author: MORROW, J.

text:
    THOMAS v. STATE.
    (No. 4844.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.
    Rehearing Denied June 28, 1918.)
    1. Larceny @=55 — Sufficiency of Evidence.
    In a prosecution for the theft of 20 head of goats, evidence held to sustain a conviction.
    2. Criminal Law @=1141(2) — Appeal—Presumption — Burden of Proof.
    The appellate court indulges the presumption that the rulings of the trial court are correct, and the burden is upon, the appellant, by some authenticated record, usually by bill of exception, to show facts overturning the presumption.
    3. Criminal Law @==>1092(3, 11) — Bills of Exception — Duty of Appellant.
    It is the duty of the appellant to prepare his bill of exception and of the judge to allow it or to file in lieu of it a bill prepared by Mm.
    4. Criminal Law @=31092(12) — Bill of Exception — Bystanders’ Bill.
    Appellant, to controvert a bill of exceptions prepared by the trial judge, has the right to file a bill verified by bystanders.
    5. Criminal Law @=>1092(11), 1144(19) — Qualification of Bill of Exception — Consent — Presumption.
    'The court cannot qualify a bill prepared by appellant without his consent, but when a bill is found in the record with a qualification attached, such consent will be presumed, in the absence of an objection and exception to the qualification authenticated and brought up in the record.
    6. Criminal Law @=1092(11) — Qualified Bill of Exception — Consideration.
    When a bill appears on the record qualified over appellant’s objection, the qualification may be disregarded and the bill considered approved as prepared by appellant; and, if the qualification is in substance a rewriting of the bill, it may be treated as the court’s bill.
    7. Criminal Law @=>593 — Discretion—Continuance — Absence of Leading Counsel.
    In a prosecution for larceny, where experienced counsel selected by appellant and familiar with the case conducted it skillfully, the refusal to continue the case because of the absence of leading counsel was not an. abuse of the trial court’s discretion.
    8. Criminal Law @=1169(2) — Admission of Evidence.
    An appellant cannot complain of the introduction of testimony, where it was the same as that introduced by other witnesses without objection.
    9. Criminal Law @=724(1) — Argument of State’s Attorney — Propriety.
    In a prosecution for larceny, the state attorney’s reference to appellant as a thief, “a two-legged wolf,” and his asking the jury that if any one of them did not believe defendant guilty to stand on their heads, was undignified and improper.
    10. Criminal Law @=729 — Improper Argument-Parties.
    Such improper argument was not so obviously prejudicial that its effect might not be withdrawn by a special charge; and, where the trial court told the jury not to consider his other remarks and verbally reprimanded him, and was not requested by a special charge to withdraw the remarks, there was no reversible error.
    11. Criminal Law @=730(1) — Remarks of State’s Attorney — Parties.
    In a criminal prosecution, where the jury came into court and requested the reading of some testimony, a question by the state’s attorney to the foreman as to whether the request was made officially and after evidence on direct was read, whether they wanted the cross-examination or anything else, was improper, though a reprimand and an order that attorney take his seat was sufficient to prevent prejudice.
    12. Criminal Law <§=>855(8) — Conversation with Jury — Questions to Jury — Return-ins into Court.
    Such questions to the jury wore not such a conversation with jury as are forbidden by the statute, declaring that the jury in a criminal case shall not hold communication with others except in the presence of the court.
    13. Criminal Law <§=>721½(2) — Triai>-Ae-GUM15NT.
    In a prosecution for larceny of goats, where defendant had a boy with him who rode a donkey and defendant’s counsel commented on the state’s ■failure to prove a certain fact, the state attorney’s question as to why counsel did not put the boy on the stand to disprove it was legitimate argument under the record.
    14. Criminal Law <§=>729 — Argument oe Co UN SEX — WITHDRAW AL.
    An argument of counsel may be withdrawn by special charges.
    15. Criminal Law <§=>1171(1) — Remarks oe Counsel — Reversal.
    It is not every improper remark that requires or justifies a reversal, but, when withdrawn, it is only those which are so obviously harmful that withdrawal by the court will not cure the injury produced by them that require a reversal.
    Appeal from District Court, Him We County; N. T. Stubbs, Judge.
    B. D. Thomas was convicted of theft, and appeals.
    Affirmed.
    Martin & McDonald, of Austin, M. E. Blackburn, of Junction City, and W. C. Linden and Joe H. H. Graham, both of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the theft of 20 head of goats, and his punishment assessed at two years’ confinement in the state penitentiary.

Prentice, the alleged owner of the stolen property, claimed to have missed 20 head of goats from his herd abont the 20th day of July. They were marked and branded, and he claimed to be able to recognize them and know them by reason of his intimate knowledge and contact with them and his long experience in the breeding and handling of stock of that kind. In the October following one Skaggs told Prentice over the telephone that he thought one of his goats was with the Skaggs herd. Prentice found in the herd and identified 16 of his goats. He claims that his brand was on them, but that another brand had been placed over it so as to change it. He also found that the mark had been changed, claiming that both mark and brand bore evidence by which the change could be identified. On one of the goats there were, according to his testimony, notches on the horns, which were peculiar and which enabled him to identify the goat. Skaggs testified that he contracted with appellant for the purchase of 125 head of goats on the 24th day of July; that they were delivered to him by appellant a short time thereafter, appellant making personal delivery, driving the goats to the witness’ pasture. He said that when he received the goats that some of them were branded, and that he saw an old brand also, lie learned from Prentice that some goats had been lost by Mm, and informed Prentico that he had bought goats from Thomas, the appellant; that subsequently in handling his goats he found one with a spur brand (Prentice’s brand), which had not been altered; that he then called Prentice on the telephone and informed him of the fact; that Prentice came and identified some of the goats, which were afterward caught and examined and found to have the spur brand defaced by an X brand. He and Prentice both testified that on the first day they examined them they found 11 of these and on the next day 5. He claimed that he had bought these goats from Thomas and paid him for them, and that he afterwards had a conversation with Thomas, in wMch the latter reminded witness that they had been boys together, and asked him to be easy; that if he would be easy he would get the money for him; but Thomas did not in the conversation say that he had gotten the goats from Prentice, nor that he had stolen them. He said he was not going to deny that he had 97 head of goats, and that he would be able to prove that they were put in his herd to trap him; that he could not pay for them because his attorney advised him not to do so. There was some evidence that Prentice’s goats were in a pasture with a goat-proof fence. There were gates in it, one of them in the direction of the pasture in wMch appellant’s herd of goats were kept. Prentice claimed to have tried to track the goats when he discovered the loss, and to have found in his pasture where a bunch of goats, apparently about 20, passed, and that they were accompanied by horse tracks and donkey tracks. These tracks were not otherwise identified, nor was appellant’s connection with them established. They were in the direction of the gate which led to appellant’s pasture, but abont a mile from the gate.

Another witness, Mrs. Eorence Blardone, testified to the purchase of some goats from appellant in the latter part of July, 1916, describing them as a small bunch of especially fine goats. She said that she had seen appellant branding some goats, the number of which she could not tell; that appellant said he had sold them to Skaggs ; that when appellant turned the goats out she remarked that he had not horn-painted all of them, and that he said, no, that it was too hot, and that when she called his attention to the fact that he had not branded them all he said, no, he branded those only on which the brand was not plain. She said he just branded a few, and put an X brand on them; that she saw him drive the goats away; that a little boy wasi- with him.; that the boy was not riding at the time, but that she had seen him ride a mare sometimes, and a donkey at others. She also testified that she had found among her herd 3 goats with the Prentice brand upon them unchanged; that appellant declared that he had sold and intended to deliver the goats to Boy Skaggs, and that she saw him going in the direction of the Skaggs’ ranch; that he branded them early in the morning and started with them about 9 o’clock.

Appellant insists that the evidence is not sufficient to support the conviction, basing his claim mainly upon the contention that there is absence of evidence to show actual taking. Mr. Branch, in section 2463 of his Ann. P. 0., lists the cases decided by this court touching the circumstances under which the theft may be inferred from the recent unexplained possession of stolen property. The possession in the present instance seems to meet these requirements. If the state’s witnesses are to be believed, his possession of the goats that were sold to Skaggs was personal. Mrs. Blardone saw him branding them, driving them, and heard him declaring his intention to deliver them to Skaggs. Skaggs testified that he had an arrangement to buy them, and some time on the morning on which they were delivered met appellant with them. The possession was recent, it appearing that Prentice had counted his goats a short time before he missed them, about the 20th of July, and that appellant had possession of the goats which he delivered to Skaggs about the 24th or 26th of July. His possession was not explained. It was a conscious assertion of the property right, in that he actually sold and delivered them to Skaggs. Skaggs retained them in his possession until they were identified by Prentice some 3½ months later. The evidence is to the effect that when examined by Prentice and others at the time he identified the goats in Skaggs’ possession the spur brand bore evidence of having been converted into an X brand, and Mrs. Blardone testified to circumstances indicating that this change was made by appellant before he delivered the goats to Skaggs. We cannot agree with appellant that the evidence was so lacking in cogency as to fail to show circumstances which justified the conclusion of the jury that he was the original taker of the property.

Appellant presented to the trial judge 16 bills of exception. To 9 of these bills the court attached qualifications. In lieu of 2 of them he prepared and filed his own bills. Appellant does not controvert the bills prepared and filed by the trial judge by the production of bystander’s bills. He objected to the qualifications attached, and this objection is brought forward in bills of exception duly certified. The appellate court on appeal indulges the presumption that the rulings of the trial court are correct and the burden is upon the appellant, by some authenticated record, to show facts overturning the presumption. This is usually done by bills of exception. The rules of practice on the subject are quite accurately stated in Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088. Briefly they are as follows: It is the duty of the appellant to prepare his bill of exception and of the judge to allow it or to file in lieu of it a bill prepared by him. To controvert the bill thus prepared the appellant has the right to file a bill verified by bystanders. The court has no authority, without the consent of appellant, ⅛> qualify a bill prepared by him, but when a bill is found in the record with a qualification attached the consent of the appellant will be presumed, in the absence of an objection and exception to the qualification authenticated and brought up in the record. When a bill 'appears in the record qualified, and it also appears that it was done over appellant’s objection, the qualification may be disregarded, and the bill considered approved as prepared by appellant. If the qualification is in substance a rewriting of the bill of exceptions, it may be considered and treated as the court’s bill.

Most of the unqualified bills appearing in this record relate to exceptions to the charge of the court or the refusal of special charges. They present no new or important questions; and, without discussing them in detail, we are of opinion that the court’s charge together with the special charges given at the request of appellant, fairly and accurately present the issues raised.

In' view of the nature of the case and the presence of experienced counsel selected by the appellant, familiar with the case and who are shown by the record to have conducted the case in a skillful manner, the refusal of the trial court to continue the case because of the absence of leading counsel does not show an abuse of discretion. Monroe v. State, 56 Tex. Cr. R. 244, 119 S. W. 1146; Mason v. State, 81 S. W. 719; Coleman v. State, 43 Tex. Cr. R. 15, 63 S. W. 322; Weaver v. State, 34 Tex. Cr. R. 282, 30 S. W. 220; Stockholm v. State, 24 Tex. App. 601, 7 S. W. 338; Walker v. State, 13 Tex. App. 645, 44 Am. Rep. 716, note; Boothe v. State, 4 Tex. App. 216.

Two bills complain of the refusal of the court to submit to the jury the issue of suspended sentence, which was pleaded, but upon which no proof was offered. This pleading, in the absence of evidence, raised no issue for the jury.

The second bill of exception, complaining of the fact that the state was permitted to introduce some evidence after it closed its case, does not contain any facts indicating that there was an abuse of discretion, by the court given by article 718, O. O. P., to permit the introduction of evidence before the close of the argument. The other criticisms in the bill refer to matters that are not set out or specifically referred to in the statement of facts. Our examination of the latter has disclosed no testimony subject to criticism. The evidence of the witness was concerning the facts transpiring at the time that Prentice identified the goats in the possession of Skaggs, and was in substance the same evidence that was given by both Prentice and Skaggs without objection. Appellant is not in position to complain of the introduction of the evidence of this witness, it being the same as introduced through other witnesses without objection.

Bill No. 10 complains that 1½ hours of the 2½ allowed to tire state for argument was consumed in the closing argument. We leam from the bill that the appellant was allowed 2½ hours to present the case from appellant’s standpoint, and we find no facts in the bill as prepared by appellant which show error prejudicial to appellant.

The eleventh bill relates also to the argument, claiming in general terms that one of the state’s attorneys was drunk, and that he used bitter, vindictive, vitriolic, and profane language, none of which is set out in detail except the fact that he referred to appellant as a thief, “a two-legged wolf,” and asked the jury that if any member did not believe the defendant guilty to stand on their heads. This language was manifestly undignified and improper. It was not, we think, so obviously prejudicial that its effect might not have been withdrawn by special charge. It appears from the same bill and from the record that the trial court instructed the jury, at appellant’s reguest, not to consider other remarks made by the same attorney, and it appears from the bill that during the argument mentioned the court verbally reprimanded ihe attorney at the time. The court was not reguested to withdraw the remarks by special charge, in the absence of which, we think, there is no reversible error shown by the bill.

Appellant’s twelfth bill of exception was not allowed by the court, but in lieu of it one was prepared which shows that during their deliberations the jury came into court and reguested the reading of some testimony. Before it was read by the stenographer one of the attorneys asked the foreman of the jury whether the reguest was made officially or not. After the evidence on direct examination was read the stenographer stated that the cross-examination was next. The attorney for the state asked the foreman whether they wanted the cross-examination or whether there was anything else they wanted, to which the foreman replied, “No.” The trial judge at the time reprimanded the attorney for the state, and ordered him to take his seat. This was in the presence of the jury, the appellant offering no objection at the time. This, we think, was not such a conversation with the jury as inhibited by the statute, which declares that the jury in a criminal case shall not hold eomn$unication with others except in the presence of the court. The conduct was not proper, but the reprimand by the judge would seem to have been sufficient. Just in what way the things that were done by the attorney for the state could have prejudiced the appellant’s rights is not clear. It might have been to his advantage to have had the cross-examination of the witness read. He does not appear to have requested that it be done, nor suggested to the court that anything further be done.

Appellant’s bill No. 13 was not allowed, but was substituted by one prepared by the court from which it appears that the appellant’s attorney commented upon the failure of the state to prove that one of the animals that was supposed to have followed the missing goats as disclosed by the tracks was a donkey, and not a small horse or colt. Replying to which, attorney for the state said:

“Why did you not put your own boy, Dave Thomas’ boy, on the stand and prove he did not own a donkey?”

Objection was made and sustained to this, and the appellant prepared and the court gave a special charge, telling the jury to disregard the remark of counsel, which in the special charge was stated as follows:

“Why don’t you put your own hoy, _ Dave Thomas, on the stand, and prove he did not own a donkey?”

Counsel insists that the record thus presented shows comment upon the failure of the appellant to testify. It appears from the testimony that appellant had a boy who was with him at the time he drove, or started to drive, the goats to Skaggs’ pasture, and Mrs. Blardone said that the boy at times rode a donkey. The court in the bill says that the language used in the charge was not that which was used in the argument, but that the language used was that guoted in the bill, and that in signing the charge he overlooked the fact that there was a difference between the language used by the attorney in his argument and that used in the special charge. The language quoted in the bill occurs to us to have been legitimate argument under the record, and, considering the record, the language used in the special charge given at the request of appellant does not, we think, necessarily refer to appellant’s failure to testify. He appears to have been a man, not a boy, and to have had a boy who was with him in part of the transaction, and who would have known whether he had a donkey or not, and whether the state’s testimony that he did have and sometimes rode one was true.

Bills Nos. 14 and 15 relate to an argument of counsel which was withdrawn by special charges, and which we regard as such as susceptible to withdrawal in that manner. The authorities are uniform that it is not every improper remark that requires or justifies a reversal, but when withdrawn, it is those only which are so obviously harmful that withdrawal by the court will not cure the injury produced by them. Branch’s Ann. P. 0. § 383.

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

      (g=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    BORRER v. STATE.
    (No. 4644.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.
    Rehearing Denied June 26, 1918.)
    1. Homicide <§=325 — Appeal—Instructions —Waives.
    Where one indicted for murder makes no objection to the submission of the issue of manslaughter, he waives his right to complain thereof on appeal, in' view of Act 33d Leg. c. 138 (Vernon’s Ann. Code Cr. Proc. 1916, arts. 735, 737, 737a, 743), relating to instructions in criminal cases.
    2. Homicide <§=325 — Appeai^Objecttons— Conviction oe Lessor Degree.
    Where one charged with murder failed to complain at trial of a charge on manslaughter, conviction of manslaughter will not be reversed, manslaughter being a grade of culpable homicide included in an indictment for murder by the express terms of Vernon’s Ann. Code Cr. Proc. 1916, art. 772, and article 771, authorizing a conviction for any inferior degree of an offense.
    3. Criminal Law <§=3728(5) — 'Argument oe Counsel — Request eor Instruction.
    Unless the remarks of counsel in argument are obviously of a nature to impair the rights of accused, they will not authorize a reversal, though improper, in the absence of a special charge requesting their withdrawal.
    4. Criminal Law <§=>723(2) — Arguments oe Counsel — Inflammatory Remarks.
    In a trial for murder, a remark of the counsel for the state that the case reminded him of the first assassination, referring to the story of Cain and Abel, was not improper; the state’s theory being that the homicide was an assassination.
    5. Criminal Law <§=>726 — Argument oe Counsel — Retaliatory Remarks.
    In a murder trial, remark of the counsel for the state on argument that it was not he that was asking for the conviction of accused, because he was simply “the representative of the law-abiding citizenship of your county,” was not reversible error, where it was invited by the statement of defendant’s attorney that the prosecuting attorney was asking for the life and liberty of defendant.
    6. Criminal Law <§=>729 — Argument — Cure oe Error.
    A remark of the state’s counsel in a murder trial that he was not asking for defendant’s conviction personally, hut as a representative of the law-abiding citizens, was not so improper as to render it incapable of withdrawal by special charge.
    7. Criminal Law <§=715 — Argument oe Counsel — Use oe Sketch and Illustrations.
    In a prosecution for murder, it was not error to allow the state’s counsel in his argument to draw a rough sketch of the roads, fences, fields, and pastures described by the witnesses, touching the scene of the homicide, the sketch not being handled by the jury, but merely used as illustration.
    8. Criminal Law <§=>784(3) — Instructions— . Circumstantial Evidence.
    In a murder trial,, a charge on the law of circumstantial evidence is required only where the state relies on circumstantial evidence alone, and is not necessary where accused admits the homicide.
    9. Criminal Law <§=726 — Argument oe Counsel — Retaliatory Statements.
    In a murder trial, where accused admitted the killing and defendant’s attorney had discussed the law of circumstantial evidence, it was not prejudicial- error for the state’s attorney to state that defendant’s counsel had stated the rule of circumstantial evidence correctly, but that he should not have made the argument because the court had not charged on circumstantial evidence.
    10. Criminal Law <§=>804(1) — Instructions— Verbal and Written Instructions.
    In a murder trial, a verbal instruction that the jury must consider the case solely on the evidence and disregard arguments not based thereon, was not error, in the absence of a request for a written instruction.
    11. Criminal Law <§=719(1) — Argument oe Counsel — Arguments Not Based on Evidence.
    In a prosecution for murder by shooting, argument by the state’s attorney that it was a matter of common knowledge that shots are often deflected from a straight course on striking an object was not error as improper comment as to a matter not supported by expert testimony.
    12. Criminal Law <§=>730(12) — Argument oe Counsel — Personal Reference to Accused.
    In a prosecution for murder, a remark by the district attorney, while pointing to accused: “Look at his'face. You have a right to look at his face. Gentlemen of the jury, that man is mad right now” — while improper, was not prejudicial error, in view of instruction to disregard it.
    13. Criminal Law <§=>719(1) — Argument oe Oounsei>-Matters Not Sustained by Evidence.
    In a prosecution for murder, a remark of the district attorney that accused had not informed H., “one of the best men in the county,” of the shooting, was not error, though there was no evidence as to the character of H.
    14. Witnesses <§=*240(4) — Leading Questions.
    In a prosecution for murder, where deceased was barefooted, the question whether there were any barefoot tracks leading away from the cultivator with which deceased was working, although answerable by “Yes” or “No,” was not leading, because it contained no suggestion as to what reply was sought.
    15. Witnesses <§=243 — Leading Questions— Discretion.
    Where a witness is very old and not unfriendly to accused, it is not an abuse of discretion for the trial, court to admit leading questions.
    16. Criminal Law <§=447 — Parol Evidence —Impeaching Document.
    In a prosecution for murder, where the evidence of decedent’s wife given at inquest was reduced to writing, and signed by.her some time afterwards, it was not error to permit her to testify that she made certain statements at the inquest, notwithstanding the written statement did not contain them; such statement not being conclusive as to her testimony at the inquest.
    17. Criminal Law <§=656(5) — Conduct oe Court — Instructions as to Witnesses.
    In a prosecution for murder, it was not reversible error, as indicating his opinion of the credibility of a witness, for the court to instruct the sheriff to tell the witness, who was under the rule, to report to the court before leaving the courthouse; it not appearing that such instruction came to the jury’s knowledge.
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.
    Will Borrer was convicted of manslaughter, and he appeals.
    Affirmed.
    E. B. Coopwood, of Lockhart, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

