text:
    LEWIS v. STATE.
    (No. 3580.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    Rehearing Denied June 25, 1915.)
    1. Criminal Law <&wkey;1099 — Appeal — Statement oe Facts — 1Time eor Filins.
    A purported statement of facts delivered by the court stenographer to the appellant’s attorney on October 5, 1914, and some weeks aft-erwards presented to the district attorney, who signed it as correct, but did not agree that it should be filed as of the proper time, which had expired September' 15, 1914, and after-wards presented to the court for approval, would not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Gent. Dig. §§ 2866-2880; Dec. Dig. <§=> 1099.]
    2. Criminal Daw &wkey;>1101— Appeal — Statement - oe Facts — Appeal in Forma Pau-peris.
    Under Act March 31, 1911 (Acts 82d Leg. c. 119) § 8, providing that on an affidavit in forma pauperis, seeking to have the court stenographer make a report of the trial without pay, the court shall make an order as in civil cases, such order is within the discretion of the court after hearing the affidavit and the evidence thereon, and where an affidavit was never presented to or acted upon by the court, and showed no reason why appellant had not made out a statement of facts without regard to the stenographer’s report within the 90 days allowed by law, a purported statement of facts delivered to defendant by the court stenographer would not be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3204; Dee. Dig. <@=>1101.]
    3. Criminal Law <&wkey;1099 — Appeai>-Statement oe Facts.
    Under Act March 31, 1911, § 14, allowing to a defendant convicted of a capital offense, who cannot and has not employed an attorney to- represent her and for whom the court has appointed an attorney, a free statement of facts from the reporter, a purported statement of facts delivered by the court stenographer to defendant’s attorney after conviction for felony theft could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey; 1099.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Mrs. Mildred Lewis, alias Mrs. Earl, was convicted of felony theft, and she appeals.
    Affirmed.
    Robert P. Coon, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of felony theft, and her punishment assessed at three years in the penitentiary.

The case was tried, and she was convicted on March 28, 1914. On the same day she filed a short formal motion for new trial. The court, for that term, adjourned on May 2d, which was the last day under the law at which that term could be held. On the morning of that day, about 10 o’clock, she filed an amended motion; there being 41 grounds set up. It contained 41 typewritten pages. Attached to it, among other things, were some affidavits attacking one of the jurors as disqualified. The district attorney at once contested the motion, among other things, showing that the juror attacked was then in California, and it was necessary that he should be had on the hearing of that motion, that the affidavits attacking Mm were made, one on April 21st, another on the 23d, and another on the 24th, but that he knew nothing about it, and they were not filed in this case, until said motion was filed as stated, and lie thereupon applied to the court to continue the motion till the next term of the court. The court so ordered. It seems that the next term of the court convened the following Monday. Her amended motion for new trial was still further contested by the district attorney, and the court heard it on June 17, 1914, and overruled the motion. Appellant then gave notice of appeal. No bills of exceptions were allowed and approved or filed at any time.

The record shows that no statement of facts was at any time filed in the lower court. In compliance with a writ of certiorari from this court, the clerk sends up what may have been intended for a statement of facts containing about 35 typewritten pages. This purported statement of facts in no way, on its face, indicates when it was agreed to by the parties, nor approved by the court. Doubtless the dates were purposely left off. The record shows that this purported statement was delivered by the court stenographer to the appellant’s attorney on October 5, 1914; that it was not thereafter presented to the district attorney for his action until some weeks afterwards. When it was, he immediately examined it and signed it as correct, but did not agree that it should be filed back within the time. Doubtless it was presented to the judge for his approval some time after the district attorney acted on it. The time for filing it under the law expired September 15, 1914, under any and all events.

On May 2, 1914, appellant made the pauper’s affidavit seeking thereby to have the court stenographer make a stenographic report of the trial without any pay. The record fails to disclose that this affidavit was ever presented to or acted upon by the court, or that any action whatever thereon was sought from the court. So far as the record discloses, the court was ignorant that any such affidavit was ever filed. Even if she had been entitled to the statement under her affidavit, if she had sought and procured the order of the court, it could have been complied with within a very few days. The statement as shown is only about 35 typewritten pages, and doubtless could have been prepared within a day. However, the statute prescribes (section 8,' Act of March 31, 1911, p. 267) that, when such affidavit is filed, the court shall make an order as in civil cases, which, as we understand, is within the discretion of the court, after hearing the affidavit and evidence thereon. But, as stated, the court, in this case, never acted on said motion, and his action thereon was not sought. Besides, said act of the Legislature expressly shows that the appellant need not rely upon the court stenographer at all to make out a statement of facts, but can do so without regard to the stenographer. No reason whatever is shown in her pauper’s affidavit or otherwise why she could not and why she did not thus make out a statement of facts within the 90 days allowed by law.

Again, where a defendant is convicted of a capital offense and cannot and has not employed an attorney to represent him, and the court appoints an attorney, the defendant is entitled to a free statement from the stenographer. See section 14 of said act. So that, in no event, can we consider said purported statement of facts.

In the absence of this, there is no question raised which we can review, and the judgment is therefore affirmed.
      ®o>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    CARUTH v. STATE.
    (No. 3594.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    1. Criminal Law <&wkey;658—Conduct of Trial—Remarks and Conduct oe Judge-Comments on Evidence.
    A witness, in a prosecution for keeping a gaming house, testified, on questions by the court, that he had spent much of his time on the premises, but had seen no gambling, whereupon the court ordered Ms arrest until a perjury indictment could be filed against him. He was immediately taken by the sheriff, led from the witness stand in the presence of the jury, and carried to jail. Defendant had pleaded not guilty to the gambling charge and had also moved for a suspended sentence. The statutes provide that the jury are the exclusive judges of the facts and the credibility and weight of the evidence and that the court shall rule without expressing his conclusion or belief as to the testimony. Held, that the court’s action in arresting the witness constituted an expression on the weight of his testimony in open court. '
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1534%; Dee. Dig. <5&wkey;658.]
    2. Criminal Law <&wkey;273 — Arraignment and Plea—Right to Plead.
    One accused of crime alone can plead guilty, and his attorneys cannot do it for him.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634; Dec. Dig. &wkey;273.]
    3. Criminal Law &wkey;>982—Suspension oe Sentence—Evidence oe Reputation.
    In a prosecution for running a gambling house, evidence that defendant after his arrest was again seen at such house was inadmissible on a plea of suspended sentence; other transactions than that with which defendant stands charged being material only as to his reputation or standing.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    4. Criminal Law <&wkey;376—Evidence—Char-acter oe Accused.
    Where one is on trial in a. criminal case, his character prior to the commission of the offense may be inquired into, but not the character he may have acquired after the commission thereof or what is said about his character after such time.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. &wkey;376.]
    Appeal from District Court, Wichita County; J. W. Akin, Judge.
    Bob Caruth was convicted of keeping a gaming house, and lie appeals.
    Reversed and remanded.
    T. R. Boone, oí Wichita Balls, for appellant. O. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with keeping a gaming house, or permitting gaming in a house under his control.

The evidence shows it was a negro social club. Some of the evidence shows that gaming was carried on in the house such as exhibiting a monte bank, playing craps, or shooting dice. The state put a witness on the stand, who was a member of the club. He denied that gaming was carried on at the club rooms. A bill of exceptions recites that, after the witness had so testified, the court took him in hand and examined him. This witness was a member of the oragnization, and was at the club much of his time, but saw no gambling. Upon cross-examination he testified to the same effect, whereupon the court took the witness in hand, when the following occurred:

“The Court: Q. Do you say that there was no gambling with dice going on in that pool room? A. None that I saw. Q. Were you there? A. Most of the time. Q. Were there any monte games going on on these small tables? A. I never seen anything of the kind. Q. Was there any going on there? A. None that I seen. Q. Would you have seen it if there had been? A. Xes, sir.”

When the witness answered the court, as above stated, the court wheeled around in his chair, and immediately said to the sheriff:

“Mr. Sheriff, take this witness and look him up in jail until a perjury indictment can be filed against him.”

The sheriff took charge of the witness, and led him off the witness stand and out of the courtroom. Said acts all took place in the presence of the jury. Various and sundry exceptions were taken to this action of the court, which we deem unnecessary to repeat. The court filed a bill substantially as above stated, and added the qualification that:

“At no time during the trial of the case was the guilt of the defendant contested, the defendant’s object being purely to obtain a suspended sentence, and defendant’s counsel stated to the jury that they should return a verdict of guilty, but recommended a suspension of the sentence, so that the act of the court could not have been prejudicial to the rights of defendant.”

Appellant declined to accept this bill of exceptions as qualified and prepared one approved by bystanders, which is properly verified and in the record. This bill made by bystanders was not in any way contested. These bystanders verify the statement that this all occurred in the presence of the jury and as stated in the bill of exceptions reserved and prepared by appellant. Appellant entered a plea of not guilty and was contesting the state’s case, and also filed a suspended sentence motion. The court in his written charge instructed the jury to disregard the remarks he had made. The court does not qualify in any manner whatever the statement that these matters occurred, as stated by appellant, in his bill of exceptions. The qualification was in the nature of minimizing the error by stating that appellant’s attorney was not contesting his guilt, but was making a plea for suspended sentence.

Appellant had pleaded not guilty. He had not entered a plea of guilty. This he alone could do. His attorneys could not do this for him. Not only so, but the statute requires if he pleads guilty he must be warned of the consequences of his act, and, not only so, but testimony must be introduced in order that the jury might arrive at a correct conclusion even under the plea of guilty. The witness who was sent to jail to await an indictment for perjury at the suggestion 'of the court was testifying to facts that showed appellant innocent. Some of the state’s witnesses had sworn to circumstances and facts which would sustain the indictment. This witness controverted those facts, and if his testimony was true, or believed by the jury to be true, appellant would not have been guilty. In other words, if the jury believed this witness’ testimony, they would have returned a verdict of not guilty. The statute provides the jury are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. Another statute provides that the court shall rule without expressing his conclusion or belief about the testimony. These two statutes are in conformity with and aid each other. One confers exclusive right upon the jury to weigh the testimony and pass on the credibility of the witnesses, ahd the other prevents the judge from so doing. When this witness testified that no gambling had been carried on, the court immediately ordered him to jail, had him taken from the witness stand, before the jury, and carried to jail, with the command to hold him until he could be charged with perjury. If this is not an expression on the weight of the testimony of this witness in open court, it would be difficult to conceive what would be such expression on the part of the court. The jury failed not only to acquit the defendant, but ignored his plea for a suspended sentence. Appellant had never been previously convicted of any offense; he had been a hardworking industrious negro, and, so far as the record is concerned, he was a negro of good character and standing. The authorities are very numerous condemning the conduct of the court. Some of the cases will be cited: Taylor v. State, 33 Tex. Cr. R. 241, particularly page 244, 42 S. W. 384; Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477; McMahan v. State, 61 Tex. Cr. R. 489, see particularly page 495, 135 S. W. 558; Zysman v. State, 42 Tex. Cr. R. 432, 60 S. W. 669; Deary v. State, 62 Tex. Cr. R. 352, 137 S. W. 699; Scott v. State, 72 Tex. Cr. R. 26, 160 S. W. 960. In the latter case quite a number of authorities are cited. Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W 141. For collation of authorities, see McMahan v. State, 61 Tex. Cr. R. at page 495, 135 S. W. 558.

Another hill of exceptions recites that appellant was arrested for carrying on a gambling house; or being interested in it, and was in jail for a week or such matter. Shortly after getting out of jail, he was found in this club again, and the witness, a deputy sheriff, testified that he saw no gambling, but things were going on in this club hall about the same way, and that he found somewhere about the house gambling paraphernalia. Appellant was not shown to be gambling at the time, nor was any gambling shown to have been going on. Objection was urged to this testimony for various reasons, which we think should have been sustained. This was admitted, it seems, from the court’s idea, as bearing upon his suspended sentence plea. He was not shown to be engaged at the time in any violation of the law, or that any violation of the law was going on in the clubhouse. As we understand, the reputation or standing of an accused who requests suspended sentence at the hands of the jury is affected only by other transactions than that with which he stands charged. This whole matter about which this investigation was made and about which this testimony was introduced was the same club. The matter occurred subsequent to the time of his arrest. Such testimony, even if it was an independent matter, and not connected with the original transaction, would hardly be such as the law contemplated, unless there was something derogatory to his standing as a citizen from the viewpoint of criminality. It would hardly be regarded as reflecting upon him because of the mere fact that he belonged to a club in which intoxicants were dispensed to its members in their own room. The evidence would have to go further and show, even if it was an independent transaction, that he was violating some law or doing something that reflected upon his character and standing which would authorize or justify the jury in finding against Mm on his suspended sentence plea, or that the house had been used as a gambling house since appellant’s arrest.

It has been held in Fossett v. State, 41 Tex. Cr. R. 400, 55 S. W. 498, that, where the defendant is on trial, it is his character prior to the commission of the offense that may be inquired into, and not the character he may have acquired after the commission of the alleged offense, or what' was said about his character after that time. This is the rule with reference to general reputation and character of an accused. 1-Iis reputation or standing growing out of the transaction under which he was indicted could not be used to impeach his character or standing except on the facts themselves incident to the alleged crime as they might appear in his case. The incident of the alleged crime itself might be possibly of such a nature as would justify the jury in finding against him on his plea for suspended sentence. But that is involved in the transaction itself. A man cannot be tried for matters occurring after indictment; he must be tried on the charge in the indictment, which as a matter of law and fact must occur before the indictment is returned.

The judgment is reversed, and the cause is remanded.
      @^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    COOPER v. STATE.
    (No. 3549.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.
    Rehearing Denied June 25, 1915.)
    1. Criminal Law @=511 — Accomplices— CORROBORATION — SUFFICIENCY 03? EVIDENCE.
    On the trial of an alleged accomplice to a homicide committed by R., evidence held to corroborate R.’s testimony connecting accused with the homicide sufficiently to support a conviction.
    [Ed. Note — For other cases, Law, Cent. Dig. §§ 1128-1137; 511.] see Criminal Dec. Dig. 4&wkey;
    2. Criminal Law <&wkey;1159 — Appeal—Review— Questions of Faot.
    The jury are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey;> 1159.]
    3. Homicide <&wkey;305 — Instructions— MISLEADING INSTBUCTIONS.
    Pen. Code 1911, art. 79, defines accomplices, and article 80 provides that accomplices in cases not otherwise provided for shall be punished in the same manner as the principal offender. Article S2 provides that if in the attempt to commit one offense the principal by mistake or accident commit some other offense, the accomplice to the offense originally intended shall, if both offenses are felonies, receive the punishment affixed to “the lower grade of the two offenses.” On the trial of an alleged accomplice to a homicide, in which it was the state’s contention that accused hired R. to kill M., and that R. killed A. by mistake, believing that he was M., the court charged in the language of article 82, except that he substituted for the quoted words “murder in the second degree.” The court also correctly told the jury what the punishment was for murder in the second degree. Meld, that the instruction could not have misled the jury; accused, if guilty at all, being guilty of murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. @=305.]
    4. PIOMICIDE <&wkey;289 — INSTRUCTIONS — CONFORMITY to Indictment.
    An indictment alleged that R. unlawfully and with malice killed A., that accused before the killing unlawfully and with malice advised, commanded, and encouraged R. to kill M., and promised a reward and favor to him for killing. M., and that R. while attempting to kill M. killed deceased, believing that he was shooting at M. and thereby “by mistake” killed deceased. The court charged correctly as to murder, malice, etc., and then charged that if R., with malice towards M. and with intent to kill him, shot and killed deceased, believing that deceased was M., and if accused prior to the commission of the offense with malice towards M. encouraged and promised a reward to R. to kill M. and R. was thereby induced to try to kill BI., but, in trying to kill him, shot and killed deceased, believing that he was BI., accused should be found guilty of murder in the second degree. The court further charged that if the jury believed or had a reasonable doubt that R., when he shot and killed deceased, knew or believed that it was some one other than BI., they should find accused not guilty, though they believed beyond a reasonable doubt that accused encouraged and offered R. a reward to kill BI. Held, that, though the charge did not use the word “mistake,” when read as a whole it did not authorize a conviction on proof of less or different facts than those alleged.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 594; Dec. Dig. &wkey;?289.]
    5. Criminal Law &wkey;>822 — Instructions— CONSIDERING AS A WHOLE.
    The court’s charge must be taken as a whole, and if it correctly presents the issue when so taken, it is no just criticism to take separate paragraphs or portions thereof and •show that, taken alone, they are incorrect.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. <§¿=>822.]
    6. Criminal Law <@=>511 — Accomplices— CORROBORATION — SUFFICIENCY OE EVIDENCE.
    It is not necessary that corroborative evidence be sufficient in itself and alone, outside of, and independent of, the testimony of an accomplice, to convict accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. <@= 511.]
    7. Criminal Law <&wkey;780 — Instructions— Applicability to Evidence — Corroboration oe Accomplice.
    On the trial of an alleged accomplice to a homicide committed by R., where R. testified that accused employed him to kill another party,^ but that he killed deceased by mistake, thinking he was the party intended, an instruction that corroborative evidence need not be sufficient in itself and alone, independent of the testimony of an accomplice, to convict accused was applicable and proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. <@=> 780.]
    8. Criminal Law <&wkey;113’7 — Instructions— Consideration, oe Impeaching Evidence.
    On a trial for homicide, accused sought to impeach a witness for the state by showing, by a former district attorney, that the witness did not testify to the same effect on the first trial. The district attorney, however, testified that the witness did so testify, that the witness just prior to the trial made a statement to him, and that it was very difficult to get the witness to testify as he did. On cross-examination he testified that the witness told him, in substance, the same facts that he afterwards testified to on both trials. Accused objected to the charge as submitted to his counsel because it failed to state that the district attorney’s testimony on cross-examination was not original evidence, and could not be considered for any purpose except for passing upon the credibility of the state’s witness, and the court thereupon added a charge that the testimony of the district attorney was not original testimony and could not be considered by the jury, but that they might consider it so far as it showed similar statements, if any, by the witness to the district attorney shortly after the transac-. tion. Defendant again objected because the court did not specify what testimony of the district attorney was not original testimony, and did not tell the jury that it could not be considered for any other purpose than passing upon the witness’ credibility. Held, that there was no reversible error, as the court charged in the language of accused’s objection, and as invited by him, that the testimony was not original testimony; and, while he might properly have added that the jury could consider it only as affecting the witness’ credibility, the failure to add this was not reversible error, .as the court in substance and in effect so charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. <&wkey;> 1137.]
    9. Criminal Law <&wkey;>829 — Instructions Covered by Those Given.
    It was unnecessary to give a special charge where the charge given fully covered such special charge.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Joe Cooper was convicted as an accomplice to a homicide, and he appeals.
    Affirmed.
    R. H. Jones, of De Kalb, and J. Q. Blahaf-fey, of Texarkana, for appellant. C. C. BIc-Donald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted and convicted as an accomplice to the murder of Hub Anderson by Frank Rutherford on the night of September 25, 1911, and his punishment assessed at 10 years in the penitentiary.

This is in effect the second appeal in this case. The first is reported in 69 Tex. Cr. R. 405, 154 S. W. 989. A new indictment was found, and the trial had in compliance with the opinion in that appeal. The case is stated in that report sufficiently to be understood without making a further statement.

Appellant contends with great earnestness and vigor that the evidence is insufficient to sustain the conviction, in that the testimony of Frank Rutherford, who actually shot and killed the deceased, is not sufficiently corroborated. We have carefully read and studied the evidence again and again.

In order to discuss this question, it will be proper to state the substance of some of the testimony. We do not propose to give all of the testimony, nor the testimony in full of any witness. We may, from time to time, give portions of the testimony of a given “witness. Appellant introduced impeaching testimony of some of the state’s material witnesses. The state in rebuttal introduced some testimony sustaining them. The appellant claims that in some particulars there were conflicting or contradictory statements by some of these state’s witnesses. All of this, under our law, both by statute and all the decisions, is for the jury. They are the exclusive judges of the credibility, of the witnesses and the weight to be given to their testimony. So that, in giving the substance of the testimony, we will not undertake to point out the claimed inconsistencies and contradictions, as we must assume, under the law, that the jury believed the testimony of these witnesses, even though testimony of an impeaching character or contradictions or inconsistencies were shown. Some of the facts were established without controversy. Others were controverted.

Appellant, Frank Rutherford, the deceased (Hub Anderson), Clarence McDonald, and practically all of the witnesses lived in the same immediate neighborhood in the country and most, if not all of them, had thus lived for many years, some of them all of their lives. Appellant was a married man and had several children, among others, four boys. The ages of his two older are not given, but evidently from all the testimony, the reasonable deduction can be drawn that the oldest was about the same age of Clarence McDonald, and the next older near the same age. Trouble arose between these boys, appellant’s on the one hand, and Clarence McDonald 'on the other, at school. Evidently they attended the same school. When this trouble arose Clarence McDonald was about 16 years of age. This trouble between these boys seems to have existed ’and was kept up to within a very short time of the killing. It resulted in serious trouble between appellant and Clarence McDonald personally. It was established beyond controversy that Hub. Anderson was assassinated about 10 o’clock at night by Frank Rutherford. As we understand, this is conceded by appellant. Frank Rutherford so swore, and all the other facts and circumstances so show. Frank Rutherford was a young negro man who had lived in said community all his life. He knew Hub Anderson, Clarence McDonald, and appellant, and each of them knew him and they had known one another for many years. Frank Rutherford lived on Mr. Eli Goodman’s place about two miles from appellant, and was working for him. Rutherford’s mother, and his brother Jim lived on appellant’s place, and had been living thereon, according to appellant’s testimony, three or four days at the time of the killing.

Among other things, Frank Rutherford testified, in substance, that several days, about a week or less, before the killing, appellant came into the field where he was at work, called him off to the fence where they were alone, and told him that he wanted him to do something for him, and that it was he wanted him to kill Clarence McDonald; that he (Rutherford) did not then agree to do so; that on this occasion appellant talked with him a good little bit. In that conversation Cooper (appellant) told him why he wanted him to kill Clarence, and that was that Clarence had shot him (appellant), and there had not been anything done about it. Cooper then told him he would give him $50 in a day or two if he would kill Clarence; that when they separated on that occasion he had not agreed to kill Clarence.

Again on Saturday, before the killing the following Monday night, Cooper had a second interview with him when he was at his mother’s on appellant’s place; that he had spent the night before at his mother’s, and was there Saturday when appellant and his two sons came there to load some cotton; that after they loaded the cotton Cooper’s boys went on to the gin with it; that Cooper then wanted to talk with him and called him out to the lot, where they were alone; that he wanted to talk with him about the same thing, the killing business; that Cooper asked him again if he was going to do what he wanted him to- do, kill Clarence McDonald, and he then did not give him any satisfaction, did not then agree to do it; that they talked a right smart about it. Cooper told him he wanted him to kill Clarence McDonald; that he wanted him to kill him the next Monday night, and told him where to go and secrete himself for that purpose, and told him that Clarence McDonald would be riding a bay pony on the road by the place where he wanted him to secrete himself and kill him; that Cooper told him he (Cooper) would go away to Lydia; that Cooper said to him that a meeting was going on, and that would be the last chance, the.meeting would close that Monday night. Cooper told him how he would know Clarence McDonald that night; that he would be along behind a buggy or in front of the buggy riding a bay pony; that when Cooper left him on this occasion he still had not agreed to kill Clarence, McDonald; that on Blonday about half past 12 or 1 o’clock Cooper (appellant) came to Mr. Goodman’s where he (Frank Rutherford) was watering some horses at the lot; Cooper came on horseback from towards his home, and again on this occasion brought up the conversation about wanting him to kill Clarence McDonald, and he (Rutherford) then agreed to do so; that Cooper told him when and where to do the killing — to go over on the big road at the corner of a grass lot which was on Mr. McDonald’s place- — -that Cooper said Clarence McDonald had shot him and there had been nothing done about it; that Clarence McDonald would come along on a bay pony, and told the witness how to do and all, to shoot him with a shotgun, with his brother Jim’s gun; that Cooper asked him if he had any shells and a gun, and he told him he had not; that Cooper told him that he would get him the shells; that the'gun was first mentioned on this occasion; that Cooper said he would give him $50 to do it and pay it in a day or two, and that was the understanding they had; that Cooper gave him a “BB” buckshot shell; that he took that shell, and that night shot deceased with it; that in this last conversation Cooper talked with him, he supposed, three-quarters of an hour; that while talking with him Will Gibson came there; that Mr. Goodman and his folks had gone to the meeting when appellant was at Goodman’s house at the time.; that Mr. Gibson lived on an adjoining farm, and came there on this occasion to water his horses, and stayed there only a short time; that Cooper did not talk to him concerning the killing in the presence of Mr. Gibson ; that when Cooper left he went towards his home, telling him he was going to Lydia; that Cooper, in giving the directions of how he should go to the place that night to kill Clarence McDonald, told him the direction he should go, the road, where to hitch his horse, and everything, and about where to stand, that is, over on the corner in the grass lot right on the side of the road. Rutherford then tells how he carried out Cooper’s instructions, and that he practically literally carried them out; told what sort of horse he rode, where he hitched him, and how he left and where he went and where he stayed that night, at his mother’s; that the place where he killed Hub Anderson that night was a place where Clarence McDonald, if he had been at church, would have had to pass by to go to his home; that while he was thus secreted to kill Clarence McDonald a buggy passed, coming from towards the church, but he did not know who it was; that it was a starlight night, no moon, kind of cloudy, not so light because one could not see very good at a distance; that after this buggy passed the next one to come along was Mr. Anderson; he was not very far behind the buggy; that at the time he (Rutherford) did not know it was Mr. Anderson; that he took it to be Clarence McDonald; he was not so very far behind the buggy; that he did not know- who this person was on the horse, he took it to be a bay pony; that he was traveling slowly, and there was a buggy behind him just a little way, about 30 or 35 feet; that this man on horseback, followed by a buggy, was on a bay pony, and he took him to be Clarence McDonald; that he knew Clarence McDonald, and the man- on horseback looked to him like Clarence McDonald, and he shot him; that at the time he shot him he was right close to him, about 30 or 35 feet; that he shot one time and ran away; that at the time he did not know he had hit or killed him, but thought he had hit him. He then testified, as stated, that he ran away from there, got his horse, ran into the fence with him, finally reaching his mother’s, where he took and left the gun, and stayed there that night; that he was arrested very early the next morning; that he was taken by where the body of Hub Anderson still lay near where he had shot him, and from there he was taken to jail, placed therein, where he has been continuously kept ever since; that he had no talk with Mr. Cooper after the shooting, and that Cooper had never paid him the $50; that he afterwards learned that the man he shot and killed was Mr. Hub Anderson; that he did not intend to kill Mr. Anderson, but at the time he intended to kill Clarence McDonald, and thought he was shooting at Clarence McDonald at the time; that he had nothing against Clarence McDonald; that Mr. Cooper was not present when he shot Mr. Anderson; that the fact that Mr. Cooper had promised him the reward of $50 and got him to agree to kill Clarence McDonald was the sole cause for him shooting that man, Mr. 'Anderson.

The state proved by Mrs. Anderson, the widow of the deceased, and the testimony of others also showed, that Frank Rutherford had worked for her husband, and that there was never any trouble between them; that they were on good terms at all times. In fact, there was not only no evidence which would show, or tend to show, that Frank Rutherford had the slightest cause for killing Huh Anderson, but on the contrary, showed affirmatively that there was no cause whatever that Rutherford could have had to have caused him to kill deceased. Nor was there any evidence which showed, or tended to show, that Frank Rutherford had any ill will or cause whatever to kill Clarence McDonald other than to get the $50 which he said Cooper was to pay him for killing him. The evidence all tended to show that Rutherford had no cause whatever to kill Clarence McDonald other than to get the $50 which he said appellant had promised to pay him therefor. Mrs. Anderson and others testified that the billing occurred at the time and place and in the manner as testified by said Rutherford. She also testified that the deceased was riding a bay pony, and that she was following just behind, driving the buggy with her children in it.

As stated, wTe get from the testimony that trouble arose between appellant’s two older boys and Clarence McDonald at school. Appellant took up this trouble himself.

Clarence McDonald, among other things testified that about the middle of November, 1910, he was at John Clark’s on Sunday; that Richard Cox was also there; that appellant came there drunk and jumped on him and tried to run his horse over him; that in order to prevent this he caught the horse by the bridle reins and went ’round and ’round with him; that appellant then said to him, “God damn you. I will fix you,” jumped down ofE of his horse, got his knife out, and the women then present squalled and asked appellant to leave.

Richard Cox testified that on this occasion appellant said he wanted to kill Clarence McDonald, and Mrs. Clark and Mrs. Aydlott got him to take Cooper away; that he started home with him and appellant kept rearing and wanting to go back and kill Clarence McDonald ;■ that he tried to pull his horse and go by McDonald’s, but he would not let him. Clarence McDonald further testified that about two weeks after the occurrence at Clark’s lie was In a buggy and met appellant, wbo was in a wagon, in the road; that he turned to the rigjht as far as he could because of the fence, but Cooper drove straight and ran into his buggy; that Cooper then looked back, laughed, and said, “God damn little son of a bitch, why didn’t you get out of the road?” to which he replied, “I thought the road was public property and a public place.” Appellant then said, “God damn your little soul, if you don’t get out of the road next time — ” that when appellant thus cursed him, he (appellant) jumped out of his wagon, Clarence still sitting in his buggy, when appellant further said, “Xou God damn little son of a bitch, if you get out of that buggy I will kill youthat he then jumped out of bis buggy, appellant threw off his coat, drew a rail on him, and when he got close to appellant, he shot him with a pistol three times to keep him from hitting him with the rail; that at the time he did not know that he had hit him, but learned afterwards that he did; that he did not fall; that appellant threw down his rail and ran; that he got in his buggy and went home.

All the testimony shows that for some 10 days a meeting, preaching, had been carried on in said community, and the neighbors generally attended it; that the meeting closed Monday night, the night of the killing. Clarence McDonald further testified that he attended that meeting, and that frequently he rode a bay pony back and forth to it, and was riding this bay pony and was about 120-to 130 yards behind when deceased was shot and killed that night; that on that night his people were traveling in a buggy ahead of him and behind the deceased; that appellant’s folks also attended the meeting, and he thought he had seen the appellant in attendance thereon; that he (the witness) rode that bay pony back and forth to the meeting most every night; that he had known Frank Rutherford all his life, and there had never been any trouble between them. All the testimony showed that the deceased was shot in the breast with buckshot and died very soon after being shot.

Appellant himself testified that he saw Frank Rutherford at the time and place that Frank Rutherford testified he had the last two interviews with him, but denied he saw him in the field, which Frank Rutherford testified was their first interview.

Mr. Gibson testified that he rode up to Mr. Goodman’s to water his horses just after noon Monday, the day before deceased was killed, that night; that Mr. Goodman and his family had just driven away from their home; that he saw appellant and Frank Rutherford there at the well where he watered his horses; that he left them there;1 that while there he heard no conversation between them; that when appellant came up, he got down, hitched his horse, and went into the lot and spoke to him and Rutherford; that he (the witness) only remained there long enough to water his team and left Cooper and Rutherford there, close together. Gibson further testified that appellant must have met Goodman and his family just as they had left their home. Appellant, in his testimony, in effect, admitted that he had so met Goodman. The state, in its cross-examination, asked him:

“Don’t you know that you started to talk to him about your trouble with McDonald, and that Goodman said, T don’t want to hear any more about that mess’? Didn’t you call him off and start to tell him about your trouble, and he said, T don’t want to hear it,’ and walk off?”

—to which appellant answered:

“Not about me and McDonald’s trouble; we have spoken about this trouble but not in the way suggested in the question.”

On redirect examination on this point he testified that Goodman said he was in a hurry, and appellant said to him:

“Hold on, Eli, do you remember my boy speaking any rough language to old man McDonald down at the church yesterday?”

And he said:

“Joe, I am in a hurry and I don’t care to hear any more of yours and McDonald’s trouble.”

Mr. W. N. Anderson, a brother of the deceased, testified that he saw appellant on a certain occasion, fixing the time and place, soon after appellant had the shooting scrape with McDonald; that he (the witness) was trying to get Cooper to drop the trouble with Clarence McDonald and let everything go, and that Cooper said to him:

“I won’t do it. I won't be satisfied until Clarence McDonald and his daddy are both dead and in hell.”

John Clark, one of appellant’s witnesses, among other things, testified that he knew of the trouble between appellant and Clarence McDonald ;■ that a short time, a week or two, before the killing he and appellant were talking about Clarence McDonald, and that appellant said to the witness, “He [McDonald] is hell;” that the witness replied that he seemed to be. Whereupon appellant said that “if he had his way he wouldn’t mess with nobody long.”

Jeff Cornelius testified that he remembered when Cooper was shot by Clarence McDonald; that some time before, when he met Cooper, tried to rent land from him, and on the occasion got in the wagon with Cooper and rode with him; that during this ride Cooper told him he (Cooper) was going to kill Clarence McDonald if he did not stop school. The witness said it was about some trouble between Mr. Cooper’s boys and Clarence McDonald he thought that caused it; that Cooper said he was going to kill Clarence McDonald if it cost him his place.

John Forsythe testified that he knew Cooper, Hub Anderson, Clarence McDonald, and Frank Rutherford, and knew of the death of Hub Anderson; that shortly after Anderson’s death, about a month, he had a talk with appellant about the matter at Dalby Springs; that with reference to the death of Hub Anderson the appellant (Joe Cooper) told him that he did not intend for the negro to kill Hub Anderson;- that it was Clarence McDonald that they were after. Of course appellant denied the testimony of each of these witnesses.

The state proved by others, and the appellant himself .testified, that in the evening of the night deceased was killed he went to Lydia to see his friend and partner in the hog businesss, Dave L. Smith, and stayed there that night. He also testified that he sent his two oldest boys to Loyd Miller’s, and that they stayed all night at Miller’s that night. Doubtless the state in the trial court contended that this was very pertinent testimony, showing that appellant was fixing and did fix to establish an alibi for both himself and his two oldest boys, with whom Clarence McDonald had had, trouble. Appellant, in his testimony, showed that his said partner in the hog business was not at home when he reached there about night of Monday night, and that while he stayed there until some time late the next morning, he did not wait until Smith returned, and that he did not, on that occasion, get to see him at all on the business he went there to see him about, the hog business. His witness, Dave L. Smith, on cross-examination by the state, testified that he knew of the trouble between appellant and Clarence McDonald, and said the feeling between Joe Cooper and Clarence McDonald was bad, and continued to be bad up until Anderson’s death; that they hated each other.

• Cairroll Houston, another of appellant’s witnesses, on cross-examination by the state, testified that he knew of the feeling that existed between Joe Cooper and Clarence McDonald in part; that he didn’t try to keep up with it because it was bad; that he thought that there would be trouble over it.

Alf Simington, another of appellant’s witnesses, on, cross-examination, testified that he knew about the trouble appellant had had with Clarence McDonald; that he thought a state of bad feeling existed between them for some time prior to the killing; that appellant and Tom McDonald (Tom McDonald was Clarence McDonald’s father) had a racket down there at the store one night, and it came up about Clarence McDonald; that appellant told him about it there; that was just a short while before this killing, he thought; that Cooper told him about that difficulty he had with Tom McDonald about Clarence McDonald; that it was a fact that Mr. Cooper’s boys and Mr. McDonald’s boys were having some trouble at school; that he knew there had been some considerable little trouble between Joe Cooper’s boys and Tom McDonald’s boys.

We think there can be no doubt but that the testimony unquestionably is sufficient to corroborate Frank Rutherford in every material matter. The jury undoubtedly believed this corroborating testimony, and we think there can be no doubt but that, taking all the testimony together, it was amply sufficient to sustain the verdict.

In appellant’s first bill of exceptions, he contends that the court erred in holding that the juror Mitchell was not disqualified, and in not sustaining his challenge for that cause. The bill claims that the witness was disqualified under subdivision 13, art. 692, C. C. P., but it clearly shows that the action of the court in holding the juror qualified was in accordance with that subdivision of the statute and in accordance with a great many decisions of this court. Some of them are collated in section 747, White’s Ann. G. 0. P., and under said article-of our Revised C. O. P.

The court, in the seventh, eighth, and ninth paragraphs of his charge, quoted substantially, in the seventh and eighth, articles 79 and 80, P. 0. Then in paragraph 9 he undertook to quote article 82 so far as applicable to this case, as follows:

"If in. the attempt to commit one offense the principal shall by mistake or accident commit some other under the circumstances” above set forth in the preceding paragraphs, “the accomplice to the offense originally intended shall, if both offenses are felonies by law, receive the punishment affixed to” murder in the second degree.

The last few words of the statute are “receive the punishment affixed to the lower of the two offenses.” It will be seen that, instead of copying literally those words in the statute, the court said “receive the punishment affixed to murder in the second degree.” Appellant complains of this charge to the effect that it is confusing and calculated to confuse and probably mislead the jury, and that if it had been some other offense intended other than murder, the party would not be liable to receive the punishment affixed to murder in the second degree. We think this contention shows no material defect in the charge. It could not have misled the jury in connection with other portions of the court’s charge. It could in no way have misled the jury to find appellant guilty, and could not have affected them in fixing the punishment. If appellant was guilty at all, he was guilty of murder in the second degree, and the court correctly told the jury what the punishment for that offense was and the fact that in closing paragraph 9 he told them he would receive the punishment affixed to murder in the second degree could in no possible way, as we see it, have affected the merits of the case.

The indictment, after the necessary preliminary allegations, alleges that Frank Rutherford, on September 25, 1911, in said state and county, did then and there unlawfully, with malice aforethought, kill Hub Anderson by then and there shooting him with a gun, and that Joe Cooper, before the commission of said murder and killing of Hub Anderson, on September 24, 1911, did unlawfully, willfully, and with malice aforethought advise, command, and encourage the said Frank Rutherford to kill one Clarence McDonald, and did then and there promise reward and favor to said Frank Rutherford to kill said Clarence McDonald, and the said Rutherford, while attempting and trying to kill said Clarence McDonald, shot and killed said Anderson, believing that he was shooting and shooting at said McDonald, and thereby by mistake killed said Anderson while acting in virtue of and by reason of the promise of reward and favor of said Joe Cooper to kill said McDonald, said Cooper not being personally present when said offense was committed by said Rutherford.

The court in the charge first stated substantially and correctly what the indictment alleged, and that appellant pleaded not guilty. He then proceeded to charge them the law of murder, malice aforethought, etc., in correct language. Then, in submitting the case to the. jury for a finding, in the tenth paragraph, told them:

“Now if you believe from the evidence, beyond a reasonable doubt, that Frank Rutherford did, in the county of Bowie and state of Texas, on or about the 25th day of September, 1911, with malice aforethought, either expressed or implied, towards Clarence McDonald, and with intent to kill said Clarence McDonald, unlawfully shoot, and thereby kill, Hub Anderson, with a gun, believing at the time that said Hub Anderson was Clarence McDonald, and if you further believe from the evidence, beyond a reasonable doubt, that the defendant, Joe Cooper, did in the county of Bowie and state of Texas, on or about the 24th day of September, 1911, and prior to the commission of said offense,' unlawfully and willfully, and with either expressed or implied malice aforethought towards Clarence McDonald, encourage and promise reward to said Frank Rutherford to kill and murder said Clarence McDonald, and that said Frank Rutherford was induced thereby to try to kill said Clarence McDonald, but in attempting or trying to kill said Clarence McDonald he shot and killed Hub Anderson, believing he was Clarence McDonald, as herein charged, and that defendant, Joe Cooper, was not present in person when said offense was committed by said Frank Rutherford, then you will find the defendant guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period of time that you may determine, and state in your verdict, provided it be for not less than five years.”

Appellant objected to this paragraph on the ground that it authorized the jury to find him guilty upon proof of a state of facts not alleged in the indictment, and upon proof of less facts than therein alleged as constituting the offense, and upon a different state of facts than alleged. And because thereunder the jury is authorized to find him guilty without finding that the alleged principal, Rutherford, shot and killed Hub Anderson by mistake, believing at the time he did so that he was shooting at Clarence McDonald. In other words, as he claims, that paragraph in effect withdrew from the jury the consideration of the vital issues by the pleadings of whether or not Rutherford shot and killed Hub Anderson by mistake.

It is elementary that the charge of the court must be taken as a whole, and, when so taken, if it correctly presents the issue, it is no just criticism to take up separate paragraphs or portions thereof by themselves and attempt to show that they, taken alone, are incorrect. It is true this paragraph of the court’s charge does not use the word “mistake.” In another paragraph the court told the jury:

“If you believe from the evidence, beyond a reasonable doubt, that Frank Rutherford, with malice aforethought, shot and killed Hub Anderson, as charged, still if you believe or have a reasonable doubt that he knew or believed it was Hub Anderson, or some one besides Clarence McDonald, when he shot and killed him, then you will find the defendant ‘not guilty,’ even if you believe from the evidence beyond a reasonable doubt that prior thereto the defendant had encouraged him, and offered him a reward, to kill Clarence McDonald.”

Taking these paragraphs and the whole charge, there can be no question but that the language used, in substance and effect, required the jury to believe beyond a reasonable doubt that Rutherford shot and killed Hub Anderson by mistake, believing at the time he did so it was Clarence McDonald, and did not authorize the jury to convict him on any other state of facts, and in fact told them, in effect that if that was not the case, to acquit appellant. We think appellant’s objections to the charge are wholly untenable. The point was covered so as to make it unnecessary to give appellant’s special charge No. 2.

In a separate paragraph the court charged that the witness Frank Rutherford was an: accomplice, and literally gave the charge on that subject laid down in Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583, and added thereto this:

“But it is not necessary that the corroborative evidence, if any, be sufficient in itself and alone, outside of and independent of the testimony of the accomplice, to convict the defendant.”

This is undoubtedly the law, and was applicable and called for in this case. Holmes v. State, 70 Tex. Cr. R. 423, 157 S. W. 487, and cases there collated.

The testimony of the witness Forsythe, above stated, was important for the state. Appellant, in various ways, sought to contradict him, impeach, and break down his testimony. For that purpose he introduced Mr. Keeney, the former district attorney who prosecuted said first case. Appellant sought to show by Mr. Keeney that said Forsythe did not so testify on said former trial. He failed in this, as we understand, for the substance and effect of Mr. Keeney’s testimony was that said witness did so testify on the former trial. In direct examination of Mr. Keeney he brought out that he had talked to this witness just before the former trial, and that said witness had made some statement, or that same statement, to him prior to that trial, and that it was very difficult to get the witness to testify on that trial what he did. When the state took Mr. Keeney on cross-examination, the same matters were gone over, and Mr. Keeney then testified that said witness had told him, in substance, the said facts that he afterwards testified on the former trial and on this trial. When the court prepared his charge he submitted it to appellant’s attorneys.. Pie had charged nothing about the consideration of said Keeney’s testimony. Appellant thereupon objected to the charge because the court failed to tell the jury that the testimony of said Keeney, introduced by the state on cross-examination, that what he said Forsythe had testified on the former trial as given above “is not original evidence in this cause,” and that Kee-ney’s testimony as to what Forsythe so swore cannot be considered for any purpose except for passing upon the credibility of said Forsythe as a witness, and for no other purpose. This objection was repeated. The court, thereupon, added to his charge paragraphs 16 and 17 as follows:

“(16) Ton are further instructed that the testimony of R. E. Keeney is not original testimony in this cause, and cannot be so considered by you, but you may consider the testimony of said Keeney in so far as it may show similar statements made, if any, by the witness John Forsythe to said Keeney shortly after the transaction as said John Forsythe testified to on this trial at this term of the court.
“(17) You are further instructed that you cannot consider against the defendant any statements made by Frank Rutherford after Hub Anderson was killed, but you may consider such statements made by Frank Rutherford, if any, as to the guilt or innocence of said Rutherford.”

And again submitted the charge to appellant’s attorneys. They then made this objection to paragraph 16: Because the court does not specify therein what testimony of the witness Keeney “is not original testimony,” and does not tell the jury that the testimony of Mr. Keeney with respect to what Forsythe testified on his.previous trial and to what he said Forsythe told him before that trial “is not original testimony in this cause,” and cannot be considered for any other purpose than passing upon the credibility of Forsythe. It will be noted that the court in the first part of the sixteenth paragraph told the jury in the very language of appellant’s objection and as invited by him, that the testimony of Mr. Keeney “is not original testimony in this cause,” and told the jury that it could not bé considered by them as original testimony. No other reasonable construction could be put upon this part of the court’s charge by the jury than that all of the testimony of Mr. Keeney was not original, and that they could not consider it as such. No doubt all of this matter was thoroughly argued to, and fully understood, by the jury, and that they knew therefrom and from said charge that Mr. Keeney’s testimony could have been considered for no other purpose than affecting the credibility of said Forsythe, if it did. It may be that it would not have been amiss fir the court to have gone further in that charge and told the jury that they could consider it only for the purpose of affecting the credibility, if it did, of said Forsythe, but, having in substance and in effect so charged, the failure to add that to it does not present reversible error. It will be noted that no objection whatever was made to the latter part of paragraph 16. As a matter of fact, the testimony of Mr. Keeney was supporting, as a circumstance, and did support in effect and not impeach, the testimony of Forsythe; but to have so told the jury would have been upon the weight of the testimony, which evidently the court by this charge was endeavoring to avoid. Brown v. State, 169 S. W. 448. The court specifically instructed the jury that they were the judges of the facts proved, of the credibility of the witnesses and the weight to be given to their testimony.

The seventeenth paragraph of the court’s charge fully covered appellant’s special charge No. 4 on that subject, and it was unnecessary to give said special charge. The judgment is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ■<@=>B'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    LAWRENCE v. BOX & LEEDIKER et al.
    (No. 5494.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1915.)
    Appeal and Error <&wkey;150 — Right to Complain — Interest in Subject-Matter — Deposits eoe Collection — Defect.
    A banker with whom a voucher issued by .a school district had been deposited for collection and who, when payment had been refused, deducted the amount thereof from the depositer’s account, cannot complain of a judgment wherein the school district, which issued the voucher, was garnished.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 934-946; Dec. Dig. &wkey;> 150.]
    Appeal from Houston County Court; C. M. Ellis, Judge.
    Action by Box & Leediker against one Broxson, in which the Rockland School District was garnished. K. D. .Lawrence was impleaded by the School District, and from a judgment for plaintiff, the impleaded defendant appeals.
    Affirmed.
    John I. Moore, of Crockett, for appellant. Adams & Young, of Crockett, for appellees.
   ELY, C. J.

Appellees obtained a judgment for $180 against one Broxson, and appellees obtained a writ of garnishment against the trustees of Rockland School District, the county superintendent of schools, and appellant. The trustees answered that they had employed Broxson to build a schoolhouse; that he had not completed the house and, at Broxson’s request, they had employed Box & Leediker to complete the house at a cost of $44.57; that they had paid Broxson all the money due on the house except $333.50; that a voucher had been given Broxson for that amount, which was presented by K. D. Lawrence and payment refused, and they prayed that Lawrence be made a party. In the justice’s court judgment was for the garnishees, but on appeal to the county court appellees obtained judgment for $246.07. This appeal is prosecuted by appellant alone.

Appellant bases his claim to the money on the grounds that a board of school trustees is not subject to garnishment, and that the voucher was negotiable paper and that he was an innocent purchaser for value of the voucher. The facts show that Broxson owed appellant, who owned a bank, the sum of $300; that Broxson kept his bank account with appellant; that Broxson obtained a voucher for $333.50 from the school trustees, and indorsed it for collection to appellant, who credited Ms account with the same. Payment of the voucher was refused, and appellant then charged the account with $333.50, the amount of the voucher. Appellant did not credit the amount of the voucher on the note and did not hold it as collateral security for the note, but it was placed with appellant for collection to be placed as a deposit on Broxson’s account. Appellant owned no interest whatever in the voucher, and ho is not in a position to complain of anything the court may have done. 1-Ie has no right or authority to complain because the school trustees were served with a writ of garnishment.

The judgment is affirmed.


author: PLY, C. J.

text:
    PIPKIN et al. v. TUER et al.
    (No. 5488.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1915.
    Rehearing Denied June 23, 1915.)
    Witnesses &wkey;3l39 — Competency—Parties.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, declares that neither party shall be allowed to testify as to any transaction with, or statement by, the testator, intestate, or ward, unless called by the opposite party, and that this provision shall apply to actions by or against the heirs or representatives of a decedent, arising out of any such transaction with the decedent. The heirs of a payee of a note sued the makers. The representative of one of the mnjmrs set up that he was only an indorser and had been discharged by an unauthorized extension. Such representative also prayed judgment over against the other maker. Held that, though such other maker confessed judgment, he was still a party to the suit and incompetent to testify in behalf o.f his codefendant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 582-597; Dee. Dig. &wkey;139J
    Appeal from Liberty County Court; I. B. Simmons, Judge.
    Action by L. Tuer and others against S. W. Pipk-in and others. Prom a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Marshall & Harrison, of Liberty, for appellants. B. P. Lewis, of Houston, for ap-pellees.
   PLY, C. J.

Appellees, heirs of William Tuer, deceased, instituted suit ón a promissory note for $600, executed by C. P. Stevens and William L. Douglass to William Tuer, against C. P. Stevens, Stephen W. Pipkin, independent executor of the will of W. L. Douglass, deceased, and Sam Cameron and Mrs. Mattie Davis, the only devisees of said Douglass. Appellants answered that W. L. Douglass was merely a surety on the note of which C. P. Stevens was the maker; that the note had been extended by William Tuer and Stevens without the ’ knowledge or consent of Douglass. They prayed for judgment over against C. P. Stevens. The case was tried without a jury and judgment rendered in favor of appellees for the full amount of the balance of the principal, interest, and attorney’s fees, and for the same amount against Stevens in favor of appellants.

During the trial appellants sought to prove by C. P. Stevens, that W. L. Douglass was a surety on the note, and that in April, 1911, it was agreed between William Tuer and Stevens that payment of the note would be extended for a year if Stevens paid the interest; that the latter paid the interest; and that said extension was made without the knowledge or consent of W. L. Douglass. Objection was sustained to the testimony on the ground that Stevens was a party to the suit and could not testify as to transactions with William Tuer, deceased. O. E. Stevens then said he would confess judgment, and then appellants again sought to prove by him the facts set forth, but the court again excluded- the evidence. It is the contention of appellants that O. E. Stevens, not having filed an answer and having confessed judgment, was not a party to the suit, within the purview of article S690, Vernon’s Sayles. That article provides:

“In actions by or against executes, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify * * * by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or iegal representatives of a decedent arising out of any transaction with such decedent.”

Stevens was undoubtedly a party to the suit, not only through the pleadings of ap-pellees, but through the cross-action of appellants, and the , case was one of the class described by the statute. Stevens could not be called by his codefendants to testify as to matters inhibited by the statute, while he was a party to the suit. Alexander v. Lewis, 47 Tex. 481. After his confession of his indebtedness, he was still a party to the suit and laboring under the same disqualification. He was never dismissed from the suit and is a party to it up to this good hour. His testimony was just as objectionable before he admitted his indebtedness, about which there was no dispute, as it was before he made the admission, and his confession did not remove him from the suit. Miller v. Montgomery, 78 N. Y. 282; Church v. Howard, 79 N. Y. 415; Bunker v. Taylor, 13 S. D. 433, 83 N. W. 555. In the last-named case the decision was made in regard to a statute almost identical with the Texas statute, and it was held that a person was not stripped’ of his character as a party by a default judgment.

The judgment is affirmed.
      ign^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    INTERNATIONAL & G. N. RY. CO. et al. v. RHODEN.
    (No. 5493.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 2, 1915.
    Rehearing Denied June 23, 1915.)
    Carriers &wkey;>229 — Carriage oe Live Stock-Actions — Damages.
    A shipment of cattle was negligently delayed so that the cattle lost considerably in excess shrinkage. The cattle brought the market price; the only loss suffered by the shipper being the lost weight. Held that, as the measure of damages is the difference between the market value of the stock at the time and in the condition in which they were delivered and their value if delivered in time, the shipper could not, having recovered for shrinkage, also recover for loss in selling appearance, for that would allow a recovery of double damages for the same item.
    [Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 930, 963, 964; Dec.’Dig. &wkey;229.J'
    Appeal from Houston County Court; C. M. Ellis, Judge.
    Action by W. F. Rhoden against the International & Great Northern Railway Company and another. From a judgment for plaintiff, defendants appeal.
    Reformed and affirmed.
    John I. Moore, of Crockett, for appellants. Adams & Young, of Crockett, for appellee.
   CARL, J.

Appellee sued the International & Great Northern Railway Company and the Texas & Pacific Railway Company for damages to a shipment of cattle from Crockett to Ft. Worth, which shipment was made July 8, 1913.

It is charged that there had been a washout on the road, and appellee requested that his cattle be routed another way, hut was informed by the railway employes that the track would be repaired by the time the train reached there. But this was not done, and the cattle were delayed until they reached the Ft. - Worth market one day late, during which time it is alleged the market declined. It is also pleaded that on account of rough handling 66 head lost in excess shrinkage 20 pounds per head, at $4 per-100, or $79.20- in this respect, and 25 calves lost 10 pounds each, the value of same being $3.24 per hundredweight, or $9.35. And it is claimed that all of said stock lost in damage to their “selling appearance” 15 per cent, of their value, or $01.96, and that one calf was lost at Mine-óla, valued at $9. The judgment was for $159.51.

Appellant complains that by permitting a recovery for loss in weight, as was done, and also for damage to “selling appearance” of the cattle, a double recovery was thereby permitted, and that the $61.96 is an improper item of damages, because the shrinkage for 'which recovery was permitted was the cause of any unfavorable selling appearance. It is not shown that appellee received less than the market value of his stock according to actual weight, and since he recovered for the loss in weight or excess shrinkage on account of delay and rough handling, to permit him to recover for damage to “selling appearance” would be to permit a recovery for a damage which the evidence fails to show he suffered. The general rule is that the damage is the difference between the market value of the stock at the time and in the condition in which they were delivered and the amount they would have brought if delivered in the time they should have been delivered, and uninjured.

The evidence shows that the market price of cattle at the time these were delivered was $4 per hundredweight and for calves $3.24 per hundredweight. For this, appellee recovered; and he also recovered $61.96 for loss in “selling appearance,” and absolutely fails to show that he sustained a loss in the selling price for the actual weight of his cattle. In other words, if he receives pay fo,r the loss in weight and at the same time gets the market price for their actual weight, less shrinkage, wherein is he not compensated? We can easily see how the injured condition of the cattle, weight lost, and general appearance could form the test as to their market value, and the difference between that figure and what they would have been worth on the market had they arrived in the time and condition they should have arrived would form the correct measure of damages. But appel-lee tacks about and sues for loss in weight for which he recovers, and, in addition, recovered $61.96 for damage to “selling appearance,” without showing that such appearance brought about a lower price for the actual weight than the market value. It is clear that he was not entitled to recover, upon the showing made, for their “selling appearance,” when he does not show that he received less than the market price.

Appellee also has a cross-assignment of error, but, finding same to be without merit, it is overruled.

Prom what we have said, it follows that the judgment should be reformed so as to eliminate the $61.96 item, and affirmed as to the remaining sum of $97.55. The costs of this appeal will be adjudged against appel-lee.

Reformed and affirmed.
      ig^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    WELLES v. ARNO CO-OPERATIVE IRR. CO.
    (No. 414.)

    (Court of Civil Appeals of Texas. El Paso.
    June 3, 1915.
    On Rehearing, June 24, 1915.)
    1. Judicial Sales <&wkey;61 — Conveyance to Purchaser — Sufficiency of Description.
    There is no distinction between the rules as to the sufficiency of a description in an involuntary conveyance and in a voluntary conveyance, and a description in a sheriffs deed is sufficient if it may be made certain by extrinsic evidence identifying the property.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 119-122; Dec. Dig. 61.]
    2. Judgment &wkey;>18 — Pleading to Sustain— Sufficiency of Description.
    In trespass to try title a description of the property in the petition., which is only general, as the canals, ditches, rights of way, headgates, and water rights of a certain irrigation company, is insufficient to support a judgment without extrinsic evidence identifying the property.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 34-37; Dec. Dig. &wkey;lS.J
    On Rehearing.
    3.Trespass to Try Title <&wkey;41 — Sufficiency of Evidence — Description.
    In trespass 'to try title, where plaintiff claimed under a sheriff’s deed, which described the property only generally as the property of an irrigation company, extrinsic evidence, which would enable the canals, headgates, etc., to be located, but which did not define the boundaries of the tracts on which they were situated, is insufficient "to support recovery by the plaintiff.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. &wkey;> 41.]
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Trespass to try title by George D. Welles against the Arno Co-operative Irrigation Company. Judgment for the defendant, and plaintiff appeals.
    Affirmed, and motion for rehearing overruled.
    Geo. D. Welles, of Toledo, Ohio, and Hudson & Canon, of Pecos, for appellant. Hefner & Cooke and J. A. Buck, all of Pecos, and Leslie A. Needham, of Chicago, Ill., for appellee.

       writ of error denied by Supreme Court.

   HIGGINS, J.

This is an action in trespass to try title brought by Geo. D. Welles, trustee, to recover the title to and possession of certain property hereinafter described. On May 15, 1907, judgment was rendered against the Dixie Irrigation Company for taxes, with foreclosure of lien on — •

“all that certain irrigation canal situated about 25 miles north of Pecos City in said Reeves county, Texas, and known as Dixie Irrigation Company’s canal, and all rights of way for said canal through any and all lands on which it may pass be the same acquired by purchase, donation, condemnation, limitation or otherwise, also all laterals, ditches, dams, flumes, head-gates, water rights and franchises of said company, and being a part of said Dixie Irrigation Company’s system or plant.”

Order of sale thereon was issued, levy made, and the property sold to appellant, to whom deed was made. In the order of sale, levy, and deed, and in the petition herein, the description follows that given in the judgment. Appellant claims title under these tax foreclosure proceedings. Welles prosecutes this appeal from a judgment in favor of defendant.

The description contained in the foreclosure proceedings is a general one, and the property is incapable of identification by inspection alone of the judgment, order of sale, levy, and sheriff’s deed. It is perhaps sufficiently accurate to enable parties to identify it by the use of such means as would be admissible in a court of justice for that purpose.

Under the earlier decisions of our courts, the description would be regarded as wholly insufficient, but the rule that more definite description is necessary to the efficacy of a sheriff’s deed than to a voluntary conveyance has long since been discarded. There is no distinction in this respect between voluntary and involuntary conveyances ; that is certain which may be made certain, and extrinsic evidence is admissible to identify the premises conveyed by sheriff’s deed as well as by voluntary conveyance. Hermann v. Likens, 90 Tex. 448, 89 S. W. 282; Smith v. Crosby, 86 Tex. 15, 23 S. W. 10, 40 Am. St. Rep. 818; McManus v. Corkney, 91 Tex. 27, 40 S. W. 715; Slaughter v. City of Dallas, 101 Tex. 315, 107 S. W. 48; McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 604; Gallup v. Flood, 46 Tex. Civ. App. 644, 103 S. W. 426.

A judgment in favor of plaintiff, describing the property as it is described in the petition in this case and as described in the foreclosure proceedings, would not identify the same with any degree of certainty whatever. A sheriff, undertaking by writ of possession to place plaintiff in possession of same, of necessity would have to make of himself judge and jury and determine what particular realty and water rights he would deliver to the plaintiff. In the absence of extrinsic evidence identifying the property described in the tax foreclosure proceedings, plaintiff has failed to establish his title to the property for which he sues. There is no such evidence and in the absence thereof, no judgment could properly have been rendered except in defendant’s favor, and a peremptory instruction to that effect should have been given.

None of the assignments of error in any wise relate to or affect this controlling feature of the ease, and they are therefore overruled.

Affirmed.

On Rehearing.

Appellant insists there is ample extrinsic evidence in the record identifying the property for which he sues. The evidence to which he refers was noted upon the original consideration of the case, and the conclusion reached that it was wholly insufficient for the purpose indicated. Briefly stated, it shows the course of the canal; the section of land upon which it begins, and those which it crosses; its length; the section upon which its dam is located; its distance and course from town of Pecos; that it was on west side of Pecos river and the only canal in that section of the country; also a map which shows the route of the canal and points at which it crosses section lines. 1-Iow this evidence would serve to identify with any degree of certainty whatever the limits and boundaries of the lands for which plaintiff sues and which he claims passed by the foreclosure proceedings is not pointed out by appellant, and it is not apparent to this court. It was necessary that such limits and boundaries be identified and made certain, and the evidence indicated wholly fails to serve this purpose. The banks of the canal, the sides of the ditches, the dam, and headgate of course can be readily found, but when this is done it does not serve to define the boundaries of the tracts upon which they are located, and which constitutes the subject-matter of the litigation.

The motion for rehearing is overruled.
      @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    IRWIN v. CUNNINGHAM.
    (No. 5498.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 2, 1915.
    Rehearing Denied June 23, 1915.)
    Justices of the Peace &wkey;>122 — Jurisdiction — Vacation of Default.
    Under Rev. St. 1911, art. 2374, declaring that any justice of the peace shall have the power at any time within ten days after judgment by default to set it aside on motion in writing for good cause shown supported by affidavit, a default judgment cannot, after the expiration of the ten-day period, be set aside by the justice.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 382-388; Dec. Dig. <@^>122.]
    Appeal from District Court, Hardin County ; L. B. Hightower, Judge.
    Action by G. A. Irwin against R. E. Cunningham. From a judgment for defendant,, plaintiff appeals.
    Reversed and rendered.
    B. L. Aycock, of Kountze, for appellant. Hightower, Orgain & Butler, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellee.
   MOURSUND, J.

On March 7, 1914, G. A. Irwin, appellant herein, obtained a judgment by default against the Texas & New Orleans Railroad Company in the justice’s court of precinct No. 1 of Hardin county, for the sum of $20 and costs. The judgment was duly entered and signed upon the docket by R. E. Cunningham, justice of the peace. On March 9, 1914, the railroad company filed its motion for a new trial. On March 20, 1914, the railroad company filed its amended motion for new trial. Said amended motion was presented on the same date; and was granted, an order being duly and regularly entered in the docket. On March 24, 1914, Irwin filed a motion in said cause asking that the justice set aside the order granting a new trial, demanding therein that execution issue on the judgment entered March 7,1914. On September 16, 1914, Irwin instituted this suit against Cunningham, setting up the facts above detailed, and praying for a writ of mandamus requiring Cunningham to issue execution upon the judgment. Judgment was entered in favor of defendant, and at plaintiff’s request findings of 'fact and conclusions of law were filed. As his findings of fact the court adopted the allegations contained in certain paragraphs of plaintiff’s petition. The facts so alleged have already been stated in this opinion.

The conclusion of law was to the effect that, as the justice’s court is a court of general jurisdiction within the limits prescribed by law, and there being no proof that the justice of the peace had adjourned his March term of court, the order setting aside the judgment of March 7, 1914, was not shown to be invalid. Appellant contends that the justice’s court has no power to grant a motion for new trial in a case where judgment has been rendered by default unless such power is exercised within ten days after entry of the judgment. Article 2374, R. S. 1911, reads as follows:

“Any justice of the peace shall have power, at any time within ten days after the rendition of a judgment by default or of dismissal, to set aside such judgment, on motion in writing, for good cause shown, supported by affidavit. Notice of such motion shall be given to the opposite party at least one full day prior to the hearing thereof.”

This article has been held to give the justice power only to grant a new trial within ten days after rendition of the judgment. After the expiration of that time he loses all authority to set the judgment aside. Grant & Kenner v. Fowzes Bros., 3 Willson, Civ. Cas. Ct. App. § 105; Jones v. Collins, 70 Tex. 753, 8 S. W. 681; Carter v. Van Zandt Co., 75 Tex. 286, 12 S. W. 985; Odie v. Davis, 35 S. W. 721; Bank v. Rowland, 45 Tex. Civ. App. 3, 99 S. W. 1043; Bond v. Rintleman, 24 Tex. Civ. App. 298, 59 S. W. 48; Adams v. Casey-Swasey Co., 15 Tex. Civ. App. 379, 39 S. W. 654; Dickensheets v. Hudson, 167 S. W. 1097; Jones v. Curtis, 56 Tex. Civ. App. 181, 120 S. W. 531. The article was re-enacted in 1895, after being construed in some of the cited cases, and no change was made in its wording.

Appellee, without discussing the above-cited cases, contends that the Supreme Court announced a different rule in the case of Cohen v. Moore, 101 Tex. 45, 104 S. W. 1053. In that case the justice’s court set aside its judgment on the same day it was rendered, without any written motion, and announced that the case would be continued until the next term. On the eleventh day thereafter it set aside or ignored the ruling with reference to the continuance, tried the case, and entered judgment. The Supreme Court held that such judgment was not void. This conclusion carried with it the following rulings: (1) The justice’s court had the power to set aside its judgment on the day it was rendered without any motion for new trial. (2) It had the power, after ten days from the date on which the ease was continued, to set aside the order continuing the ease. (3) It had the power, notwithstanding article 2378, Revised Statutes 1911 to retry the case, without the agreement of the parties, at the same term at which a new trial had been granted.- The first ruling is in accord with the holding of this court in the case of Raley v. Sweeney, 24 Tex. Civ. App. 620, 60 S. W. 573, and is not in conflict with the holding that the judgment cannot be set aside after ten days from its date. The second holding is also not in conflict with the other cases cited, unless the word “judgment,” as used in article 2374, be construed to mean any order. This cannot be done. The third ruling is not in conflict with the eases cited by us, because it involves the construction of a different article of the statutes, an article which directs that the ease shall be continued when a new trial is granted.

The court used the following broad language in the Cohen v. Moore Case:

“The power to set aside at the same term at which they are rendered its judgments and orders is one inherent in every court of general jurisdiction, and it is not taken away by the statutory provisions which regulate the subject of new trials and the setting aside of defaults. This has repeatedly been held with reference to the district and county courts, in which the statutes prescribe the times for filing such motions, and require them to be in writing as fully as is required in justice’s courts. The principle was applied to justice’s courts by the Court of Appeals in the case of Hinzie v. Ward, 1 White & W. Civ. Cas. Ct. App. § 1314.”

The ease referred to was one in which the court corrected its judgment so as to make it conform to that actually rendered. We have no doubt of the power of the court to do what was done in that case.

In considering the meaning of the above-quoted statement made by the court in the case of Cohen v. Moore, it must be remembered that the court was not construing article 2374, or discussing the question whether the inherent power of the court was greater than the express mandatory legislative provision, but had in mind a directory statute, which it was comparing to other directory statutes providing for the performance of certain acts by parties in order to avail themselves of the statutory right to have the court decide whether or not to grant a new trial. As no intimation was made of a belief that the decisions cited by us were erroneous, and we believe that said decisions are correct, we must decline to place this court in conflict therewith.

The judgment of the trial court is reversed, and judgment here entered awarding appellant the writ of mandamus in accordance with the prayer of his petition.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    THOMPSON BROS. LUMBER CO. v. WILLIAMSON et ux.
    (No. 5500.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 2, 1915.
    Rehearing Denied June 23, 1915.)
    1. Adverse Possession <&wkey;54 — Acquisition oe Adverse Title.
    Where an adverse holder resided on the land in suit for over 12 years, her title by adverse possession was perfected, and though she. removed to an adjoining tract, from which place she exercised control over the land in suit, she did not lose her title.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. § 271; Dec. Dig. <&wkey;>54.]

      2. AdvbRsb Possession <S~»100 — Claim—Assertion. *'
    Where the adverse holder knew the exact location of the parcel of land which she claimed, although only part of it was under cultivation, her title extended to the boundaries of her claim, though the land had never been surveyed.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§' 547-574; Dec. Dig. <&wkey;> 100.]
    Appeal from District Court, Walker County ; S. W. Dean, Judge.
    Action by W. M. Williamson and wife against the Thompson Bros. Lumber Company. Prom a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Townes & Vinson, of Houston, and Hill & Elkins, of Huntsville, for appellant. Dean, Humphrey & Powell, of Huntsville, for ap-pellees.

       writ oí error pending in Supreme Court.

   PLY, C. J.

W. M. Williamson and Martha Williamson, his wife, instituted this suit against appellant to try title to 160 acres of land. They claimed to have a title by limitation of 10 years to the 160 acres of land. Appellant pleaded not guilty. The cause was tried without a jury, and resulted in a judgment in favor of appellees.

The trial judge filed his conclusions of fact and law, and there is also a statement of facts filed in this court.

The first and second assignments of error assail the sufficiency of the evidence to sustain the judgment because it was shown that appellees were living on a tract of 100 acres of land owned by them, which lies east of the land in controversy. The facts clearly show that the mother of Mrs. Williamson, after the death of her husband, in 1864, moved into a house which- he had erected on the land in controversy, put several acres in cultivation, claiming 160 acres, and lived in that house until 1876, when she bought the 100 acres off the T. B. White survey adjoining the land in controversy. She built a house on the 100-acre tract in 1876 and moved into it, but still claimed and exercised control over the 160 acres in the Upper Jose Ortega grant. She had been in actual possession of the last-named tract of land for at least 12 years before she owned any other land. Her title by limitation was then perfected. The findings of fact of the trial' judge are sustained by the statement of facts, and are approved by this court. The mother of Mrs. Williamson claimed the identical 160 acres which was surveyed in 1918. She knew about where the boundaries of the 160 acres were by the boundaries of surrounding tracts of land.

The third assignment of error complains that judgment was not rendered in its favor for all of the land except 6% acres. Appellant did not attempt to show that it had any right, title, or interest in the land, not even that it was in possession of the land. The claim is made that appellees could not claim 160 ■ acres of land because it had not befen surveyed, and they did not know the exact location of the land until 1918, when they had it surveyed. The claim to the land which perfected title by limitation was that made by the mother of Mrs. Williamson, and the latter swore that her mother claimed the identical land afterwards surveyed. She swore that her mother claimed land to the league line on one side and over to the Harper tract and to the T. B. White on another side. Her mother knew the land she was claiming, and it is the identical land in controversy. The evidence did not leave it in doubt as to what land was claimed by the mother of Mrs. Williamson during the 12 years she was on it. The same land had been claimed by appellees for over 20 years.

There is no merit in any of the assignments of error, and the judgment is affirmed.
      <g=»JTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes