there was a presumption of innocence in defendant’s favor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308.]
    5. Criminal Law (§ 369) — Evidence—Other Offenses.
    Independent and disconnected crimes cannot ordinarily be proven against an accused on his trial for another different and distinct crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Criminal Law (§ 371) — Evidence—Re- ' lated Offenses.
    In a prosecution under Acts 32d Leg. c. 23, for attempting to procure a woman to enter a house of prostitution, evidence of defendant’s other acts, though tending to prove other crimes, was admissible as being so connected with the crime charged that it would tend to establish his intent therein.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371.]
    7.- Criminal Law (§ 800) — Instruction—Defining of Terms.
    Acts 32d Leg. c. 23, makes procurement a felony punishable by imprisonment. Code Cr. Proc. 1911, art. 58, and Pen., Code 1911, art. 10, declare that all words used’ in the Code are to be taken and understood in their usual acceptation in common language, except when particularly defined by law. Meld that, as the word “procured” had no other meaning than that in which it was commonly understood,, there was no error in failing to define it.
    [Ed. Note. — For other cases, see Criminals Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.]
    8. Criminal Law (§ 829) — Requested Instructions — Given Instructions.
    In a prosecution the refusal of defendant’s, requested instruction, that if he did not attempt: to procure her as an inmate of a house of prostitution to acquit him, was proper, where that, part of the case had been covered by the instructions given.
    [Ed. Note. — For other cases, see Criminal-Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    Appeal from District Court, Collin County; G. R. Smith, Special Judge.
    Higgins Currington was convicted of pandering, and he appeals.
    Affirmed.
    G. E. Carpenter and J. F. Harrington, both of Plano, and H. M. Peak, of Farmersville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PBENDEBGAST, P. J.

Appellant was convicted of the offense of pandering, and his punishment fixed at 12 years in the penitentiary.

The evidence shows that he was a young man about 20 years old, and his wife, Ludie ©urrington, was about a year older than he; that they were married on May 15,1912, and lived together for about one year. At the time this offense is charged to have been committed, and for some time prior thereto, they were engaged in farming and lived on a farm in Collin county. Ludie Currington, appellant’s wife, testified: That shortly before May 17, 1913, he went from where they were living to Greenville, in Hunt county. That soon after he returned from Greenville he accused her of having intercourse with other men, which she denied. That he told her she had to tell him with whom she had had intercourse, and where the money was, and that he made suggestions to her with reference to having intercourse with other men for pay. “He said that I had to make him some money; he said I had to go to f-k-g.” She objected to this and would not consent thereto. That he told her he “would take her to Dallas to make him a living, he said, f-k-g.” That was the first time he ever made the suggestion to her. She then testifies that by force and threats he made her tell him that she had had intercourse with several different persons. That this was not a fact at any time, but that by actual force and threats to kill her, in order to save her life, she told him that she had. That on May 16, 1913, he went to Dallas and returned the next day with Oscar Allen, with whom she was not acquainted and had never met before. That they reached her house early in the evening, and when appellant first came he told her that he had brought her a “good piece.” That they all three, she, her husband, and said Allen, sat around the house and conversed the balance of that evening, and after supper the three went to a small town some few miles distant in a wagon, and that they got back home near midnight. That appellant then told her she had to have sexual intercourse with, said Allen. She declined to permit this, and begged him not to make her do so, but that he told her she had to, cursed her, and threatened to kill her if she would not permit it. That he then forced her to sit in Allen’s lap, and then to lie down on the bed, in his presence, and have Allen to have' sexual intercourse with her. That she permitted this at the time, because of fear of her husband and his threat to kill her if she would not permit it. This was Saturday night. Allen stayed at appellant’s house the balance of that night and the next day until after dinner. That just before Allen left in the afternoon on Sunday appellant again forced her to have sexual intercourse with said Allen. That at the time appellant was in an adjoining room with the door open. That she objected to this and begged him not to require her to submit, but that because of his threat she again permitted this act of intercourse with Allen. That he further told her that he had gotten a place down in Dallas in a whore house, and he was going to carry her there to that house; that it was a nice place; that she would have to pay $10 a week board, and everything was furnished and all license paid; that the charges for sexual intercourse was $3 for each act. That she told him she did not want to go there and would not go. That she, half of the next Monday, all of Tuesday, and until noon Wednesday worked in the field with appellant and some of their neighbors, chopping cotton. That after dinner on that day, Wednesday, he accused her of having intercourse with Mr. Martin, the neighbor with whom and for whom they at this time chopped cotton. That he thereupon carried her ip the room and locked her up, took a rope out of his pocket, tied her hands and wrists, then went out of the room himself and procured another rope, came back and tied her legs around the ankles and her hands behind her. That at this time he had her down on the bed, and that he then also stuffed small handkerchiefs in her mouth and tied a cloth over her mouth and around her head so that she could not talk or give any alarm. That while he was tying her he told her she had lied to him about having intercourse with other men, and that he was going to punish her for it. He then asked her if she had not had intercourse with some men, and if she had not had a baby before by some man, and that, while she could not talk, she nodded her head indicating that she had so as to prevent his killing her as he threatened to do if she did not so acknowledge. That she had not had intercourse with any man, except the two acts with Allen forced by appellant, and that she had at no time had a baby. That she told him this to keep him from killing her, which she believed he would have done if she told him she had not. In connection with all this at this time, “he spoke of taking me to Dallas. He says, T have got you now, and I am going to carry you and put you where you can’t get out,’ and says, T will get the money for it.’ He told me where that was, but I don’t just remember where it was; he told me just what place. As to what kind of place it was, he said it was a nice house, was all he told me. He said something about it being a whore house and said I had to be his whore.” She then testified that he rolled her off the bed on the floor, otherwise mistreated her, and left the house, locking her therein, thus tied and gagged; that as soon as he left, in some way, she managed to untie her hands, get an old razor and cut the ropes off her legs, and -then grabbed up her dress, hat, and shoes, partially buttoned her shoes, got on the bed, standing, raised a window, knocked out the screen, and ran as fast as she could to her mother and father, who lived something like 2 y2 miles from her. She then told her mother, and. her mother called her father, who was at the town at his blacksmith ■áhop, and, it seems, proceedings were soon .afterwards instituted and appellant arrested.

Appellant went before the grand jury when it was investigating these charges against him, and, after being duly warned, made and signed a written statement, which was prov-een up, identified, and introduced in evidence. It corroborates said witness Ludie Currington in many particulars, among others, that, soon .after his return from Greenville, he accused her of having intercourse with other men, which she denied, and that he told her such things had been going on, and demanded that •she should tell him the truth; that if she would he would treat her right and everything would be all right. He claims: That she wrote oft in a notebook, which he furnished her for that purpose, telling of various persons with whom she had had such intercourse. That he later burned up this book .and told her they would go on and live together and he would treat her right. That she then and theretofore both had helped him .in the field working therein. That on Friday May 16, 1913, he went to Dallas, and while there went to a whore house with said Oscar Allen. That he did not, but that Allen did, 'have sexual intercourse with some women in -the whore house at that time. “I told Oscar Allen that I had married a woman who was wrong. I invited him home with me and told him to help me find out if she was wrong. I told him that I did not object to him having intercourse with her.” That he and Allen ;then went from Dallas to his home, where his wife was; they reaching there about 2 o’clock that Saturday evening. That his wife was in the kitchen taking a bath at the time. That he went in there and told her “I had. brought her a nice man, and I wanted her to treat him nice.” That the three, he, Allen, and his wife, stayed at home that Saturday .afternoon and laughed and talked together. That night the three went to the little town where his wife’s parents lived and returned to his home that pight between 11 and 12 o’clock. That when they returned “I told her that she could sit in his (Allen’s) lap, and she sat down in his lap, and I told them that they could go on and have intercourse, and she laid down on the bed, and he had intercourse with her. I sat there in a chair and watched them.” That Allen stayed with them until Sunday afternoon. “I told him .at dinner before he left on Sunday afternoon that he could get another piece before he left, and they went in the room and had intercourse.” He then tells that he stayed right there with his wife, and she helped him to do the work in the field, and her household work, until Wednesday at noon, when he .again told her she had to tell him the truth about other men having sexual intercourse with her, and if she lied to him he would ipunish her. “She said she loved me and would tell the truth.” He claims: That she then told him that she had intercourse with her father, and named several other persons who lived at Farmersville with whom she had intercourse. That he told her on Sunday that he was going to punish her and told her after she gave these names that he was going to punish her for lying to him. That he took her in the bedroom and put handkerchiefs in her mouth, tied a napkin around her mouth and head, and tied her hands and feet, and caught her by the neck and head; and forced her then to tell him that she had had a baby. That he took her off the bed on the floor, refused to let her, have a pillow, and then left the room, and when he returned, after 25 or 30 minutes, found that she was gone. He further says: “While I was in Dallas I spoke to the whore house proprietor about my wife coming there, and she said that her girls got $2 for an act of intercourse with a man, and that the girls paid her $10 a week room rent. I told my wife what the whore house woman said when I got back.” He stated that he was under the influence of whisky from Saturday until Wednesday.

The indictment in this ease charged that appellant in said state and county “did then and there unlawfully attempt to procure and was then and there concerned in procuring Ludie Currington, a female, as an inmate for a house of prostitution, * * * and did then and there unlawfully by promises, threats, and violence persuade and encourage the said Ludie Currington to become an inmate of a house of prostitution. * * * ” The statute under which this prosecution and conviction was had is the act approved March 1, 1911 (page 29, c. 23), passed at the Regular Session of the 32d (Legislature. It is unnecessary to quote it all. The first section, which applies to this indictment, is: “Any person who shall procure or attempt to procure or be concerned in procuring with or without her consent, a female inmate for a house of prostitution, or who, by promises, threats, violence or by any device or schemes, shall cause, induce, persuade or encourage a female person to be-, come an inmate of a house of prostitution * * * shall be deemed guilty of a felony and shall be punished by confinement in the penitentiary for any term of years, not less than five.” This court has already held “that this act was intended to cover all those acts, conduct, device, etc., on the part of any person to induce any female to submit her body to other men for the purpose of prostitution, whether they succeeded in inducing her to do so or not.” And it would make no difference, whether the woman, prior thereto, was virtuous or not.

. Appellant moved to quash the indictment because the offense was not set forth in plain and intelligible words, and that no crime was charged against him, and that it does not show that Ludie Currington ever entered a house of prostitution, and that it was too indefinite, inconsistent, and repugnant. He takes tlie position that the first clause of the two clauses quoted above of this statute was intended to reach only that class of individuals who are engaged in the business of soliciting or obtaining recruits or inmates for houses of prostitution, as representatives of such houses, and that it must be alleged and shown that appellant was acting in the Interest of or on behalf of some house of prostitution. We cannot agree to appellant’s contention. This statute, and the purpose of it, was to reach both classes of such persons, and does so; that is, those who are the solicitors for such houses, as well as those acting on their own initiative and on their own behalf, whether they are connected, either directly or indirectly, at the time, with any such house.

Appellant also contends that the evidence of Ludie Currington as to what was done and said in her having the two acts of intercourse with Allen, shown above, and that also what was done and said by appellant to her on the Wednesday afternoon in tying and gagging her, and what he said to her and .told her at the time, was inadmissible, because appellant was not charged with those offenses, and that they were separate and distinct offenses from that charged against him, and calculated to prejudice and injure him before the jury. And he objected to the introduction in evidence of that part of appellant’s confession on the same matters. On this point the court charged the jury: “Evidence has been admitted which may tend to show, if it does, that the defendant compelled Ludie Currington, under threats, to have - intercourse, if he did, with one Oscar Allen, and that defendant tied his wife, if he did, and otherwise mistreated her, if he did. You are instructed that the defendant is not upon trial for any of said offenses, and you cannot consider said evidence for any purpose except in so far as the same may tend to prove and disprove, if it does, the offense for which the defendant is being tried, to wit, pandering, and you will not ■consider said evidence for any other purpose whatever.”

In addition to the court, in submitting the case for a finding, requiring the jury to believe beyond a reasonable doubt the necessary requisites, as prescribed .by the first clause of the statute above quoted, before they could find him guilty, he also told them that unless they so believed to find him not guilty. He also charged that the burden of proof was on the state, and the presumption of innocence in appellant’s favor, and if they had a reasonable doubt as to his guilt to acquit him. In addition to this, appellant requested, and the court gave, this further instruction: “That before you can convict this defendant, you must believe from the ■evidence beyond a reasonable doubt that it was the specific intent and purpose of this defendant to secure his wife as an inmate for a house of prostitution, and if you should find that he was willing to prostitute his wife, and did prostitute her, yet have a reasonable doubt that his specific purpose was to place her in a house of prostitution, you should acquit this defendant.”

It is undoubtedly the settled law of this state that independent and disconnected crimes cannot ordinarily be proven against an accused when on trial for another different and distinct crime. It is equally well settled that proof is admissible, even if it should tend to prove, or prove another distinct crime, if it is so connected with that charged and for which an accused is on trial as to be a part of the transaction and crime for which the accused is on trial, and for the purpose of proving the intent of the accused when necessary to prove intent. It is unnecessary to cite the authorities on either of these propositions. This testimony, both of Ludie Gurrington and appellant’s confession, tends to show that soon after his return from Greenville continuously, and including when he tied and gagged her and she escaped from him, his purpose and intention was to get her completely under his influence, control, and power. One means of accomplishing this was first by threats and force have her falsely confess to him that she had had sexual intercourse with others. Another means was by threats and force make her have such intercourse with said Allen in his presence — he brought Allen to his home for that purpose. And still not satisfied that he had her completely under his control and power, so that she herself would go to the whore house in Dallas where he wanted and intended she should go, by his already worse than brutal outrages of her, he on Wednesday following again forced her to falsely confess to him that she not only had had sexual intercourse with others, but had had a baby by another, tied and gagged her, so that if she would not then herself go and become an inmate of said Dallas whore house he would, by force, himself take her, and place her therein — all that, by therein selling her person sexually to all male frequenters of such houses, he could and would make money for himself. This testimony, tending as it did to show his said purpose and intention, and as limited by the court’s charge, was admissible under the circumstances of this case.

The record shows that appellant was arraigned and pleaded not guilty on July 1, 1913; that on that day the case was tried and a verdict of guilty found by the jury, and the judgment of the court had thereon on that date. However, we think that the record, as a whole, shows that the trial began a day or two before that time. Appellant requested no other special charge other than the one above quoted and given at his instance. No exception was taken to the charge of the court at all during the trial. For the first time, in his amended motion for a new trial filed on July 10th, he complains in the sixth ground in this language: “Because the” court erred in not specifically defining the word .‘procure’ in this charge to the jury, and in not specifically informing them of what said offense would consist, whereby the said jury were misled and induced to find said defendant guilty contrary to the law, and contrary to the evidence adduced in said trial to defendant’s damage.” The charge did-tell the jury what constituted the offense, and required the jury to believe all the facts necessary to constitute it, beyond a reasonable, doubt, before they could convict him. The court did not err in not defining the word “procure.” Article 58, C. C. P., is: “All words and phrases used in this Code are to be taken and understood in their usual acceptation in common language, except where their meaning is particularly defined by law.” Article 10, P. O., is: “Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed- in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.” The word “procure” in said statute “has no signification attached to it other than is usually and commonly understood, and it is easily comprehended by every one who is at all familiar with >the English language,” taking into consideration the context and subject-matter relative to which it is employed. Humphreys v. State, 34 Tex. Cr. R. 434, 30 S. W. 1066; Austin v. State, 51 Tex. Cr. R. 329, 101 S. W. 1162; Harris v. State, 64 Tex. Cr. R. 605, 144 S. W. 232.

As shown above, the court not only required the jury to affirmatively believe from the evidence, beyond a reasonable doubt, all of the necessary requisites of the offense before they could find him guilty, but also told them, “unless you so believe, you will find the defendant not guilty.” Then charged the burden of proof on the state, and the reasonable doubt in appellant’s favor. And, in addition, gave his special charge, above quoted. So that any further ■ charge that if he did not attempt to procure Budie Currington as an inmate for a house of prostitution, to acquit him, was not called for. This was substantially and fully embraced in th'e court’s charge. Thurmond v. State, 37 Tex. Cr. R. 422, 35 S. W. 965.

There are no other questions necessary to be discussed.

The judgment will be affirmed.

DAVIDSON, J., not present.


author: PRENDERGAST, P. J.

text:
    PERALES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Criminal Law (§ 1151) — Appeal—Discretion of Trial Court — Continuance.
    Where defendant moved for a continuance on the ground that he was too unwell to undergo trial, and the state controverted the motion by affidavit of the jailer tending to show that defendant was not unwell, the denial of such motion was an exercise of the trial court’s discretion, which should not be disturbed in the absence of a showing of abuse.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3045-3049; Dec. Dig. § 1151.]
    2. Homicide (§ 300) — Instructions — Self-Defense — Threats .
    Where accused alone testified that deceased had threatened to kill him, there was no error in a charge that deceased had made “a threat” against defendant “as testified to by defendant,” even if his testimony might be construed as showing another threat.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Homicide (§ 300) — Instructions — Defendant’s Belief as to Threat.
    In such case, where there was no question of any other threats, a charge as to defendant’s honest belief as to the making of such a threat by deceased was not called for.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Criminal Law (§ 1144) — Appeal — Discretion of Court — Motion for New Trial.
    Where the trial court, in overruling defendant’s motion for a new trial on the ground of local prejudice, stated that it heard the motion and the evidence submitted thereon and was of the opinion that the same should be overruled, the appellate court, in the absence of the evidence from the record, must presume that the evidence heard did not sustain the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dee. Dig. § 1144.]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Juan Perales was convicted of murder in the first degree, and he appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of murder in the first degree, and his punishment fixed at life imprisonment. It is unnecessary to recite the evidence. The state’s case, by several disinterested witnesses, shows a willful, premeditated killing.

Appellant made a motion for a continuance on the ground that he was too unwell to undergo trial. This was controverted by the state, and the affidavit of the jailer, where appellant was confined and had been for about a month, tends to show that appellant' was not unwell as claimed. The trial court must necessarily have large discretion in such matters, and this court would not reverse unless the record showed a clear abuse bf this discretion. There is nothing in this record which tends to show that the court in any way abused this discretion in bis action in forcing appellant to trial at tbe time. Appellant bas no other bill of exceptions. His other complaints are in bis motion for new trial.

Nothing in tbe record called for a charge on temporary insanity, produced by tbe voluntary recent use of ardent spirits, as provided for in article 41, P. C. Lucas v. State, 155 S. W. 529; Clore v. State, 26 Tex. App. 629, 10 S. W. 242; Ex parte Evers, 29 Tex. App. 563, 16 S. W. 343.

Tbe court submitted a charge on self-defense, based on appellant’s testimony. There is no complaint to this charge. He also, in another paragraph, separately submitted self-defense on tbe ground of threats. Appellant alone testified that the deceased had threatened to kill him. No other witness testified to any such threat. The court, therefore, did not err in telling the jury that if they believed from the evidence “deceased had made a threat against the life of defendant, as testified to by defendant,” for he alone so testified; and the court did not err in saying “a threat,” as appellant himself testified to only one such threat. Even, if his testimony bore the construction that he made another, such charge of the court, taken as a whole, would show no erfor on this point.

Neither did the court in that charge err in charging, as above quoted, and in not charging in that connection that if defendant honestly believed he made such a threat. He alone so testified, and no witness contradicted him. There was no question of other threats communicated or uncommunicated. Hence such a charge of honest belief was not called for.

The only other question is: Appellant claimed in his motion for new trial that, while the sheriff was summoning the second special venire of 40 men, a local newspaper in El Paso published an inflammatory article about the killing of certain persons in that country by Mexicans, and that he did not ask any of these veniremen on their voir dire anything about this for fear that, by thus questioning these special veniremen, he might thereby give information to the eight jurors who had already been selected and prejudice them; and that said newspaper article had been read by many persons on the streets in El Paso, and the most intense anti-Mexican feeling was aroused and expressed by that other murder.

The judgment of the court in overruling appellant’s motion for a new trial states, after showing the appellant and his attorney were in court, and the state, by her district attorney, “And the court, having heard the said motion and the evidence thereon submitted, is of the opinion that the same should be overruled,” and thereupon overruled said motion. What evidence was introduced is in no way shown by the record. Under the circumstances, we must presume that the evi-i dence heard on the motion for new trial did not sustain appellant’s allegations in his motion for new trial.

The judgment is affirmed. .


author: HARPER, J.

text:
    BORDERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Juey (§ 107) — Competency of Jubobs — Conscientious Scruples.
    In a homicide case, where the state depended upon circumstantial evidence, the court properly sustained the state’s challenge to jurors who had conscientious scruples against inflicting the death penalty upon such evidence.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 486-488, 495; Dec. Dig. § 107.]
    2. Criminal Law (§ 715) — Trial — Argument of Counsel.
    Where, in a homicide ease, the defense was that deceased killed herself, it was not reversible error for the prosecuting attorney, in his argument, to hand the pistol to a juror and ask him if it were possible for deceased to have shot herself in the place where she was shot, although such practice should not be indulged in.
    [Ed. Not'e. — For other cases, see Criminal Law, Cent. Dig. § 1666; Dec. Dig. § 715.]
    3. Ceiminal Law (§ 728) — Argument of PROSECUTING- ATTORNEY — ABUSIVE LANGUAGE— Evidence Justifying.
    While a prosecuting attorney ought nevér to use epithets, yet it was not error for him, in his argument in a homicide case, to point his finger at accused and call him a “coldblooded brute” and “an animal,” as the record showed the murder to have been very brutal, and there was no requested charge on the point.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    4. Criminal Law (§ 789) — Trial—Instructions.
    Where the court, in a homicide case, after defining the different degrees of homicide, required the jury to find the facts, constituting each degree, to exist beyond a reasonable doubt, and to give the defendant the benefit of a reasonable doubt between the different degrees, it was not error to fail to charge the negative of the facts constituting each degree.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Bud Borders was convicted of murder in the first degree, and he appeals.
    Affirmed.
    Farrar & McRae, of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of murder in, the first degree, and his punishment assessed at imprisonment in the penitentiary for life. '

In the first bill of exceptions appellant complains that the court permitted the county attorney to ask the jurymen on their examination the following question: “Have you any conscientious scruples against inflicting the death penalty as a punishment for crime, where the state depends upon circumstantial testimony for a conviction?” And when the jurymen answered they had, the court sustained the challenge of the state to such jurors. As it is not shown that any juror objectionable to defendant served on the jury, we might pass the question in this way; but under our decisions, beginning with Burrell v. State, 18 Tex. 713, when the Supreme Court had jurisdiction in criminal matters, on down to this date, it has been held that such question was a proper one, in cases where the state depended on circumstantial evidence to sustain a conviction, and the action of the court in sustaining the challenge was also proper. Shafer v. State, 7 Tex. App. 239; Clanton v. State, 13 Tex. App. 139; Little v. State, 39 Tex. Cr. R. 654, 47 S. W. 984.

The next bill complains that the prosecuting attorney took the pistol, which had been introduced in evidence, and which was the pistol with which the woman was killed, and handed it to one of the jurymen, and said, ‘‘Try and see if Belle Borders could have inflicted the wound which killed her, in the place it was located.” The length and size of the pistol are shown by the record; the evidence locates the wound just below the nipple in the breast, and its point of exit in the back; and as it was permissible for the prosecuting officer to argue and demonstrate that it was impossible for one to inflict the wound on one’s self, instead of handling the pistol himself, to hand it to the juror and ask him to see if he could shoot himseif at the point where the wound was shown to have beeen inflicted on the woman would present no reversible error under this record; but this practice should not be indulged in.

The only other bill in the record complains that the prosecuting officer in his opening address pointed his finger at defendant and called him “a cold-blooded brute,” and called him an animal. While the prosecuting officer ought never to use epithets of any character, yet the killing, as shown by the evidence in this case, was done in rather a deliberate and brutal manner, and under such circumstances the language used would not present reversible error, and especially is this the case when no special charge was requested in regard thereto.

No special charges were requested, but there are several complaints in the motion for a new trial of the charges given. The first ground is that the court, in his charge on murder in the first degree, failed to charge “the negative of the facts constituting said degree.” The same complaint is made as to the court’s charge on murder in the second degree, and the court’s charge on manslaughter. The court in his charge defined murder in the first and second degree in terms frequently approved by this court, and required the jury to find affirmatively those facts to exist beyond a reasonable doubt before they would be authorized to convict, and then defined manslaughter as applicable to the facts of this case, and required the jury to find beyond a reasonable doubt those facts existed before they would be authorized to convict. He then instructed the jury: “If from the evidence you are satisfied, beyond a reasonable doubt, that the defendant is guilty of murder, but have a reasonable doubt whether it was committed upon express or implied malice, then you must give the defendant the benefit of such doubt, and not find him guilty of a higher grade than murder in the second degree; or, if from the evidence you believe, beyond a reasonable doubt, that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt whether the offense is murder of the second degree or manslaughter, then you must give the defendant the benefit of the doubt, and in such case, if you find him guilty, it could not be of a higher grade of offense than manslaughter.” In addition to this he gave the usual charge on presumption of innocence and reasonable doubt. Having instructed this jury to give the benefit of a reasonable doubt as between the degrees of unlawful homicide, it was unnecessary to so instruct them in the paragraphs submitting the different degrees.

The court did instruct the jury that they must find the exculpatory statements untrue; or they would acquit him. Defendant, as a witness, testified that deceased killed herself, and in the statement made to the county attorney he made the same statement The court instructed the jury: “If you believe that Belle Borders killed herself, or if you have a reasonable doubt thereof, you will acquit the defendant.” If they found that deceased did not kill herself, this necessarily included a finding that his exculpatory statement was not true.

The charge on circumstantial evidence does in terms instruct the jury that they must believe that defendant, and no other person, killed deceased. This charge is in language frequently approved by this court, and concludes : “Unless the evidence in this case has established to your satisfaction beyond a reasonable doubt, and to a moral certainty, that the defendant killed Belle Borders, and excludes every other reasonable hypothesis except that he Mlled her, then you will find the defendant not guilty.”

The evidence amply supports the verdict, and the judgment is affirmed.


author: HALL, J.

text:
    GUTHERIDGE et al. v. GUTHERIDGE.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 8, 1913.
    On Motion for Rehearing, Dec. 13, 1913.)
    1. Homestead (§ 181) — Abandonment—Evidence.
    In an action by a woman to set aside her former husband’s conveyance of the community homestead, the court’s finding that she did not abandon her homestead, but merely left her husband temporarily to earn a living for herself and her minor child, held supported by the evidence.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. § 181.]
    2. Husband and Wxee (§ 267) — Community Property — Effect oe Conveyance by Husband.
    Where a "husband conveyed one-half of the community property of himself and wife to their infant child, the rights of the parties upon the death of the child intestate and without issue, are the same as if no conveyance had been made.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.]
    3.. Partition (§ 55) — Petition.
    Under the direct provisions of Rev. Civ. St. 1911, art. 6097, subd. 3, a petition for statutory partition is insufficient when not giving an estimate of the value of the premises.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 148-159, 182; Dec. Dig. § 55.]
    4. Partition (§ 34) — Statutory Partition-Effect.
    Rev. Civ. St. 1911, art. 6097, providing a statutory mode of partition, is not exclusive and does not deprive the courts of their equitable power of partition.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 88, 90; Dee. Dig. § 34.]
    5. Partition (§ 55) — Proceedings — Petition.
    A petition for equitable partition need not state the estimated value of the property.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 148-159, 182; Dec. Dig. § 55.]
    6. Appeal and Error (§ 882) — Persons Entitled to Allege Error.
    Where defendants by their answer sought partition of the land in suit, they cannot on appeal attack their own pleadings, as insufficient to warrant partition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    7. Partition (§ 63) — Proceedings — Evidence — Sufficiency.
    In a proceeding for the partition of real estate, the question of value should govern more than the item of quantity, and a judgment rendered without any evidence of value cannot be supported.
    [Ed. Note. — For other cases, see Partition, Cent..Dig. §§ 183-185; Dec. Dig. § 63.]
    8. Appeal and Error (§ 1172) — Determination — Reversal in Part.
    Under rule 62a for Courts of Civil Appeals (149 S. W. x), providing, that, if it should appear that an error committed by tbe trial court affects only a part of the controversy and that the issues are severable, the judgment shall be reversed only in part, the appellate court may, in an action by a woman to set aside her former husband’s deeds to their community property, reverse only that part of the judgment-which erroneously granted partition without evidence of the value of the land.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4555-4561; Dec. Dig. § 1172.]
    9. Husband and Wife (§ 249) — Community Property — What Constitutes.
    Property acquired by a husband before his wife secured a divorce is community property, even if at the time of the acquisition she was living apart from him because obliged to do so to make her own living.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892; Dec. Dig. § 249.]
    On Motion for Rehearing.
    10. Husband and Wife (§ 267) — Community Property — Conveyance by Husband.
    A conveyance by a" husband of the community property of himself and wife is good as to his interest in the property and should not be canceled at the suit of the wife except as to her share.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.]
    11. Judgment (§ 252) — Conformity to Pleading — Relief.
    If defendant prays for relief and shows himself entitled thereto by the evidence, the court may grant it notwithstanding the pleadings of the plaintiff do not request it.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 441, 442; Dec. Dig. § 252.]
    Appeal from District Court, Collingsworth County; D. E. Decker, Judge.
    Action by Alice Gutheridge against R. W. Gutheridge and others. From a judgment for plaintiff, defendants appeal.
    Affirmed in part, and in part reversed and remanded.
    See, also, 159 S. W. 452.
    R. H. Templeton, of Wellington, and Crudg-ington & Works, of Amarillo, for appellants. J. L. Lackey, of Wellington, and Presler & Thorne, of Memphis, for appellee.

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

   HALL, J.

Alice Gutheridge, formerly the wife of R. W. Gutheridge, of Green county, Okl., instituted this suit against R. W. Guth-eridge (her divorced husband), C. B. Boverie, and J. M. Poff, residents of Texas, for the cancellation of certain deeds and title to the N. E. % of section No. 28, block No. 15, H. & G. N. Ry. Co. survey in Collingsworth county, Tex. The allegations of the petition, in substance, are: That plaintiff was formerly the wife of R. W. Gutheridge, and Lawrence Gutheridge, a son, was born of that wedlock. That plaintiff and her said husband were separated in August, 1908. That they owned as community property the N. W. % of section 32, block 15, and the N. E. % of section 28, block 15, of the H. & G. N. Ry. Co. surveys in Collingsworth county, Tex. That on September 21, 1910, her said husband conveyed the east y2 of the N. E. ]4 of said section 28 to their infant son, Lawrence, and at the same time conveyed the W. y2 of said ]4 to Lee Brown. That Lee Brown thereafter conveyed said W. y2 to C. B. Boverie, and afterwards C. B. Boverie conveyed the land to J. M. Poff, and later her said husband conveyed the entire N. E. % of said section 28 to the said Boverie, who in turn again conveyed the same to J. M. Poff. That on the 3d day of January, 1911, appellee obtained a decree of divorce from her husband in the district court of Kingfisher county, Okl., and that said judgment decreed to her the custody of the infant son, Lawrence, and that said son soon thereafter died. It is alleged that the deeds above mentioned were all made for the purpose of defrauding plaintiff, and that the grantees thereunder took with notice of her rights, and prayed that she be decreed to have said quarter section with damages and for an injunction.

Each of the defendants answered separately, the substance of R. W. Gutheridge’s special answer being as follows: That the said quarter section was the community property of himself and wife. That in the spring of 1908 they abandoned the land and never again resided thereon. That they separated in 1908 and never again lived together as husband and wife, at which separation appellee abandoned him and moved to the state of Oklahoma, and has so resided in said state continuously, and now so resides in said state. That in January, 1911, she obtained a decree of divorce. That during the time plaintiff and defendant lived together they contracted community debts, which he was unable to pay, and he sold the W. y2 of the N. B. % of said section 28 to pay said indebtedness. That he had no other property out of which said debts could be paid. That in 1909 he removed to Gray county, Tex., and acquired a new homestead, which he had occupied since said date and which he was occupying prior to and at the time he sold said N. E. % of section 28 to defendant Brown, and prior to said sale had made and filed a written designation of his homestead, stating the same to be in Pampa, Gray county, Tex. That he sold the W. % of the N. E. % while his wife was separated from him and residing in another state, with which to pay community debts, and conveyed the E. % of said quarter to his son, Lawrence, who had since died, and that he and plaintiff were the only heirs of the said Lawrence. Since the death of his said son, he had again conveyed the entire N. E. % to. the said Boverie, and so had parted with every interest of every kind and character in said quarter and disclaimed any interest in the land in controversy. That his said home in Pampa was acquired during the marriage and was subject to partition. iThat the N. E. % of section 32, referred to by appellee, was purchased and vendor’s lien notes given therefor, and that by reason of his wife abandoning him he was unable to pay therefor, and foreclosure was had in the district court of Collingsworth county, under which he lost said land and the money theretofore paid by him. His prayer is as follows: “Wherefore defendant prays judgment of the court that plaintiff take nothing by this suit except a partition of his land in Gray county, Tex., and that all interest in said land be perfected in the present owners of the same, that the W. % be perfected in J. M., Poff and the E. be partitioned between C. B. Boverie and plaintiff, and for all further relief, both special and general, in law and in equity, that he may be entitled to under the law.”

Defendants Boverie and Poff, by special answer set up that they were innocent purchasers without notice, and in addition thereto substantially the facts plead by R. W. Gutheridge. The prayer as contained in the answer of Poff is as follows: “Wherefore defendant prays that plaintiff take nothing by this suit, and that said W. % of S. E. % of section 28, block 15, in said Col-lingsworth county, Tex., be decreed to him free from all claims of plaintiff; that he go hence without day with his costs and for damages and for rent of said land for the year 1912, and for such other and further relief,' special and general in law and in equity, as he may be entitled to.” The prayer of C. B. Boverie is as follows: “Wherefore defendant prays judgment nf the court that plaintiff take nothing by this suit as to the W. % of the N. E. % of section 28, block 15, and that he have his costs in this behalf expended; that the E. y2 of the N. E. % of section 28, block 15, in said Col-lingsworth county, Tex., be partitioned between plaintiff and this defendant; that appraisers be appointed by the court to appraise and divide the said E. y2 equally, according to value, between this defendant and plaintiff; and that each be placed in possession of his part within 30 days from date of partition; and that, if the court should hold that deeds from R. W. Guther-idge to Lee Brown and Lawrence Gutheridge were invalid for any cause, the court have the entire N. E. % of section 28, block 15,’ partitioned according to the respective interests of claimants to same; and that the same be duly and legally partitioned; and that all equities involved in the suit and premises be adjusted in this suit; and for all other and further orders and relief, both special and general, in law and in equity, as each may be entitled to, and in duty bound this defendant will ever pray.”

The court’s findings of fact and conclusions of law are in substance as follows:

First. That the land in controversy is the community property of plaintiff and her former husband and is their homestead. That it has never been abandoned as a homestead, but that plaintiff was forced to leave the same temporarily in order to secure work for the support of herself and infant son, and that she left with the intention of-returning at any time appellant -Gutheridge would provide her with a living, and so notified him when she' went away.

Second. That appellee did not leave appellant Gutheridge with the intention of separation, but only for the purpose of securing work, and never knew that he regarded her leaving as a separation until she was notified by his attorney that he was going to sue her for a divorce.

Third. That he did file suit in the district court of Collingsworth county, for a divorce and division of property, and when the court convened dismissed the same at his own cost.

Fourth. That plaintiff had never abandon-' ed the land as her homestead, and the personal effects which she had were there on the land when she left and were thereafter carried away by her mother, who lived near, for the purpose of taking care of the same during her absence.

Fifth. That defendant R. W. Gutheridge utterly failed to support his family in any way or manner for several months before his wife went away to her work. That she was compelled to work and pay all the family expenses for several months prior to that time.

Sixth. That none of the deeds made by R. W. Gutheridge to any of the defendants, and none of the deeds made by said defendants to each other, purporting to convey or attempting to convey the land, were made in good faith for valuable consideration, but that all of said deeds were made with full knowledge by said parties of appellee’s claim and right in the premises and that appellee had possession of said land and was paying taxes and interest thereon during that time.

Seventh. That at the time of plaintiff and defendant R. W. Gutheridge’s separation, they owned and possessed other property which was community property, and which he disposed of and gave none of the proceeds to plaintiff or their son, and he also owned and held other property in Gray county, Tex.

Eighth. That the community property disposed of by said appellant Gutheridge, and the other community property held by him in Gray county, Tex., exceeded in value what would be his part in the land' in controversy. That appellee has had to care for and pay all the expenses incident to raising their said infant son since and before their separation, and that said child died some time in the year 1912, and that appellee was forced to pay the doctor’s bills and all funeral expenses incident to the sickness and death of said child, amounting to something over $200. That plaintiff sued defendant Guthe-ridge for divorce in the state of Oklahoma and was decreed a divorce, together with the care and custody of their said child, an’d that such decree was entered after the said R. W. Gutheridge had conveyed all the lands in this controversy, and that it was not necessary for a party to be an actual bona fide resident, inhabitant of Oklahoma in order to institute divorce proceedings in that state, but only necessary that they reside in the state for 12 months.

Based upon said findings of fact, the court concluded as a matter of law that plaintiff ought to recover the land in controversy as her part of the community estate of herself and R. W. Gutheridge, and that all deeds made by Gutheridge or the other defendants herein, attempting to convey said land, ought to be canceled and held for naught, and plaintiff quieted in her title thereby. The judgment of the trial court is rendered in accordance with the findings and conclusions outlined above.

The appellant’s brief submits the case under a multitude of assignments and propositions, the majority of which go to the sufficiency of the evidence to sustain the court’s findings of fact and conclusions of law. We have read the statement of facts and think that the evidence is sufficient to sustain all of the court’s findings, except perhaps the latter part of the eighth, in which the court finds that the property in Gray county, held by R. W. Gutheridge, exceeded in value what would be his part of the land in controversy. It is not necessary for us to set out the facts in detail, or even in substance; but the following excerpts from the testimony of the plaintiff will serve to show that the court’s findings, with the exception above noted, are amply sustained: “I did not know that myself and husband had separated until his attorney wrote me, asking me if I would file a suit for divorce, over there at Enid. I had left our home (the land in question) temporarily prior to that time and had gone to Chillicothe, Tex., where my husband and I lived for about six months. We did not acquire any home there. He was in the insurance business. I came back up to our home in the fall. I think that was in 1907. He came back in the summer. When he returned here in the fall, he went out to my mother’s place close to where we lived in Collingsworth county, just a fence between us. At the time he left me in Chillicothe, he made no provisions for me to live — no money for any groceries. We had been living in a rented house there. He did notpay the house rent nor any of the grocery bills. I paid it. I did some sewing down there. Went from there to Vernon and picked cotton for two months. When I left there, I shipped my household goodsi to Memphis and paid the freight on them and went back up to my mother’s place in this county. When X arrived there, my. husband had gone. My father got my things from Memphis for me. I remained at my mother’s about six months — perhaps not so long — and went away again. I returned there in the fall and left there the 1st of February, at which time my husband was there. He knew I was going to leave and did not seem j to care. I told my reason I was going to leave was because I would have to go and make a living. He refused to work,* and I lia'd to go to work and make the living. I went from there to Shamrock, Tex., where I took the train. My husband took me to Shamrock to the train. I told him at that time when he got something to live on to let me know and I would come back any time he wanted me to; that I was simply going away to make a living. I wrote him that I had reached Enid all right, but I never heard from him until through his lawyer, offering to send me money to get a divorce over there. I never received any letter from my husband, but I replied to his attorney, stating that I did not care for a divorce, but if Mr. Gutheridge wanted one to go ahead. After that I was cited to appear here in a divorce proceeding and came back to court. My husband did not appear, and the suit was dismissed. I saw him about a week before court, but he made no offer for me to come back and live with him. He just asked me to compromise with him on the property. He wanted to divide the land in halves. He did not want to give the baby anything at all and wanted me to support it. I have never received any proceeds from the sale of the land. I have not lived with my husband since February, 1908, when I left him at Shamrock, because I have not had the opportunity. I have never lived in the house on the land in controversy since we went to Chillicothe, but I have had it occupied. I leased the land to my father one year. I believe he made two crops on it, he and my brother. I have had the use of the land all the time since I left here and have the use of it now. I have people there tending it, and they have been ordered off a time or two, but they still hold it.”

Without quoting further from the evidence, we will state that the record abundantly sustains the court in his finding that the defendants Boverie and Poff were not innocent purchasers, and also that the conveyances of the ■ property in question were made with the fraudulent intent alleged. The questions which we will consider specifically are raised by the following propositions ;

“There being no effort on appellee’s part, either in her pleadings or proof, to void the deed from R. W. Gutheridge to Lawrence Gutheridge, and said Lawrence Gutheridge having died intestate, under ten years of age, the court erred fundamentally in holding that title to the E. % of the N. E. 14, section 28, did not vest in equal halves in his parents, and those holding under them.” This proposition has no merit. The transfer of the estate to the minor, and the subsequent death of the minor, left the matter in the same condition as it was before, so far as the rights of the parties in this litigation are concerned.

Under the twenty-eighth assignment of error, which, is that the court erred in holding and in making an accounting between R. W. Gutheridge and Alice Gutheridge, because there were no pleadings in the case warranting the same nor in the prayer therefor, it is urged that there being no allegations of value of the community property now in the hands of R. W. Gutheridge, nor of amounts received by him from that alleged to have been appropriated, and no proof offered as to any of these essential points, the court fundamentally erred in undertaking to partition such properties and adjust community rights herein. An inspection of the pleadings briefly set out above, together with the prayer, shows that the suit as originally instituted by plaintiff was not a partition suit brought either under the statute or as an equitable proceeding, but that the defendants, by their pleadings, endeavored to convert it into a suit for partition under the statute. There was a prayer for the appointment of commissioners, etc. Plaintiff seems to have acquiesced in this, but from some cause the purpose of going into partition of the property under the statute was abandoned, since the record fails to show the appointment of commissioners, the issuance of any writ of partition, or any report by commissioners. If appellants had persisted in their original purpose of having a partition of the property under the statute, their pleadings were manifestly insufficient under article 6097, R. S. 1911, subd. 3, which requires that a petition in such proceeding shall estimate the valué of the premises.

It is held in this state that the giving of the remedy by statute, has never been deemed to take away "or in any degree abridge the original inherent powers of the court in an equitable proceeding for that purpose to partition real estate. The statute simply prescribes a procedure which parties may adopt if they see proper, but it is not obligatory. Our courts exercising the powers of courts of chancery may proceed to administer the relief upon the principles of equity, as fully and completely as if the proceedings had been brought and prosecuted under the statute. Grassmeyer v. Beeson, 18 Tex. 753, 70 Am. Dec. 309; Ellis v. Rhone, 17 Tex. 131; Ross v. Armstrong, 25 Tex. Supp. 355, 78 Am. Dec. 574; Payne v. Benham, 16 Tex. 364. We have investigated the question as fully as the authorities at hand would permit and have failed to find any case or any text-writer holding that it was necessary in a bill in equity to allege the value of the property sought to be partitioned.

Besides, complaint made in this court by appellants is directed to a, defect, if held to be one, in their own pleadings. They sought the partition, took the initiative, and, if the record is insufficient to sustain the court, appellant should not be heard to complain.

A careful perusal of the statement of facts, however, fails to disclose any evidence of value, and according to Parker v. Cockrell et al., 31 S. W. 221, the question of value should govern more than the item of quantity in making a partition of real estate. Appellant’s assignment, therefore, to the effect that there is no evidence supporting the court’s judgment in partitioning the property between R. W. Gutheridge and his wife, must he sustained.

Rule 62a for Courts of Civil Appeals (149 S. W. x) provides that if it should appear to this court that the error committed by the trial court affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.

We therefore affirm the judgment of the trial co'urt in canceling the deeds mentioned in the judgment and divesting C. B. Boverie, Lee Brown, and J. M. Poff, of any interest in the said N. E. % of section 28, block 15, H. & G. N. Ry. Co.; but the portion of said judgment which attempts to partition said quarter section 'between R. W. Gutheridge and appellee herein is reversed and remanded for the want of testimony to support it, with instructions to the trial court to ascertain the value of all of said property and to partition the same between R. W. Gutheridge and appellee, Alice Gutheridge, in accordance with article 4634, R. S. 1911, and in this connection we hold that the trial court was correct in his finding that all of said property was community property. Young v. Young, 23 S. W. 83; Huntsman v. Huntsman, 147 S. W. 351; Franks v. Franks, 138 S. W. 1110.

Affirmed in part, and reversed and remanded in part.

On Motion for Rehearing.

After reviewing the record again, we have concluded that we were in error in canceling the deeds except in so far as they purported to convey the interest of appellee in the property. We think they had the effect of conveying whatever right R. W. Gutheridge may have had, subject to the right of appellee, to a partition in this action. R. W. Gutheridge certainly could not transfer the interest of appellee and to which she may be entitled, under the facts developed upon another trial. To that extent our original opinion is reformed.

Appellants contend that, because the pleadings of the appellee did not authorize the court to decree a partition, none should have been made. If either party prays for relief and shows himself entitled thereto by the evidence, the court may grant it, notwithstanding the pleadings of the opposite party do not ask it. This record shows that the court, as well as the litigants, treated it during the trial as .a partition suit However, as held in our original opinion, the value of the property was not alleged, nor was the Pampa property described.

The motion for rehearing is overruled, except as hereinbefore stated.


author: MOURSUND, J.

text:
    FAHEY v. BENEDETTI et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 26, 1913.
    Rehearing Denied Dec. 20, 1913.)
    1. Appeal and Error (§ 743) — Assignment op Error — Review.
    An assignment of error that the court erred in directing a verdict on the ground that the evidence was suffieienty conflicting to go to the jury will not be considered on appeal, where the assignment does not refer to the paragraphs of the motion for new trial in which the questions were presented to the trial court, and the statement does not contain such reference, and the motion contains no reference to the ground urged in the assignment, and the assignment is followed by .propositions casting no light on the matter and by a statement failing to comply with the rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Vendor and Purchaser (§ 315) — Contracts — Evidence.
    In an action by a vendor for the price, evidence held to show performance by the vendor, and that, out of the payment made by the purchaser to the holder of the deed in escrow, taxes on the land and incumbrances were to be paid, so that the purchaser would acquire a good title, authorizing a recovery.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. §§ 928-931; Dec. Dig. § 315.]
    3. Appeal and Error (§ 742) — Assignments —Review.
    An assignment of error, which attacks the judgment as unsupported by the evidence, will not be considered where no statement is made under the assignment. ,
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 742) — Assignments —Review.
    An assignment that the court erred in overruling the special exception of defendant to plaintiff’s failure to allege a contract in writing will not be considered, where no statement is submitted and the court on appeal does not know to what ruling complaint is made.
    [Éd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Frauds, Statute op (§ 150) — Demurrer-Grounds.
    Where the petition did not show that a contract for the sale of real estate was oral, an exception to the petition for failure to allege a contract in writing was properly overruled.
    [Ed. Note. — For other eases, see Frauds, Statute of, Cent. Dig. §§ 360-362; Dec. Dig. § 150.]
    6. Specific Performance (§ 114) — Sale of Real Estate — Performance.
    A petition, in an action for the failure of a purchaser of real estate to perform his part of the contract, which alleges the execution by the vendor of a deed to the premises and delivery thereof in escrow for delivery on conditions specified to the purchaser, and the delivery to the escrow holder by the purchaser of a check for delivery to the vendor on specified conditions, and which avers that the vendor removed to other premises after a sale of her personalty at a sacrifice, in reliance on the contract, and a delivery of the possession of the premises to the purchaser and his refusal to take possession and pay the money, alleges such performance by the vendor as will entitle him to specific performance, even if the contract was not in writing.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 356-370, 372; Dec. Dig. § 114.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge. .
    Action by Mollie C. Benedetti against D. Fahey and others. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    John W. Campell, of Galveston, for appellant. Maco & Minor Stewart, J. E. Quaid, Homer Jones, and Louis Lobit, all of Galveston, and C. R. Edwards, of San Antonio, for appellees.

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

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

   MOURSUND, J.

Mollie C. Benedetti sued David Fahey, J. L. Boddeker, and J. E. Bod-, deker, the last two being partners under the firm name of J. L. Boddeker & Co., alleging that about March, 1912, Fahey purchased from her a lot in the city of Galveston; that she delivered the deed to J. D. Boddeker & Co. to be delivered to Fahey, which was done, and Fahey, as consideration for said deed, executed and delivered to Boddeker & Co., his check for $2,500, drawn on Ed. McCarthy & Co., Bankers, which cheek was received by said Boddeker & Co. in trust for plaintiff to be delivered to her; that Fahey stopped payment of the check, and refuses to pay for the property; that by reason of the premises Fahey is indebted to plaintiff in the sum of $2,500, and plaintiff tenders him possession of the premises as she has heretofore done; that as Boddeker & Co. refuse to deliver the check they are made parties to this suit; that it was understood and agreed between plaintiff and Fahey that the taxes and in-cumbrances against the property sold should be paid out of the $2,500 by Boddeker & Co., and the remainder was to be paid by them to plaintiff; that plaintiff sold her furniture and effects at a sacrifice, rented other property, removed to such other property such of her effects as remained unsold, all with Fahey’s knowledge, and delivered to Fahey possession of the property sold him; that Fahey’s refusal to pay the money and take possession of the property was for the sole purpose of 'acquiring for himself the property at less than $2,500, and was done willfully and maliciously for the purpose of harassing plaintiff; that plaintiff is about to lose her property by reason of the incumbrance against same, and, being aged, she suffered mental anguish and distress of mind to such extent as to impair her health. Plaintiff prayed for judgment for $2,500, the amount of the check, for $10,000 actual damages and $10,000 exemplary' damages, and that the contract of sale be specifically performed, and for costs and general relief.

Fahey answered by general demurrer; a special exception that plaintiff in effect sues for specific performance of a contract to convey real estate, and there is no allegation of a contract signed by Fahey, or of such mutuality among the parties, as would entitle plaintiff to specific performance, and also because the terms and provisions of the contract are not alleged; a general denial; a special answer to the effect that if he bought the property it was with the understanding that the title should be perfect and be satisfactory to and approved by his attorney and the property vacated by plaintiff and delivered to Fahey, and that the title was imperfect and not approved by his attorney, there being at the time an incumbrance by mortgage for more than $2,000, as well as a- lien for taxes, both of which liens were not released at the time of the alleged delivery of the property and the check, and in addition said property was the homestead of plaintiff, who was a married woman, incapable of selling same without her husband joining in the sale, and her husband did not join therein, and the property was not delivered to Fahey; a further special answer that the check was not delivered to Boddeker & Co. as plaintiff’s agents, but merely to provide a way for Fahey’s attorney to close the sale during Fahey’s absence, he then being about to absent himself from the city for an indefinite time, and at the time plaintiff was in possession of the property and no rights in the check were intended to be vested in her unless Fahey’s attorney should direct the same to be cashed or delivered to plaintiff; and further answering Fahey alleged that, if he ever bought said property, plaintiff so delayed in the delivery thereof and made accusations against Fahey of forcing her to make a sale to him at much less than the value of the property, that Fahey on account thereof, and because of the mortgages and tax liens, and because the title was not satisfactory to his attorney, declined to accept the property and demanded the return of his check, and it would be unjust to him to require him to pay for said property. He prayed that such sale, if any there was, be set aside, and the check canceled.

The court instructed a verdict for plaintiff for $2,500, with interest from March 1, 1912, at the rate of 6 per cent, per annum, out of which was to be returned to Fahey $106.63, taxes, and $2,109.37, the amount of the mortgage debt, and that title to the property be divested out of plaintiff and vested in Fahey. A judgment was entered upon this verdict, which provided for the payment of taxes and the mortgage debt by the clerk of the court out of the $2,500 when the same should be collected under execution, and that upon payment of the judgment the clerk should deliver Fahey the check, also that the judgment should be' satisfied upon the filing by Fahey of receipts showing the payment of the .taxes and the mortgage debt and upon his paying the remainder of the-.judgment to the clerk together with the costs, and it was further ordered that J. L. Boddeker and J. B. Boddeker be dismissed from the case, and that they recover of Fahey all costs incurred by them. Fahey appealed.

By the first assignment of error it is contended that the court erred in instructing a verdict for plaintiff, three grounds being urged, each. being a contention that in a certain particular the evidence was sufficiently conflicting to go to the jury. The assignment does not refer to the paragraphs of the motion for new trial in which the questions were presented to the trial court for revision, nor does the statement contain such reference, and upon examination of the motion we find no reference to the last ground urged in the assignment of error as a reason why the verdict should not have been instructed for plaintiff. The assignment is followed by three propositions, all of which are mere abstract propositions of law, casting no light upon the matter under investigation. These propositions are followed by a statement which fails to comply with the rules, as it consists of appellant’s conclusions concerning what the testimony -shows, interspersed with arguments. Reference is' incidentally made to the fact that the testimony of Fahey and that of plaintiff and J. L. Boddeker is set out in the brief, and we find the same in a “Statement of Material Facts,” wherein appellant devotes 12 pages of the brief to a statement of all the testimony deemed material by him. No reference is made to the page or pages of the preliminary statement on which the matter bearing upon this assignment is to be found. In fact, we are left to search the entire preliminary statement to see whether any merit exists in any of the contentions attempted to be made by the assignment. Bach issue raised by the assignment should have been presented by an appropriate proposition, and' supported by a statement of the evidence relating to that particular issue. The assignment, not being briefed in accordance with' the rules, should not. be considered. We are, however, of the opinion that there is no merit in the two contentions which could have been presented under this assignment.

We do not consider the evidence conflicting upon the issue whether the amounts due for taxes and incumbrance were to be paid out of the $2,500 to be paid by Fahey. Fahey testified he had no idea the money was to be paid out of his check, that he did not look at it in' that way at all, and never paid any attention to it, that all he wanted to know was that the property was straight, and all he wanted Boddeker to do was to be guided by his attorney. His testimony is evasive when asked to state what occurred in Boddeker’s office with respect to paying off the mortgage and tax liens out of the check, while Boddeker’s testimony is clear and explicit, and the facts show beyond dispute that it was contemplated by all parties that the charges against the property should be paid out of the $2,500 to be paid by Fahey. He, as well as the other parties, knew- that plaintiff had no way of paying such- charges except out of the price received for her home. Fahey made his check payable to the Bod-dekers, instead of to plaintiff. It was undisputed that the Boddekers were stakeholders for the parties, intrusted by each with certain duties to be performed. For Fahey they were to see that not only the amounts due for taxes and incumbrance were paid, but also the amount due for the abstract of title. Fahey told Boddeker to get an abstract of title and deliver the same to his attorney, which was done. This is not disputed by Fahey. Why did he order the abstract of title? If plaintiff was unable to procure same, how was she expected to pay for same unless out of the proceeds of the sale? Why was the cheek made payable to the Boddekers if these charges were not to be paid out of same? No reason is given, and it is clear, even without the testimony of Boddeker, that the understanding was that the charges were to be paid by Boddeker out of the proceeds of the check, and Bod-deker at once made out his checks and had them ready to- close up matters as soon as plaintiff should move . from the premises. The facts also show beyond dispute that Fa-hey’s attorney had stipulated what must be done to have the title made satisfactory to him, and that nothing remained to be done except to pay off the taxes and furnish receipt and pay off the incumbrance of which he had himself drawn- the release, and he knew and acquiesced in leaving it to the Bod-dekers to make such payments. He left a memorandum with them of the amounts to be paid to satisfy the mortgage debt. Further, it does not appear that plaintiff was to vacate the premises within any certain time, nor that she delayed unduly, nor that Fahey was in any way prejudiced by such delay as took place; that the Boddekers at his request nailed on the house upon the premises a “For Rent” sign, and it -does not appear that any one wanting to rent was prevented from doing so by reason of plaintiff’s slow removal -therefrom. ■ '

The second and third assignments also attack the judgment as unsupported by the evidence, but no statement of any kind, is made under either of them, and they will not be considered.

The fourth assignment reads as follows: “The court erred in overruling the special exception of defendant to plaintiff’s failure to allege a contract in writing, because the plaintiff must, before being allowed to have contract specifically performed, show that it is of such character as entitled her to relief sought.” No statement is submitted •under this assignment, and we do not know whether complaint is sought to be made of the oyerruling of the special exception here-inbefore stated in setting out defendant’s pleadings, or a similar special exception urged in a so-called “First Supplemental Answer.” The assignment should not be considered.

However, the petition does not disclose that the contract was verbal; hence the exception was properly overruled. Thomas v. Hammond, 47 Tex. 42. Lewis v. Alexander, 51 Tex. 578; Robb v. Traction Co., 82 Tex. 392, 18 S. W. 707; Land Co. v. Dooley, 33 Tex. Civ. App. 636, 77 S. W. 1030.

Besides, the petition alleged such a performance on the part of plaintiff as would entitle her to have specific performance required of Fahey. Tinsley v. Miles, 26 S. W. 1000; Showalter v. McDonnell, 83 Tex. 158, 18 S. W. 491; Fulton v. Robinson, 55 Tex. 401.

The Judgment is affirmed.