On an indictment for murder appellant was convicted of manslaughter, with punishment assessed at confinement in the state penitentiary for two years.

Appellant made no objection to the court submitting the issue of manslaughter, and thereby waived his right to complain of the charge. C. C. P. arts. 735 to 743, Act 33d Leg. c. 138; Vernon’s C. C. P. p. 525, note 61, and cases cited. He takes the position that the verdict is without support in the evidence, for the reason that the state’s evidence tended to show assassination, appellant’s evidence self-defense, neither tending to show manslaughter. Manslaughter is a grade of culpable homicide included in an indictment for murder by express terms of the statute (article 772, O. C. P.). and in article 771 of said Code it is declared that there may be a conviction for any inferior degree of an offense. 3⅛ Powell’s Case, 5 Tex. App. 235, the same point here made was determined against appellant’s contention. Powell’s Case has been followed in Chapman v. State, 53 S. W. 104; Templeton v. State, 5 Tex. App. 407; Thomas v. State, 43 Tex. Cr. R. 24, 62 S. W. 919, 96 Am. St. Rep. 834; Fuller v. State, 30 Tex. App. 563, 17 S. W. 1108. There have been conflicting views expressed in cases in which, after acquittal of murder, one is tried for manslaughter. Parker v. State, 22 Tex. App. 108, 3 S. W. 100; Cornelius v. State, 54 Tex. Cr. R. 178, 112 S. W. 1050. When one charged with murder is on his trial convicted of manslaughter and the charge on manslaughter uncomplain-ed of, the court has uniformly refused to reverse on the ground that the evidence showed a higher grade of culpable homicide than manslaughter.

A number of bills complain of improper argument. No special charges were filed requesting the withdrawal of the argument complained of. This being true, unless the remarks are obviously of a nature to impair the rights of appellant or improperly prejudice his case before the jury, they will not authorize a reversal, though improper. Branch’s An. P. C. p. 204, § 362; Flores v. State, 198 S. W. 575; Roberts v. State, 67 Tex. Cr. R. 580, 150 S. W. 628; Clary v. State, 68 Tex. Cr. R. 290, 150 S. W. 919; Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544; Pierson v. State, 18 Tex. App. 524; Williams v. State, 75 Tex. Cr. R. 56, 170 S. W. 709; Thompson on Trials, § 698. When an argument is complained of as inflammatory the evidence and verdict will be looked fo in passing on the question. Hart v. State, 57 Tex. Cr. R. 21, 121 S. W. 508; Davis v. State, 58 Tex. Cr. R. 461, 126 S. W. 803. The inflammatory remarks complained of in one instance consisted in the fact that counsel for the state stated that this case reminded him of the first assassination, referring to the biblical story of Cain and Abel. The state’s evidence, if believed, would indicate that the homicide was an assassination, and for this reason the impropriety of the remarks is quite doubtful. The jury manifestly rejected the theory of assassination, however, and gave the appellant the lowest penalty fixed by law for the offense of manslaughter. In another one complaint is that the counsel for the state used the following argument:

“Attorney for the defendant has stated to you that I am asking for the liberty and life of this defendant. I. wish to say to you that it is not I that is asking for his conviction, for I am simply the representative of the law-abiding citizenship of your county.”

This appears to have been invited (see Branch’s An. P. C. § 363), and, if improper, it cannot be said to be so obviously harmful as to render it incapable of withdrawal by special charge. House v. State, 19 Tex. App. 239; Beeson v. State, 60 Tex. Cr. R. 48, 130 S. W. 1006.

The state’s counsel in the course of his argument drew a rough sketch of the roads, fences, fields, and pastures described by the witnesses, touching the scene of the homicide. It contains no inflammatory matter, did not mark the place where the homicide occurred, but simply delineated the surroundings, including the locality of the house in which the deceased lived, which was shown by evidence, and, according to the qualification, was in accord with uncontra-dicted evidence with reference to these matters. It was not handled by the jury, but used only as an illustration in connection with the argument. Touching this we quote from Thompson on Trials, § 992, as follows:

“It seems to be a fair conclusion that it is the right of a party, in arguing to a jury, to use a map or plan which is not strictly evidence in the case, for the pur-pose of illustrating his argument and explaining to the jury the position which he assumes — just as the teacher makes use of the figures on a blackboard for the purpose of illustration.” Rucker v. State, 7 Tex. App. 549.

The appellant! having admitted that he killed deceased, his case was not one requiring a charge on the law of circumstantial evidence. Such a charge is required only in cases where the state relies alone upon circumstantial evidence. Russell v. State, 38 Tex. Cr. R. 596, 44 S. W. 159; Branch’s An. P. O. § 187. There was therefore no error in refusing appellant’s special charge on that subject.

It appears in this connection that defendant’s’ counsel, in arguing the case before the jury, discussed the law of circumstantial evidence. Replying, counsel for the state said, in effect, that appellant’s counsel had stated the rule of circumstantial evidence right, but that he should not have made the argument, because the court had not charged on circumstantial evidence. This argument is objected to. It seems to be a legitimate answer to the argument of appellant. This case, lilse practically all cases of homicide, has in it circumstances which were the proper subjects of comment by counsel, and from which the jury might draw proper inferences. This condition, however, did not make the case one of circumstantial evidence, and, if counsel for appellant left the impression upon the jury that it was such and the rule of circumstantial evidence applied to it, the state’s counsel was within his rights in making reply thereto. The court, with reference to the argument, verbally told the jury that they must consider the case solely upon the evidence received from the witnesses and the law given in the charge, and disregard all argument of counsel for the state and defendant not based upon the testimony in the ease and the law given by the court. This is complained of as a curtailment of the argument for appellant. The bill complaining of it is qualified by the court to the effect that the request was made for a verbal instruction which was given to the jury, and that this objection was made afterwards, and no written instruction requested. This verbal instruction apparently placed the argument within the proper scope, confining it to the evidence adduced on the trial and the law embodied in the court’s charge. As qualified, we are unable to discern any error committed, as shown by the bill.

There were no eyewitnesses to the homicide except appellant. The theory of the state was that appellant, concealing himself in the corn, shot deceased while he was plowing in his field. It was a conceded fact that after he was shot deceased walked some distance towards his residence. He fell and died at a point about 150 yards, in an easterly direction from his plow and team. Thirteen buckshot fired from a gun struck him, entering the neck and breast between the chin and collar bone. They did not go through the body, but three of them came to the surface in his back about 18 inches below the place of entry. The widow of deceased testified that she heard a gun fired and her husband holler, ran out in the field, and met him walking in the turnrow towards his house, and he said that Will Borrer shot him; “that he was not doing anything when he was shot, but plowing along.” There had been a previous difficulty, and deceased had sent word to appellant, complaining of his cattle getting in the field. Appellant claims to have gone to see deceased about the cattle, and to have been abused by him, and that when the shot was fired deceased was advancing upon him with a hammer in his hand in a position to throw it, that he, appellant, was backing away, and told deceased he wanted no trouble, and that he stumbled and partly fell, and when he raised his gun to fire deceased threw the hammer. We take the following from his testimony:

“He had the hammer up, and, as he seen I was going to shoot, he ducked over that way (illustrating) and threw the hammer.”

The district attorney used, in substance, the following language in his argument: Defendant’s attorneys say the killing must have occurred in the manner testified to by defendant, for the reason that the physical facts show that when the man was shot he must have been in a stooping position, because the shots entered in front between the neck and collar bone, and three of them came to the surface of the skin in the back 18 inches lower than the place of entrance. “This fact is of no importance, for you know and I know — in fact it is a fact of common knowledge — that shots are often deflected from a straight course and do not go in a direct line after striking any object.” The complaint of this is that the course the shots would take was a matter of expert testimony, of which there was none introduced.

Whether the statement of the district attorney was accurate or not is one we will not undertake to decide. On the subject, however, see Balls v. State, 40 S. W. 802, whereip the court through Judge Hurt held that the range of a bullet was a fact that might be stated by a, nonexpert. The location of the wound and the fact that three of the bullets appeared 18 inches below the point of entry may have been regarded as supporting appellant’s statement that deceased ducked immediately before he was shot. It does not appear to be a fact of controlling importance nor entirely inconsistent with the theory of the state that at the time he was shot deceased was “plowing along.” If appellant is correct in his assumption that the fact that shots are often deflected from a straight course after striking an object was one not properly the subject of comment in the absence of expert testimony on the subject, it was not such a transgression, considering the record, as might not have been cured by special charge. The court did charge the jury to disregard arguments nor based on evidence. If more specific instructions were desired, a request for them should have been made.

The district attorney, referring to appellant’s contention and argument that the deceased was a dangerous man, pointed at appellant, shaking his finger, and said he was a quick-tempered man, easy to get mad. “Look at his face. You have a right to look at his face. Gentlemen of the jury, that man is mad right now,” Appellant had testified as a witness, and there was testimony that he had had a previous quarrel with deceased, and that he had threatened to hill him if he caught him on his land any more. Possibly this would have justified tire argument that he was quich-tempered. The personal reference to him quoted, however, we thinh was improper. The bill shows, however, that the jury was instructed to disregard it; and, in view of this fact, in the light of decisions of this court collated in Branch’s An. P. O. p. 205, we are of the opinion that the incident does not authorize a reversal. See, also, Morris v. State, 39 Tex. Cr. R. 371, 46 S. W. 253; Alexander v. State, 199 S. W. 294, and cases cited.

Appellant admitted that after the homicide and on. his way home he met several people, and failed to mention the matter to them. One of these was the witness by the name of Harrell who, with others, testified to the good reputation of deceased as a peaceful man. The prosecuting attorney, commenting upon the evidence of self-defense referred to the fact that appellant had not told his friends about it; that he failed to tell Harrell, “one of the best men in the county.” To remark that Harrell was “one of the best men in the county” was out of the record. The law prohibits the county attorney from stating in argument facts not in evidence, and reversals have often resulted from the failure to observe this rule where the statement is of a material fact. Branch’s An. P. 0. § 205. Harrell had not testified to any incident connected with the homicide. He would in law be presumed to be a man of good reputation, in the absence of challenge by evidence. No specific instruction with reference to this particular matter was requested, and, as heretofore stated, the court gave a general instruction to disregard any argument not founded upon evidence.

The state’s theory was that appellant laid in wait and shot deceased while he was standing between the handles of his cultivator, and that after he was shot deceased, who was barefooted, left the cultivator, going in a westerly direction towards his house. Defendant’s theory was that deceased had left his plow handles, walked on the west side-of the cultivator, taking a hammer therefrom, and was advancing upon appellant with the hammer when he was shot. One of tlie witnesses who had examined the ground was asked if there were any barefoot tracks leading from the cultivator in a westerly direction. A question violating the rule against leading questions in this state is one which may be answered in the affirmative or negative, and which suggests the desired answer. This question could have been answered “Tes" or “No” but it contains no suggestion as to what reply was sought. Wells v. State, 65 Tex. Cr. R. 663, 145 S. W. 951; Ashlock v. State, 16 Tex. App. 21; McKinney v. State, 63 Tex. Cr. R. 470, 140 S. W. 344; Branch’s An. P. C. see. 157.

Other bills complain of leading ques tions asked the witness Reid. From the qualification of these bills it appears that the witness was very old, and not unfriendly to axspellant. Assuming that the questions were leading, which is debatable, we think under the qualification that the bill fails to show an abuse of the sound discretion resting in the trial court to admit leading questions under certain circumstances. Navarro v. State, 24 Tex. App. 378, 6 S. W. 542; Fitzpatrick v. State, 37 Tex. Cr. R. 29, 38 S. W. 806; Branch’s An. P. C. § 158.

It appears that the wife of deceased testified at the inquest, and that the magistrate took notes of her testimony, and several days later reduced the evidence to writing, which she signed. On the trial of the case she testified: “My husband told me he was just plowing along when he was shot.” To impeach her appellant introduced the written statement mentioned to show that it did not contain the expression quoted. Subsequently the state was permitted to prove by her that at the inquest trial she did make the statement. Objections were urged to her testimony last mentioned on various grounds, among them that, her testimony given at the inquest having been reduced to writing, the writing was the best evidence of its contents. It is quite true that the writing would be the best evidence of its contents. It was not the contents of the writing that was involved; it was whether the witness’ statement on the trial was in conflict with her former statement, and whether by reason thereof her credibility was impeached. The writing under the circumstances was, not conclusive as to what testimony she formerly gave. It was proof that it did not contain the statement in question, and the fact that it had been signed by her without the statement was a circumstance admitted against the state for the purpose of impeachment. It did not preclude, however, the state making proof that, while the statement was not included in the writing, she did, in fact, make it in her testimony, and the fault was in the magistrate in omitting it from the- writing. Hyden v. State, 31 Tex. Cr. R. 403, 20 S. W. 764; Branch’s An. P. C. § 173.

The complaint of the court’s conduct with reference to the witness Hardy, as stated in the accepted explanation to the bill, fails to show that the court did anything which would indicate to the jury his opinion or impression as to the credibility of the evidence given by said witness. Hardy was a witness for the defendant, and the court instructed the sheriff to tell the witness, who was under the rule, to report to the court before leaving the courthouse. It appearing nothing said to the sheriff or witness, or done in connection with them, came to the knowledge of the jury, it could not have prejudiced appellant’s rights. The law would not sanction any action by the court which would indicate to the jury his impression or opinion of the credibility of a witness. He is inhibited from doing so by statute, as has often been hold by this court. Hughes v. State, 197 S. W. 215; Caruth v. State, 77 Tex. Cr. R. 150, 177 S. W. 973. This case is not brought within this rule. Steel v. State, 200 S. W. 381.

Fading to find error in the record justifying a reversal, the judgment of the lower court is affirmed.
      (g¿3l<'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, ■ J.

text:
    HOUSETON v. STATE.
    (No. 4785.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.
    Rehearing Denied June 28, 1918.)
    1. Witnesses <&wkey;269(2) — Cross-Examination —Questions Pertinent to Direct Examination.
    In prosecution for murder, where wife of accused testified on direct examination that deceased came to her house some days prior to the killing and detailed conversation that took place, she can be required, on cross-examination, to testify as to whether he was accompanied at such time by another person.
    2. Witnesses i&wkey;387 — Cross-Examination— . Credibility.
    In prosecution for murder, accused’s wife, having testified on direct examination that deceased came to her home some days prior to the killing, may be cross-examined as to whether she had not, shortly after killing, stated that she had never seen deceased before day of killing; such testimony bearing on her credibility as a witness.
    3. Witnesses <&wkey;269(l) — Accused’s Wiee— Cross-Examination.
    In criminal prosecution, where wife of accused takes stand in his behalf, she may be cross-examined as to all matters germane and pertinent to her direct testimony.
    4. Criminal Law &wkey;j486 — Expert Testimony —Physicians—Range oe Bullet — Position oe Deceased When Hit by Bullet.
    In prosecution for murder, a surgeon, who attended deceased from shortly after shooting until his death, and who testified as to the wound, the range of the bullet, and the place of entry, may testify as an expert that a bullet, if fired into a man lying on a fence, could have taken the range taken by bullet that killed deceased.
    5. Criminal Law <&wkey;364(3) — Evidence—Res Cestas — Statements .
    In prosecution for murder, evidence as to statements of accused to a neighbor as to reason for shooting was not admissible as part of res gestte, where evidence did not show how soon after shooting statements were made, and where accused, in making the statements, did not appear to be excited or agitated.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    A. G. Houseton was convicted of manslaughter, and he appeals.
    Affirmed.
    Dickens & Dickens, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, ■ J.

Upon indictment charging appellant with murder of J. L. Jeffreys he was convicted of manslaughter.

The proof shows: That about April 3, 1916, deceased went to appellant’s home and made a contract with appellant’s wife to enlarge a picture of her father for her, which he was to deliver about a month later, and for which she was to pay him $2.98. That about May 2d following deceased had enlarged the picture as contracted, took it to her house, and delivered it to her. At the time she told him she did not have the money to pay him, but requested that he call in a few days when she would pay him. About two days later he called at her house to get his pay, stepped upon her gallery, knocked at her door, and appellant went to the door, when deceased told him what his business was. Appellant claimed not to know anything about it, and called his wife to him at the door, and asked her about it in his presence. She denied, in substance, that deceased had enlarged and left with her any picture. Appellant claims deceased then said, “You are a God damned liar,” and that he (appellant) told him to leave his house, and he claims that deceased then struck him on the thumb, skinning it, and drew blood therefrom, and thereupon made a hip-pocket play as if to draw a pistol and shoot him. That he thereupon turned, stepped back to his bed, procured his pistol from under the head thereof, and turned and shot deceased in self-defense, and that after he shot him deceased ran, jumped off his gallery, ran out of his yard, and fell just outside of his gate, and that he (appellant) followed him, and, as deceased was struggling to get up, he struck him over the head with his large 44 pistol. The state proved that deceased was wholly unarmed, had no pistol or other weapon, and not even a pocketknife. The state proved by some four eyewitnesses that appellant did not shoot deceased while he was on his gallery, but, in fact, that when appellant got his pistol deceased ran, jumped off the gallery, ran some 20 feet to the yard fence, placed his hands thereon, and jumped over, and that appellant shot him in the right side as he was jumping over the fence; that appellant was running after him from the time deceased began running, and that after he had shot him, as stated by the state’s witnesses, he fell outside of the yard in a helpless condition; and that appellant continued until he reached the fence himself, and then reached over and struck deceased on the head with his pistol.

The appellant introduced his wife as a witness, who testified for him, and, among other things, testified that deceased came to her home with said enlarged picture on May 2d, and delivered it to her. She also testified as to the actions, conduct, and conversations of the deceased on that occasion. The state, over his objection, was permitted to ask his wife on cross-examination if anyone came to her house with deceased on that occasion, and if Mr. Palmie did not come with him and was there with him on that occasion. His objection was that his wife could not be asked any such question, because he, in his direct examination of her, had not asked her whether any one was with deceased at the time, or whether or not Mr. Palmie was with him. She testified that deceased came alone, and that Mr. Palmie was not with him.

The court, in allowing his bill on this subject, did so, with the statement that the witness Mrs. Houseton on her direct examination by appellant testified as a part of her direct examination that on Tuesday before the killing deceased came to her house and brought a picture that she had ordered, and that she had a conversation with him in regard to the picture while standing on her front porch, and detailed said conversation; that she did not testify on direct examination as to whether or not any one was present at the time, or whether or not any one came to her house with deceased on said occasion; that on cross-examination of her the court permitted the district attorney to ask her if any one came with the deceased to her house the day he delivered the picture to her, and to ask said question because it was not independent testimony sought to be elicited by the district attorney upon a matter not testified by the witness in her examination in chief, but was as to a matter which, was directly pertinent and germane to matters drawn out and testified to by the witness in her direct examination in chief.

The record shows that later in rebuttal the state introduced the witness Palmie, who testified that he went with deceased in a buggy to Mrs. Houseton’s on the occasion when he delivered the picture, and to what was said and done about delivering the picture to Mrs. Houseton and a part of the conversation that occurred between them at the time. Appellant made no objection whatever to this testimony by the witness Palmie.

Appellant has another bill, complaining of the action of the court in permitting- his wife to be cross-examined by the state on another matter. What the record and this bill show will now be stated.

The first witness introduced by appellant after the state rested was Mr. Barbisch. The state, on cross-examination of him, without any objection by appellant, had him to testify to a conversation between him, the appellant, and his wife, the three being present, a short time after the killing, in which he testified that appellant’s wife stated to him in the presence of her husband that she had never seen Mr. J. L. Jeffreys, deceased, before the day of the killing in her life, and did not know who he was. After Mr. Bar-bisch had so testified appellant introduced, as stated, his wife, who testified in his behalf. The court explained his bill on the subject, stating that in her direct testimony she testified that the deceased had come to her house some days previous to the killing, and had solicited an order for the enlargement of the picture of her father, and detailed the conversation that occurred between her and deceased at the time; that she also testified in her direct examination that deceased had come back and delivered the picture to her, and detailed the conversation that occurred between her and him at that time, and that in cross-examination of her he permitted the district attorney to ask if she had not in the presence of her husband stated to Mr. Barbisch on the said occasion that she had never seen deceased before the day of the killing in her life, and did not know who he was, which she denied. The court further explained that the state offered the testimony, and it was admitted by the court for the purpose of contradicting her as to the statements made by her in her direct testimony and as being pertinent and material testimony on a subject testified to by her in her direct examination by the defendant.

Neither of these bills shows reversible error. It is well established that where an accused introduces his wife, -who testifies in his behalf, the state on cross-examination of her is entitled to ask her as to all matters germane and pertinent to her testimony given on her direct examination. As stated by this court through Judge Davidson, in Jones v. State, 38 Tex. Cr. R. 115, 41 S. W. 639, 70 Am. St. Rep. 719:

“Of course, everything which is legitimate for the purpose of testing her knowledge of the facts sworn to, her bias, her prejudice, in fact any matter that goes legitimately to discredit her, is admissible on cross-examination.”

Mr. Branch, in 1 Branch’s Ann. P. C. § 152, correctly states the law, and cites the cases as follows:

“The wife of defendant may be cross-examined as to the matters testified to by her on direct examination, and the state is entitled to ask her who was present, as to their equipment, her opportunity for observation, and other questions as tending to show the accuracy of her direct testimony, and may apply the usual tests of cross-examination as to all matters germane and pertinent to her testimony given on her direct examination. Creamer v. State, 34 Tex. 173; Hampton v. State, 45 Tex. 154; Exon v. State, 33 Tex. Cr. R. 468 [26 S. W. 1088]; Jones v. State, 38 Tex. Cr. R. 100 [40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719]; Merritt v. State, 40 Tex. Cr. R. 359 [50 S. W. 384]; Buchanan v. State, 41 Tex. Cr. R. 127 [52 S. W. 769]; Dobbs v. State, 54 Tex. Cr. R. 554 [113 S. W. 924]; Morrow v. State, 56 Tex. Cr. R. 519 [120 S. W. 491]; Ferguson v. State, 57 Tex. Cr. R. 207 [122 S. W. 552]; Brown v. State, 61 Tex. Cr. R. 334 [136 S. W. 265]; Swanney v. State [66 Tex. Cr. R. 293] 146 S. W. 548; Reagan v. State [70 Tex. Cr. R. 498] 157 S. W. 483; Northcutt v. State [70 Tex. Cr. R. 577] 158 S. W. 1005; Taylor v. State (74 Tex. Cr. R. 3] 167 S. W. 59; Roberts v. State [74 Tex. Cr. R. 150] 168 S. W. 113.”

In Dobbs v. State, 64 Tex. Cr. R. 554, 113 S. W. 925, this court, through Judge Ramsey, held:

“It appears that the witness was not asked on direct examination whether any one else was present, and was not asked anything about deceased’s little boy. On cross-examination, evidently believing that her statement was untrue, and desiring to test the accuracy and substantial truthfulness of it, counsel for the state asked her many questions in respect to the little boy of deceased, who was with him, and developed from her, in substance, that she had not seen the boy. They also asked her in reference to whether deceased was driving a horse or a mule. They also asked her many questions in respect to just where she was when the fatal encounter ensued and her opportunity of seeing the killing. We think all the matters were so inextricably and closely connected with matters testified to on direct examination that her testimony would, under any fair rule, be admissible. This court has gone quite far enough in limiting the scope of the cross-examination of the wife. We think, however, in this case there can be no doubt that the matters inquired had such relation to the direct testimony of the wife, and were so necessarily important to elucidate the truthfulness of her testimony in chief, and so obviously related thereto, as not to be the subject of substantial complaint.”

In Buchanan v. State, 41 Tex. Cr. R. 129, 52 S. W. 769, the appellant’s wife therein testified for him. On cross-examination, over his objection, the state was permitted to ask and have her answer the following questions:

“Have you not taken great interest in behalf of your husband in this defense? A. I do not know that I have. (2) Is it not a fact that you have gone to the prosecutrix and told her not to know anything when put on the stand, and not to tell anything while on the stand, or swear anything, in the town of Seymour, on yesterday or the’ day before, or words to that effect? A. I have not. (3) Have you had any conversation with her? A. Yes; on yesterday at the hotel, but said nothing like that.”

This court held:

“It appears from the foregoing questions and answers that the appellant’s wife was not forced or permitted to answer anything against appellant. Furthermore, we think the questions were admissible on cross-examination.”

As shown above, the wife in this instance testified nothing against appellant in answer to the questions asked her by the district attorney on cross-examination, but, on the contrary, the answers she gave were directly in favor of him, and the questions asked her on cross-examination were “as to matters germane and pertinent to her testimony given on her direct examination.”

Dr. Scott, a surgeon and an expert, attended deceased from very soon after he was shot until he died the next day. He testified fully as to the wound, the place of entry, and range of the bullet. The court did not err in permitting him as such expert to testify, over appellant’s objections, that the bullet in this instance could have taken the range it did fired into a man lying on a fence. Waite v. State, 13 Tex. App. 169; Wyatt Banks v. State, 13 Tex. App. 182; Lovelady v. State, 14 Tex. App. 545; Pilot v. State, 38 Tex. Cr. R. 519, 43 S. W. 112, 1024; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120; Vines v. State, 67 Tex. Cr. R. 355, 148 S. W. 727; Pullen v. State, 70 Tex. Cr. R. 156, 156 S. W. 935.

As explained by the court, which was accepted by appellant, his bill to the manner of the state’s examining the witness Harold Parker shows no error.

Appellant has another bill, complaining that the court erred in refusing to permit Mr. Ray to testify about what appellant claims in his bill to be res gestae statements made by appellant to Mr. Ray soon after the shooting. Appellant himself testified in effect that after he shot deceased, deceased ran, jumped off his gallery, ran out of his front gate, and fell just outside; that he followed him, and so deceased struggled to get up after he had fallen, he reached over the fence and struck him on the head a blow with his six-shooter; that he did not shoot him or anything after that; and that he stopped, turned, and walked back into his house. He does not state how long thereafter he remained in his house, or what he did or said, but that later he came out of his house, stepped over his yard fence on the north, not going by the body of the deceased where he lay at his gate, and that he walked over to Mr. Ray’s house which was across two streets and some vacant lots from his house. He said:

“I went over there and told him I had to shoot a man down here, and said, ‘Will you come down there and do something for him?’ AVhen I asked him, told him I had to shoot a man down there and would he come down there and do something for him, his wife spoke up and said, ‘No; you can’t go down there.’ I said, ‘All right; if you feel that way about it, you had better not,’ ” and that he then saw another man and had him to go over and see the deceased.

Mr. Ray testified: That he saw the deceased. “Well directly — I don’t know how long it was, but in a few minutes — he, appellant, came over to my house.” That he saw appellant when he left his house. That he got over the fence and came straight to the corner of his yard. like. That at the time he noticed that appellant’s thumb had been skinned and was bloody. Appellant then wanted Mr. Ray to testify what he at that time said to him about the shooting, etc. He claimed that he expected to show by him that appellant showed him his finger, and told him that the deceased had been fighting him and had hit him on the finger; told him that the deceased had called his wife a God damned liar, and he ordered him away from his place, tried to get him away from his place, and that he was forced to shoot; to do what he did do. The state objected to this testimony, contending that it was not res gestee, but that it was self-serving declarations by appellant and inadmissible. The court sustained the state’s objection and did not permit Mr. Ray to so testify.

The bill does not show, as stated above, how long after the shooting it was before appellant went oyer to Mr. Ray’s, nor what he did or said from the time of the shooting to the time he went to Mr. Ray’s, though the bill would indicate that he went to Mr. Ray’s in a few minutes after the shooting. It fails to show that appellant at the time was in any way suffering, so as to exclude the idea of fabrication or self-serving declaration. There is nothing in the bill to show that appellant at the time was in any way excited or agitated, and nothing to indicate that his claimed declaration to Mr. Ray was instinctive, and that the facts of the transaction were speaking through him. On the contrary, the testimony tends to exclude all these requisites to have made it a res gestee statement. The trial judge who heard all the testimony and that of appellant 'was justified in concluding that what appellant claimed to have said to Mr. Ray on this occasion was not the transaction speaking through him, but, on the contrary, was a mere relation of a past event, and was not res gestae. His claimed declaration to Mr. Ray appeared to be a statement or relation of how the Idlling occurred and that there was a break or let-down in the continuity of the transactions and statements, lacking the essential characteristic of instinctiveness, and was not admissible as res gestse. See the principles laid down by Mr. Branch in 1 Branch’s Ann. P. O. § 84, and many decisions of this state cited.

The court did not err in refusing to give any of the special charges requested by appellant.

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


author: FLY, C. J.

text:
    CUMMER MFG. CO. v. LILLY.
    (No. 6013.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 17, 1918.)
    Corporations <&wkey;503 (2) — Actions--'Venue.
    Under Rev. St. 1911, art. 1830, subsec. 24, authorizing suits against a private corporation in any county wherein a part of the cause of action arose or it has an agency, it may be sued in a county wherein it failed to deliver goods pursuant to a contract made therein by its authorized agents and ratified without change.
    Appeal from District Court, Frio County; Covey C. Thomas, Judge.
    Suit by E. A. Lilly against the Cummer Manufacturing Company. From an order overruling its plea of privilege to be sued in another county, defendant appeals.
    Affirmed.
    John D. Hartman, of San Antonio, for appellant. C. A. Davies, of San Antonio, and Frank H. Sweet, of Brownwood, for appellee.
   FLY, C. J.

This is a suit instituted by appellee to recover damages of appellant for failure to deliver 19,000 onion crates contracted by it to be delivered in Frio county. Appellant pleaded its privilege to be sued in Lamar county, Tex. The plea was overruled, and this appeal is from that order. .

This case is siinilár to that of Cummer Manufacturing Company v. Kellam Bros., 203 S. W. 463, this day decided by this court, and every point in this case is decided in that case. It is not contended in this case, however, as in that, that changes were made in the contract between appellee and the agents by appellant. In the testimony it was admitted by appellant that it ratified the contract made between appellee and the agents without change. The authority of the agents to make the contract in Frio county was admitted. The cause of action arose in Frio county. The venue was in Frio county. Rev. St. art. 1830, subsec. 24. The evidence as to loss by appellee would not have prejudiced the cause of appellant.

The judgment is affirmed.


author: DUNKLIN, J.

text:
    THOMAS et al. v. WILSON et al.
    (No. 8841.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 27, 1918.
    Rehearing Denied May 25, 1918.)
    1. Evidence <®=»116 — Absence oe Witness —Explanation.
    In suit to establish parol trust in land, plaintiff could testify in explaining the absence of her mother, who knew more about the case, that her mother was in bad health and not of strong mind.
    2. Appeal and Error <&wkey;-1050(l) — Harmless Erbor.
    In suit to establish parol trust in land error, if any, in permitting plaintiff to explain absence of her mother’s testimony by saying that she was in bad health, and not of strong mind, was not reversible.
    3. Witnesses <&wkey;268(l) — Cross-Examination — Scope.
    Admission of testimony on cross-examination, which is merely an amplification of testimony of same witness brought out by the other party on direct examination, is not error.
    4. Appeal and Erbori <&wkey;209(2) — Waiver of Errors.
    In suit to establish parol trust in land by certain heirs, failure to challenge finding that that property given to a certain child was not in settlement of his interest in the community estate, as not being supported by the evidence, committed appellants to the proposition that there was sufficient evidence to sustain the finding.
    5. Husband and Wife <&wkey;274(4) — Community Property.
    If a father recognized the interest of his children in land purchased with community property, and there was no repudiation of such, interest, the statutes of limitation did not begin to operate until his death, nor was the suit to establish a trust in the land a stale demand when brought within a very few years after the father’s death.
    Appeal from District Court, Cooke County; C. F. Spencer, Judge.
    Action by Acie Wilson and another against G. G. Thomas and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed in part, and in part reversed and rendered.
    Davis & Davis and C. R. Pearman, all of Gainesville, for appellants. R. Y. Bell and Stuart, Bell & Moore, all.of Gainesville, for appellees.
   DUNKLIN, J.

G. G. Thomas and others, who were defendants in the trial court, have appealed from a judgment rendered in favor of Mrs. Acie Wilson, joined by her husband M. O. Wilson, plaintiffs, for an undivided one twenty-eighth interest, less a life estate in Mrs. Mary Thomas, mother of Mrs. Wilson, in one-third of said interest, in two tracts of land situated in Cooke county; one of such tracts consisting of 296 acres, and the other consisting of 40 acres, both being out of the N. Barnett survey.

Mrs. Thomas was the granddaughter of A. C. Thomas and Mary A. D. Thomas, his wife, and claimed the property for which she recovered judgment, as the heir of her grandparents, both of whom are dead. Mary A. D. Thomas died July 14, 1880, and A. C. Thomas died October 8, 1914. At the time of the death of Mrs. Thomas she and her husband resided in Johnson county, in which county they owned two tracts of land; one tract consisting of 807 acres, and the other of 157 acres, both of which tracts belonged to the community estate of A. C. Thomas and wife, and the same, together with personal property appraised at $2,274, was all inventoried as community property by A. C. Thomas, who instituted administration proceedings in the county court of Johnson county upon the community estate of himself and deceased wife, and who qualified as administrator of such estate. The application for such administration showed that there were debts against the estate, but the record in that proceeding does not show the amount of such debts. During the fall of 1880, a few months after the death of his wife, A. C. Thomas moved from Johnson county to Cooke county, where he resided until his death. He was a farmer, and after moving to Cooke county rented a farm upon which he raised one crop. On the 9th of May, 1881, he contracted for the purchase of the 296-acre tract which is one of the tracts in controversy,. and during the fall of 1881 he moved upon that tract and continued to reside thereon until his death. The record does not show that he took any written contract or evidence of title at the time of his contract for the purchase of the land, but does show that he executed three purchase-money notes therefor, each, in the sum of $345, payable to the owners of the land, drawing 10 per cent, interest, the first of said notes maturing August 1, 1881, the second 12 months after date, and the third 24 months after date. Those notes represent the entire purchase money which A. O. Thomas contracted to pay for the land, no cash consideration being paid. On November 1, 1889, after the three notes were fully paid, the land was conveyed to A, O. Thomas by a deed from his vendors in which deed full payment of the purchase price was acknowledged.

The 40-acre tract in which' Mrs. Wilson recovered an interest was purchased by A. C. Thomas on September 18, 1889, and the deed thereto was recorded August 7, 1893. This purchase was likewise entirely on credit, the entire consideration being Thomas’ three promissory notes, the first for $400, payable January 1, 1890, the second for $200, payable January 1, 1891, and the third for $200, payable January 1, 1892. All the notes given for the two tracts of land appear to have been finally paid off and discharged, but some of them were renewed and some of them were discharged with money borrowed from other persons which were also later paid. Many of the notes were found among the papers of A. G. Thomas at his death and showed partial payments indorsed thereon as credits in small amounts on different dates.

On December 27, 1880, shortly after A. C. Thomas had moved to Cooke county from Johnson county, he sold one of the tracts consisting of 157 acres, situated in Johnson county and belonging to the community estate of himself and deceased wife, for the sum of $1,400, all on credit, receiving therefor two purchase-money notes; one for $400, payable April 1, 1881, and the other for $1,-000, payable January 1, 1882. The $400 note was later paid, but the other note for $1,000 was never collected because of some defect in the title. On January 22, 1881, A. C. Thomas sold the other tract consisting of 307 acres in Johnson county, which was the former homestead of himself and wife, the entire purchase price for said sale being two promissory notes executed by the vendees; one of them for $1,000, due April, 1, 1881, and the other for $1,500, due January 1, 1882. It appears that approximately $1,513.20 was collected on these notes about November 2, 1881, but the record does not show when the balance was collected. The record also shows that A. O. Thomas loaned to his son-in-law W. It. Harrel $1,000 about the year 1881, a considerable portion of which loan was never collected by him. The pivotal and principal issue in the case is whether or not the purchase money of the two tracts of land in which plaintiff recovered an interest was paid out of the proceeds of sales of the two tracts of land in Johnson county, thereby rendering them parts of the community estate of A. O. Thomas and wife.

After a careful consideration of the evidence we have reached the conclusion that it was sufficient to sustain the finding of the jury in effect that such was true with respect to the tract of 296 acres, but that the evidence was insufficient to sustain the finding that the same was true also with respect to the 40-acre tract. In King v. Gilleland, 60 Te¡x. 271, the following was said;

“Perhaps there is no fact which, in the trial of civil causes, is required to be so satisfactorily proved as that which ingrafts a parol trust upon the legal title. 1 Perry on Trusts, § 136, and authorities just cited. Whilst it is not necessary that it should be established beyond a reasonable doubt, nothing must be left to conjecture, nor must presumptions be indulged which ara not the usual and almost necessary deductions from the facts proved. After a great length of time has elapsed, and parties have held possession of the land for years under the legal title without question, and the witnesses who might have established their right to such possession beyond all controversy are dead, they .should not be readily disturbed by evidence within the knowledge of living witnesses which raises a presumption in favor of the trust, when, if deceased witnesses could be heard to speak, such presumption might be easily rebutted.”

Many other authorities cited by appellant are to the same effect. We shall not undertake to recite the evidence at length tending to support the verdict of the ,iury with respect to the 296-acre tract. We think it sufficient to say that it reasonably tended to show that the consideration paid for the 296-acre tract was money derived from the sale of the Johnson county land; that A. O. Thomas owned no other property at the time he moved to Cooke county except his interest in the community estate of himself and wife, and acquired no other property after moving to 'Cooke county except what he earned as a result of his farming operations there, and that it cannot reasonably be inferred that he acquired such money as a result of his farming operation in Cooke county. Xu addition to those and other circumstances tending to support the finding of the jury with respect to that tract the record shows that soon after he purchased the tract A. C. Thomas built a house upon it at an expense of some $900, and two witnesses testified to statements by him that he paid for that tract of land out of the proceeds received by him from the sale of the Johnson county land. But the evidence with respect to the 40-acre tract which, as shown above was purchased long after the sale of the Johnson county land was entirely too indefinite to support the finding of the jury; the same was paid for out of the community funds arising from the sale of any property owned by A. C. Thomas and his deceased wife, Mary A. D. Thomas. Evidently the jury in reaching that finding indulged in mere conjectures and inferences without a sufficient basis therefor in the facts proved. Indeed the circumstances and facts reasonably tended to prove that the money paid for the 40-acre tract was not derived from £fie sale of the Johnson county land or any other property belonging to the community estate of A. C. Thomas and wife.

The testimony of Mrs. Acie Wilson to the effect that her mother was in bad health and that her mind was not strong we think was admissible for the purpose of explaining why her mother, who could reasonably be expected to know more of the facts than her daughter, was not present to testify as a witness in the case. Furthermore, we think that in any event the error, if any, in admitting such testimony was not of such a harmful character as to require a reversal of the judgment. The admission of the testimony of the witness G. G. Thomas on cross-examination by plaintiff's counsel in reference to subdivisions of the land made by A. O. Thomas with a view to disposing of the same by will was not error, since it was but an amplification of the testimony of the same witness already brought out by the defendants on direct examination.

Nor do we think there was any reversible error in the fourth special' issue submitted to the jury requiring a finding whether or not property received by Samuel Thomas from his father A. O. Thomas, was in settlement of his interest in the community estate of his father and mother. Appellant’s contention is that the presumption would arise that if Samuel Thomas received any property from his father that the same was by way of advancement and settlement of the interest of Samuel Thomas in the community estate, and there was no evidence to show that the property received from the father by the son.was received either as a gift or for a consideration paid, the issue should have been confined to the simple inquiry whether or not any such property was received by the son from the father. But appellants have not challenged the finding of the jury upon that issue as being unsupported by the evidence, and hence are committed to the proposition that there was evidence sufficient to sustain the finding of the jury in the negative. If there was evidence sufficient to support such a finding, then at all events the submission of the issue in the form it was submitted would be harmless.

There was evidence tending to show that A. O. Thomas recognized the interest of his children in the land in controversy up to the date of his death. If he did so then he held title to the property in common with his children, and in the absence of a repudiation of their interest therein the statutes of limitation did not become effective prior to his death. For the same reason it cannot be said that the plaintiff’s suit was a stale demand at the time it was instituted. For these reasous the court did not err in refusing the appellants’ request for a peremptory instruction in their favor on their pleas that plaintiff’s suit was barred by the statutes of limitation and was a stale demand.

For the reasons indicated, that portion of the judgment in plaintiff’s favor for the interest already noted in the 296-acre tract of land is affirmed. But the judgment in plaintiff’s favor for an interest in the 40-acre tract of land is reversed, and as to that tract judgment is here rendered in appellant’s favor.

Affirmed in part, and reversed and rendered in part.

CONNER, O. J., not sitting, serving on writ of error committee at Austin.
      <&wkey;>For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    MARKLEY v. BARLOW et al.
    (No. 6063.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 12, 1918.
    On Motion for Rehearing, June 25, 1918.)
    1. Homestead &wkey;>33 — Sufficiency of Possession-Soldier’s Wife.
    Where husband is a soldier, land may be impressed in the character of a homestead, although the husband and wife never lived together on the land.
    2. Homestead <&wkey;181 (1) — Abandonment.
    To show abandonment of homestead by wife who had not been living with husband, it was incumbent upon defendants not only to establish a separation, but to show that wife left husband and home without good cause and without his consent.
    3. Homestead <&wkey;177(l) — Abandonment—Es-toppel.
    A wife is not estopped from asserting her homestead rights by fraudulent acts of her husband in borrowing money on the homestead, where she did not join him in the fraudulent acts.
    Appeal from District Court, Webb County; J. P. Mullally, Judge. •
    Trespass to try title by Rebecca C. Mark-ley against S. M. Barlow, receiver of the estate of John R. Davis, and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.
    Victor Keller and Prank H. Booth, both of San Antonio, for appellant. Hicks, Hicks, Dickson & Bobbitt, of San Antonio, and John A. Vails, of Laredo, for appellees.
   PLY, C. J.

This is an action of trespass to try title to 116 acres of land in Webb county, instituted by appellant against John H. Davis, S. M. Barlow, receiver of the estate of John H. Davis, and her husband, A. C. Markley, who refused to join her in the suit. She alleged that she was the wife of A. C. Markley; that the land in controversy had been since January 1,1890, the homestead of appellant and A. C. Markley, and that it had been used as such to September 9, 1915, when A. C. Markley had sought to make a sale of such homestead to said John H. Davis, it being claimed that said Markley had abandoned the homestead on or about July 15, 1915, which pretended abandonment and sale, it was alleged, was a fraud upon the rights of appellant; that her husband and Davis had conspired to defraud appellant out of her homestead and to appropriate the proceeds arising from its sale to pay an indebtedness of A. C. Markley to Davis; that Markley had also conveyed to Davis other property, the separate estate of appellant; that the homestead and said separate estate were conveyed in the same deed of conveyance. Appellees Davis and Barlow pleaded general demurrer, general denial, and not guilty, and A. C. Markley waived process and entered his appearance. The cause was tried by the court, a jury being waived, and judgment was rendered that appellant take nothing by her suit and pay all costs.

The statement of facts in this case shows that the property sued for was bought in 1S88, by A. C. Markley, from the city of Laredo, and became the community estate of A. C. Markley and appellant. Immediately after it was acquired A. C. Markley, who was an officer in the American army, constructed a frame house, corral, storeroom, stables, etc. These improvements were afterwards destroyed, but in 1907 he erected a frame house, corral, fence, sheds, stalls, and feedroom. m 1908 he erected a frame house and brick underground tank, and also planted orchard, vegetable garden, and flower garden. A. C. Markley went on the farm to live in October, 1907, and stayed until August, 1908, then went on a visit North, and stayed until February, 1909, and then managed farm, but ate and slept in town of Laredo until about June, 1910, when he went on the farm, claimed to be the homestead, and, except when he left in summer to visit the North, he stayed thereon until May 31, 1914. Appellant lived with her husband at different military posts, from 1902 until 1907, when he was retired from actual service in the army. After living with Markley at Oakland, Cal., in a hotel, he left for a business trip to Arizona and Texas, and appellant went to Philadelphia, where she remained until 1910, when her husband visited her. She then went to sanitariums in Washington, D. C., until 1917. The son of Gen. Markley and appellant went on the farm in 1888, his father having been ordered to Arizona, and appellant lived there with him until about 1890, when she went to her husband at Ft. Thomas, Ariz. The son went back to the farm about 1893, and the father being ordered East in 1895, appellant went back to the farm, where she stayed until 1896, when she joined her husband in Philadelphia. Appellant never occupied any house of their own with her husband in Philadelphia or any other place. She owned a house in Hatboro, near Philadelphia, in which she lived for a short time in 1908. They had no homestead in any place except the one at Laredo, Tex. The marriage relations between appellant and her husband were strained from 1909, but the relation was never severed, and he continued to visit her. She never declared that she would not live with her husband as his wife, and had not abandoned him. Davis testified that Gen. Markley lived on the farm in 1915, and his mules, farm implements, and household furniture were moved off the place after the deed was executed to Davis in September, 1915. After the plans were laid to convey the homestead and the separate property of appellant to Davis to pay débts due him, Gen. Markley wrote a letter asking appellant to live with him on the farm. Efforts had been made by Davis prior to 1915 to get appellant to give a deed of trust on the homestead and her separate estate, but sbe refused to give it, claiming it as ber homestead and separate estate. Whatever may have been the intention of Gen. Markley in Í908 as to abandoning the farm, he did not abandon it, but held it until he attempted to sell it in 1915. The affidavit made by him as to abandonment in 1908 was made with a view to get money which Davis was to obtain in San Antonio. The farm was not in reality abandoned. On June 18, 1909, appellant! sought to designate the farm as a homestead, stating she had no other home. Her affidavit to that effect was recorded June 19, 1909. In an opinion of a certain firm of attorneys of San Antonio, given to Davis on August 25, 1915, in response to a letter written by him, it was stated:

“I understand from you that Mr. Markley now occupies the farm as a homestead, but that his wife has for several years refused to live with him on the farm, but, having abandoned him and the homestead, has taken up her home and is living in another state, and, although urged by him to return to him and the homestead, she refused so to do.”

The sole ground on which the attorneys advised that Gen. Markley could dispose of the property without the consent of appellant was her abandonment of him without cause. Both Davis and the attorneys treated the property as the homestead of appellant. The evidence of abandonment relied on was a letter written by her to A. G. Markley, in reply to one written for the purpose of receiving an answer that would furnish that evidence. She replied that the state of her health precluded her living on the farm. About the letter written by him to his wife Gen. Markley testified:

“Mr. Davis knew of my writing the letter and of Mrs. Markley’s reply. The purpose of wiiting the letter was to trap her into a refusal to live with me on the farm, and Davis knew of this purpose.”

The evidence in this case clearly discloses that the property in controversy had been made the homestead of A. O. Markley and appellant in 1888, that it had never been abandoned as such, and that they had no other homestead. A. O. Markley, being an officer in the army, could not settle on a homestead in person, but through his wife and son he did occupy it, and as soon as he was placed on the retired list of the army he returned to Laredo, improved the farm, and lived on it as his homestead until he left it in September, 1915. It was recognized as a homestead by Davis and the attorneys who advised him; the latter basing their opinion as to the homestead character having been destroyed on the representation of Davis that appellant had abandoned her husband without cause. That representation was based on a letter obtained from appellant with the purpose that it be used as evidence of abandonment. The evidence clearly shows that a conspiracy existed to deprive appellant, not only of her home, but of her separate estate as well. The transaction showed a fraudulent design upon the part of the husband to deprive his wife of her home and other property.

The land became the homestead in 1888, shortly after it was acquired. Gen. •Markley impressed it with that character, and appellant and her son occupied it for two years. Appellant followed her husband, who was moved from one point to another under army orders, but returned to her home in 1895, and then left again in 1896 to join her husband. As soon as Gen. Markley was retired, in 1907, he occupied the premises as his home. The home was never abandoned. The occupancy of the wife and son in 1888 was with the consent of the husband, and that act impressed it with the homestead character. McDannell v. Ragsdale, 71 Tex. 23, 8 S. W. 625, 10 Am. St. Rep. 729; Welborne v. Downing, 73 Tex. 527, 11 S. W. 501. Appellees seem to think that it was utterly impossible to give a tract of land the homestead character unless both the husband and wife live on it at the same time, but this theory is not borne out by the authorities. Nor is the intimation that a soldier, who is being moved under orders from one post to another, cannot create a homestead, a tenable proposition.

In the case of Henderson v. Ford, 46 Tex. 628, an unmarried young man had a home in Texas, which he left in 1861 to join the Confederate army, and authorized his brother-in-law to sell it, but it was not sold, but was cultivated. In 1S63 Bohanon, the soldier, married in Alabama, and in the latter part of that year returned to Texas on account of ill health. After the war the wife came to her husband in Texas, but they never lived on the land, and in 1866 Bohanon died. In 1864 Bohanon, without his wife joining in the deed, sold the land. After the death of Bohanon his wife returned to Alabama, and married a man named Ford. Afterwards she sued for and recovered the land of her first husband as her homestead. The court held that the land was not abandoned as a home by Bohanon when he entered the army, and that he and his wife intended to return to Texas and make it their permanent residence, and that the home of Bohanon on his marriage became the homestead of him and his wife. She never at any time lived on the land with her first husband. That case completely answers both contentions of ap-pellees, for Bohanon was a soldier, and he and his wife never lived together on the land.

In the case of Moores v. Wills, 69 Tex. 113, 5 S. W. 677, the wife had never lived on the land claimed as a homestead, and the court held:

“The homestead right may attach, though the wife never moved upon it. It becomes the homestead from the time of its dedication as such by the head of the family.”

This court considered the same question in Linares v. Linares, 51 S. W. 510, and reached the same conclusion. The judgment in that case was affirmed by the Supreme Court. Same v. De Linares, 93 Tex. 87, 53 S. W. 579.

In Clements v. Lacy, 51 Tex. 150, it was shown that William C. Lacy came to Texas in 1852, and bought land known as the “Sour Lake property,” and in 1857 he executed a deed to thq property to W. R. Smith, .but in 1859 reconveyed one-half the property to Lacy, who died in 1S60. Prom 1852 to the time of his death Mrs. Lacy was not living with her husband, but was living in Louisiana, Ohio, and Illinois. She never had been in Texas before the death of her husband. She claimed to have remained away from her husband with his consent. It was held that Mrs. Lacy was entitled to a homestead.

The evidence undoubtedly showed that the land was dedicated by the husband to homestead purposes in 1888; that it was occupied by the wife and then by the husband. There is no evidence of abandonment upon the part of the husband nor of the wife, unless the fact that she lived in another state after 1907 is evidence of abandonment. It was incumbent upon appellees not only to establish a separation between appellant and her husband, but to show that the wife left her husband and home without good cause and without his consent. Earle v. Earle, 9 Tex. 630; Linares v. Linares, 93 Tex. 84, 53 S. W. 579. Appellant failed to prove these necessary facts, and, on the other hand, it can be gleaned from the evidence that appellant was away from her husband with his consent and on account of bad health, and a large part of the time she was in sanitariums. She never refused to live with her husband until she received the curt command from him on July 23, 1915, which was written with the knowledge of Davis, in order to obtain a statement that she had abandoned her husband. He swore:

“It is not a fact that Mrs. Rebecca Mark-ley refused to live on the Markley farm with me, except in August, 1915. Mrs. Markley did not refuse to live with me on the farm prior to 1916. She has never declared that she would not live with me as husband and wife.”

This statement was not contradicted. She had been in a sanitarium for years, and in answer to her husband’s command she said that she could not live on the farm without conveniences on account of the condition of her health. She signed her letter, “Tour wife, Rebecca O. Markley.” Gen. Markley visited his wife in the North, and if their relations were “strained,” it grew out of the fact that he desired to sell her property. The condition of her health was good cause for her stay in the North, and it was evidently with the consent of her husband. The command for her to come to Texas, made in July, 1915, was a mere pretense to obtain a refusal that would fortify the intended sale of her homestead. Gen. Markley testified:

“Later, about June, he [Davis] told me that Denman, Pranldin & MeGown, lawyers, required an abstract of title of the farm to enable them to give an opinion, and said, ‘While you are about it, get an abstract of your wife’s lots; we may find something to scare her into letting loose the farm,’ or about that.”

She was in Laredo most of the month of June, 1915, and her husband saw her a number of times, but did not unfold to her the scheme to sell her homestead and separate property, but asked her to release her claim to the homestead. If the -declaration of Gen. Markley, at the time he signed the deed, that he had abandoned the homestead, had evidenced an abandonment, as it did not, it was done in fraud of the wife’s rights, and availed nothing. He stated that he did not ask her to live on the farm with him because he did not want her to live there. He was placing her in a cruel position when he wrote the command of July 23, 1915, and when he sold her property he said:

“I felt that it was an outrage to take the property of this aged and infirm woman that she had paid for and owned 42 years.”

The declarations made by Markley in 1908 were to defraud his wife, and D'avis knew that when he obtained the loan for Mark-ley. Appellant did not join him in his fraudulent acts, and she cannot be estopped thereby from asserting her homestead rights. The homestead right could not be divested by the disclaimer of General Markley. Kempner v. Comer, 73 Tex. 196, 11 S. W. 194.

The authorities cited by appellees do not fit the facts of this case, and could be easily distinguished from this case, if we deemed it necessary. Appellant had not abandoned her husband, but was living in the North on account of her bad health and with the consent of her husband. Her absence did not rob the property of its homestead character.

The judgment is reversed, and judgment here rendered that appellant recover the property described in her petition, with rent at $50 a month from October 1, 1915, and that appellees pay all costs in this behalf expended.

On Motion for Rehearing.

Appellee Davis recognized the fact that the land in controversy was the homestead of the Markleys, and consulted attorneys as to how -the homestead rights could be evaded or destroyed. He tried to obtain Mrs. Mark-ley’s consent to the sale, or rather mortgage, because he admitted a year after the deed was executed that there was no intention to convey the title to him, but that he was merely holding it in trust for Gen. Markley. On October 10, 1916, 13 months after the deed was executed, Davis wrote Gen. Mark-ley:

“Tour farm is as much yours as it has ever been, and has never been regarded by me except as a matter of trust in my hands.”

Afterwards lie not only repudiated tlie trust, but denied the homestead character of the property. He neyer claimed to own the land until the suit was instituted. Gen. Markley swore:

“It is a fact that my sole and only purpose in declaring that I had abandoned the farm was to enable me to destroy its homestead character, so that I could convey it to Davis without my wife joining in the execution of the deed.”

He also testified that he fully intended to return to the farm if his financial condition permitted it. The Markleys had no other home. Appellant had a house in Pennsylvania, which Gen. Markley never entered, and in which appellant lived for a short time in 1908. Appellees contend, however, that a few weeks residence in a house in Pennsylvania by appellant created a homestead, but deny that her residence for several years, with her son, in a house in Texas, could give it a homestead character, although it was bought for a home, and was used by appellant and husband as a home. Davis admitted that appellant claimed the farm as her homestead when he sought to obtain a deed of trust on it. He must have written his attorneys in 1915 that the farm was a homestead, for in replying to his letter they said:

“I understand from you that Mr. Markley now occupies the farm as a homestead, but that his wife has, for several years, refused to live with him on the farm.”

The evidence showed that she had never refused to live with her husband on the farm, and always regarded it as her homestead. She had designated the land as her homestead in writing, and had it recorded in Webb county long before Davis attempted to obtain a mortgage on it from her husband.

The parties had never separated as man and wife, and each of them claimed the property as a homestead.

There is no merit in thé motion, and it is overruled.
      dSxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes