author: PHILLIPS, J.

text:
    TEXAS CO. v. DAUGHERTY et al.
    (No. 2637.)
    (Supreme Court of Texas.
    May 21, 1915.)
    1. Taxation <©=>63 — Property Subject — APPURTENANCES OP LAND — PRIVILEGE OP REMOVING Oil and Gas.
    A franchise or privilege created in favor of an oil company to prospect certain land and appropriate a portion of the oil and gas discovered is taxable against the owner of the fee as part of the value of the land, not against the oil company, under Rev. St. 1911, art. 7504, declaring that real property for the purpose of taxation shall be construed to include the land itself and all buildings, structures, and improvements and all the rights and privileges belonging or in any wise appertaining thereto.
    [Ed. Note. — Eor other cases, see Taxation, Cent. Dig. § 147; Dec. Dig. <@=>63J
    2. Mines and Minerals <©=>55 — Oil and Gas Lease — Conveyance op Eee.
    Instrument whereby the owner of land granted, bargained, sold, and conveyed to the grantee all the oil, gas, coal, and other minerals in and under the land for a valuable consideration acknowledged to have been paid, and certain stipulated royalties, together with the exclusive right to enter and drill, mine, and operate for such minerals, to have and to hold upon certain terms, with provisions that the rights thereby granted should be forfeited if the operations were not begun within one year, or within three years, if a further quarterly payment was made to secure the extension, that the conveyance should be in full force 20 years from the discovery of oil or gas, or as much longer as they might be produced in paying quantities, and that the lease was not intended as a mere franchise but ás a conveyance of the property and privileges mentioned, and was so understood by the parties, was a present grant of title in fee in the oil and gas in the ground if such minerals are capable of ownership and conveyance.
    [Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. §§ 153-165; Dec. Dig. <©=> 55.]
    3. Deeds <©=>126 — Conditions — Validity —Condition Subsequent.
    A fee may pass by deed upon a condition subsequent, subject to the contingency of being defeated according to the condition.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 356%, 357, 449; Dec. Dig. <©=>126.]
    4. Taxation <©=>63 — Eropebty Subject — Oil and Gas in Ground.
    A conveyance of gas and oil in place in the ground conveys an interest in realty which is subject to taxation in the hands of the grantee separate from the value of the land in which they are found, notwithstanding the fluid condition of those minerals which renders them liable to escape from the premises at any time before they are reduced to possession.
    [Ed. Note. — Eor other cases, see Taxation, Cent. Dig. § 147; Dec. Dig. <®=>63.]
    Error to Court of Civil Appeals of Second. Supreme Judicial District.
    Action by the Texas Company against W. H. Daugherty and others. A judgment for defendants was affirmed by the Court of Appeals (160 S. W. 129), and plaintiff brings error.
    Affirmed.
    Robt. A. John and Jas. L. Autry, both of Houston, Mathis & Kay, of Wichita Falls, and Theodore Mack, of Ft. Worth, for plaintiff in error. D. Edward Greer, of Beaumont, amicus curite. B. E. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., and J. T. Montgomery, of Wichita Falls, for defendants in error.
   PHILLIPS, J.

The question presented by the ease for decision is whether the interests or rights conferred upon the Texas Company, in virtue of a number of so-called oil leases, constituted property subject to taxation in its hands.

The instruments in question were respectively executed by owners of lands in Wichita county as grantors, duly acknowledged and recorded; the wife joining where the property constituted any part of a homestead. In each instance the grantor, by the terms of the instrument, “granted, bargained, sold, and conveyed” to the Texas Company, as grantee, “all the oil, gas, coal, and other minerals in and under” the particular tract of land, which was fully described, for a valuable consideration, consisting of a stated amount acknowledged to have been paid (in the particular lease shown in the record as a form, and to which all of them substantially corresponded, $100), and certain stipulated royalties, together with the exclusive right of ingress and egress at all times for the purpose of drilling, mining, and operating for such minerals and the conduct of all operations, and the erection of appliances and structures in that connection, and for the laying of all pipe lines necessary for the production, mining, storing, and transportation thereof, with the privilege of renewing and removing all such structures at will. Each instrument contained the following ha-bendum clause:

“To have and to hold, all and singular, the above-described premises, rights, properties and privileges, and all such as are hereinafter specified, under the said grantee, and the heirs, successors and assigns of such, forever, upon the following terms.”

Under penalty of forfeiture of “the rights and estates hereby granted,” it was provided that operations for the drilling of a well for oil or gas should be begun within one year from the time of the delivery of the instrument, the forfeiture to be saved, however, notwithstanding such operations should not be commenced within that period, by the payment by the grantee of $25 per quarter for a period not exceeding three years, with the further provision that the conveyance should be in full effect for 20 years from the discovery of oil, gas, or other minerals, and as much longer as they should be produced in paying quantities, in the event the grantee, or its successors or assigns, should sink a well or shaft and make such discovery within the limits of time, or the extension thereof, stipulated. A concluding clause in each instrument was as follows:

“This lease is not intended as a mere franchise, but is intended as a conveyance of the property and privileges above described for the purposes herein mentioned, and it is so understood by all parties hereto.”

The owners of the fee of all the land described in the several so-called leases had rendered them for taxation for the current year at their fair market value, subject to the rights and privileges conferred upon the grantee under such instruments. In assessing the value of the lands against the owners of the fee, their value as oil bearing, or prospective oil bearing, lands, as evidenced by the royalty interests of such owners, under the instruments, was considered, and taxes had been paid by such owners accordingly. In that valuation, however, the value of the rights and privileges conferred by these instruments upon the grantee therein was not included.

The question is to be resolved, in our opinion, by the determination of whether the instruments involved conferred upon the plaintiff in error an interest in the lands therein respectively described. If their effect, at most, was but the creation in its favor of a mere franchise or privilege to devote the land to a certain use, with the usufructuary right, as a part of its use and enjoyment, to appropriate a portion of such oil and gas as might be discovered, such franchise or privilege was taxable against the owner of the fee as a part of the land, just as any other such valuable right or privilege belonging to land is, unless otherwise distinctly provided by statute, so taxable under article 7504, which declares that:

■ “Real property, for the purpose of taxation, shall be construed to include the land itself, whether laid out in town lots or otherwise, and all the buildings, structures and improvements, or other fixtures of whatsoever kind thereon, and all the rights and privileges belonging or in any wise appertaining thereto, and all mines, minerals, quarries and fossils in and under the same.”

The rights and privileges belonging to land contribute in a very substantial way to its value. They largely cause it to yield its income, and it is the theory of our statute, therefore, that their value shall be included in the valuation of the land for taxation in the hands of the owner. They do not escape taxation by this method; on the contrary, they are subjected to its burden through the inclusion of their value in the assessment of the land; and they are taxed against the owner of the land because the Legislature has deemed it proper for him to bear the charge in view of their essential contribution to its value. This is plainly the effect of the decision in State v. Austin & Northwestern Railroad Co., 94 Tex. 530, 62 S. W. 1050, where, before the enactment of the statute providing for the taxation of intangible assets, attempt was made to tax the franchise of a railroad company separate from its real estate. After quoting present article 7504, Chief Justice Gaines, upon this question, said:

“It seems to us the plain purpose of the article last quoted to require that in assessing real estate for taxation, whether held by a natural person or a corporation, there shall not only be included in the valuation the value of the land itself merely as land together with the improvements thereon, but also all franchises and privileges appurtenant thereto and all the advantages for a profitable prosecution of the business to which it is appropriated. As a rule, the value of improved real estate is proportionate to the net income which it will yield. The value of a railroad is not the mere value of its right of .way, roadbed and superstructure, its depot grounds and structures thereon, considered by themselves, but the value of all these as an operating, ‘going concern’; this value being in general determinable by the profits which result from its operation. The statute requires all property to be assessed ‘at its true and full value,’ and in effect defines that value to be what it would probably sell for at a voluntary sale for cash. Persons proposing to sell or buy a railroad, in forming their opinion as to its value, would doubtless consider the condition of its physical properties, but would ultimately reach their conclusion upon the question by a careful estimate of the probable net income which its operation will produce. There are no special ‘rights and privileges belonging to or in any wise appertaining’ to the great mass of the real property of the state, such as farming lands and town or city lots, but the terms are applicable to the real estate of railroad companies and suggest the thought that the Legislature had such property in mind when it inserted the provision, and that it was intended that, in valuing a railroad for taxation, the valuation should include every right and privilege which was exercised in producing its income, and that it was not intended to disassociate the soul from the body of the living concern and value by itself tire lifeless remains.”

We accordingly turn to an examination of the instruments for the purpose of determining their legal effect. It will be observed that they constitute no mere demise of the premises for a given period, as in the ease of an ordinary leasehold. Nor do they amount simply to a grant of the right to prospect upon the land for oil or gas and reduce those substances to possession and ownership. They deal with the oil, gas, and other minerals “in and under” the land as property, in the ground, capable of ownership and subject to be conveyed, for, as such, in unmistakable terms they are “granted, sold, and conveyed” to the grantee for a stated consideration acknowledged to have been paid, valuable in itself and independent of' the royalties stipulated as payable to the grantor in the event of the discovery of such minerals, or any obligation imposed upon the grantee to explore for them. For the purpose of making the exploration and producing all the oil, gas, and other minerals that might be within the ground, and the erection of all structures necessary thereto; as well as their storing and transportation, the possession of the land itself is likewise granted, with no limitation upon the number of wells or shafts that the grantee might sink, or the extent of its operations in that connection, and consequently no qualification of its right of possession to all such parts of the surface, except that no well should be drilled nearer than 200 feet from the house or barn on the premises without the consent of both parties, as might be necessary to its full use by the grantee for the purposes named. The rights of the grantee are made subject to forfeiture, if operations for the drilling of a well for oil or gas are not begun within one year from the delivery of the instrument, or if the payment of the amount provided in lieu of such commencement is not made; but the sinking of a well or shaft and the discovery of any of the minerals named, within the period of one year or the extension thereof provided for, in each instance renders the instrument effective for 20 years and as much longer as such minerals shall be produced in paying quantities. This constituted the entire grant as one capable of indefinite duration.

While such is the evident effect of the instruments when looked at, as they should be, from their “four corners,” the parties were plainly desirous of giving further emphasis to their character as “conveyances” of property, as-distinguished from a mere grant of a license or privilege. With the obvious intention of placing their construction beyond the pale of any doubt, they incorporated the provision already noted that:

“This lease is not intended as a mere franchise, hut is intended as a conveyance of the property and privileges above described for the purposes herein mentioned, and it is so understood by all the parties hereto.”

It will be further noted that no condition is expressed or act required of the grantee which preceded the vesting of such estates as the instruments created. Upon penalty of forfeiture of “the rights and estates hereby granted,” the grantee was required to begin operations for the drilling of a well for oil or gas within one year or pay a stipulated amount, quarterly, during the extension period provided; but it was the manifest purpose of the parties that the estate created should constitute a present grant, and that the grantee should perform these acts after taking possession, which rendered them conditions subsequent.

A fee may pass by deed upon a condition subsequent to the same extent as though the condition did not exist, subject to the contingency of being defeated according to the condition. And here, if any property was conveyed, there was a present grant but liable to be defeated by the grantee’s failure to perform the requirement in respect to beginning operations for the drilling of a well for oil or gas, or, in lieu thereof, making the quarterly payment provided. The grant amounted to a defeasible title in fee to the oil and gas in the ground, if oil and gas in place are capable of ownership and conveyance.

This brings us to the consideration of the latter question, and the contention of the plaintiff in error that these substances are incapable of ownership as property until severed or extracted from the ground, and that therefore these instruments conferred upon it no more than a mere use of the surface of the ground and the right to take them from it, amounting only to a privilege belonging to the land and taxable as a part of it against the owner of the fee, but vesting it with the title to no property whatever. It may be remarked, we think with propriety, that this position is in marked contrast with the solemn assertion of the instruments themselves, exhibited in the record by means of a common form evidently prepared by the plaintiff in error for use in its business operations, that they were not intended as “mere franchises,” but, as “conveyances of the property and privileges described, and were so understood by all parties thereto.” However, we pass over that to the determination of the naked question.

It is no longer doubted that oil and gas within the ground are minerals. They have peculiar attributes not common to other minerals because of their fugitive nature or vagrant habit — the disposition to wander or percolate, and the possibility of their escape from beneath one part of the surface of the earth to another. Nevertheless, they are to be classed as minerals. Thornton on Oil and Gas, § 18; Murray v. Allred, 100 Tenn. 100, 43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740; Stoughton’s Appeal, 88 Pa. 198; People v. Bell, 237 Ill. 332, 86 N. E. 593, 19 L. R. A. (N. S.) 746, 15 Ann. Cas. 511. In place, they lie within the strata of the earth, and necessarily are a part of the realty. Being a part of the realty while in place, it would seem to logically follow that, whenever they are conveyed while in that condition or possessing that status, a conveyance of an interest in the realty results. It is generally conceded that, for the purpose of ownership and conveyance of solid minerals, the earth may be divided horizontally as well as vertically, and that title to the surface may rest in one person and title to the strata beneath the surface containing such minerals in another. Because of the fugitive nature of oil and gas, some courts, emphasizing the doctrine that they are incapable of absolute ownership until captured and reduced to possession and analogizing their ownership to that of things ferse naturae, have made a distinction between their conveyance while in place and that of other minerals, holding that it created no interest in the realty. But it is difficult to perceive a substantial ground for the distinction. A purchaser of them within the ground assumes the hazard of their absence through the possibility of their escape from beneath the particular tract of land, and, of course, if they are not discovered, the conveyance is of no effect, just as the purchaser of solid mineral within the ground incurs the risk of its absence, and therefore a futile venture. But let it be supposed that they have not escaped, and are in repose within the' strata beneath the particular tract and capable of possession by appropriation from it. There they clearly constitute a part of the realty. Is the possibility of their escape to render them while in place incapable of conveyance, or is their ownership while in that condition, with the exclusive right to take them from the land, anything less than ownership of an interest in the land? Conceding that they are fluent in their nature and may depart from the land before brought into absolute possession, will it be denied that, so long as they have not departed, they are a part of the land? Or when conveyed in their natural state, and they are in fact beneath the particular tract, that their grant amounts to an interest in the land? The opposing argument is founded entirely upon their peculiar property, and therefore the risk of their escape. But how does that possibility alter the character of the property interest which they constitute while in place beneath the land? The argument ignores the equal possibility of their presence, and that the parties have contracted upon the latter assumption; that, if they are in place beneath the tract, they are essentially a part of the realty, and their grant, therefore, while in that condition, if effectual at all, is a grant of an interest in the realty. In other words, the question, it seems to us, reduces itself to this: If the oil and gas, the subject of the conveyance, are in fact not beneath or within the land, and are therefore not capable of being reduced to possession, the conveyance is of no effect. But, if they have not departed and are beneath it, they are there as a part of the realty; and their conveyance while in place, if the instrument be given any effect, is consequently the conveyance of an interest in the realty. There could be no warrant for denying effect to such instruments as these, and, granting them effect, they are therefore to be considered as conveyances of such an interest.

The possibility of the escape of the oil and gas from beneath the land before being finally brought within actual control may be recognized, as may also their incapability of absolute ownership, in the sense of positive possession, until so subjected. But nevertheless, while they are in the ground, they constitute a property interest. If so, what is the nature of it in the hands of the original owner? It embraces necessarily the privilege or right to take them from the ground. But is that its extent or sole character? While they lie within the ground as a part of the realty, is the ownership of the realty to be denominated, as to them, a mere license to appropriate, asdistinguished from an absolute property right in the corpus of the land? With the land itself capable of absolute ownership, everything within it in the nature of a mineral is likewise capable of ownership, so long as it constitutes a part of it. If these minerals are a part of the realty while in place, as undoubtedly they are, upon what principle can the ownership of the property interest, which they constitute while they are beneath or within the land, be other than the ownership of an interest in the realty?

We are not dealing with conveyances of simply the right to take the oil and gas from the ground. These instruments purported to be a grant of the oil and gas themselves in the ground. If while in place they constituted an interest in the realty, that interest was subject to sale and conveyance; the purchaser assuming the risk of reducing them to possession. The instruments throughout treat these minerals in the ground as property, and bespeak the purpose to give the grantee absolute dominion over them, not merely when severed from the realty and reduced to personalty, but while in their natural state; and the interest granted was furthermore expressed as one capable of being assigned and conveyed by the grantee. There was imposed no limit upon the grantee’s right to the oil and gas, save as to the royalty payable to the grantor; it could take them out to any extent, at all times, and from beneath any part of the land, with the single limitation that no well should be drilled nearer than 200 feet from the house or barn on the premises, except by the grantor’s consent. Such a vested interest in the minerals in the ground, forming in their natural state a part of the land, with absolute dominion over them while in that state, and with the further unlimited right to their appropriation, plainly constitute property and all that is recognized in proprietorship, and equally amount to an interest in the land itself.

As pointed out in Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729, the analogy between deposits of. oil and gas and things ferae naturae is, at best, a limited one. The difference between them is that things ferae naturae are public property, and all have an equal right to reduce them to possession and ownership, while the right to the oil and gas beneath his land is an exclusive and private property right in the landowner, inhering in virtue of his proprietorship of the land, and of which he may not be deprived without a taking of private-property. While there is a conflict of authority upon the question we have discussed, the views expressed are believed to be amply sustained.

In Thornton on Oil and Gas, a standard work upon the subject, in section 19, it is said:

“Oil and gas, until severed from the realty, are as much a part of it as coal or stone. So long as they remain in the ground, outside of an artificial receptacle at least, as the casing of a well or pipe line, they must be treated as a part of the realty underneath the surface of' which they lie. So much so are they a part of the realty, as we shall repeatedly see hereafter, that a conveyance of them in their natural state in the earth requires all the formalities of a conveyance of any other interest in the same real estate.”

Again, in section 20 of the same work, this is announced:

“The owner of the surface is the owner of.the gas and oil beneath it; but, if they escape into the land of another, he ceases to be owner of them. They are the subject of grant or conveyance, just as much so as the grant or conveyance of coal or stone buried in the soil of the same tract of land.”

In Gould on Waters, § 291, it is stated:

“Petroleum oil, like subterranean water, is included in the comprehensive idea which the law attaches to the word ‘land,’ and will be protected as a part of the soil in which it is found. Like water it is not the subject of property, except while in actual occupancy, and a grant of either water or oil is not a grant of the soil or of anything for which ejectment will lie. The same is true of natural gas. A lease of land for the purpose of mining oil, coal,. rock, or carbon oil passes a corporeal interest which is the proper subject of an action of ejectment, and a proportionate share of the oil-to be produced by an oil well is an interest in land, a parol sale of which is void under the statute of fraud.”

In Stoughton’s Appeal, 88 Pa. 198, after adverting to the classification of oil ¿s a mineral and its therefore being a part of the realty, the Supreme Court of Pennsylvania said:

“In this it is like coal or any other natural product which in situ forms part of the land. It may become, by severance, personalty, or there may be a right to use or take it originating in custom or prescription, as the right of a life tenant to work opened mines, or to use timber for repairing buildings or fences on a farm, or for fire bote. Nevertheless, whenever conveyance is made of.it, whether that conveyance be called a lease or deed, it is, in effect, the grant of part of the corpus of the estate and not of a mere incorporeal right.”

In Blakley et al. v. Marshall, 174 Pa. 425, 34 Atl. 564, the same court held:

“An oil lease, investing the lessee with the right to remove all the oil in place in the premises in consideration of his giving the lessors a certain per centum thereof, is in legal effect a sale of a portion of the land, and the proceeds represent the respective interests of the lessors in the premises.”

To the same effect is Jennings v. Bloomfield, 199 Pa. 638, 49 Atl. 135.

In Heller v. Dailey, 28 Ind. App. 555, 63 N. E. 490, a ease which involved an oil and gas contract not materially different from the Instruments in this case, and which purported to convey the oil and gas in place under a particular tract of land, the court, while fully recognizing the doctrine which forms the basis of the contention here of the plaintiff in error, that the absolute ownership of these minerals does not-exist until they are reduced to actual possession, said:

“The oil and gas in their free and natural state within the land constitute a part of it, though they he fluent and liable to depart to other land, there to be taken into possession through wells made for such purpose. The right to take such minerals from the land constitutes an interest in the land. The instrument under consideration does not create a mere personal privilege to take the minerals from the land. It is an exclusive and assignable interest in land. If with propriety it can be called a license, it must be a license coupled with an interest in land. By its terms the contract is a grant of the minerals in and under the land. If, by such general terms, all of a specified solid mineral, as coal, in and under the land, were granted, it would be a grant of real estate; * * * but, because of the fluidity and fugitiveness of petroleum and natural gas, the absolute ownership of these mineral substances within the land cannot be acquired without reducing them to actual control, so that a distinction must be and is made between these elusive minerals in and under the ground and the solid minerals in place in the earth. Therefore a grant of all the oil and gas in and under a tract of land is not a grant of any particular specific substance as would be a grant of the coal in and under certain land. * * * While, for reasons which we have sought to state, we-do not regard the contract in suit as a grant of land., or as a lease properly so called, but do-regard it as a grant of a right in the nature of an incorporeal hereditament, operative from the time of its execution and during the accomplishment of its purpose as a transfer of an exclusive right to search for, take, and appropriate the minerals mentioned in the instrument, under whatever technical common-law term it may most properly be classed, it must be held' to be a conveyance of an interest in land, within the meaning of our statutes.”

Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436, 25 L. R. A. 222, affirms the same rule; it being remarked, with respect to-these minerals, that it is only when they escape out of the possession of the owner that the right of property is gone. Wilson v. Youst, by the same court, reported in 43 W. Va. 826, 28 S. E. 781, 39 L. R. A. 292, announces a like holding. It is contended by the plaintiff in error that Wilson v. Youst has been in effect overruled by the Supreme Court of West Virginia in the later case of. Harvey Coal & Coke Co. v. Dillon, 59 W. Va. 605, 53 S. E. 928, 6 L. R. A. (N. S.) 628,. and such may be the operation of the latter decision, though it is not in terms so stated. It is to be remarked, however, that the instrument considered in the Dillon Case granted merely the right to mine certain minerals without purporting to convey the minerals themselves in place, and this characteristic is more than once emphasized by the court in its opinion. Prior to the decision in the Dillon Case, the same court had decided State v. Low, 46 W. Va. 451, 33 S. E. 271, a ease not adverted to in the Dillon opinion. There a conveyance of the oil and gas in-place in a tract of land, of the same character-as embodied in these instruments, was reviewed for the purpose of determining whether it created an interest in land which was subject to taxation against the grantees. It was held that the conveyance amounted-to a defeasible title in fee to the oil and gas,, taxable against the grantees as an. interest in the land.

The Supreme Court of Illinois adheres to-the view that these minerals in place are not capable of distinct ownership, and that a conveyance of them is not a grant of the minerals themselves in the ground, but to such-part thereof as the grantee may find. Wat-ford Oil & Gas Co. v. Shipman, 233 Ill. 9, 84 N. E. 53, 122 Am. St. Rep. 144. Yet tile same court has held that such a conveyance, with the right to go upon the land and occupy it for the purpose of prospecting, if of unlimited duration, or if such right, under the terms of the lease, is capable of having unlimited duration, amounts to a grant of a freehold interest in the land. Watford Oil & Gas Co. v. Shipman; Bruner v. Hicks, 230 Ill. 536, 82 N. E. 888, 120 Am. St. Rep. 332. In People v. Bell, 237 Ill. 332, S6 N. E. 593, 19 L. R. A. (N. S.) 746, 15 Ann. Cas. 511, the question was directly involved of whether the rights created by such a conveyance amounted to an interest taxable as land against the grantee, separate from the fee taxable against its owner. The conveyance there was of the oil and gas under a certain tract of land, for the consideration of the payment of a royalty to the grantors; the premises to be held for one year, and so long thereafter as oil or gas might be found thereon in paying quantities, constituting, as is the case in the instruments before us, a term capable of unlimited duration. In that state by statute such a mining right (as it is there classed) is taxable separately. The statute, however, did not undertake to define the property classification of such a right, whether it constituted personal property or an interest in land. The named question, therefore, of the character of the property right, was necessary to be determined. The court held that the conveyance amounted to the grant of a freehold interest, which should be assessed and taxed as real estate against the grantees. See, also, Guffey v. Smith, 237 U. S. 101, 35 Sup. Ct. 527, 59 L. Ed. —, decided April 5, 1915. According to these decisions, it is immaterial whether there is any such thing as absolute ownership of oil and gas in place. They plainly announce that the conveyance of such minerals in place, with a right to the use of the land for their extraction from the earth which may prove, under the instrument, of unlimited duration, creates a freehold interest in the land itself; and the last-named decision as clearly rules that such interest is taxable as realty and against the person who owns and may enjoy it.

It is assumed in the argument that because of the decision of this court in Oil & Pipe Line Co. v. Teel, 95 Tex. 586, 68 S. W. 979, and its refusal of writs of error in the cases of O’Neil v. Sun Co. (Tex. Civ. App.) 123 S. W. 172, and Witherspoon v. Staley (Tex. Civ. App.) 156 S. W. 566, it is committed to the proposition that oil and gas in place are not susceptible of grant, and their conveyance creates no property interest in the land, but only a bare-right or privilege to go on the land and mine for such minerals and reduce them to possession. The case of Southern Oil Co. v. Colquitt, 28 Tex. Civ. App. 292, 69 S. W. 169, involved the question of • whether the proper, joinder of the -wife, was necessary in a conveyance of such minerals in place under a tract constituting a homestead, together with the right to make use of the land for the purpose of their production from the earth. The Court of Civil Appeals for the Fifth District held that it was for the reason that such a conveyance amounted to the grant of an interest in the land itself. This court refused writ of error. It could have done so only under the view that the interest created by the instrument was an interest in the realty itself, requiring for its validity the joinder of the wife because of the homestead character of the realty. In O’Neil v. Sun Co. the question was the right of the Sun Company to oil from a well bored upon a tract to which it held a clear and unforfeited right under a lease. The Court of Civil Appeals for the Fourth District held that the instrument, though it purported to grant and convey the title to the oil and gas under the land, only conferred a right to exploit the ground and acquire title to the oil by its extraction from it. Under the facts of the case it was manifest that the Sun Company was entitled to the oil, whatever might be the technical classification of its right. There are essential elements of difference between the contract considered in that case and the instruments here under review. It possessed all of the characteristics of a contract for exploitation, with the right to take the oil and gas in the ground, with such right depending upon the company’s performance'of the contract. Here the instruments express a present grant of the minerals in place for a consideration which was valuable and independent of any obligation resting upon the grantee, emphasized by the parties as a conveyance of property, and not the grant of a mere franchise by a distinct provision asserting such to be its character. The same distinction exists with respect to the instrument considered in Witherspoon v. Staley, as well as that reviewed in Oil & Pipe Line Co. v. Teel. In the former case the Court of Civil Appeals held that a forfeiture of the right created under the contract had clearly accrued. We concurred in that view, and upon that ground refused the writ of error. In Oil & Pipe Line Co. v. Teel the contract was supported by only a nominal consideration other than the mere promise of the lessee to perform certain acts, but for the performance of which he was not bound. The contract was construed properly as the creation of a mere option which permitted the acquisition of an interest on performance of conditions- — • a mere optional right to acquire an interest in land, a character of instrument plainly distinguishable from those here presented.

It is our conclusion that these instruments had the effect to confer upon the plaintiff in error an interest in the several tracts of land described, the value of which was assessable against it for taxation.

The-judgments of.the District Court and Court of Civil Appeals are .therefore, affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    KELLAR v. STATE.
    (No. 3543.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1. Laecent <@=>70—Instructions — Punishment—Statute .
    Where a defendant, who was charged with the larceny of a gate, voluntarily returned it before the indictment was found, it was error to refuse his request to charge the substance of Pen. Code 1911, art. 1343, which provides that, if stolen property be returned before prosecution .shall be commenced, the penalty shall be by fine only.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185,186; Dec. Dig. <@=> 70.]
    2. Larceny <@=>71 — Instructions—Intent-Necessity.
    In a prosecution for larceny of a gate, where the defendant admitted the taking, but testified that he did so because he lived 35 miles from where lumber could be bought, and that he took the gate only to use it temporarily until he could get some lumber, and so informed the prosecuting witness, and that he thought from his past dealings with the witness that there would be no objection, it was error not to give proper instructions as to the intent of defendant.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 191-194; Dec. Dig. <@=>71.]
    3. Larceny <@=>1—Elements—“Theet.”
    A “theft” is the fraudulent taking of property witl] intent to deprive the owner of the value of it, and with intent to appropriate the property to one’s own use and benefit.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. § 1; Dec. Dig. <@=>1.
    For other definitions, see Words and Phrases, First and Second Series, Theft.]
    4. Larceny <@=>71—Instructions — Intent — Necessity.
    In a prosecution for the larceny of a gate, where defendant admitted talcing it, but claimed that it was with intent to use only temporarily, and then return it, it was error to instruct the jury that one could not borrow property without the express consent of the owner, and to refuse to submit the defense of want of felonious intent; since that amounted practically to a peremptory instruction to find the defendant guilty.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 191-194; Dec. Dig. <§=>71. ]
    Appeal from Lamb County Court; C. H. Curl, Judge.
    Earl Kellar was convicted of larceny of a gate of the value of $2, and he appeals.
    Reversed and remanded.
    Austin C. Hatchell, of Plainview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of one gate of the value of $2, and his punishment assessed at confinement in the county jail for 15 days and a fine of $35.

The bill of indictment was returned on the 23d day of last December. It is made to appear by the record that prior to the time the indictment was returned appellant had carried the gate back to the place where he took it from. He contends that under such circumstances, if it should be held that in taking the gate he was guilty of theft, as he voluntarily returned the property before the prosecution was instituted, the court should have instructed the jury the provisions of article 1343, which provides that, if the property taken under such circumstances as to constitute theft be returned before prosecution is commenced, the punishment shall be by fine only, not to exeed $1,000. Appellant asked a special charge presenting this issue, which the court refused. Under the evidence in this case, this article of the statute should have been given in charge to the jury, and the court erred in not doing so.

Again, the evidence in this case raises the issue of whether or not appellant was really guilty of theft in taking the gate. 1-Ie admits taking the gate, but says he lived 35 miles from a town in which lumber could be purchased; that he was passing the I-Iyning place (under 'the control of the prosecuting witness, Mr. Silcott), and the gate in question was lying on the ground; that he needed a gate to fasten up some pigs, and he took it, intending to return it as soon as he could get to town to get some lumber to make him a gate; that the next day Dale McBride was going to Olton (where Mr. Silcott resided), and appellant requested him to tell Mr. Sil-cott that he had gotten the gate and intended to use it for a few days until he could go to Plainview and get some lumber; that he would then return the gate. It is admitted that McBride searched for Mr. Silcott to tell him, but failed to find him. It further appears that before prosecution was begun appellant himself went to Olton, and, seeing Mr. Silcott at the post office, told him about taking the gate, and also told him the circumstances under which he had taken it, and that he would' shortly return it. From the answer of Mr. Silcott appellant saw that Mr. Silcott was not pleased with his action, when he offered to pay Mr. Silcott for the gate, but Mr. Silcott would not sell it to him. Immediately upon his return home appellant carried the gate back to the I-Iyning place.

“Theft” is the fraudulent taking of property, with the intent to deprive the owner of the value of it, and with the intent to appropriate the property to one’s own use and benefit, and, if a jury should believe the testimony offered in behalf of appellant, his acts would not constitute “theft,” as defined by our Code. Of course, he had no right to take the gate without the consent of Mr. Sil-cott, but, if he tells the truth, on account of the previous dealing between the parties he did not think there would be any objection to his taking and using the gate for a few days, and, this issue being squarely made by the evidence, the question of appellant’s intent in taking the gate should have been submitted to the jury under proper instructions.

The court also erred in defining “borrowing” as he did under the facts in this case. When the court instructed the jury one ■could not borrow property without the express consent of the owner, and then refused to submit appellant’s defense of want of felonious intent, the charge, as given under the evidence, was equivalent to peremptory instructions to find appellant guilty.

There are other questions in the case, but we do not deem it necessary to discuss them.

The judgment is reversed, and the cause is remanded.
      <&=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    MANLY v. STATE.
    (No. 3540.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1. Homicide <@=3300 — Instructions — Self-Defense.
    The evidence for accused tended to show that when he and deceased met, deceased jumped from his horse and threw his hand into his bosom as if to draw a pistol, after telling accused to halt, and that accused -then shot him. The court charged that if deceased had threatened to kill accused, or if accused had been informed that deceased had done so, such threats, or the fact that accused had been so informed, afforded no justification for the killing, unless deceased at the time of the shooting did or was doing some act, or making some demonstration, manifesting an intention to execute or carry out such threats, or which was reasonably calculated, in view of all the circumstances considered from accused’s standpoint, to produce and which did produce in accused’s mind the belief that he was about to execute such threats, that in that event accused had a right to act upon such reasonable appearance of danger, though the danger was not real, and that if deceased did any act which reasonably induced accused to believe that he was about to shoot or inflict serious bodily injury and if prompted by such belief accused shot deceased, his act was justifiable. The court did not charge upon self-defense on any other theory. Held, that the refusal of charges as to self-defense on the theory of demonstrations by deceased at the time of the killing without regard to threats was error, as the charge given was limited to threats and accompanying demonstrations.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. ■<@=?300.]

      2. Homicide <@=>109 — Self-Defense—Belief of Accused as to Danger.
    Whether a killing is in self-defense depends on the motive and intent of accused at the time ■of the killing under the light presented to him at that time, and it is improper to leave the •question to the jury’s belief as to the real facts.
    [Ed. Note. — For other cases, see Homicide, ■Cent. Dig. §§ 138, 139; Dec. Dig. <@=>109.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    John Manly was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Johnson, Matthaei & Thompson and Duncan &. Duncan, all of Bellville, and J. J. Walker, of Sealy, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of manslaughter and given two years. His theory of the case, which is presented by his own and corroborating testimony of other witnesses, was self-defense. It is shown that prior to this tragedy appellant was seriously hurt by the deceased. About a week before the deceased was to be tried for that trouble appellant and deceased met in the road. The theory of the state was that deceased was unarmed, and appellant shot him. There is a good deal of discrepancy with reference to the exact location of the wounds. Some of the witnesses' place the wounds on the right side under the right arm and just below the armpit. Others place the wounds about the right nipple. The appellant’s testimony shows that deceased, in addition to having inflicted the previous injury upon appellant, had threatened to take his life. It is unnecessary to go into a detailed statement of those matters. The evidence in regard to threats, and the seriousness of their nature, was presented by the facts. The testimony for appellant is to the effect that, upon their meeting, the deceased jumped from his horse and threw his right hand into his bosom as if to draw a pistol, after calling to him to halt. Upon his doing this appellant grabbed his gun, which was in the buggy between himself and a companion who was in the buggy, and fired the shot resulting in the death of deceased. The only thing deceased said at the time to the appellant was to halt. Some of the testimony shows he repeated the expression, “Halt!” Under this theory of the case the court charged the jury as follows:

“If you believe that Oliver Horace had threatened to kill the defendant, or if you believe he had not, in fact, done so, but believe that the defendant had been informed that said Oliver Horace had done so, the fact of such threats, or the fact that the defendant had been informed that Horace had made such threats, did not afford in law any justification for the killing, unless you believe from the evidence that said Horace, at the time of the shooting, did or was in the act of doing some act or making some demonstration manifesting an intention then and there to execute or carry out such threats, or which was reasonably calculated, in view of all the evidence and circumstances of the case, viewed and considered from the defendant’s standpoint, to produce, and which did produce, in fact, in the mind of the defendant the belief that Horace was about to execute such threats, and in that event defendant had the right to act upon such reasonable appearance of danger, notwithstanding you may now believe that such danger was not, in fact, real, and in such case, if the defendant acted under the belief that he was really in danger, he was not bound to retreat in order to avoid the necessity of killing the deceased, and if you believe that Horace did do any act or make such demonstration at the time, as, under all the circumstances, reasonably induced the defendant to believe, viewed from the defendant’s standpoint, that he (Horace) was about .to shoot, or was about to inflict serious bodily injury upon the defendant, and that, prompted by such belief, the defendant shot Horace, then his act was justifiable, and you will acquit the defendant.”

