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    PEDEN IRON & STEEL CO. v. JENKINS et al.
    (No. 336.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 22, 1918.
    Rehearing Denied May 1, 1918. On Second Motion for Rehearing, May 22, 1918.)
    1. Triial <@=412 — Waiver of Objection to Evidence — Cross-Examination.
    If it was error for a witness to testify as to value of certain neighboring oil land as _ a basis for fixing the value of oil lands in suit, the objection was waived, where the same ground was covered on cross-examination, and testimony as to value of still other lands was brought out.
    2. Evidence <§=142(4) — Similar Pacts — Value oe Oil Lease.
    In arriving at the value of a certain oil lease at a certain time, it was proper to show the value of a similar adjoining lease, the conditions regarding the two leases, improvements, quality,' etc., being alike, and tyhat the adjoining lease could have been sold for under the existing conditions.
    3. Appeal and Error <@=1050(1) — Harmless Error — Evidence. '
    Where oil scouts admitted on the stand that an oil lease was worth what it could be sold for, it was harmless, if error, to allow the other party to show what oil. leases and stock were soiling for in the locality at the time.
    4. Evidence <@=501(7) — Opinion Evidence-Basis oe Opinion. •
    A witness, testifying as to the value of an oil lease at a certain time, was properly allowed to state facts concerning transactions in the same locality at the time, on which he based his opinion.
    5. Evidence <@=151(1) — Valuation of Oil Lease — Reasons.
    In an action by creditor against stockholders individually, because of alleged overvaluation of the oil land given for the stock, a stockholder, who was one of the incorporators, was properly allowed to testify as to reasons for placing such-value on the oil lands.
    6. Evidence <§=142(l) — Similar Facts — Value oe Oil Lease.
    In arriving at the value of an oil lease on 10 acres, it was not improper to admit evidence of price of fractions of acres sold adjoining such land.
    7. Evidence <@=113(6) — 'Value oe Oil Lease —Sale oe Stock.
    In arriving at the value of an oil lease claimed to have been overvalued by the incor-porators, it was proper to shdw what specific corporate stock sold for, or could have been sold for, because what the stock would sell for was the value of the lease.
    8. Evidence <@=113(6) — Value oe Oil Lease —Exchange of Stock.
    In arriving at the value of an oil lease, it was proper to admit evidence of exchanges of property for stock of the corporation, where the value of such property was shown; its weight being for the jury.
    9. Corporations <§=269(3) — Stock—Valuation of Property.
    Evidence held sufficient to sustain a finding that incorporators did not overvalue an oil lease given for stock in their statement to the secretary of state, so as to render them individually liable for debts of the corporation.
    10. Corporations <@=232(3) — Stockholders’' Liability — Valuation of Property.
    Acceptance by the secretary, of state of the valuation of an oil lease placed upon it by in-corporators, who issued stock on such valuation, renders such valuation prima facie correct, and it can only be called in question in case of fraud.
    11. Corporations <@=269(2) — Evidence—Action against Stockholders — “Good Faith.”
    In action by creditor against stockholders individually by reason of alleged overvaluation of an oil lease in statements to the secretary of state, any surrounding circumstances affecting the property, and methods of arriving at the valuation, were admissible to show good faith, which, as used in law, simply moans honesty ; without fraud, collusion, or deceit; actually without pretense (citing Words and Phrases, Good Faith).
    Appeal from District Court, Robertson County; John Watson, Judge.
    Action by the Peden Iron & Steel Company against E. G. Jenkins and others. Judgment for defendants, motion for new trial overruled, and plaintiff appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood and J. C. Townes, Jr., all of Houston, Bowers & Bowers, of Caldwell, and Perry & Woods, of Franklin, for appellant. C- S. Williams, of Caldwell, Searcy & Botts, of Brenham, H. S. Morehead, of Franklin, and W. C. Davis, of Bryan, for appellees.
   BROOKE, J.

About February 21, 1915, a flowing well was brought in in the Thrall oil field, near the town of Thrall, in Williamson county, Tex. The well was on the land belonging 'to one Fritz Fuchs. A few days later another' flowing well was brought in on the Fuchs land, about 150 feet from the first well, known as the Murphy well. Both of these flowing wells continued to flow oil, without apparent diminution as to the quantity of oil produced, until after April 20, 1915. The bringing in of these oil wells in an entirely new field caused quite a lot of excitement. About April 1, 1915, the appel-lees, 20 citizens, formed a pool, each putting in $300, for the purpose of buying a lease in this new oil field and developing the same for oil. E. G. Jenkins was appointed as agent to visit the field and purchase the lease, if possible. About'April 1st -Mr. Jenkins purchased the oil rights on 10 acres of land, part of the Diebel tract, paying therefor the sum of $2,500 in cash. This lease carried a three-eighths royalty. Jenkins and his associates, appellees here, did not at once incorporate and sell stock and develop the land. They firbt had a well sunk on the land. About April 17, 1915, a flowing well was brought in. Three or four days before this well was brought in, a flowing well was brought in on the Thrall Independent Company tract, a 10-acre lease adjoining that .owned by appellees; the wells being about 350 feet apart. After the well was brought in, the owners of the lease, the appellees, - visited Thrall and inspected the well. They then met at Taylor for the purpose of incorporating, and discussed the value of the lease with the well on it. It was concluded that the lease with the well on it was conservatively worth $120,000, and that the company should be incorporated for that amount; the lease to be transferred to the company as its capital stock, and each one of the incorporators to own an undivided one-twentieth interest therein, for which, after the company was incorporated, stock was to be issued. No one subscribed for any stock in this company or agreed to pay for same. They transferred the 10-acre oil lease, with the flowing well thereon, to the company for $120,000, and were to receive stock of the company in payment for the same. An application for charter was made.'The aflidavit accompanying the application for the charter was as follows:

“State of Texas, County of .Williamson:
“Before me, the undersigned authority, on this day personally appeared J. R. Heslep, T. G. Heslep, and H. H. Womble, known to me, who having been by me first duly sworn, on oath say, each for himself: That they are the identical parties who executed the charter of the Caldwell Oil Company as incorporators, and that the full amount of the capital stock of said company has been in good faith subscribed, and that the full amout thereof has been paid in; that the following are the names and postoffice addresses of the parties subscribing to the capital stock of this company: [Setting out names and post office address of each.] That each of the above subscriptions was paid in full by conveying to the corporation a lease on all the mineral rights on ten acres of land out of the Diebold survey situated near the town of Thrall, in Williamson county, Texas, on which there is now one of the largest producing oil wells that there is in the newly discovered field near the town of Thrall, which is now producing at least 2,500 barrels per day. There is also being drilled on this property two more oil wells and others will be drilled from time to time. The land herein conveyed is more particularly described as follows: [Setting out description of property.]
“We and each of us, whose names are hereunto subscribed, solemnly swear that the value of $120,000, which we have placed on this property, is a reasonable and conservative one, and we further swear that every dollar of the stock of each of the stockholders herein can be sold at par and above.”

This affidavit is signed by J. R. Heslep, T. G. Heslep, and H. H„ Womble, and duly sworn to. The secretary of state accepted the valuation placed on the property and granted the charter. The company then commenced to do business and purchased some oil machinery, etc., from the agent of appellant, who was on the ground for the purpose of selling the goods, and who saw the well and flow of oil from.it before he sold the goods.

After a short while the wells failed, and the corporation was placed in the hands of a receiver. The appellant then filed suit in Williamson county against appellees, seeking to recover from them individually for the goods sold to the corporation, alleging all sorts of fraud in forming the corporation, and charging that the charter was procured from the' secretary of state through fraud, etc. The venue of this suit was by consent changed to Robertson county, after which appellant filed its first amended original petition, abandoning the allegations of fraud made in its original petition, seeking to recover against the appellees on the ground that they had overvalued the lease and had not paid for their stock.

The case was tried before a jury, and the only issue for the jury’s determination being the reasonable market value of the Caldwell Oil Company’s lease on April 20, 1915, and the jury having answered that the market value was $120,000, judgment was rendered in favor of appellees on June 13, 1917. Motion for new trial was by the court overruled, and the case has been properly brought by appeal to this court.

The first assignment of error complains of the action of the court in permitting the witness Dr. ■ Y. F. Hopkins, over the objection of plaintiff, to testify to the effect that he thought he could have sold his certain lease on a certain 10-acre tract of land in the vicinity of the Caldwell Oil Company’s lease for $200,000, because and for the reason that said testimony is incompetent and immaterial, in that it does not tend' to show the value of the lease in question, and because the same does not show even the market value of said adjacent lease, which said witness testified he could have gotten $200,000 for, and said testimony merely tends to show the opinion of said witness as to the value of said lease, without his first having qualified as an expert upon the value of leases of the same kind and character as the one at issue.

It is contended by appellees, among other things,- that if the court committed error in admitting the testimony of Dr. Hopkins, as complained of, which is not admitted, then appellant waived such error by its attorney fully going over the same subject on'cross-examination of said witness, and bringing out new and additional testimony of like kind from said witness. Without setting out the testimony of Dr. Hopkins in full, it is sufficient to say that upon cross-examination plaintiff’s attorney brought out the following testimony from the witness, which was not testified to on direct examination, to wit:

“I had some people bogging me to get my associates together and sell that 20 acres for $250,000. That was the Home Independent, just north and east of the Thrall Independent. That was considerably east of the Caldwell Oil Company’s 10-acre tract. It was not close to production. It was further from production; that is, most of it was. There was a little point that ran down just east of. the Thrall Independent nearest strip. * * * They were not going to organize a company and give mo some stock in it. We were not to have any stock in it. We were not to have anything to do with it. They wantecl to buy the lease. That was the last of April, or something like that; during the last few days of April. That was for $250,000 for 20 acres. It was a real estate man or agent who made the offer. I don’t know who he was buying for; some Eastern parties.”

■ As before said, nothing was asked this witness on direct examination about this 20-acre lease or its value. In the case of Cathey v. M., K. & T. Ry. Co. of Texas, 104 Tex. 41, 133 S. W. 417, 33 L. R. A. (N. S.) 103, Judge Ramsey, speaking for the Supreme Court, used the following language:

"The position announced in the above case with respect to cross-examination' is unsound, yet we understand the rule to be that where a party on cross-examination of a witness, brings out facts not testified to by the witness on direct examination, he makes the witness his witness as to such facts. And if upon cross-examination he brings out similar but different facts to those testified to on direct examination, to which his objection was directed, he waives the objection.”

In the case of Provident National Bank of Waco v. Howard, 199 S. W. 658, the court holds that, when a party elicits certain matters from plaintiff on cross-examination, it is harmless to admit the same evidence by a later witness. In the case of Slayden v. Palmo, 108 Tex. 413, 194 S. W. 1104, the Supreme Court held that a case would not be reversed for the admission of improper evidence, when similar testimony had been given without objection.

It will be remembered that the testimony of Dr. I-Iopkins objected to was that he believed he could have sold his 10-acre lease on a certain 10-acre tract in the vicinity of the Caldwell Oil Company lease for $200,000.

It is further contended by appellees that it was competent for the appellees to show the value of leases adjoining their lease, of similar acreage, location, and character of soil, etc., that, reduced to the last analysis, values are but opinions of witnesses; and, further, that what one can sell his property for is what it is worth, and that when we speak of the market value of property we mean for what it can be sold, and that the witness, having given the facts upon which he based his opinion of values, had the right to give his opinion of what his 10-acre lease, with a flowing well in it, as well as what the Caldwell Oil Company’s lease, was worth; and, further, that any person living in the neighborhood of lands and familiar with the same can testify as to their value, and that it is permissible to prove values of lands by comparison with similar lands in the same locality; and it is argued that the property of a corporation is represented by the stock issued to its stockholders, and what the stock sells for is what the corporation is worth; that there are several ways of arriving at the value of the stock or the property belonging to the corporation.

The witness Hopkins testified that the lease of the Independent Thrall adjoined that of the Caldwell Oil Company, and that both had a flowing well on their land, the Caldwell Oil Company’s well flowing twice as much oil as the Thrall Independent’s well, and further testified that he had bought and sold leases, and that stock in his, or the Independent Thrall, had sold for from $150 to $180 per share, and that he had been offered $200 for some of his stock. It was not error, it is contended, to permit him to state that in his judgment he could have sold the Thrall Independent for $200,000. Having given the facts upon which he based his reason or opinion, the question went to the weight, and not to the admissibility, of the evidence.

It is further argued, and with' apparent truth, that the general rule is that the true test of the value of a thing is what it will bring on the market. But, to constitute market value, it must appear that similar things have been bought and sold in the way of trade in sufficient quantity or frequency to establish a market value for such things; that, where there is no market value for the thing, its value must then be ascertained by the circumstances of the nase, the intrinsic value of the thing, the cost of it, its uses, the price asked and offered for" it, and, indeed, any facts which would naturally affect the mind of parties buying or selling in determining the price asked or given. There was no lease in the Thrall oil field, with a producing well on it, bought or sold, and, that being the case, we are unable to compare what leases with a producing well on them sold for, in determining the value of a lease that had been developed and had a producing flowing, well or gusher on it, and so, it is argued, the only way of determining the value of the Caldwell Oil Company’s lease, at the time, was to show what stock in this, as well as in the Thrall Independent, sold for, or could have been sold for, and the demand for the property. We are cited to the case of St. Louis & I. M. Ry. Co. v. Maxfield Co., 94 Ark. 138, 126 S. W. 84, 26 L. R. A. (N. S.) 1111, in which the following language is used:

“As a general guide to the range which the testimony should bo allowed to assume, we think it safe to say that the landowner should be allowed to state, and have his witness to state, every fact concerning the property which he would naturally be disposed to adduce in order to place it in an advantageous light, if he were attempting to negotiate a sale of it to a private individual. * * * In offering testimony on this issue, the owner was not limited to any pre-existing use of the land. If it was of littie value as a fai'm, or for common uses, and was of great value as mineral land, or as a town site, that fact might be shown, though it had never been so used.”

It seems that Dr. Hopkins lived in the neighborhood of the Thrall oil field, visited the field practically every day after the first well came in, bought and sold leases, knew of the excitement created by the bringing in of this field, of the number of people that flocked to the field for investment purposes, brought in a flowing well on a 10-ac-re lease adjoining that of the Caldwell Company’s lease, knew stock in his company had sold for $150 to $180 per share, and he had been offered $200 for some of his stock.

The question is: Was it proper for him to state what his lease with the well on it was .worth, or for what, in his judgment, it could have been sold, and by comparison state what the Caldwell Company’s lease with a flowing well on it was worth? We are of opinion that it is proper, in proving the value of the Caldwell Oil Company’s lease with a flowing well on it, to show the value of the Independent Thrall 10-aere lease with a flowing well on it, which was adjoining the Caldwell lease, the conditions regarding the two leases, improvements, quality, etc., being alike, and-in proving the value of the lease of the Independent Thrall It was proper to prove what it could have been sold for under existing conditions. The well of the Caldwell people was' brought in on April 17, 1915. The well of the independent Thrall, on an adjoining lease and out of the same survey, was brought in on April 13, 1916. The Caldwell people incorporated on April 20, 1915. The value placed by them on their property in the corporation is assailed as being excessive. We believe it was proper for the appellees, in showing the value of their 10-acre lease with a flowing well on it, to show the value of the Thrall Independent 10-aere lease with a flowing well on it. The two leases were adjoining and similar with reference to improvements and in other respects, and in showing the value of the Thrall lease it was proper to show what it could have been sold for.

The contention of appellant is that the lease of the Caldwell Oil Company had no market value at the time it was incorporated, or, if it did, that no one could testify as to its value, except some oil experts. Some of these scouts were permitted to tell the jury what, in their opinion, the lease was worth, although each of them admitted on cross-examination that no one could tell where oil was located, or when found, how long it would last, etc., and that property was worth what you could sell it for. Therefore we believe it was proper, the appellant having introduced this character of testimony, for appellees to show by Dr. Hopkins, who lived in the neighborhood of the Thrall field, visited the field daily from the time the original well was brought in, bought and sold leases, saw trading in them, developed a 10-acre lease adjoining the Caldwell lease, knew of stock in his well selling for from $150 to $180 per share, was offered $200 per share for some of his stock, the par value being $10, the value of his well, for what it could have been sold, and by comparison state what in his judgment the Caldwell Company’s lease with the well on it was worth. Therefore we hold that, if the admission of this testimony was error, it is not reversible error, under the circumstances of this case. Therefore the assignment is overruled. City of Ft. Worth v. Charbonneau, 166 S. W. 387; Boyce v. Gingrich, 154 Mo. App. 198, 134 S. W. 81; Railway Co. v. Maxfield Co., 94 Ark. 135, 126 S. W. 85, 26 L. R. A. (N. S.) 1111; Railway Co. v. Davis, 1 White & W. Civ. Cas. Ct. App. § 147, p. 58; State v. Meysenburg, 171 Mo. 1, 71 S. W. 239; Brinkerhoff v. Home Lbr. Co., 118 Mo. 447, 24 S. W. 133; Railway Co. v. Hill, 70 Tex. 54, 7 S. W. 659; Railway Co. v. Mackie, 71 Tex. 498, 9 S. W. 451, 1 L. R. A. 804, 10 Am. St. Rep. 766; Letcher v. Morrison, 79 Tex. 241, 14 S. W. 1010; Wallis v. Schneider, 79 Tex. 479, 15 S. W. 492; Slayden v. Palmo, 108 Tex. 413, 194 S. W. 1103; Railway Co. v. Packard, 193 S. W. 397.

The second assignment of error complains that the court erred in permitting the witness, Dr. L. L. Lee, to testify over the objection of plaintiff with reference to what he was offered for a 10-acre lease owned by him, as is- more fully shown in plaintiff’s bill of exception No. 21. The issue in the case was the market value of the Caldwell Oil Company’s lease. ■ The contention of ap-pellees is that appellant was contending, among other things, that the Thrall oil field had not settled down to a steady production, and that there was no way of showing it had a market value, although it introduced a lot of oil scouts, who attempted to show that the lease was not worth $120,000. It was contended that it was proper, therefore, under the circumstances, to show the value of this lease, by showing, not only what similar leases sold «for, but what they could have been sold for; there being no market value for the stock or property on April 20, 1915, and the purpose-of appellant being to show that, on account of the well on the lease of appellees having been brought in on the 17th of April, 1915, and the corporation formed on April 20,’ 1915, that there was no market value for the stock or property at this particular time, that the only way market value could be'proven for this property was by a lot of oil scouts, who were familiar with the different oil fields in Texas, and had had experience in buying and selling oil leases in other places, but not in this field. On the contrary, the contention of appellees was that the lease with the oil well on it was worth $120,-000, the amount they incorporated for, and that in proving the value of the lease they were not confined to the oil experts, but anybody familiar with the property and locality of the lease, and conditions existing at the time, could testify, and that in testifying as to the value of other property in the neighborhood similarly situated, what Stock in this company and other companies similarly situated with reference to improvements, etc., sold for, was proper to go to the jury to aid them in arriving at what the property was worth. And it is further contended by ap-pellees that the general rule is that the true test of the value of a thing is what it will ■bring in the market; that, where there is no market value for such a thing, its value must then be ascertained by the circumstances of the case, the intrinsic value of the thing, the cost of it, its uses," the prices asked and offered for it, and, indeed, any facts which would naturally affect the minds of the parties buying or selling, in determining the price to be asked or given. The fact that no 10-acre lease in the Thrall oil field with a flowing well on it was sold, and it being thereby impossible to show the sale of property substantially similar to that of the Caldwell Oil Company, would not, in our judgment, render the lease valueless, nor would It preclude the appellees from showing its value in other ways. The Lee lease was adjoining the Caldwell Oil Company’s lease on the north, the appearance of the land from the surface being the same as that of the Caldwell Company’s, and, in our judgment, it was proper to show what Dr. Lee was offered for his lease, as well as what he sold part of it for. The assignment is overruled.

The third assignment complains that the court erred in permitting the witness Lee to testify, over the objection of plaintiff, that in his opinion the fair and reasonable market value of the Caldwell 10 acres of land with a well on it was, in April, 1915, the sum of $120,000, because, in the first place, the witness was not qualified to give an opinion with reference to the value of the said oil land, because he had not been sufficiently qualified, and had no experience whatever in the oil business prior to said April, 1915, and for the further reason that said question and the answer thereto sought to be elicited were wholly irrelevant and immaterial, because the inquiry was with reference to the value of a 10 acres of land, and the only matter to be determined by the jury was as. to the value of the Caldwell lease, and therefore the testimony of the said witness Lee was wholly irrelevant and immaterial, and prejudicial to the rights of the plaintiff. The witness Lee stated that he knew the market value of the property in the Thrall oil field, and of that belonging to the appellees, and it was proper for him to state the facts upon which he based his opinion. He stated:

“I was about the Thrall oil field during the spring of 1915, while that oil excitement was going on. I stayed there nearly all the time for about two months. I do remember the well that was brought in by the Caldwell oil people. I had a lease adjoining it on the north. My lease was also on the Diebold survey. There were 10 aeres in my lease. There was development going on on my land, at the time the Caldwell people brought in their well. I was having a well bored. I did sell some of my property. I sold a quarter of an aere, and then sold one-sixth of an acre. I got $2,000 for the quarter acre, and I retained a1 one-eighth royalty . above the royalty I was giving. 1 sold my one-sixth of an acre at $500, with the royalty of the same. I did have a number of offers to sell that whole 10-acre lease. The hest offer I had was $50,000. There ,was no producing well on it. That lease, was on the north and adjoining the lease owned by the Caldwell people; the Caldwell people were directly south of my tract. There was quite a good deal of activity in the real estate market for oil purposes, and a good many people were up there buying and selling leases. After the Caldwell ■ oil well was brought in, it had a very stimulating effect on property in the neighborhood, in that neighborhood. , The people were nearly crazy, and went wild after that. It did not look like values had much of a limit. It didn’t look like there was any'limit to what they would pay for it after the well came in. That well was one of the best producers in the field. I saw it, and saw the other wells, and I think it the. second best I have seen in the field. The best well was the Murphy well. I do know what lands were selling for in that neighborhood at that time, and I also know what the market value of property was- then., I had bought and sold and seen other property sell, and I think I know about what it brought at that time. After having stated the facts with reference to this matter that I have, I should think that $150,000 would not have been at all unreasonable as the fair reasonable market value of that 10-acre tract of land with that well on it on April' 20s 1915, three days after it came in. Taking the sentiment present at that time, I think $120,000 was a conservative estimate of the value of the property at that time.”

The subject of inquiry was the 'value of the lease owned by the Caldwell people. It is our opinion that there was no prejudice to the appellant in this testimony, and the assignment is overruled.

The fourth assignment of error complains of the action of the court in permitting the witness L. W. Hensley to testify over the objection of the plaintiff with reference to the value of the Caldwell oil lease, because the testimony clearly shows that the said witness was not qualified to give an opinion as to the value of said oil lease; he having had no experience in the oil business, and had no information with reference to the values of oil leases, and had not seen any sales made in the oil field of Thrall, and therefore was wholly disqualified from testifying as to the value of the said oil lease. This testimony was objected to on the trial of the case, which objections were overruled, and the witness permitted to testify what, in his opinion, was the value of the oil lease. It seems that Hensley was one of the original incorporators, and he was permitted to state to the jury the reasons he had for placing the value he did on the lease, and his testimony shows substantially:

That he had held a position of sheriff of the county for about 12 years. That they put up the money for the lease, and that they sent Jenkins to purchase the property. That after the purchase of that lease they put down a well, and got a flowing well. That they drilled six wells all told; that No. 2 was a flowing well, and the other wells had a little oil, but not very good. That he had occasion, after well No. 2 came in, to go into Thrall and measure the oil that came out of No. 1. ‘‘J. Louis Glddings, B. F. Delemater, and myself went up there and measured the oil in that well. The way we measured it was we had two tanks. _ I don’t remember what they were, but I believe they were 1,000 barrels and 1,600 barrels. We had a measuring pole, and we put it in the tank to see how deep the oil was, then turned the oil in for a certain number of hours, I believe 12, and then calculated to see what it was putting out in 24 hours; the two wells, first one, and then the other. According to our calculations, both wells having been turned in, they were producing about 1,300 barrels per day. That was something like two weeks after we incorporated. I was present the night they agreed to incorporate at Taylor, and was also present when we fixed the value of the land at $120,000. We believed that this well was putting out anywhere from 2,000 to 2,500 barrels per day, and we were getting something like 45 cents per barrel for the oil, so we knew that would be something like $1,000 to $1,200 per day, and that is the basis on which we figured and arrived at that $120,000 valuation. We estimated among ourselves that it was really worth $200,-000. We made that estimate on the well’s production, and we put it in at $120,000. I did not offer to sell any of my stock in that well, because it was not for sale. I did enter into an1 agreement among the majority of the stockholders to hold it. That agreement was that we would hold our stock and not . sell it. We put a value of $50 on the stock; that is, 2Ya for 1.”

Taking in consideration the fact that the appellant claimed that the lease was not worth anything like what it was valued at, and placed in the corporation for, in our judgment it- was proper, under the circumstances, for the witness to testify how he and his associates arrived at the válue they placed on the lease, and that the way they arrived at the value of the property was to show the revenue it was producing. The Fuchs and Murphy wells were still producing apparently the same amount of oil as when first brought in, which had been two months before the Caldwell Oil Company brought in their well. Therefore these people had the right to presume -that this well would continue to flow oil, together with the other wells to be sunk by them on the lease, and to valué it accordingly. The jury were entitled to know the facts, and in our judgment the assignment must be overruled.

The fifth assignment complains that the court erred in permitting the witness I>r. L. L. Lee to testify, over the objection of the plaintiff, that he had sold one-fourth of an acre of land near the Caldwell Oil Company’s lease for $2,000, and one-sixteenth of an acre near the said lease for the sum of $500, because the testimony was wholly irrelevant and immaterial, and no evidence was shown that the land sold by Dr. Lee and the land on which the Caldwell lease was were in any manner similar, and nothing is shown with reference to whether or not the royalties on the land were the same or different, and for the further reason that the value of the Caldwell lease could not be determined by showing what a segregated one-fourth acre of another tract might sell for, as it is a matter of common knowledge, and is also shown by the evidence in the record, that a larger price can be obtained for small tracts than for large tracts. Without going into the matter at length, we are of opinion that there is no merit in the assignment, and it is therefore overruled.

The sixth assignment complains that the court erred in permitting the witness J. R. Fraim to testify, over the objection of the plaintiff, with reference to what one-sixteenth of an acre and one-fourth of an acre in the Thrall oil field sold for, because it was not shown that these tracts were similar to the Caldwell Oil Company’s 10-acre lease with reference to quantity, quality, character of improvements, and terms of the lease, and further because it is an undisputed fáct in this record, testified to by defendants’ own witnesses, that a tract of one-fourth of an acre, or one-sixteenth of an acre, would sell for more money per acre than a 10-acre tract, and further because the proof of isolated sales is not competent to establish the market value of other property. It is urged by appellee that there was no error in the action of the court in permitting the witness to give the testimony complained of in this assignment of error; that appellant, upon cross-examination, caused this witness to testify to similar matters not brought out on direct examination; that the witness testified that he thought this sale was before April 20, 1915; that it was after the Caldwell well came in; that this piece of ground adjoined that of appellees, and it was therefore admissible to show what it sold for, as a circumstance in establishing value. We are of opinion that there is no merit in the assignment, and same is overruled. ■

The seventh assignment complains that the court erred in permitting the witness G. W. Grant to testify, over the objection of plaintiff, with reference to what he was offered for some of the stock of the Caldwell Oil Company, because the said offers could not constitute the value of the said Caldwell oil lease. . This assignment will be considered in connection with the eighth and ninth assignments, which will be grouped and considered together. It will be noted that appellees, in making application for the charter to the secretary of state, having stated, in the affidavit accompanying the application with ieference to the value of the lease, that "we and each of us, whose names are hereto subscribed, solemnly swear that the value of $120,000 which we have placed on this property is reasonable.and conservative, and we further swear that every dollar of the stock of each of the stockholders herein can be sold at par and above,” it was proper, in our judgment, to show what was offered for the stock and what it was sold for. The stock represented the property of the corporation, and, if the stock could have been sold for par, then the lease with the well on it was worth $120,000, the value placed on it by appellees. We find no merit in these assignments, and they are therefore overruled.

The tenth assignment complains that the court erred in permitting the witnesses M. D. Rodgers, J. R. Fraim, G. W. Grant, O. O. Nelms, E. G. Jenkins, C. B. Oliver, J. E. Gid-dings, L. L.- Lee, and T. G. Ileslep to testify over the objection of plaintiff with reference to what the stock in the Caldwell Oil Company sold for; and the eleventh assignment complains of the action of the court in permitting the witness G. W. Grant to testify, over the objection of plaintiif, that he bought $1,600 worth of the stock in the Caldwell Oil Company at $27 per share, because and for the reason that such testimony does not show that said witness paid the prevailing market price of such stock at said time, but only shows a single and isolated transaction, which cannot and does not prove or establish the reasonable market value of either the stock in the Caldwell Oil Company or the value of the lease held by them. The stock Qf the Caldwell Oil Company represented the property of the company, and, in order for the jury to arrive at the value of the property of the corporation, it was proper to prove what was offered for the stock, and what the stock in the corporation sold for, and also those applying for the charter of the Caldwell Oil Company, in the affidavit as to the value of the property, having stated that' all of the stock in said company could be sold for par and better, it was proper to permit the witnesses to state what was offered for the stock, and what it actually sold for, and if all of the stock in the Caldwell Oil Company could have been sold for par, or better, then the property of the corporation was worth $120,000. The assignments are overruled.

The twelfth, thirteenth, fourteenth, and fifteenth assignments oí error are considered together. These assignments are:

(a) “The court erred in permitting the witness T. Kraitcher to testify, over the objection of the plaintiff, that he traded two certain houses and certain town lots upon which said houses were situated, which he considered to be worth $2,-000, for 80 shares of the stock of the Caldwell Oil Company, because and for the reason that such testimony is inadmissible and incompetent to prove the value of the lease of the Caldwell Oil Company, which was the only issue in question, since market value contemplates a sale for cash, and not a mere trade for other property, and such proof as to what the stock of the Caldwell Oil Company may have been traded for, and for other property, would not and could not establish the cash market value of such stock or of said lease, all of which is more fully shown by plaintiff’s bill of exception.”
(b) “The court erred in permitting the witness T. Kraitcher to testify, over the objection of the plaintiff, that he traded an Overland automobile for 7 shares of the stock of the Caldwell Oil Company, said trade being m^ide with Ed Dusek, and that said Dusek afterwards sold said automobile for $300, because and for the reason that said testimony was incompetent and inadmissible as tending to show the reasonable market value of the stock of the Caldweil Oil Company or the market value of the lease of said company, and because market value of the stock or lease cannot be proven by evidence as to what certain stock may have brought when traded for other property, unless the market value of such other property be, also shown in connection therewith, which the defendants failed to do in this case.”
(c) “The court erred in permitting the witness E. G. Jenkins to testify, over the objection of the plaintiff, that he traded an automobile worth $800 for 40 shares of stock in the Caldwell Oil Company, because said testimony was ir-"elevant and immaterial, and had nothing to do with the inquiry involved in this suit, that is, as to the market value of the lease owned by the Caldwell Oil Company, and further because what he traded for the said stock could not constitute the market value of the lease or of the shares of stock in the said' corporation, because the said testimony involved collateral issues; that is, even if under any circumstances the testimony was admissible as to what the automobile sold for, certainly it was not admissible as to a trade, as it was necessary to show the market value of the automobile before the jury could even find what the stock cost the said witness, all of which testimony was objected and excepted to.”
(d)“The court erred in permitting the witness J. D. Giddings to testify, over the objection of the plaintiff, that he traded for some of the Caldwell Oil Company’s stock an automobile and house, and gave in such trade from $20 to $30 per share, for the reason that said testimony could not throw any light upon the value of the Caldwell Oil Company’s lease, and for the further reason that the market value of a thing' cannot be proven by showing what the things were traded for, or the amount received therefor in a trade, and for the further reason that the market value of the stock could not be the basis for estimating the value of the lease, and also because isolated cases of trades cannot show the market value of a thing.”

Appellant’s contention in the court below was that the property had no market value, for the reason that no 10-acre lease similarly situated in the Thrall field had been sold, and that no market value had been established for the stock, and plaintiff offered its oil scouts to prove the value of this lease. We believe the testimony of the witnesses complained • of was admissible, as a circumstance to show the value of the property owned by the Caldwell Oil Company; its weight was for the jury. All of the witnesses whose testimony was complained of in the above assignments stated without objection the value of the property they traded for stock in the company, or traded stock in the company for. A critical examination of the testimony shows that there is no merit in the assignments, and therefore they are overruled.

The sixteenth and seventeenth assignments of error are as follows:

(a) “The court' erred iu permitting the witness D. S. Hensley to testify, over the objection of the plaintiff, with reference to the manner in which the value of the Caldwell Oil lease was ascertained by the several owners thereof at the time the charter of the Caldwell Oil Company was obtained from the secretary of state.”
(b) “The court erred in permitting the witness C. B. Oliver to testify, over the objection of the plaintiif, with reference to the manner in which the value of the Caldwell oil lease was ascertained by the several owners thereof at the time the charter of the Caldwell Oil Company was obtained from the secretary of state.”

The assignments are overruled.

The eighteenth assignment challenges the action of the lower court as being error in permitting the witness J. R. Eraim to testify over the objection of the plaintiff with reference to what he could have sold the stock of the Caldwell Oil Company for, because such testimony was irrelevant and immaterial, and because proof of what stock in the Caldwell Oil Company could have been sold for is not admissible to show the market value of the lease in question; further because tlie dates upon which said sale or sales could have been made by tbe said Fraim do not appear; and further because testimony from a witness as to what he believes he could have sold stock for is incompetent to show the market value of the stock, and certainly is incompetent to show the market value of a lease owned by the company. From what has been said heretofore, it follows that these assignments must be overruled.

The nineteenth assignment claims that the court erred in permitting the witness Dr. Y. F. Hopkins to testify,' over the objection of the plaintiff, to the market value of the Caldwell Oil Company’s 10-acre lease, because it was not shown that said witness knew the market value of said lease, or was in a position to know, or had such training and information as would permit him to give his opinion as an expert. Dr. Hopkins having been shown to be familiar with the value of property for oil purposes, it was proper to state the facts upon which he based his estimate of the value of the property. The assignment is overruled.

The twentieth and twenty-first assignments complain that the court erred in permitting the witness Dr. Hopkins to testify with reference to what the stock of the Thrall Independent Oil Company sold for, because the market value of stock in the Thrall Independent Company’s 10-acre- lease cannot be established by the proof of isolated sales of stock in that, company, and in permitting him to testify over objection of plaintiff as to what the lease owned by the Thrall Independent Oil Company could be sold for. We have considered this matter heretofore, and there is: no merit in the assignments, and same are overruled.

The twenty-second assignment eom'plains of the verdict of the jury as being against the great weight and preponderance of the evidence, in that the lease in controversy was not worth over §25,000 at the time of the incorporation of the Caldwell Oil Company. This is a voluminous record. The case was submitted to the jury on special-issues. The jury returned a verdict, that the lease, with the well on it, at the time the Caldwell Oil Company was incorporated, was worth $120,000. No complaint is made with reference to improper conduct on the part of the jury, and in our judgment the evidence sustains the verdict of the-jury.

The statutes of this state authorizing the creation of private corporations provide that, whenever the stockholders of such company shall furnish satisfactory evidence to the secretary of state that the full amount of the authorized capital stock has in-good faith been subscribed, and 50 per cent, thereof paid in cash, or its equivalent in other property or labor done, the product of which shall be to the company of the actual value at which it was taken or property received, it shall be the duty of said officer, on the payment of the official fee and franchise tax, to receive, file, and record the charter of such company in his office, and give a certificate showing the record thereof. It is further provided that the satisfactory evidence shall' consist, among other things, of those who execute the charter stating the cash value of any property received, giving its description and location, from whom and the price at which it is received, and that, if the secretary of state is not satisfied, he may, at the expense of the incor-porators, require other and more satisfactory evidence before he shall be required to receive, file, and record said charter. The subscribers in the instant case to the charter fully complied with this section in .every respect. The secretary of state- was satisfied with the value placed upon the property and recorded the charter as required by law. The secretary of state being the officer appointed by the state to pass upon the value of property, his acts in áccepting the value placed upon the property are prima -facie right, and can only be called in question in case of fraud. We understand in this case that there is no contention on the part of appellant that appellees fraudulently overvalued the lease, and there is no claim that they knowingly placed a fictitious value on the property, and deliberately perpetrated a fraud on the-secretary of state.

In the case of Coit v. Gold Amalgamated Co., 119 U. S. 345, 7 Sup. Ct. 233, 30 L. Ed. 420, the court uses the following language:

“When the charter authorizes capital stock to he paid in property, and the shareholders honestly and in good faith put in property instead of money in payment oí their subscriptions, third parties have no ground for complaint. The case is very different from that in which subscription to stock is payable in cash, and where only a part of the installment has been paid. In that case there is still a debt due to the corporation, which, if it becomes insolvent, may be sequestered in equity by the creditors, as a trust fund liable to the payment of their debts. But where full-paid stock is issued for property received, there must be actual fraud in the transaction to enable the creditors of the corporation to call the stockholders to account. A gross and over valuation of property would be strong evidence of fraud.”

In. the case of Tuck v. Downing, 76 Ill. 71, the court says:

“No man, however scientific he may be, could certainly state how a mine, with the most flattering outcrop or blowout, will finally turn out. It is, to be fully tested and worked by men of skill and judgment. Mines are not purchased and sold on a warranty, but on the prospect. The sight determines the purchase. If very flattering, a party is willing to pay largely for the chance. There is no other sensible or known mode of selling this kind of property. It is, in the nature of things utterly speculative, and every one knows the business is of the most fluctuating and hazardous character. How many mines have not sustained the hopes created by their outcrop!”

In the case of Young v. Erie Iron Co., 65 Mich. 111, 31 N. W. 814, it is said:

“But it is equally well settled that such cor-porators, are not responsible for an honest error of judgment, or a mistake in placing a valuation upon property appropriated or used as capital by a' manufacturing or mining company. Nor can the fact that a jury or court finds property of the nature of a leasehold necessarily fluctuating and speculative in value, worthless pow, and but of little actual value at the time of its appropriation as capital, he controlling in deciding whether or not such appropriation was fraudulent as against the creditors of the corporation. Such finding will be presumptive evidence of fraud; but if it be shown that those forming the company honestly believed it to be worth the amount specified in the articles, and that their mistake was one of judgment only, their action cannot be considered fraud, either in fact or law. The law imposes no penalty of this kind upon the stockholders or trustees of a company for a mistake or erroneous judgment in the honest and faithful discharge of his duties.”

All of the testimony that was admitted in this case by the trial court, over the objection of appellant, and especially that by appellees as to how they came to place the value they did on the lease, was admissible on the question of their good faith in valuing the property as they did. The expression “good faith,” as it is used in law, simply means:

“Honestly; without fraud, collusion, or deceit; really, actually, without pretense.” Words' and Phrases, vol. 4, p. 3117.

Article 1210, Vernon’s Sayles’ Statutes, reads as follows:

“No stockholder shall he liable to pay the debts of the corporation beyond the amount unpaid on his stock.”

At the time the corporation was formed, it owed no debts. Appellant’s claim and other debts were created after the corporation was formed. Appellant had its agent on the ground to see the conditions and to sell its goods. He saw the well brought in by the Caldwell Oil Company, and was anxious to and did sell said corporation the goods. He sold the goods to the Caldwell Oil Company, and probably expected the well to continue to flow in oil, and, if it did, he was taking no risk in selling the goods to the company. There was no show at concealment on the part of appellees as to what constituted the capital stock of the Caldwell Oil Company. The agent of the company saw the well producing oil,, and sold the goods to the company on the strength of it.

A careful examination of the record leads us to the conclusion that the case was fairly tried, and that there was no error committed in the trial thereof. It is therefore in all things affirmed.

On Second Motion for Rehearing.

We desire to say that in our original opinion we cite the case of Cathey v. M., K. & T. Ry. Co., 104 Tex. 41, 133 S. W. 417, 33 L. R. A. (N. S.) 103, and use a quotation therefrom which is apparently not used in said report. However, the confusion was brought about by improper punctuation, and on account of the fact that the opinion does not show where the quotation ended, and where the language of counsel began. Therefore the said case will be omitted from the opinion in this case. However, the views expressed in the remainder of the opinion have not been altered, and in our judgment must be adhered to.

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


source: Caselaw Access Project

author: MORROW, J. DAVIDSON, P. J.

license: Public Domain

text:
    ROBERSON v. STATE.
    (No. 4436.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    On Motion for Rehearing, April 10, 1918. State’s Rehearing Denied May 15, 1918.)
    1. Homicide <&wkey;300(7) — Instructions—Provoking Difficulty — Evidence.
    Evidence held, to warrant charge on provoking the difficulty.
    2. Homicide <&wkey;112 (1) — Self-Defense—Provoking Difficulty.
    A person may bring on a difficulty, which results in homicide, without forfeiting the right of self-defense, and this is true even if the act by which it was brought on was wrongful.
    3. Homicide <&wkey; 112 (5) — Self-Defense—Provoking Difficulty.
    To cut off self-defense on ground of provoking the difficulty, accused must have intended to provoke the difficulty, for the purpose of causing deceased to attack, .and thereupon to kill him or do serious bodily harm, and must have used means reasonably calculated to cause such result, and must have caused such result.
    4. Criminal Law <&wkey;823(6) — Self-Defense— Provoking Difficulty — Instructions.
    Where the court properly defined and explained what acts establish provoking the difficulty, and fui'ther gave accused’s reguested charge submitting the converse thereof, according to his defensive theory, the original charge was not defective in failing to submit such theory.
    5. Homicide <&wkey;3O0(7) — Self-Defense—Provoking Difficulty — Abandonment — Instructions.
    If accused, after provoking the difficulty, abandons it, and it is renewed by deceased, the court must instruct on the law of such abandonment.
    6. Homicide &wkey;>300(2) — Self-Defense—Provoking Difficulty — Instructions.
    Where accused relies on self-defense on communicated threats, accompanied by an overt act without actual attack, the charge on self-defense should be accompanied by and connected with a charge on the law of threats, but if actual attack is relied upon, the law of .threats may be separately charged.
    7. Criminal Law <&wkey;1036(7) — Appeal—Preservation of Exceptions.
    Though attorney could not bind accused by agreement for admission of testimony given on examining trial by witnesses absent at the trial, ■the admission of such evidence, without objection, did not vitiate the conviction, since counsel could have objected to such evidence.
    8. Witnesses <&wkey;349 — Character Witnesses —Cross-Examination.
    Where accused’s character as a peaceable, law-abiding man was in issue in prosecution for murder, the state’s counsel, in cross-examining character witnesses, could inquire whether they had heard of accused’s killing four men, outlaws, or Mexicans, or a negro train porter, for the purpose of testing the witnesses’1 conclusions and the information on which they were based.
    9. Criminal Law <&wkey;1171(l) — Appeal-Harmless Error.
    In prosecution for murder, argument of state’s counsel, in response to argument of accused’s counsel, appealing to jury as men created by God, as were other men named, whom accused was said to have killed, if error, was not prejudicial, where the conviction was for manslaughter.
    On Motion for Rehearing.
    10.Homicide <&wkey;300(l) — Instructions—Possession of Weapon.
    Having limited accused’s right of self-defense by a charge on provoking the difficulty, the court should have instructed as to possession of the revolver, where accused was a traveler, whose possession was not unlawful, and the meeting with deceased was casual.
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    H. L. Roberson was convicted of manslaughter, and he appeals.
    Affirmed. On motion for rehearing, motion granted, judgment reversed, and cause remanded.
    Moore & Harris, of El Paso, I. H. Burney, of Ft. Worth, M. W. Stanton, of El Paso, T. J. Newton, of San Antonio, and Martin & McDonald, of Austin, for appellant. Leigh Clark, Dist. Atty., Lea, McGrady & Thoma-son, and Hudspeth, Dale & Harper, all of El Paso, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant shot and killed H. F. Boykin, was indicted for murder, convicted of manslaughter, and the penalty fixed at confinement in the penitentiary for five years; hence this appeal.

Appellant was foreman of a cattle ranch situated in Mexico known as the T. O. ranch. Boykin owned a pasture near Sierra Blanca, in El Paso county. Mr. Leonard Pence, owner of the T. O', ranch, had arranged with Boykin to pasture cattle. Appellant and other employes, in charge of 70-odd head of these cattle, stopped at Sierra Blanca overnight en route to the pasture. The cattle were placed in one of the subdivisions of the railroad stock pens. In another subdivision there were cattle for shipment in charge of a witness named Cross. Boykin resided at Sierra Blanca, and his pasture was some 25 miles distant therefrom. Early in the morning appellant on going to the stock pens found deceased there, a quarrel between them ensued and the homicide followed. Prior to the arrival of appellant, Roberson, at the stock pens Cross and some of his employés reached them. There was a defect in the fence and some of the cattle during the loading got from one of the subdivisions into the other. There was evidence that appellant had been informed that the people in the vicinity of 'Sierra Blanca were hostile to him and would probably do him harm, and that deceased had threatened to kill him. Appellant’s account of the difficulty as taken from his testimony was, in substance, as follows; When he approached he saw that something was disturbing the cattle, and when he got near saw Tom Cross and deceased in the pen. Asking what they were doing, deceased, whom appellant did not know, said it was “none of my damn business,” cursed him, and said, “We Sierra Blanca people know who you are; you are a damn cowardly son of a bitch,” and started toward appellant, making a demonstration as to draw a weapon. Appellant, as lie claims, then dismounted and .drew bis Winchester, but, discovering that deceased drew a knife, he put up his Winchester and started to enter the gate, but, thinking of what he had heard the Sierra Blanca people were going to do, he says:

“X decided to stay away from those people. In pursuance of that idea, did not finish opening the gate; got on my horse and rode away to where the pack mules were, out towards the end of the wing just north of the gate, and took the mules back around the wing on west side, so they would not stampede the cattle.”

He claimed that when he left deceased was still cursing him, and that when he was riding around the wing deceased climbed up on the west string of the fence, and when appellant came near deceased was on top of the fence with his knife in his hand, and began to curse appellant again. Appellant says;

“Then I asked him not to curse me and call me a son a bitch. He was standing on the fence, and he reached out with his knife, and I struck him on the hand with the rope, and tried to knock the rope out of his hand, when he grabbed it with his left hand and threw it inside the corral. He still had his knife in his right hand, and I struck at his hand with my pistol, but did not hit it.”

Appellant claimed that when he asked deceased not to call him a son of a bitch, deceased claimed that he (appellant) had called him one, and that appellant denied it then, and that Dumont called to appellant, and said, “Let us get away,” and appellant answered, “All right,” and rode around to the gate, and while doing so deceased got down off the fence, and when appellant got around to the gate deceased was in the pen, and picked up appellant’s rope. Appellant says:

“I asked him to put up his damn knife and give me my rope, and when my head was turned aside he threw the rope over the fence. He had his knife in his left hand, and when I missed the rope and asked him to give it to me he replied that ‘he did not have my damn rope.’ Cross then handed me the rope, and I took it in my right hand and started to coil it up. Deceased had been drawing closer and closer to me, and as I started to fold the rope up, he started to rush me. I started to strike him with the rope and threw it at him, threw the whole rope at him. He rushed at me with the knife raised in his right hand, and struck my horse, just in front of his ribs, and then he reached up at my body. I pulled my pistol with my right hand, the horse reared and jumped, and I shot back over my right shoulder.”

Tom Cross claimed: That when loading his cattle some of them got mixed with appellant’s, and that deceased, at his request, was assisting in separating them, when appellant rode up to the pens and said, “What in the hell are you doing there?” deceased replying, “Counting the cattle.” Appellant told him to get out of there, deceased refused, and appellant said, “You will, you son of a bitch.” Deceased replied, “You call me a son of a bitch; you are a son of a bitch. That appellant jumped on his horse and started to untie the gate, deceased walked toward the gate, and appellant took his Winchester out of the scabbard and pointed it through a panel of the gate, and deceased told him he was a damn coward; that he did not have anything, and that appellant put his Winchester back in the scabbard and said, “I can clean you without anything,” and then rode around the wing about 90 feet long, and came back to the west string of fence, on which deceased had climbed, and told deceased to take back the son of a bitch he called him. Deceased replied, “You called me one first; you take back the one you called me, and I will take back the one I called you.” Deceased was then sitting on the fence, and appellant was on his horse; and appellant hit deceased on the shoulders with the rope. Deceased snatched the rope with both hands and threw it over in the big pen. Roberson then said to deceased, “God damn you; hand me that rope;” and Boykin said he would not do any such a damn thing. Cross then got the rope and handed it to Roberson, and he dropped it over his saddle and hit Boykin on the hand with his pistol. Boykin then jumped down in the big pen and walked toward the middle gate. Roberson rode around the wing to the front gate, which some one opened, rode in the pen, swung the rope over his head, and hit Boykin over the head with it, knocking him down, and when he got up he started for Roberson, when Roberson drew his pistol which he had put back in the scabbard after hitting Boykin on the hand with it, and shot deceased. This witness claimed that deceased had a pocketknife in his hand at some time during the controversy, but that he did not see him have it while he was on the fence, nor after he got down in the pen.

Elmer Norton, Will Norton, and I. Norton claimed to have seen the trouble from the time Boykin climbed on the fence, and they relate the facts in substance like Cross related them, except that one or more of them testified that they saw a knife in Boykin’s hand at the time he ran at Roberson. For example, Elmer Norton said, in substance, that after Boykin stepped off the fence into the north pen Roberson rode back around the wing on his horse at a trot, opened the gate and rode back into the lot. Boykin was standing in the north pen, toward the second gate, about 20 feet from the middle gate, which leads from the north to the south pen. He was just standing there when Ro-' berson rode in to the north pen. When Cross handed Roberson the rope he began straightening it out, and after that he hit Boykin first across the head and then across the hand, left hand, and after he had been hit twice, Boykin ran at Roberson with the knife in his right hand. Will Norton said he saw no knife in Boykin’s hand; that he heard Boykin tell Roberson that he (deceased) was unarmed, and that he (Roberson) was armed and was a damned coward. After Cross gave Roberson the rope, Roberson swung it over his head like any other cowboy, and hit Boy-kin with it twice, and Boykin reached out and got the rope and placed one hand on his hip. He said after Roberson hit Boykin the second time, Boykin rushed at him, but had nothing in his hand.

The court, in his charge, qualified appellant’s right of self-defense by a charge on the law of provoking the difficulty, and this is assailed on the ground that the issue of provoking the difficulty was not raised by the evidence. The jury would have been-justified from the evidence in concluding that when deceased drew his knife and appellant his Winchester, and that deceased informed appellant that h'e was unarmed, both desisted from the encounter, deceased climbing upon the fence and appellant riding away unpursued for quite a distance with the intention, as claimed by him, of quitting the quarrel and leaving the premises. The inference would also be justified that appellant voluntarily returned, demanded of deceased a retraction, struck him first with a rope, then with a pistol, and that when deceased climbed down into the pen his object was to avoid the fight; that appellant pursued him and struck him with a rope, and that these things were done with the intent to provoke the difficulty and were reasonably calculated to do so, and did do so; that appellant intended to bring on the occasion to kill or seriously injure the deceased while acting in apparent self-defense. We think the evidence justified a charge on provoking the difficulty. The terms of that charge are challenged.

The law of provoking the difficulty is submitted in the eleventh section of the charge, and this is subdivided into five parts. The first and second parts contain abstract statements. In the first it is said:

“A party may have a perfect right of self-defense, though he may not be entirely free from blame or wrong in the transaction. If the blamable or wrongful act was not intended to produce the occasion, nor an act, which was, under the circumstances, reasonably calculated to produce the occasion or provoke the difficulty, then the right of self-defense would be complete, though the act be not blameless.”

The second is criticized because therein it is said:

“That if a person by his own willful and wrongful act bring about the necessity of taking the life of another”

—the contention being that the words, “willful and wrongful act” are too broad and fail to limit the wrongful act to such as would be reasonably calculated to bring about the difficulty, and that it is contradictory to the first part above quoted. A person may bring on a difficulty, which results in homicide, without forfeiting the right of self-defense, and this is true even if the act by which it was brought on was wrongful. Of this the jury is informed in the paragraph of the charge' above quoted, and in the third subdivision the court made it quite specific that the right of self-defense would not be destroyed unless appellant, intending to kill or seriously injure deceased, intentionally provoked the difficulty by the use of means reasonably calculated, under the circumstances, to do so, and killed deceased in resisting an attack so provoked.

The third subdivision we quote as follows:

“If you believe, therefore, from the evidence in this case, beyond a reasonable doubt, that the defendant, by his own willful and wrongful acts, if any, engaged the deceased, H. E. Boykin, in a quarrel for the unlawful and willful purpose of provoking a difficulty, with the unlawful and willful purpose and intention to kill H. E. Boykin or inflict upon him serious bodily harm, and you further believe from the evidence beyond a reasonable doubt that the defendant did some act or used language or did both with the unlawful and willful intention of producing an occasion to bring on a difficulty and to kill or inflict bodily serious injury upon the deceased, H. E. Boykin, and that such acts or language, or both, of the defendant, if any such were, were reasonably calculated, under the circumstances at the time, to provoke a difficulty 'with the deceased, H. E. Boykin, and that such act or language, or both, if any such there was, of the defendant caused the deceased to attack the defendant with a knife or make other hostile demonstration toward the defendant, showing within itself or by words accompanying it an immediate intention to kill or inflict serious bodily injury upon the person of the defendant as viewed from his standpoint at the time, and the defendant, in pursuance of his original unlawful and willful intention to kill deceased or inflict upon him serious bodily harm, if any such intention defendant had, shot with a pistol and thereby killed H. E. Boykin in order to save his own life, then if you so find you are instructed that the defendant’s plea of self-defense will not avail him, and the homicide would be murder; and, if you so find from the evidence beyond a reasonable doubt, you will find the defendant,. H. L. Roberson, guilty of murder and assess his punishment as prescribed in this charge.”

The court in another paragraph of the same section of the charge explained to the jury the circumstances under which appellant’s offense would not be more than manslaughter, although he provoked the difficulty in its legal sense, using language for the purpose which was approved by this court in Woodward’s Case, 54 Tex. Cr. R. 89, 111 S. W. 941, and which embodies the principles controlling the court in other cases listed under article 1138, Vernon’s Penal Code. The purpose of this part of the charge was to let the jury know that, even though appellant by his wrongful act, reasonably calculated to provoke an attack, brought on the difficulty in which the homicide took place which he intended to provoke, he would not be guilty of murder unless his intention in bringing on the attack was to kill or do serious bodily injury to his assailant.

The charge, we think, is not obnoxious to any of the rules of law relied upon by appellant. The jury was informed in appropriate language that appellant’s right of self-defense was impaired only on condition that they found from the evidence beyond a reasonable doubt that appellant intended to provoke the difficulty for the purpose of causing deceased to attack, and thereupon to kill or do him serious bodily harm; that in pursuance of such intention he used means reasonably calculated, under the circumstances, to bring about that result; that the demonstration or attack of the deceased was so brought on and the shooting was in pursuance of the original intent to kill or do serious bodily injury. These embodied the elements which must concur to establish provoking the difficulty in its legal sense. Branch’s P. C. art. 1138; Young’s Case, 53 Tex. Cr. R. 416, 110 S. W. 445, 126 Am. St. Rep. 792; Vernon’s C. C. P. p. 459; Wharton Crim. Ev. § 604; Ruling Case Law, vol. 13, p. 831, §§ 136, 137.

Appellant insists that the case was submitted from the state’s standpoint only; that the converse was not embodied; and argues that there were three scenes in the tragedy; the first ending when appellant put up his Winchester and rode away; second concluded when, after striking or striking at deceased while he was on the fence, appellant again rode away; and the third beginning when appellant rode into the pen after deceased had gotten off the fence, or while he was getting off the fence, and asked for his rope, which deceased had thrown into the pen. Appellant presented no prepared special charges, but in some of his exceptions to the charge suggested and requested modifications and additions. In one of these the court was requested to change the charge on provoking the difficulty as originally prepared, and suggested the language in which the change should be made, and the court responded by adopting appellant’s request and embodying it in the fifth paragraph of the charge on provoking the difficulty as follows:

“If, however, you should believe from the evidence, or have a reasonable doubt thereof, that the defendant at the time of the homicide struck the deceased with a rope, if he did, and that, he did so in order to knock a knife from the hand of the deceased or to prevent an assault, real or apparent, upon the defendant by the deceased, and was not then and there striking the deceased with the intention of provoking a difficulty, then the defendant’s right of self-defense would not be impaired or abridged, and he could stand his ground and resist the unlawful or threatened attack, real or apparent, if any, upon defendant’s person by deceased with said knife.”

In .giving this charge apparently the trial court adopted appellant’s theory, stated above, as to the subdivision of the scenes of the tragedy, and further acquiesced in appellant’s view that no act or conduct of appellant done prior to the time in which he struck, or tried to strike, deceased with a rope immediately before the shooting would authorize the jury to find that appellant provoked the difficulty. The paragraph of the charge covers the conflicting theories, and leaves to the jury the solution of the question whether the state’s theory that appellant followed deceased into the pen and struck him with the rope, intending and using adequate means to provoke an attack for the purpose of doing deceased bodily injury in resisting it, and appellant’s theory that he went into the pen without such intention and threw the rope at deceased to prevent or stay an attack. With the record thus, we will not hold that the charge was defective in failing to present the appellant’s theory.

In a ease where the facts indicate that the accused, after bringing on a difficulty in its legal sense, abandons it and it is subsequently renewed by the deceased, a charge on the law of suc-h abandonment is required. Cox v. State, 57 Tex. Cr. R. 427, 123 S. W. 696, 26 L. R. A. (N. S.) 621, 136 Am. St. Rep. 992; Hooper v. State, 44 Tex. Cr. R. 125, 69 S. W. 149, 100 Am. St. Rep. 845; Ruling Case Law, vol. 13, p. 835, § 138. If this principle applies to the facts here, the fifth paragraph of the charge on provoking the difficulty suggested by appellant and quoted above, met the question by advising the jury in effect that the only phase upon which the provocation of the difficulty could be predicated was the third one.

The court in the ninth and tenth paragraphs of the charge embodied the law of perfect self-defense, and applied it to the facts in an unexceptional manner, following approved precedents, and at the suggestion of appellant; added to it a paragraph giving the appellant the benefit of the statute with reference to the presumption arising from the use of a deadly weapon by the deceased.

In response to the exceptions to the charge is a supplemental charge, stating the law of threats. The form of the last-named charge is not complained of, but it is insisted that it is disconnected from the charge of the law of self-defense, and that the appellant’s rights would have been guarded only by giving, not alone a charge on the statutes with reference to threats as a separate defense but that the charge on the law of threats in connection with self-defense should have been given. No special charge on the subject was requested, but, relying upon the exception mentioned, appellant insists there wasi prejudice apparent. We understand, where the appellant relies upon self-defense upon communicated threats accompanied by an overt act, and not on an actual attack, that the charge on self-defense should be accompanied by and connected with a charge on the law of threats. Branch’s Ann. P. C. § 2083, and cases cited. In a case where actual attack, however, is relied upon, the holding of this court has heretofore been that such charge was not required. Chalk v. State, 35 Tex. Cr. R. 129, 32 S. W. 534; Barnes v. State, 89 Tex. Cr. R. 184, 45 S. W. 495; Bankston v. State, 76 Tex. Cr. R. 504, 175 S. W. 1069. The evidence of both the state witnesses and defendant go to show that at the time the shooting was done deceased was making an actual attack upon the appellant. Under these circumstances the authorities mentioned seem to be conclusive ..against appellant’s contention.

The special charge was given at the request of the state as follows:

“You are further instructed that, if you believe from the evidence that the defendant at the time he shot the deceased had a reasonable expectation or fear of death or serious bodily injury at the hands of the deceased, then you will acquit the defendant, unless you believe from the evidence, beyond a reasonable doubt, that the defendant provoked the difficulty as in the general charge defined, or unless you believe, from the evidence beyond a reasonable doubt, that the defendant continued to fire upon the deceased after the attack, if any, or apparent attack, if any, or apparent danger to the defendant, if any, as viewed from the defendant’s standpoint at the time, had ceased to exist and he thereafter killed the deceased; and if you further believe from the evidence beyond a reasonable doubt that the defendant knew that the danger to him at the hands of the deceased has ceased to exist, and that, so knowing, he continued to shoot, if he did, and killed the deceased, if he did, then the defendant would be guilty of murder.”

This special charge is complained of as being a repetition, unduly emphasizing the idea that there were shots fired after the necessity ceased, and as not giving the converse of the proposition involved therein, and as omitting the subject of manslaughter altogether. If the conviction had been for murder, we would regard the last criticism as serious. The court, in its main charge, told the jury, in connection with the law of self-defense, that appellant, acting upon real or apparent danger, was not bound to retreat in order to avoid the necessity of killing, and, further, that if at the time he shot deceased he had a reasonable expectation or fear of death or serious bodily injury at the hands of deceased, he had a right to shoot deceased, and to continue to shoot until it reasonably appeared to the defendant that the danger, if any, real or apparent, had passed. The special charge mentioned was given, no doubt, to present the converse of this theory.

I. Norton testified that when appellant hit Boykin over the shoulders with the rope Boy-kin ducked his head and ran toward Roberson. Roberson turned his horse’s head, dropped his rope, jerked his six-shooter, and shot back over his shoulder. After firing that shot, he went west and turned' back, and Boykin came north. Again Roberson passed on the west side and fired twice as he came back, turned back again, and at that time Boykin threw up both hands, hollered, “Oh,” and kind of stumbled and fell. Roberson passed him and turned back and stood over him and shot him in the breast. Boykin was lying down at the time. Five shots were fired. There was one bullet hole in the right side of the Dack, another in the left side, and one shot in the breast. Other witnesses gave substantially the same testimony.

Gross testified Boykin was lying down when Roberson pulled his horse back and shot him in the throat. Both shots were fired while Boykin was lying on his elbow, with one knee drawn up and the other leg stretched out. At the time the fourth shot was fired Roberson’s horse was right close to Boykin, 2 to 5 feet from him.

At an examining trial at which the appellant was represented by attorney and the evidence reduced to writing, certain of the witnesses who were not present at the trial gave evidence. Before the trial an agreement was made by the attorneys representing the state and defendant, in which it was stipulated that this testimony would be available to the respective parties on the trial. The testimony was introduced without objection, but" on motion for new trial appellant insists that, he not being a party to the agreement, his attorney, as such, had no implied authority to make it, and that the introduction of the testimony deprived him of the constitutional right to be confronted by the witnesses against him. This court has held that an attorney has no implied authority to make an agreement with reference to introduction of testimony which is prejudicial to the accused, and that such an agreement will not be enforced by the court. Bell v. State, 2 Tex. App. 220, 28 Am. Rep. 429; Murmutt v. State, 63 S. W. 634, and cases cited. The record fails to show any violation of this rule. The evidence, not the agreement, was introduced without objection. It was manifestly within the scope of the authority of counsel for appellant to object' to the introduction of evidence which was inadmissible under the hearsay or other rule of evidence, and, if dissatisfied with the ruling of the trial court, to bring the ruling and objection before this, court by bill of exceptions taken at the trial. In the absence of objection made or motion to exclude the evidence on the trial, its admission will not vitiate the verdict. Pollock v. State, 60 Tex. Cr. R. 265, 131 S. W. 1094. In Vernon’s C. C. P. p. 534, there are cited a number of cases supporting the proposition that the admission of alleged erroneous evidence could not be reviewed when first complained of in motion for new trial. Among the cases are Clifton v. State, 70 Tex. Cr. R. 347, 156 S. W. 1179; Hart v. State, 61 Tex. Cr. R. 509, 134 S. W. 1178, and many others. This principle has been given application in capital cases in which there was the death pénalty. Bruce v. State, 31 Tex. Cr. R. 590, 21 S. W. 681, and cases there cited. The evidence which it is claimed was inadmissible was cumulative, and some of it favorable to appellant, in supporting his theory that the deceased rushed at Mm before he drew his pistol. It would probably not have been cause for reversal even if admitted over timely objection. King v. State, 42 Tex. Cr. R. 108, 57 S. W. 840, 96 Am. St. Rep. 792; Love v. State, 68 Tex. Cr. R. 228, 150 S. W. 920, and cases listed in Vernon’s C. C. P. p. 904, and clearly could not be ground for reversal when admitted without objection, and no complaint made of it until after the verdict.

The appéllant’s reputation as a peaceable and law-abiding man was in issue. Several witnesses testified in his favor. On cross-examination questions were directed to these witnesses which were made basis' of complaint both as to the propriety of the questions and reference to the subject in argument. These bills are long, containing quotations from argument of counsel for both the state and appellant which appear to have been made to the court in support of, or in opposition to, objections made. Some of these witnesses testified on cross-examination that they had heard of previous trials of appellant for murder, and that they had heard of his killing, outlaws, claiming to have heard of his killing as many as four men. The bill shows that in the course of the examination the attorney for the appellant stated that appellant had killed at different times two Mexicans, and on trial of each case a verdict of acquittal was instructed. An inquiry was made as to whether witnesses had heard of appellant killing a negro porter and throwing him off the train, to which there was a negative answer. Inquiry was also made with reference to whether witnesses had heard of his killing some Mexicans, described as four old Mexicans. Some of the witnesses testified that they had never heard of such a transaction. One of them said that he went with appellant to look at the bodies of some Mexicans, and that he had never heard that appellant was connected with the killing. The bill complaining of the argument with reference to these matters states that it was in answer to argument of attorneys for the appellant, but fails to state the substance of this argument. Appellant stresses complaint of the following argument:

“I believe that the time has passed when a man can come into the courthouse of El Paso county and face 12 honest men, and invoke the power of God, like they have done time and time again, in connection with ‘my client.’ I appeal to 12 men, created by God, as I was, and as Foot Boykin and Walter Sitters were, and maybe those old Mexicans were.”

The examination of the witness as to reputation “to test the correctness of his conclusions, and the information upon which they are based,” has been recognized by this court as a legitimate exercise of the privilege of cross-examination. Holloway v. State, 45 Tex. Cr. R. 303, 77 S. W. 14. Elementary authorities are to the same effect. Wharton on Crim. Ev. p. 157; also sections 487-490; Whitmore on Ev. § 988; Rice on Crim. Ev. § 376. State’s cbunsel appears to have been within this rule.

In the matter of argument complained of, the state’s counsel insist that the argument complained of appears from the bill to have been invited, and consequently not available to appellant (Branch’s Ann. Statutes, p. 205, § 363, and cases cited; Deisher v. State, 190 S. W. 729, and cases cited); also that a failure to prepare and request a special instruction to disregard the argument precludes its consideration, citing Logan v. State, 53 S. W. 694; Davis v. State, 57 Tex. Cr. R. 549, 124 S. W. 104. We have considered the argument in connection with the verdict, the bill of exceptions, and the record, and are of the opinion that, if improper, it was not prejudicial to a degree that would justify a reversal of the case upon that ground. It does not put into the record new matter; it is not abusive of appellant; its terms, as well as the bill, suggest that it was in response to some argument adduced by appellant. The prosecution was for murder, and the verdict for manslaughter. We do' not regard it ground for reversal. Vernon’s C. C. P. p. 416, and cases cited; Branch’s Ann. P. C. p. 207.

We have written our views on the questions deemed most important, and have considered all questions raised. A desire to bring this' opinion within reasonable limits impels us to omit further discussion. Our opinion iis that no reversible error is presented, and that the judgment should be affirmed; and it so ordered.

On Motion for Rehearing.

After considering the motion for rehearing we have reached the conclusion that w.e were in error in failing to sustain the assignment which related to the trial court’s refusal of appellant’s request to instruct the jury in appropriate language that the jury would not be authorized to draw an inference adverse to appellant upon the issue of self-defense from his possession of the pistol at the time of the encounter. This phase of the case was not referred to in the original opinion. The circumstances surrounding appellant at the time he met deceased tend to show that his possession of the pistol was not unlawful, in that he, being a traveler came under one of the exemptions of the statute against the unlawful carrying of arms. Duke v. State, 61 Tex. Cr. R. 19, 133 S. W. 435; Schauer v. State, 60 S. W. 252. The evidence suggests that .the meeting with deceased was casual and unexpected by appellant; and, the court having limited appellant’s right of self-defense by instructing the jury on the law of provoking the difficulty, it was incumbent upon him to give an appropriate charge with reference to appellant’s possession of the pistol. Among the authorities on the subject are Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17; Wilson v. State, 36 S. W. 588; Dodd v. State, 68 S. W. 992; Grayson v. State, 57 S. W. 809; Crow v. State, 48 Tex. Cr. R. 419, 88 S. W. 814; Humphrey v. State, 73 Tex. Cr. R. 433, 165 S. W. 589; Smith v. State, 195 S. W. 598; Stanley v. State, 193 S. W. 151.

Because of the error herein pointed out, the motion is granted, the affirmance set aside, and the judgment of the lower court is reversed, and the cause remanded.

PRENDBRGAST, J., absent..

DAVIDSON, P. J.

(concurring). I concur with Judge MORROW in the reversal of the judgment upon the ground and for the .reason stated by him in his opinion granting the rehearing and reversing the judgment. I deem it unnecessary to review that question further than to state my concurrence.

I seriously question that the issue of provoking the difficulty was in the case under the facts stated in the record. I do not care to discuss that question at any length, as it cannot enter into a subsequent trial as it did on the former trial, for the reason that the issue of murder has been eliminated from the case by the verdict of the jury. Upon another trial appellant can only be tried as a basis for conviction upon the issue of manslaughter. Jeopardy and former acquittal will bar further prosecution for murder upon a subsequent trial by reason of the verdict of the jury. The court will take judicial notice of this without the intervention of a plea setting up such acquittal. There are many decisions sustaining this proposition. Richardson v. State, 47 Tex. Cr. R. 595, 85 S. W. 282; Robinson v. State, 21 Tex. App. 160, 17 S. W. 632; Mixon v. State, 35 Tex. Cr. R. 458, 34 S. W. 290; Branch’s Ann. P. C. pp. 318, 321. The issue of provoking a difficulty, therefore, cannot arise, so far as murder is concerned, even if provoking a difficulty is in the case. But should the trial court undertake to charge upon the issue of provoking a difficulty upon another trial, it should be followed by a charge on the law of abandonment of the difficulty. If provoking a difficulty was in the case, then I am clear that the issue of abandonment was also in the case. I am also of opinion that the court permitted too great latitude to the state in impeaching'the character of the defendant with reference to the death of some Mexicans, and also the matter with reference to a negro on the train. Questions of this character should have some basis in fact and not be a mere assumption without basis of fact as a predicate for such questions and evidence. Unless there be some such basis upon another trial, that evidence ought not to be admitted. This would depend upon the developments on the trial.

Believing that the motion for rehearing should be granted, and that the opinion of Judge MORROW is correct upon the question decided in his opinion, I fully concur in that, and add the other matters above stated as my views.
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author: MORROW, J.

text:
    ROLLINS v. STATE.
    (No. 5008.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    1. Criminal Law &wkey;814(17) — Trial —Instruction on Circumstantial Evidence.
    In a prosecution for cattle theft, where only defendant’s connection with the cattle after they were taken was proved by direct evidence, and his possession of them was explained, the court should have charged the law of circumstantial evidence.
    2. Criminal Law &wkey;814(17) — Trial —Instruction on Circumstantial Evidence— Admissions.
    Admissions, accompanied by explanatory statements, which were not specific admissions of the taking of the property charged to have been stolen, did not take the case out of the rule of circumstantial evidence.
    Appeal from District Court, Garza County; W. R. Spencer, Judge.
    W. W. Rollins was convicted of the theft of cattle, and he appeals.
    Judgment reversed, and cause remanded.
    J. F. Cunningham, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for theft of cattle.

The facts supporting the conviction are substantially these: J. F. Hartford was the manager of a ranch known as the Double U Company, and as such was in possession of its property, including cattle. About May 1, 1916, he lost three bulls branded with the figure “2” on the jaw and the figure “5” on the neck, and a tattoo and tag in the ear. Two of these cattle were later in July, 1916, found in the pasture of Norman .Rogers. The brands had been changed. The figure “2” had been converted into an open “A,” the “5” into an “8,” and the mark had also been changed. Rogers bought the bulls from appellant in the spring or summer of 1916; the date he did not remember. At the time he bought them the brands were an open “A” on the jaw and an “8” on the neck. A witness saw the appellant in the spring of 1916 brand ai bull of the same description, changing the figure “2” on the jaw to an open “A,” and the “5” to an “8.” This witness said that the animal was traded or sold by appellant to Rogers. He saw only one of the bulls. Other witnesses testified that they had examined the animals later, and that the brands had been changed. There was evidence of witnesses for appellant tending to show that he bought the bulls from Stiles, one of the state’s witnesses. One witness testified that Stiles had told him that appellant got the bulls from him. They were at the time in a pasture which was under the control of appellant and Stiles. Appellant testified that Stiles -let him have the hulls before he had sold them to Rogers; that he had purchased them, taking a bill of sale and giving a check, which were produced in evidence. He denied changing the brands. A state witness testified that appellant had said he got the bulls from another party.

The theft of the cattle was accomplished by their “taking.” Appellant’s connection with them after they were taken was proved by direct evidence. His possession of them was explained. The court in submitting the case failed to charge the law of circumstantial evidence. An exception was duly reserved. It seems clear under the authorities that the case rested upon circumstantial evidence, and that it was error to overrule appellant’s exception to the charge based upon the failure to instruct on the law of circumstantial evidence. Many of the decisions of this court are collated in Mr. Branch’s Ann. P. C. p. 1344, § 2478, among them the cases of Gentry v. State, 41 Tex. Cr. R. 497, 56 S. W. 68, Pace v. State, 41 Tex. Cr. R. 208, 51 S. W. 953, 53 S. W. 689, Crowell v. State, 24 Tex. App. 410, 6 S. W. 318, and Willard v. State, 26 Tex. App. 130, 9 S. W. 358, to the point that such admissions as were proved in the instant case would not take the case out of the rule of circumstantial evidence for the reason that they were accompanied by explanatory statements, and were not specific admissions of the “taking” of the property from the possession of the owner.

Because of the error pointed out, the judgment of the lower court is reveised, and the cause remanded.
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