The court did not charge' upon the theory of self-defense except as above quoted. So it will be seen that tbe theory of self-defense was not charged except as connected with threats. Presenting the theory of self-defense, appellant ashed this charge, which was refused:

“I charge you that a reasonable apprehension of death or serious bodily injury will excuse a party for using all the necessary force to protect his person or his life, and it is not necessary that there be actual dangei-, provided the defendant acted on a reasonable apprehension of danger, such reasonable apprehension of danger being viewed from the defendant’s standpoint; therefore, if you believe from the evidence in this case that the defendant, John Manly, did shoot and kill Oliver Horace, the deceased, and if you believe at the time of so doing he acted upon a reasonable apprehension of death, or serious bodily injury, viewing it from the defendant’s standpoint, you will find the defendant not guilty and so say by your verdict.”

Again this charge was asked and refused:

“You are instructed that if the defendant, John Manly, at the time he met Oliver Horace, deceased, in the road, if he did meet him in the road, and at the time the deceased, Oliver Horace, made some demonstration which caused the defendant to believe that the said Oliver Horace was about to kill him, this said defendant, viewing it from the defendant’s standpoint, and the defendant then and there shot and killed Oliver Horace, you will find the defendant not guilty and so say by your verdict.”

Again, this charge, was requested and refused:

“You are instructed that if you believe that the deceased, Oliver Horace, at the time the said defendant killed him made some demonstration which was calculated to produce and did produce in the mind of the defendant that the deceased was in the act of shooting and killing or doing the defendant great bodily injury, and even though you believe that by said demonstration, if any, the deceased; did not in fact intend to shoot or kill, and did not in fact intend to inflict some bodily injury upon the defendant, then you will acquit the defendant and say by your verdict, ‘Not guilty.’ ”

These charges or their substance ought to have been given. The charge relegating the defensive theory only as to threats and accompanying demonstration is not sufficient in a case of this sort. This matter has been before the court in a great number of cases; many of these are found collated in Mr. Branch’s Crim. Law, § 482. See Lyons v. State, 71 Tex. Cr. R. 189, 159 S. W. 1072. Appellant is entitled to all of the defensive theories made by the evidence. Self-defense was presented by the facts as well as from threats, and an affirmative charge should have been given upon both theories. It will be noticed that the charge on threats given by the court leaves it largely to the belief of the jury in regard to whether the threats were made or not. In part of the charge the court does relegate the jury to the belief of the defendant, but the matter is presented in such way that the jury may have understood that they were themselves to believe that threats were made, viewed in the light of the entire record and matters occurring subsequent and from all the testimony. The criterion is, What did the defendant believe at the time of the trouble, and what prompted him to then act? It is the motive and intent of the defendant in doing the act at the time, ■ under the light presented to him at the time of the act, which controls. The special charges requested by appellant much more appropriately charged the law in this respect in regard to threats than that given by the court.

The judgment’ is reversed, and the cause remanded.

PRENDERGAST, P. J.

I doubt if the evidence raises self-defense otherwise than in connection with threats. If not, then the case should not be reversed. As I understand the law, when the evidence raises self-defense in connection with threats only, then no charge on self-defense otherwise should be given.
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    BLALOCK v. STATE.
    (No. 3541.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1. Criminal Law <@=614 — Continuance — Denial — Lack of Diligence.
    Accused’s second application for a continuance because of the absence of a witness, who had been subpoenaed and attended at least one term of court, and who subsequently removed from the state, was properly overruled, where no proper diligence to secure his testimony was shown.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. <S=
    2. Criminal Law <@=3419, 420 — Admissibility oe Evidence — Hearsay.
    On a trial for homicide, accused claimed that deceased attacked him with a knife, and that he struck deceased in self-defense. The state offered evidence that this claim was a fabrication hatched out in the office of accused’s attorneys on the morning of the trial. Meld, that evidence that it was a matter of common talk and rumor in the neighborhood where the difficulty occurred that a knife was found the next morning at the place where it occurred was properly excluded as hearsay.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@= 419, 420.]
    3. Criminal Law <@=507 — Evidence — Corroboration op Accomplice.
    Accused, deceased, and two other persons, who were present when accused struck deceased a blow from which he subsequently died, agreed to say nothing about the matter, so that the officers would not learn of it. At the time none of them knew or believed that deceased was fatally injured. Meld, that one of such persons was not an “accomplice,” and, on the trial of accused for homicide, corroboration of his testimony was not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. <@= 507.]
    4. Homicide <@=299 — Questions por Jury— Self-Defense in Preventing Theft.
    Accused and deceased gambled at cards in the nighttime, and when the game ceased two $10 bills lying between them were claimed by both. Deceased started away with them, and accused demanded them, and, when deceased refused to give them to him, struck him a blow with a stick shown to be a deadly _ weapon, from which he died. Held,, that evidence of these facts did not require the submission of the question of justification in preventing a theft at night, under Pen. Code 1911, art. 1105, providing that homicide is permitted when inflicted for the purpose of preventing such a theft.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 013; D’ee. Dig. @^>299.]
    5. Criminal Law <§=»1056 — Appeal—Reservation of Grounds of Review — Exceptions to Charge.
    Under the present statute, the court’s failure, on a trial for homicide, to submit the issue of justification in preventing a theft at night was not reversible error, where no exception was taken to the charge at the trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 26GS, 2670; Dec. Dig. <&=> 1056.]
    Appeal from District Court, Upshur County ; W. R. Heath, Judge.
    Raymond Blalock was convicted of manslaughter, and he appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of manslaughter and the lowest punishment assessed.

Appellant and Pete Jordan gambled at cards several hours and until about or early in the night. Deceased, Bud Eerguson, staked Jordan, and he and appellant’s brother, Paul, were present while they gambled. The gambling was stopped by mutual consent. Lying between the parties, when the game ceased, were two $10 bills. Eerguson then picked these up, claiming they were his, and walked off with them. While this was a disputed point, the evidence was amply sufficient to show that these bills belonged to Eerguson. Appellant, however, claimed them, and demanded that Eerguson deliver them to him. Ferguson refused. Appellant followed him off some 30 steps distant, and according to the state’s theory, and there was ample evidence to sustain it, because Eerguson refused to deliver to him the two $10 bills, appellant picked up a stick of considerable size, which was shown to be a deadly weapon, struck Eerguson across the side of the head with it, knocked him down, picked up the two $10 bills, and no further fight ensued. Appellant claimed that, at the time he struck Ferguson, Eerguson had his knife out and attacked him therewith. The state disputed this, and, while there was evidence pro and con, it was amply sufficient to show that deceased had no knife and made no attack therewith upon appellant; that this testimony was recently fabricated just prior to this trial. Eerguson could not get up after he was felled by appellant with the stick. Jordan and appellant’s brother, Paul, went to him and helped him up. All of the parties, including deceased, did not then know, and it seems did not believe, that deceased was fatally injured. At appellant’s instance, deceased, instead of going home, went to appellant’s home to spend the night. Pie could not walk from where he was felled to appellant’s without the assistance of others, and said Jordan and Paul assisted him the whole of the way. Even after reaching appellant’s and going to bed, it seems none of the parties at that time thought deceased’s injuries would result fatally. However, deceased rapidly grew worse, and died from the effects of the licit within a few hours. Just before or just after deceased died, appellant fled, attempted to escape arrest, and was not found and arrested until some days later. The officers first arrested Jordan and Paul Blalock, but, as soon as an investigation was made, both of them were released and discharged. Appellant was indicted in January, 1914. That term and two others intervened before appellant was tried in January, 1915.

Appellant claims the court erred in refusing him a continuance for the absence of the witness John Deshazo. This witness was subpoenaed by both the state and appellant at the January term, 1914, and it seems attended that and at least one other term of court and then removed to Oklahoma. When he removed there is not shown. In our opinion the court correctly overruled appellant’s motion for continuance, because no proper diligence to secure the testimony of said witness was shown. Giles v. State, 148 S. W. 317. Appellant claims that this was his first, but the record shows mat it was his second, application for a continuance. Rogers v. State, 71 Tex. Cr. R. 149, 159 S. W. 40.

The state introduced evidence which tended strongly to show that appellant’s claim on this trial that deceased attacked him with a knife, and that he struck him with a stick in self-defense, was a recent fabrication and hatched out in appellant’s attorney’s office the morning the case went to trial. On this issue appellant has several bills of exceptions complaining that the court refused to permit him to prove by several witnesses that it was a matter of common talk and rumor in the neighborhood where the difficulty occurred that a knife was found the next morning after the homicide at the place where the altercation occurred. The court correctly refused to permit such testimony. It was hearsay, pure and simple. Of course, testimony by any witness who knew it, that a knife was found the next morning at the place where the homicide occurred, which was deceased’s knife, would have been admissible, but not said hearsay testimony.

Appellant also contends that the court erred in refusing to give his special charge submitting to tbe jury the question of whether or not said state’s witness Pete Jordan was an accomplice, and that his testimony had to be corroborated, in that the evidence showed or tended to show that he was an accessory. The basis for this in the evidence was that, after the difficulty between appellant and deceased, the four persons, who were present during the gambling and when the difficulty occurred and the lick was struck, afterwards agreed, among themselves, they Would say nothing about it, so that the officers would get hold of it. As expressed by appellant’s brother and witness, Paul Bla-lock:

“After he [deceased] got up it was discussed between all of us as to where he should go, and he, at Raymond’s suggestion, agreed that he would go home with Raymond and stay all night, and we would say nothing about it, so that the officers would get hold of it.”

This and no other evidence in the record would show or tend to show that said witness was an accessory. P. C. art. 86; Hargrove v. State, 63 Tex. Cr. R. 143, 140 S. W. 234; Schaekey v. State, 41 Tex. Cr. R. 255, 53 S. W. 877. Many other cases might be cited on this point, but we deem it unnecessary. Our decision herein in no way conflicts with Harrison v. State, 69 Tex. Cr. R. 302, 153 S. W. 139, wherein we discussed this question and expressly disapproved of some general statements in several cases therein mentioned.

Appellant made no exception to the court’s charge at the time of the trial on the point we will now discuss. After the trial, in his motion for new trial, and now, he claims that the court erred in not submitting a charge justifying the homicide on the ground that it was committed for the purpose of preventing theft at night under article 1105, P. C. He asked no charge on the subject. In our opinion the facts called for no such charge. Even if they had, under the statute as it now is, as has many times been decided by this court, the court’s failure to submit such issue would not present reversible error. An accused cannot now, as formerly, wait till after the trial to have such contentions sustained.

The questions we have discussed and decided are all that are presented in appellant’s brief. Some other questions, however, are raised in the record. None of them present any error. It is unnecessary for us to state or discuss them.

The judgment will be affirmed.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gn=jFor other cases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes


text:
    RITTER v. STATE.
    (No. 3526.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1.Indictment and Information <@=355 — Sufficiency of Indictment — Evidence.
    An indictment, and each count thereof, must be tested by itself as a pleading, and can neither be supported nor defeated as such by the evidence at the trial.
    [Ed. Note.-l-For other eases, see Indictment and Information, Cent. Dig. § 174; Dec. Dig. @==>55.]
    2. Forgery <@=>12 — Indictment — Sufficiency.
    An indictment for the forgery of a railroad receiver’s certificate for the amount due discharged employes, which sets forth a blank certificate furnished by the receivers to their agents to be used in. paying off employes, and which sets forth the meaning of all the terms in the blanks, and which sets forth a copy of a certificate charged to have been forged, is sufficient as against the objection that the alleged forged instrument did not appear on its face to be one on which, if genuine, the receivers could be held liable, in that neither their names nor the -word “receivers” appears in the alleged forged certificate; the names of the receivers and the word “receivers” not appearing in the blank form.'
    ■ [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 28-47; Dec. Dig. <§=>12.]
    3. Forgery <@=>29 — Indictments — Sufficiency.
    That the blank copy of the certificate did not have on its face “Supt. of Machinery,” and that the forged certificate did have such words, did not render the indictment invalid.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. <@=>29.]
    4. Forgery <@=>29 — Subject of Forgery — Statutory Provisions.
    Under Pen. Code 1911, art. 924, declaring that one who, without lawful authority and with intent to defraud, shall make a false instrument in writing purporting to be the act of another, in such manner that the false instrument so made would, if true, create a pecuniary obligation, shall be guilty of forgery, an alleged forged instrument must on its face be a completed instrument, or, if not a completed instrument, the indictment must allege extrinsic facts to show that the instrument, if genuine, would be a valid instrument.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. <§=>29J
    5. Criminal Law <@=770 — Instructions — Statement of Statute.
    The court may in its instructions state what the charge preferred in the indictment is, and may then charge the jury that they must believe every essential fact necessary to show guilt before they can convict, and need not tell the jury what the statute is and .lay down general principles of law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1898; Dec. Dig. <@=>770.)
    6. Forgery <@=34 — Indictment—Allegation of Forgery of Obligation of Corbpobation — Plea—Evidence.
    Where accused, indicted for the forgery of an obligation of receivers of a railroad corporation, did not under oath plead that the corporation was not duly incorporated, but his only plea was an oral one of not guilty, it was not necessary for the state to prove that the corporation was duly incorporated.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. <@=>34.]
    Appeal from District Court, Anderson County; John S. Prince, Judge.

      M. T. Ritter was convicted of forgery, and lie appeals.
    Affirmed.
    A. G. Greenwood, of Palestine, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appeal in this case is from a conviction under an indictment in two counts — the first charging forgery, the other for knowingly having a forged instrument in his possession with intent to use and pass it.

The indictment is unusually lengthy. It occurs to us that it will tie proper, if not necessary, to give the substance of the indictment, which we will endeavor to do without copying it literally. After the necessary usual allegations of the beginning it avers:

That on October 8, 1914, and for years prior thereto and continuously since then, the International & Great Northern Railway Company was and is a railway company chartered and incorporated according to the laws of Texas. That on October 10, 1914, by an order of the United States District Court for the Southern District of Texas, by the order of the judge thereof, all of the properties and franchises of said Railway Company were placed in the hands of Baker and Lyon as receivers, who were then duly appointed by said court as such receivers, and that they as such immediately qualified and took possession of all of said property and franchises, and from and after that date have had and still have possession thereof, operating said railroad and the machine shops and other appurtenances thereto belonging. That in such operation said receivers adopted and used certain blank forms, known as discharge certificates, and furnished them to their agents, and especially to E. Naylor and W. T. B. I-lanson, to be used by them in paying oil discharged employes, which said blank form is in form, words, and figures, as follows:
That on October 8, 1914, said Naylor was timekeeper for said receivers, and as such it was his duty to use said blank form, and to state thereon, preceding the word “Hours,” the number of hours which any discharged employs had worked for said receivers, and preceding the word “Days” to place the number of days’ service performed by such employe, and in the blank following “Days,” in the column provided for stating amounts, to state and show the amount of money in figures to which such employs would be entitled, and to state, following “Hospital Fees,” the amount to be deducted from such total sum as hospital dues, and following “Balance Due,” and next to the dollar mark to show the amount due such employs by the receivers, after making proper deduction, and at the top or beginning of said blank to fill in by showing the post office and date, and to fill in preceding “Div.,” which meant “division,” the word indicating in what division such labor had been performed, and in the next blank the month during which the service was rendered and the year and the capacity in which such employs worked, and after so preparing such certificate to properly certify, over his signature, that the certificate was correct. That after said Naylor had so prepared the certificate, it would be payable only when countersigned by said Hanson, who was chief clerk to the superintendent of machinery, and it was his (Hanson’s) duty, and he had authority, to countersign such certificate, thus confirming and showing that the receivers would then owe and be bound to pay to the person in whose favor it was made out the amount of money as stated in the appropriate blank by said Naylor-. That while said form shows that the account of such employe was wages to be made out against said railway company as debtor, yet in truth and in fact, when such certificate was filled out as indicated, and as the one was filled out and forged as hereinafter set out, it was intended to become, and if made out by the said Naylor and countersigned by Hanson it at once became, a binding and pecuniary obligation and demand against said receivers for the sum stated therein. That said Ritter on October 8, 1914, in Anderson county, Tex., did then and there, without lawful authority, and with the intent to injure and defraud, willfully and fraudulently make out a certain false instrument in writing, purporting to be the act of said Naylor and Hanson, which said false instrument is to the tenor following:

In making the alleged forged certificate, a precise duplicate of the form first above copied was used. The original indictment has been sent up and is a part of the record herein. In this place, where we have just copied, is the original claimed forged instrument itself, not merely a copy of it. The indictment proceeds:

That in committing said forgery said Ritter used one of the blank discharge certificates as above set out and filled in the blanks as follows: At the beginning he wrote “Palestine, 10/8,” and following “191..” he wrote the figure “4,” by which he meant, and made the said instrument to mean, “Palestine, October 8, 1914.” Preceding the abbreviation “Div.” he wrote “Gulf,” by which he meant, and made said instrument to mean, “Gulf Division.” He used the abbreviation “Mach.,” by which he meant, and made said instrument mean, “machinist.” Preceding the word “Hours” he wrote the figures “270,” by which he meant, and made said instrument mean, that J. P. Philips, whose name he placed in said certificate, as debtor, had worked in the machine shops of said railway company, then being operated by said receivers, 270 hours. Preceding the word “Days” he wrote “80,” by which he meant, and made said instrument mean, that said Philips had worked as a machinist in the shops of the railway company for said receivers 30 days. In the blank for stating the amount, following “30 Days,” he wrote in the column for dollars “116” and in the column for cents “10,” by which he meant, and made said instrument mean, that said' receivers for said 30 days’ labor were indebted in a gross sum to Philips of $116.10. Following “Hospital Pees” he wrote “50,” by which he meant, and made said instrument mean, that 50 cents should he deducted from said gross sum as hospital fee. In the column stating the amount and following the words “Balance Due” he wrote in the column for dollars “115” and in the cents column “60,” by which he meant, and made the instrument mean, that the balance due by said receivers to said Philips was $115.60. That he signed the name of Naylor following the words “I certify that this certificate is correct,” by which he meant, and made the instrument mean, that Naylor, timekeeper for said receivers, had signed said certificate. Following the word “Countersigned” he signed “W. T. B. Hanson,” by which he meant, and made said certificate mean, that it had been duly signed by said Hanson, chief clerk to the superintendent of machinery for said receivers. That the expression in said instrument, “International & Great Northern R’y Co.,” was intended to mean, and did mean, said International & Great Northern Railway Company. That for the purpose of paying off employes, and furnishing them a proper demand against said receivers for the sum due by the receivers to such employes for labor performed, said Naylor, as timekeeper, and said Hanson as chief clerk, to the superintendent of machinery for said receivers, were fully authorized by the receivers to issue discharge certificates such as the one last above set out, and purporting to be signed by them, and in so doing for and in behalf of said receivers said Naylor and Hanson, had full authority to use the blank form first: above quoted as a discharge certificate, and to issue such certificate in the manner and form in which it was made by said Ritter, and, if they had executed the same in the manner and form in which the said Ritter executed the one last above set out, such certificate would have created a pecuniary obligation and liability against said receivers for the sum of $115.60— against the peace and dignity of the state.

This completes the first count in the indictment. The second count is a counterpart or literal copy of the first, except that, instead of the allegations in the second charging forgery, they were pertinent and clear charging that he knowingly had said forged instrument in his possession with the intent to use and pass the same as true.

Appellant made a motion to quash said indictment on many grounds. We will summarize and state tie 'substance of suck of tkem as ke now urges:

(1) That tke first form copied is directly contradictory of tke instrument alleged to be tke forged discharge certificate in tkis:

“Upon tke latter is stamped in red ink, opposite the word Hile, the words Supt. of Machinery, which do not appear in the blank form first set out. And in the alleged forged instrument is stamped in red ink the words Supt. of Machinery, and above the same is a line for a signature, and above said line is the word Approved, which does not appear in the form which it is alleged the agents of the receivers were authorized to issue. Wherefore there is an irreconcilable conflict in the two allegations.”

(2) The alleged forged instrument could not be the subject of forgery, because upon its face it shows it is not a complete instrument, in that it shows that it is not completed, if true, until the blank line opposite the word title was filled in, thereby showing the department by which it was issued and approved, by signing and filling in the name of the superintendent of machinery above said last-named words.

(3) That the instrument shows upon its face it is not an ordinary instrument used in commercial transactions. Hence it was necessary to explain all of the figures, abbreviations, and technical terms therein, as was undertaken; but the following technical terms, blanks, and signatures and words used are unexplained in the indictment, viz.:

“At or on.under.(title) Supt. of Machinery
“Approved:
“Supt. of Machinery.”

(4) That said instrument is not a pecuniary obligation, and, if true, could not be enforced against said receivers, even though the indictment alleges it was authorized by the receivers and intended to be a pecuniary obligation binding upon them as such; the allegation not being supported by the instrument, but directly contradicted thereby, and neither the names of the receivers nor the word “receivers” appear anywhere therein.

The indictment and each count thereof must be tested by itself under the law, as a pleading. It can neither be supported nor defeated as such by what evidence is introduced on the trial. Thus tested, we think there can be no question but that the indictment was sufficient, so far as appellant’s fourth ground attacking it is concerned. By the allegations thereof there can be no question but that the receivers, even if that were necessary, are shown to be liable and could be held liable on said instrument, if, as forged, it had been a true and genuine instrument.

There is nothing, either in tjie allegations of the indictment or in the printed form, or in the forged instrument itself, which in any way made it necessary to explain the words and blanks which appellant quotes in his third ground to quash the indictment. The allegations of the indictment fully and completely explain every word, blank, and contraction of words which were necessary and proper, and made it unnecessary to make any further or other allegation explaining the said words, blanks, and contractions of words complained of by appellant. We have examined the cases cited by appellant on this point, and are clearly of the opinion that the allegations in the indictment in this ease must have been drawn with reference to these authorities for it meets them in every particular. Instead of being authorities in appellant’s favor, we think they are against him. They are: Joiner v. State, 48 Tex. Cr. R. 360, 87 S. W. 1039; Joiner v. State, 46 Tex. Cr. R. 408, 80 S. W. 531; Chappel v. State, 58 Tex. Cr. R. 52, 124 S. W. 657; Womble v. State, 39 Tex. Cr. R. 24, 44 S. W. 827; Rollins v. State, 22 Tex. App. 548, 3 S. W. 759, 58 Am. Rep. 659; Wilson v. State, 75 S. W. 504; Crayton v. State, 45 Tex. Cr. R. 84, 73 S. W. 1046; Crayton v. State, 47 Tex. Cr. R. 88, 80 S. W. 840.

In order for appellant to make even plausible his first and second grounds to quash the indictment, he undertakes to support his objections by citing some excerpts of the testimony which was introduced on the trial. This, as stated, cannot be done. The pleading must be tested, when it is claimed it is insufficient, by the pleading itself. And whatever testimony was introduced on the trial cannot be referred to as either supporting the allegations or to show their insufficiency, so far as the validity of the indictment itself is concerned.

It is true that the blank copy of the printed discharge certificate, which is alleged to be the form authorized by the receivers, did not have on the face of it “Supt. of Machinery,” and that the forged certificate did have these words therein; but that does not, as claimed by appellant, show any conflict between the two, but rather emphasizes the fact of how appellant, or whoever forged the certificate, changed the original blank authorized by the receivers to that actually forged. The allegations about the respective documents make all this clear and distinct. So that there is no conflict, irreconcilable or otherwise, between the two, so as to in any way show that the indictment is invalid.

Neither by the statute, nor any of the decisions as we understand them, is it required that an alleged forged instrument has to be a completed instrument in order to be the subject of forgery. In fact, as we understand both the statute and the decisions, the reverse of this is true. The statute says (article 924, P. C.) that he is guilty of forgery who, without lawful authority and with intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another in such manner that the false instrument so made would (if the fact were true) have created, etc., any pecuniary obligation or in any manner have affected any property whatever. Of course, if the instrument on its face shows to be a completed instrument, that would be all that was necessary, but if it was not on its face a completed instrument, then, and only then, is it necessary that such allegations must be made of extrmsie facts to show that, if genuine, it would be a valid instrument. Even if this instrument alleged to be a forgery should be held to be incomplete on its face, then every allegation which was necessary or proper to show how, if genuine, it was a forgery, has been made. We cannot see what allegation on this subject has been omitted. In fact, we think that the allegations made are without doubt sufficient to show that this alleged forged instrument was executed in such a manner as to show clearly that, if it had been true, it would have created a valid claim against the receivers as alleged. Forcy v. State, 60 Tex. Cr. R. 206, 131 S. W. 585, 32 L. R. A. (N. S.) 327; King v. State, 42 Tex. Cr. R. 108, 57 S. W. 840, 96 Am. St. Rep. 792; Cagle v. State, 39 Tex. Cr. R. 109, 44 S. W. 1097; Scott v. State, 40 Tex. Cr. R. 105, 48 S. W. 523, A great many other authorities might be cited to the same effect. None cited by appellant are to the reverse. So that the court did not err in sustaining the validity of the indictment against all of appellant’s objections thereto.

It is unnecessary to state the evidence. It was amply sufficient and complete to establish every fact essential to appellant’s conviction. In fact, we can hardly see how it could be more perfect or complete to show this.

Appellant asked several special charges, and made many objections to the court’s charge. They are generally along the line of his attack of the indictment. The court gave an apt charge, requiring the jury to believe beyond a reasonable doubt every fact essential to his conviction which was necessary or proper, before they could convict him, and told the jury, if they did not so believe all these facts, to acquit him. In addition, he gave the reasonable doubt charge in appellant’s favor. None of appellant’s special charges, except the one which the court did give, should have been given.

Most judges, in charging a jury, tell them what the statute is and lay down general propositions of law pertinent to the case. This charge did not do that. Instead, the court told the jury, at first, what the charges preferred in the indictment were, then in his charge required the jury, as stated, to believe every essential fact necessary to show his guilt before they could convict. It has many times been held by this court that it is unnecessary for the court to tell the jury what the statute is and lay down general principles of law. It has commended such form of charge without this.

Appellant filed no plea under oath that the International & Great Northern Railway Company was not duly incorporated. His only plea was an oral one of not guilty. Therefore it was unnecessary to prove that said railway company was duly incorporated. White v. State, 61 Tex. Cr. R. 499, 135 S. W. 563; Bunker v. State, 177 S. W. 108, this day decided. As shown, the indictment alleged that F. Naylor had authority to issue such discharge certificates as are shown therein. As also stated, the original indictment herein and the original alleged forged instrument is made a part thereof, and we have carefully inspected it. He contends that what the state claims is the name of F. Naylor is not that, but that it is F. G. Naylur. We had occasion in Feeny v. State, 62 Tex. Cr. R. 585, 138 S. W. 135, to discuss a matter precisely similar to this, and what we said therein fully applies to this case. It is unnecessary to further discuss the question. In our opinion, the name is not as contended for by appellant, but is as contended by the state. See, also, Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696.

We see no necessity of taking up and discussing every question raised by appellant. We have discussed the material and deciding questions, and are of the opinion that no reversible error is pointed out in this record.

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


text:
    RICHARDSON v. STATE.
    (No. 3542.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1. Criminal Law <§=>1144 — Appeal — Presumptions.
    In a prosecution for homicide, newly discovered evidence of threats not communicated to accused, cannot on appeal be held ground for now trial in the absence of a statement of facts, for as such evidence would be admissible only on the issue of who began the difficulty, it must be presumed in favor of the lower court’s denial of a new trial either that the testimony was merely cumulative or that there was no such issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. <§=>1144.]
    2. Criminal Law <§=>957 — New Trial — Misconduct or Officer in Charge of Jury.
    Where most of the jurors testified that the deputy sheriff in charge did not give them information not brought out in the evidence, and one of them explained that he paid no attention to the deputy’s alleged remark because it was contrary to the facts shown in the evidence, it was proper to deny new trial sought on the ground that the jury had received information other than from the evidence. ,
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. <§=> 957.]
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    Herbert Richardson was convicted of manslaughter, and he appeals.
    Affirmed.
    Freeman & Batsell, of Sherman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

No statement of facts accompanies the record, and the only questions presented for review relate to the question of whether or not the court erred in not granting a new trial on account of alleged newly discovered testimony, and the allegation that the jury received other testimony during the trial than that adduced on the witness stand. Mr. I/. O. Chapman testified that since the trial of the case in a conversation with L. J. Harden he heard Mr. Harden state he heard Abraham Richardson (the deceased) threaten to hill Herbert Richardson (the defendant). The record discloses that this threat had never been communicated to defendant, and it would only he admissible on the issue of who began the difficulty, if that was an issue in the case. In the absence of a statement of facts it is impossible for us to determine whether or not such testimony was material. We cannot tell whether or not it is but cumulative on this issue, or have any idea of whether or not such a threat, if proven, would have any tendency towards producing a different result. If we had the evidence before us adduced on the trial, we could intelligently pass on the •matter, but without it we cannot. The trial, court heard the evidence on the trial, and when this ground of the motion was presented to him, we must presume that he held it was but cumulative of other testimony; that the issue of who began the difficulty was not in the case, or that some other rule of law prevented him from granting a new trial on that ground.

On the issue of whether or not the jury received other testimony than that adduced on the witness stand, Mr. Loy Helvie, one of the jurors, testified that E. B. Kidd, the deputy sheriff in charge of the jury, had said during the trial of the case Ralph Richards (a witness for defendant) and Herbert Richardson, the defendant, were half-brothers, but also swears:

“I paid no particular attention to it, because it was proven on the witness stand they were not related.”

J. B. Green testified he never heard Mr. Kidd say anything about Richards and Richardson being related, but that he heard Mr. Kidd say:

“The Richardson set is a tough set.”

O. A. Allen testified that he did not hear Mr. Kidd say anything about the Richard-sons being a tough set, but that Mr. Kidd made a remark about Ralph Richards and Herbert Richardson being connected.

If this was all the testimony heard by the court, we would be inclined to hold that the deputy sheriff had made improper remarks in the presence and hearing of the jury; but the state introduced other jurymen, and Deputy Sheriff Kidd testifies:

“I will swear that I did not make any statement that the Richardsons were a tough set. There was something said about Herbert Richardson having some half-brothers, and I think I replied that I understood he had some half-brothers. I did not say that Ralph Richards was Herbert Richardson’s half-brother.”

J. W. Miller testified that Mr. Kidd was the officer in charge of the jury, and that Kidd at no time said the Richardsons were a tough set, or that Richards was a half-brother of appellant.

Another juryman, G. W. Ruddle, says that he never heard anything about Richards and appellant being half-brothers, nor that the Richardsons were a tough set. J. D. Coe, B. H. Estep, J. H. Tettleton, Mr. Gregg, and J. E. Burkett, all members of the jury, swear that the deputy sheriff made no such remarks.

Thus the court had before him one juryman who testified that Mr. Kidd had said the Richardsons were a tough set, and nine of the jury who testified that Mr. Kidd made no such remark. In addition to this Mr. Kidd swears positively he did not do so.

The court also had before him two jurymen who testified that Mr. Kidd said that Ralph Richards and Herbert Richardson were half-brothers, or related. Mr. Kidd says he made no such remark, and eight jurymen swear that no such remark was made. In addition to this, the juryman who says that he heard Mr. Kidd make the remark also testifies:

“I paid no attention to the remark, because it was proven on the witness stand they were not related.”

If the eight jurymen and Mr. Kidd were mistaken, and the two jurymen right, and he had inadvertently made such a statement, and it was subsequently proven on the witness stand they were not related, certainly such remark could not and would not have influenced the jury. There was no error in the court overruling the motion.

The judgment is affirmed.
      <g=?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    WORLD’S SPECIAL FILMS CORPORATION v. FICHTENBERG.
    (No. 5454.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 28, 1915.
    Rehearing Denied May 26, 1915.)
    1. Damages <@=>157— Issues — Breach oe Contract — Denial—Scope oe.
    New affirmative matter of defense cannot be brought in by a general denial; hence, in an action for breach of contract, defendant, who did not specially plead it, cannot urge that plaintiff did not attempt to minimize his damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 429-488, 440, 447, 449-453; Dec. Dig. <@=>157.]
    2. Trial <@=>251 — Instructions—Pleading.
    An issue not raised by the pleading should not be submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. <@=>25.1.]
    3. Trial <@=>253 — Instructions—Evidence.
    An issue clearly raised by the evidence should be submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <@=3253.]
    4. Trial <@=>260 — Instructions.
    Charges covered by charges given are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@=>260.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by H. Ficlitenberg against the World’s Special Filins Corporation. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Hunt, Myer & Teagle and Rodman S. Cosby, all of Houston, for appellant. B. F. Louis, of Houston, for appellee.
   CARL, J.

Appellee, H. Fichtenberg, doing business as Isis Theater, sued appellant for damages for breaching a contract whereby appellant agreed to furnish appellee a film for a special feature picture known as “Pro-tea,” to be run three days beginning November 24, 1913, in appellee’s theater in Houston, and recovered $229. It was alleged that appellee was to receive $135 of each day’s proceeds, and the excess over and above that amount was to be divided equally between the parties. On November 18th appellant advised appellee that the contract was canceled, and it is alleged that appellee had gone to expense in advertising the special feature show; that appellant had knowledge that appéllee only used “first run” pictures, because it had direct notice of that fact, and also by reason of the universal custom of ap-pellee to use only first run pictures, of which custom, it was claimed, appellant knew. Thd suit was for $429.24, being the amount ap-pellee would have received had the film “Pro-tea” been delivered and exhibited, based on the number of adults and children who actually attended the theater during the three days, and $300 for alleged loss which appel-lee suffered by reason of the loss of additional patronage which he would have secured by virtue of additional advertising. The answer was a denial, paragraph by paragraph; no special defense being pleaded.

The first assignment of error complains of the action of the trial court in refusing to permit the witness Sanford to testify as to whether, in his opinion, the plaintiff could have procured another special feature film along the same general lines as the film “Pro-tea” if he had made an effort to do so. As a proposition, appellant submits that it was the duty of appellee to minimize the damage arising from the breach of the contract as far as he could by getting and using other special films along the same general lines as “Protea.”

We have called attention to the fact that the answer does not set out any affirmative plea of matters in the nature of avoidance. And while under the answer as made, which is equivalent to a general denial under the old practice, any evidence could he introduced which would defeat the action for damages, or which would tend to show that appellee had not been damaged as alleged, testimony would not be admissible tending to support a theory avoiding the action unless that matter should be pleaded. In this character of case appellant is in the attitude of saying: “It is true the contract has been breached, and you have been damaged; but you cannot recover because of your own contributory negligence in failing to at least attempt to get other films. Because of your negligence this company is not liable.”

“It is well settled by repeated decisions of the Texas courts that new affirmative matter of avoidance or defense cannot be given in evidence under a general or special traverse, but must be specially pleaded.” Willis & Bro. v. Hudson, 63 Tex. 678; Smothers v. Field, etc., Co., 65.Tex. 435; Winn v. Gilmer, 81 Tex. 345, 16 S. W. 1058; Farmers’, etc., Nat. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966.

If the defendant is satisfied to simply deny the case as pleaded and seek to disprove same, he may rest upon his denial of the allegations made; but when he relies on any special matter of defense to defeat the cause of action he should allege and prove the same. When the plaintiff makes out a pri-ma facie case, the burden of establishing special defenses which would defeat such prima facie case shifts to the defendant so relying on such special defenses, and, unless he has pleaded these defenses, he certainly cannot prove same. The first assignment is overruled. Moody & Co. v. Rowland, 100 Tex. 363, 99 S. W. 1112; Murchison v. Mansur-Tibbetts Implement Co., 37 S. W. 605. We especially refer to the case of Moody & Co. v. Rowland, supra, as being a recent clear-cut decision by the Supreme Court.

There being no pleading to support the evidence upon the matters above referred to, it was not error for the court to refuse to charge thereon, and the second and third assignments are overruled.

The evidence clearly raised the issue as to whether appellant was advised of appellee’s custom never to use anything hut first run films, and the court did not err in charging thereon. The fourth and fifth assignments are overruled.

The matters complained of in the sixth assignment by reason of the failure of the court to give defendant’s specially requested charge No. 2 were covered in the court’s main charge, and it was not necessary to give same. This assignment is overruled.

We have examined the other assignments of error, and, finding them without merit, they are overruled.

The judgment is affirmed.
      <SE5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes