author: McKENZIE, J.

text:
    ARMENDARIZ DE ACOSTA et al. v. CADENA.

    (Court of Civil Appeals of Texas. El Paso.
    March 12, 1914.
    On Rehearing, April 16, 1914.)
    1. Winns (§ 111) — Execution.
    Under Rev. St. 1895, art. 5335, requiring every last will to be in writing, and “signed by the testator or by some other person by his direction and in his presence,” and to be attested by two or more credible witnesses, if not holographic, an instrument which was in the form of ,a certificate of a notary public was not valid as a will, where it was not signed with testator’s name by himself or by some one else by his direction, though his name was recited in the body of the instruments.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 267-275; Dec. Dig. § 111.]
    2. Wills (§ 260) — Peobate—Time.
    Where proponent was advised of the contents of a will within a month after testator’s death, and waived its provisions in favor of a verbal agreement made with other beneficiaries, pursuant to which the estate was administered, proponent being appointed administrator, the fact that the other parties to the agreement refused to carry it out was not an excuse for not applying for probate within four years from testator’s death, as required by Rev. St. 1S95, art. 1881, so that it will not be probated on application nearly 5% years after testator’s death.
    [Ed. Note. — For other cases, see Wills, Cent. 1 Dig. §§ 600-606; Dec. Dig. § 260.]

      Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Probate proceedings by Cecilio Cadena against Filiberta R. de Armendariz de Acosta and others, contestants. Prom a judgment for proponent, contestants appeal.
    Reversed and rendered.
    P. E. Hunter, Davis & Goggin, and R. B. Redic, all of El Paso, for appellants. P. G. Morris, Sam B. Gillett, and M. W. Stanton, all of El Paso, for appellee.

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

       Application ior writ o£ error pending in Supreme Court.

   McKENZIE, J.

Appellee, Cecilio Cadena, on February 16, 1910, filed in the county court of El Paso county, Tex., his application to probate as the last will and testament of Juan Armendariz, deceased, a certified copy of an instrument which reads, when translated from the Spanish to the English, omitting unnecessary parts, as follows:

“In the city of Jiminez, at two o’clock less fifteen minutes of the afternoon of the twenty-first day of August of nineteen hundred and four, before me, Attorney Miguel Zubia, a notary public in said city, accompanied by the instrumental witnesses, who were for this act, Blessrs. Doctor Manuel Guemes, of legal age, married, originally from Guadalajara, state of Jalisco and a resident in this city, Nicardo Palacios, also of legal age, married, merchant and of'this city; Juan Antonio Acosta, of legal age, married, merchant,- a resident of this city, and Juan Ar-reola, married, a private employé, of legal age and also a resident of this city; all known to this notary who authorizes the foregoing and legally able to testify, all of which I hereby certify, personally appeared at Hotel Jardín of this city, Don Juan Armendariz, who said he was a resident of Socorro, Texas, United States of the North; and who also said he was of sixty years of age, married, merchant and rancher and a transient in this city and deposed: That being sick, but in possession of perfect understanding, as also was the statement of the witnesses and the present notary certifies, he expressed his desire of making his testamentary disposition; and to that effect he executed the following: * * *
“Fifth: He says that he leaves all his possessions to his wife, Blrs. Filiberta Ron-quillo and to his daughter, Ponciana Armen-dariz y Padilla, in equal shares and to his nephews Cecilio Cadena and Silverio Escon-trias, these also residents of Socorro.
“Sixth: That this his disposition, he wants it to be subject to the law of the United States of the North. * * *
“Eighth: That he appoints as his administrator his nephew Cecilio Cadena and as second administrator, Mr. Mariano Sierra to whom he legates and gives absolutely all the powers and faculties that the law of the United States of the North gives them, that they may be able to initiate the necessary probating proceedings and to form inventories until they may place in legal possession of his estate each one of the heirs, for which he authorizes them completely. This he executed and did not sign because he was not able to do so. The witnesses signing together with the notary that authorized this instrument, all of which I hereby certify. M. Guemes. Juan Anto. Acosta. Nicardo Palacios. Juan Arreola. Bfiguel Zubia.”

The certified copy was attached to the application, and made an exhibit. It was alleged in the application, in 'substance, among other things, that Juan Armendariz died on the 21st day of August, 1904, in the city of Jiminez, state of Chihuahua, in the republic of Mexico; that he left a will in writing, made by him in the presence of four credible witnesses over the age of 21 years, who attested the same at his request, and in his presence, one of whom signed the same for the testator at his request, and in the presence of the testator, the testator being unable to sign for himself because of extreme illness; that the testator was at the time of sound mind, and understood the nature and effect of his act; that the original will could not be produced in court for probate because, under the laws of the state of Chihuahua, the original will became an archive of the office of the notary public before whom the same was made and certified, and was required to be kept in said office. It is also alleged that said will was good and valid under the laws of the state of Texas, and admissible to probate.

On April 18, 1910, the application for probate was heard in the county court, the contestants’ demurrers sustained, and judgment entered denying the probate of the will. Appeal was thereupon made to the Thirty-Fourth district court of El Paso county. In the district court the appellee amended his application to probate the will, and, in addition to the allegations made by him in the county court, he alleged, in substance, among other things: That the will offered for probate was made as an open and public will. That it was dictated by the testator to a notary, one Bfiguel Zubia, in the presence of four witnesses, Manuel Guemes, Nicardo Palacios, Juan Antonio Acosta, instrumental witnesses, and Juan Arriola, a witness, and Miguel Zubia, who signed both as a witness as well as notary public, and all of whom were male persons over the age of 21 years, who were in the presence of said notary when said will was dictated. The said notary drew the clauses of said will in writing in accordance with the dictation of testator, and read them aloud to the testator, in that the testator might manifest his approval or disapproval thereof, and that, the testator having manifested his approval of the will, and of each clause thereof, as the same was written, and being physically unable to sign the same, the fourth witness, Juan Arriola, having witnessed the making of said will, and because of said disability, and in th,e presence of the testator, and in the presence of each of the other witnesses and of said notary, signed said instrument for said testator. That each of the witnesses, at the request of the notary and of the testator, and in the presence of the testator and the notary, and of each other, signed said will, all of which was duly certified by said notary; and that same was duly made a record of the office of such notary, all of which was in compliance with the laws of the state of Texas.

The proponent further alleged: That he obtained a certified copy of the will of Juan Armendariz, deceased, from Filiberta Armen-dariz, the widow, within less than a month after the death of the said Juan Armendariz, and immediately placed the same in the hands of his attorney, F. E. Hunter, trusting the said Hunter to proceed to have the will probated. That the said Hunter was at the time attorney for Filiberta R. de Armen-dariz, the widow, who was interested in and opposing the probate of the will. That said Hunter advised proponent that the will could not under the law be probated, and declined to proceed with the probate of same. That, relying upon the correctness of this advice, proponent made no further effort to have the will probated until 1909. That thereafter Mrs. Armendariz, the widow, verbally agreed with the proponent that the estate should be divided between them in the proportion of one-third to proponent, instead of in the proportion in which it was devised to him by the terms of the will, except as to certain property, known as the Hueco Tanks ranch, of which it was agreed that proponent should have a one-fourth interest. Thereupon proponent made application for letters of administration at the request of the said Fili-berta R. de Armendariz, the surviving widow, and he was duly appointed. He managed said estate as administrator, and that said estate was closed, and proponent was duly discharged as administrator, but without commission or compensation for his services as administrator. That the widow, Fili-berta R. de Armendariz, and Ponciana Ar-mendariz, the surviving daughter, until the spring of 1909, respected the verbal agreement to divide the property and did divide with proponent the proceeds of the sales of the property belonging to the estate, and that proponent resided upon the land of the estate in joint possession with Filiberta Ar-mendariz, the widow, and Ponciana Armen-dariz, the surviving daughter. That the widow owned one-half of the said estate as community property, same having been acquired during her marriage, and that she and Ponciana Armendariz were the sole heirs at law of Juan Armendariz. That during the spring of 1909 Filiberta and Ponciana Armendariz repudiated the verbal agreement made with the proponent to divide the estate, and refused thereafter further to carry the same out. That thereafter proponent consulted another attorney and was advised in the spring of 1909 that the will was valid, and on February 16, 1910, instituted proceedings to probate said will. In August, 1909, he filed suit to enforce his rights under a certain partnership agreement entered into between him and the said Juan Armendariz during the latter’s lifetime. That, when he called upon said Hunter for the copy of the will, said Hunter reported that he could not find same. That proponent, having learned that Miguel Zubia, the notary, who had the original of the will in the archive of his office, had moved his residence from Jiminez, and had left his notarial records with his successors, sought by correspondence' to ascertain the name and whereabouts of such successor, but was unable to do so until on or about the 7th day of February, 1910, when proponent’s attorney went to the city of Jiminez and learned that the records were kept in the archives of notaries public at the city' of Chihuahua; and thereupon he procured a copy of said will. That proponent was ignorant of the laws of the republic of Mexico, and of the laws of the state of Texas, and relied upon the advice of said Hunter, and not until the spring of 1909, when his counsel, F. G. Morris, advised him that the said alleged will was valid, did he know that said will was a valid will, and could be probated. That, on the advice of his attorneys, he instituted suit in the Forty-First district court of El Paso county to recover his one-third interest in the estate of Juan Armendariz, the deceased, against Filiberta Armendariz, the widow, and Pon-ciana Armendariz, the surviving daughter, in accordance with the verbal agreement aforesaid, and to recover a one-third interest in the estate of Armendariz, deceased, under said contract of partnership which he alleged he had with said Juan Armendariz during the lifetime of the said Armendariz, as above stated. That said last suit was prosecuted against the said Filiberta and Ponciana Ar-mendariz, and they pleaded that, if said contracts were made, they were unenforceable in law, in that they were not in writing. That, upon the conclusion of the trial in the Forty-First district court of El Paso county, the judge thereof announced that he had decided to instruct the jury peremptorily to return a verdict for the said Filiberta and Ponciana Armendariz, on the ground that said contract, if made, was not in writing; whereupon proponent took a nonsuit in said cause, and Filiberta and Ponciana Armen-dariz recovered on their cross-action a judgment for the real property of the said estate.

On the same day the contestants filed their answer, pleading general and special demurrers, general denial, and other defenses which, for the purposes of this opinion, are unnecessary to set out. The trial court overruled the general and special exceptions, submitting the cause to the jury upon special issues. Upon the findings of the jury judgment was entered for appellee, and contestants appeal to this court.

By proper assignments of error and propositions, appellants complain of the action of the trial court in overruling the general and special demurrers.

The requirements of a written will, as provided for in article 5335, Rev. Oiv. Stat. 1895, are as follows: “Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator or by some other person by his direction and in his presence, and shall, if not wholly written by himself, be attested by two or more credible witnesses above the age of fourteen years, subscribing their names thereto in the presence of the testator.”

From the instrument sought to be .probated, it is apparent that the testator did not sign the same, nor does it appear that some other person signed the testator’s name for him. It is also apparent that the only parties signing the instrument did so as witnesses. We are of the opinion that the instrument was not executed in compliance with the requirements of the statute quoted, and therefore not entitled to probate. Ap-pellee contends, however, that the requirements of the statute are satisfied as well where some other person signed his own name for that of the testator as when he signed the testator’s name, and in the instant case he alleges that Juan Arreola signed his name to the instrument for that of the testator. We do not agree with the appellee in this contention. The wording of the statute is not as explicit as it should be; but, when it is read as a whole for the purpose of ascertaining the true meaning and intention of the lawmaking body enacting it, there can be but one conclusion, and that is, the name of the testator is required by statute to be signed to the instrument to make it a valid will. The instrument must show that the testator signed it, and this is true even where it is signed by some.other person for him. The will should be signed in such a manner as to make it manifest from its face that the name signed was intended as the signature of the testator. From this instrument, it appears that Juan Arreola signed as a witness, and to permit evidence to be introduced that Juan Arreola’s name was signed for that of the testator would be doing that which is expressly prohibited by the statute.

There is another reason why the instrument should not have been admitted to probate. It is alleged that the testator died August 21, 1904. The record discloses that the will was not offered for probate until February 16, 1910, showing a lapse of time of nearly 5% years. Article 1881 of the Revised Civil Statutes of 1895 provides that: “No will shall be admitted to probate after the lapse of four years from the death of the testator, unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid, and in no case shall letters testamentary be issued where a will is. admitted to probate after the lapse of four years from the death of the testator.”

Proponent seeks by allegations to excuse his default in not making application to probate the will within the time prescribed by the statute. In our opinion, his excuse for not making application within time is insufficient. It appears that he was advised of the contents of the instrument within a month after the death of the testator, and that he waived the provisions of the will in favor of a verbal agreement which he entered into with the other beneficiaries thereunder. In accordance with the verbal agreement, the estate was administered upon; he being appointed the administrator. Because the other parties to the agreement refused to carry out its terms is not a sufficient excuse under the statute to avoid this delay. We will not attempt to enumerate reasons why an application for the probate of a will should be made within the time as prescribed by the statute. It is enough to say that sound public policy demands that wills be expeditiously probated. One of the reasons, no doubt, was to prevent the estate from being otherwise administered upon, as was done in the instant case. Besides, title to the estate should be vested in those entitled to receive it, free from the complications which such delays often cause.

For the reasons indicated, we are of the opinion that the trial court erred in not sustaining the demurrers. From what has been said in disposing of the demurrers, and it appearing from the pleadings no amendment could be made which would authorize the instrument to be probated as a will, it therefore becomes the duty of this court to reverse the judgment of the district court, and to here render judgment for appellants; and it is so ordered. The reasons assigned for the disposition of this cause render it unnecessary that the other assignments of error be passed upon.

Reversed and rendered.

On Rehearing.

Appellee contends that it was immaterial that Armendariz sign his name to the instrument, since his name was written thereon, and was therefore adopted and approved by him as his will.

The instrument in question apparently is in the form of a certificate by a notary public, from the face of which it is manifest that Armendariz did not sign the same, nor did any other person sign it for him. Although the name appears in the body of the instrument, still it does not appear that it was written with the intention and purpose that it should be or was the signature of Armendariz to said instrument; the only persons apparently signing said instrument being tbe notary and four witnesses.

Article 5335 of tbe Revised Civil Statutes of 1895, prescribing tbe requirements of a written will, are quite similar to section 127c23, Compiled Statutes of Nebraska. Tbe latter statute is as follows: “No will made witbin tbis state, except sucb nuncupative wills as are mentioned in tbe following section, shall be effectual to pass any estate, whether real or personal, nor to charge, or in any way affect tbe same, unless it be in writing, and signed by tbe testator, or by some person in bis presence, and by bis express direction, and attested and subscribed in tbe presence of tbe testator by two or more competent witnesses,” etc.

Tbe Supreme Court of Nebraska, construing their statute in the case of Murry v. Hennessey, 48 Neb. 608, 67 N. W. 470, says: “Thus it will be observed that tbe Legislature in unequivocal language has made it imperative that a will, other than a nuncupative, when not signed by the testator himself, must, in addition to other requirements, be signed by some person in bis presence, and by bis express direction, or tbe instrument will be invalid. Mere knowledge of the testator that his name is being signed by another, or that tbe signing was acquiesced in or assented to by the-testator, will not be sufficient. Tbe statute exacts more than tbis. It requires that tbe signing of a will by another must be done in pursuance of tbe previously expressed direction of the testator. Tbe statute is meaningless, if tbis is not its scope and purpose. Tbe same construction has been placed upon similar statutes in other states. Wait v. Frisbie, 45 Minn. 361, 47 N. W. 1069; Greenough v. Greenough, 11 Pa. 489 [51 Am. Dec. 567]’; Asay v. Hoover [5 Pa. 21], 45 Am. Dec. 714; Grabill v. Barr [5 Pa. 441], 47 Am. Dec. 420; Snyder v. Bull, 17 Pa. 60.”

We are of the opinion that tbe instrument in question does not comply with the mandatory requirements of our statute, which provides that the will “shall be in writing and signed by tbe testator, or by some other person by bis direction and in bis presence.” The authorities cited by appellee, viz.: Newton v. Emmerson & Talcutt Co., 66 Tex. 145, 18 S. W. 348; Lawson v. Dawson, 21 Tex. Civ. App. 361, 53 S. W. 64; Armstrong Executors v. Armstrong Heirs, 29 Ala. 538; Gardener v. Gardener, 5 Cush. (Mass.) 483, 52 Am. Dec. 740 — in our opinion, do not support appellee’s contention. Tbe motion for rehearing is therefore overruled.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    STEWART v. TEXAS & P. RY. CO.
    (Court of Civil Appeals of Texas. Dallas.
    April 4, 1914.)
    Raileoads (§ 443) — Injuries to Animals on Tracks — Evidence.
    In an action against a railway company for the value of plaintiff’s horse, found dead upon defendant’s right of way underneath a trestle, evidence held not sufficient to take to the jury the question whether the horse was killed by a train.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dee. Dig. § 443.]
    Error to Kaufman County Court; James A. Cooley, Judge.
    Action by Guy Stewart against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Huffmaster & Huffmaster, of Kaufman, for plaintiff in error. W. Dorsey Brown, of Kaufman, for defendant in error.

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

   RASBURY, J.

Plaintiff in error sued defendant in error to recover the value of a horse alleged to have been killed by appel-lee’s train, due to its negligent operation. There was a trial before jury, and at the conclusion of the testimony the court instructed verdict for defendant in error, which was followed by judgment.

The facts show that the horse escaped during the night from a pasture, without the fault or negligence of plaintiff in error, and, as shown by its tracks, entered defendant in error’s right of way, which was fenced, over a defective cattle guard at the intersection of the railway and a public road, which was insufficient to turn stock. The animal’s tracks were also found on defendant in error’s tracks at a point about 600 feet distant from where it supposedly entered the right of way; also blood and hair on a trestle in that immediate vicinity, and near by, on the right of way, the animal’s body had been buried by some one.

The trial judge concluded as matter of law that the evidence failed to disclose that the animal was struck and killed by defendant in error’s train. It seems to us the conclusion was correct. No evidence, circumstantial or otherwise, was adduced tending to establish that one of defendant in error’s trains struck the animal. No wounds were proven to the animal of such character as would likely have been inflicted by ¡the train’s engine; nor was it shown in that connection that any train or trains passed the point during the night after the animal escaped, or any other fact or circumstance from which it could legitimately have been inferred that a train of defendant in error struck the animal. We think, as the evidence appears in the record, it would support the conclusion that the animal strayed upon the trestle and fell therefrom and received its injuries as much as it would the conclusion that the train struck it. Such being the condition of the testimony, the trial court did not err, and it becomes our duty to affirm the case, particularly so since it does not appear that proffer of additional evidence was made in motion for new trial to meet the hiatus developed upon trial. Texas & Pacific Ry. Co. v. King Bros., 45 Tex. Civ. App. 265, 99 S. W. 1030; S. A. & A. P. Ry. Co. v. Tamborello, 67 S. W. 926; Beaumont, S. L. & W. Ry. Co. v. Langford, 104 S. W. 920.

The judgment is affirmed.


author: McMEANS, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. WILSON.
    (Court of Civil Appeals of Texas. Galveston.
    March 17, 1914.)
    1. Eminent Domain (§ 303) — Construction op Railroad — Measure op Damages.
    The measure of damages for permanent injury to land by the construction of a railroad near it is the difference between its market value immediately before construction and operation of the railroad and immediately thereafter.
    [Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 816-817; Dec. Dig. § 303.]
    2. Eminent Domain (§ 303) — Construction oe Railroad — Injury to Realty — Evidence.
    In determining the amount of damages from injury to realty by constructing a railroad adjacent thereto, all elements causing depreciation in the value of the land may be considered, including probable or contemplated increase of operations, though the measure of damages is the difference between the value of the land before and after the construction and operation of the railroad.
    [Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 815-817; Dec. Dig. § 303.]
    3. Eminent Domain (§ 303) — Construction op Railroad — Injury to Land — Damages.
    In forming their opinion as to the difference between the value of land before and after the construction of a railroad adjacent thereto for the purpose of testifying as to the damage sustained, witnesses may take into consideration the past and present effect of the construetion and operation, as well as probable future constructions and operations.
    [Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 816-817; Dec. Dig. § 303.]
    4. Eminent Domain • (§ 303) — Construction op Railroad — Injury to Land — Damages.
    In an action for damage to land by the construction of a railroad terminal system near it, the jury could not allow, in addition to the depreciation in value immediately after the railroad was constructed, damages which might result from further operations which plaintiff might, in reasonable probability, sustain in the future, if such probable operations were not a part of the causes which produced the diminution just after the commission of the original acts.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 815-817; Dec. Dig. § 303.]
    5. Eminent Domain (§ 307) — Construction op Railroad — Injuries prom Operation— Actions — Instructions.
    In an action for damage to realty by the construction of a terminal railroad adjacent thereto, the court instructed that plaintiff sued for permanent damages to her property, that is, damages which have flowed, or which will in the future flow, fz-om the use of the constructions complained of, and the jury should not consider any previous constructions except those which were permanent, but should consider, not only the use of the tracks immediately after the construction and operation thereof, but all the uses to which they have been subsequently put, and which, in reasonable contemplation, will be made of the tracks and constructions in the future, since plaintiff is only entitled to one recovery for all damages which have accrued and will, in reasonable probability, accrue in the future. It further instructed that whether defendant would put in switches to the property at any future time was entirely within its option, and that question should be considered only upon passing upon the question of present damages or future reduction or increase in the value of the property. Held, that the instruction was erroneous and misleading, as permitting the jury to allow plaintiff, in addition to the amount allowed for depreciation in value, a further amount for damages which she might suffer in the future.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig.' §§ 820-824; Dec. Dig. § 307.]
    6. Eminent Domain (§ 307) — Construction of Railroad — Injury to Realty — Instructions.
    In an action for damage to realty by constructing railroad terminal yards adjacent thereto, a requested charge that, if the market value of the land for any use to which it might be put, or to which it was adapted, immediately after the construction of the tracks and beginning of operations was equal to its market value for any use to which it might be put or was adapted immediately before such construction, plaintiff could not recover should have been given, being supported by evidence.
    [Ed. Note. — Eor othey cases, see Eminent Domain, Cent. Dig. §§ 820-824; Dec. Dig. § 307.]
    7. Eminent Domain (§ 293) — Construction of Railroad — Evidence—General Issue.
    In an action for damage to land by the construction of railroad terminal yards adjacent thereto, defendant could show under the general denial that the market value of the property for any use to which it might be put immediately after construction of the tracks was equal to or greater than its market value before such construction.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 797-802; Dec. Dig. § 293.]
    8. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action for damage to realty by, the construction of railroad terminal yards adjacent thereto, a charge was requested that, if the market value of the property for any use to which it might be put, or to which it was adapted, immediately after the construction of the tracks and the beginning of operations was greater than or equal to the market value for any use to which it might be put before the construction of the tracks and beginning of operations, the jury should find for defendant. Held, that the requested charge was not upon the weight of the evidence, in that it singled out one phase of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    9. Trial (§ 260) — Instructions—Requests— Instructions Already Given.
    The requested charge was not defective for not stating that, in arriving at the market value, the jury should consider, not only those uses of the property presently occurring, but those which might, in reasonable probability, in the future occur; that having been sufficiently instructed in the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    10. Eminent Domain (§ 293) — Construction of Railroad — Injuries from Operation— Actions — Admission of Evidence.
    In an action for damage to realty by the construction and operation of railroad terminal yards adjacent thereto, in which plaintiff alleged that the acts alleged had materially impaired the comfortable use and enjoyment of the premises, and done unreasonable harm to occupants of ordinary sensibilities, and that the passing trains interfered with conversation, etc., and threw out smoke and dust, evidence was. admissible whether persons living on the .premises experienced or complained of annoyance from the operation of the trains.
    [Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 797-802; Dec. Dig. § 293.]
    11. Evidence (§ 155) — Pari oe Conversation.
    In an action for injury to realty by the construction and operation of railroad yards adjacent thereto, in which a witness for plaintiff was asked why the house was vacant, and replied that he was told that they wanted too much rent for it, defendant’s counsel could ask whether the witness was told why they wanted too much rent for it, to which witness would have answered that his informant stated that plaintiff wanted too much rent in view of the bad repair of the house; the remainder of the conversation being admissible after plaintiff had put in a part of it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.]
    12. Appeal and Eeeoe (§ 1058) — Haemless
    EeRoe — Evidence.
    Any error in sustaining objections to evidence was harmless, where the substance of the evidence was afterwards admitted.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Mollie F. Wilson against the Houston Belt & Terminal Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Andrews, Ball & Streetman, of Houston, for appellant. Hutcheson & Hutcheson, of Houston, for appellee.

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

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

   McMEANS, J.

Mrs. Mollie F. Wilson, being the owner of lots 6, 7, 12, and one-half of 8, in block 207, in the city of Houston, fronting 150 feet on Prairie street and 125 feet on Hutchins street, brought this suit against the Houston Belt & Terminal Railway Company and several other railroad companies to recover damages in the sum of $15,000, by reason of the construction in front of and adjacent to her property, as a part of a great terminal system, certain railroad tracks and the operation of trains thereon as a part of the same system, which constructions and operations were alleged to be permanent in their nature and designed to serve, not only the needs of the Houston Belt & Terminal Railway Company, but that of all of the other defendants named, and other railroads which should from time to time come into the city of Houston, and that the operations over said tracks would in-future increase as the business of said roads grew. During the trial plaintiff dismissed as to all the defendants except the Houston Belt. & Terminal Railway Company. This defendant pleaded the general denial, and specially pleaded that the tracks in question had been constructed under permission from the city of Houston granted by certain ordinances. A trial before a jury resulted in a verdict and judgment for plaintiff for $3,980, from which the defendant has appealed.

The evidence shows that prior to the constructions here complained of there had been constructed several railroad tracks in the vicinity of plaintiff’s property, over which operations were conducted, but that a portion of the. tracks and the operations there-over were of a temporary character only. The constructions and operations here complained of were permanent in nature, and after the tracks were laid, and operations were begun thereon, the temporary tracks were to be removed, and operations thereover discontinued. The evidence as to whether the market value of plaintiff’s property was depreciated or enhanced by reason of the permanent constructions was conflicting. There was much testimony admitted bearing upon the increased future use of and additions to the permanent constructions.

The court charged the jury in part as follows:

“(8%) In this suit plaintiff sues to recover permanent damages to her property, that is, damages which have flowed to her, or which will in the future flow to her, from use of the constructions complained of by her, in a permanent way; and, in arriving at your verdict in this case, you will not take into consideration any previous constructions, if any, except such as you find from the evidence to have been permanent.
“(9) You are instructed in this case that the phrase ‘market value,’ as used in charges given you, is meant, with respect to real property, the price which such property would bring when offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who desires to buy it, but is under no necessity of having it; and, in determining what the market value of the property in controversy was immediately before ihe construction of the tracks complained of, and the beginning of operations there-over, and what the market value of said property (taking into consideration, not only the uses then immediately made, but also such as would, in reasonable contemplation, likely be made thereof in future) was immediately after the construction of said tracks, and the beginning of operations there-over, you will take into consideration all of the capabilities of the property, and all of the uses to which it might be applied, or for which it was adapted at the several times at which you seek to ascertain such value.
“(9%) In connection with the charges submitted to you in this case, in arriving at your verdict, you will take into consideration, not only the use of the tracks made immediately after the construction and operation thereon commenced, but all tbe uses to wbicb tbe said .tracks bave been subsequently put, and wbicb, in reasonable contemplation, will be made of said tracks and constructions by tbe railroad company in tbe future, as tbe plaintiff, in a suit of tbis kind, is entitled to only one recovery for all damages wbicb bave accrued from tbe immediate effect of tbe construction and operation, and wbicb will, in reasonable probability, in tbe future accrue.
“(10) If you believe from a preponderance of tbe evidence that tbe laying and construction of tbe said tracks by or near tbe property of plaintiff, and tbe operation of trains tbereon, taking into consideration, not only tbe uses then immediately made, but also such as will, in reasonable contemplation, likely be made thereof in future, bad tbe effect to reduce tbe value of her property, so that it was worth less immediately after such construction and operation than it was immediately before, to tbe extent that it was so reduced, you will find your verdict in favor of tbe plaintiff.
“(11) You are instructed that, if from the evidence you find that tbe plaintiff has been damaged by tbe defendant company substantially as alleged, such damage to tbe plaintiff, if any you find, cannot be offset by any general benefits conferred by tbe work of tbe defendant which may bave increased tbe value of tbe property in tbe neighborhood generally, and not peculiarly to the plaintiff, if such benefit you find there was; but you can offset such damage, if any, only by such benefits, if any you find there were, as were specially conferred or added to tbe value of plaintiff’s property by tbe construction and uses complained of in wbicb tbe general public did not participate.
“(12) Whether tbe defendant company will or will not or may or may not put in switches to the property at any future time rests entirely within its option, and you will give to that question only such measure of consideration, in passing upon tbe question of present damages or future reduction in tbe value or future increase in tbe value of tbe property, as you may consider it entitled to in tbe light Of all tbe evidence upon that subject.
“(13) If, guided by these instructions, you find that tbe value of plaintiff’s property has been reduced by tbe construction of the tracks and tbe operation of trains, as alleged, you will find for her, and assess her damages at tbe amount of such reduction.
“(14) On tbe other band, if, excluding tbe general increase in values in that community, if such you find, tbe plaintiff’s property has not been decreased in value by tbe construction of said tracks, and tbe operation of trains tbereon, you will find for tbe defendant.”

By several assignments of error appellant vigorously assails paragraphs 8ys, 9y2, and 12 of tbe court’s charge, which for convenience we will group here:

“(8%) In tbis suit plaintiff sues to recover permanent damages to her property, that is, damages which have flowed to her, or which will in tbe future flow to her, from tbe use of tbe constructions complained of by her, in a permanent way; and, in arriving at your verdict in this ease, you will not take into consideration any previous constructions, if any, except such as you may find from tbe evidence to have been permanent.”
“(9%) In connection with tbe charges submitted to you in tbis case, in arriving at your verdict, you will take into consideration, not only tbe use of tbe tracks immediately after the construction and operation tbereon commenced, but all the uses to wbicb tbe said tracks bave been subsequently put, and wbicb, in reasonable contemplation, will be made of said tracks and constructions by tbe railroad company in tbe future, as tbe plaintiff, in a suit of tbis kind, is entitled to only one recovery for all damages wbicb bave accrued from tbe immediate effect of tbe construction and operation, and wbicb will, in reasonable probability, in tbe future accrue.”
“(12) Whether tbe defendant company will or will not or may or may not put in switches to tbe property at any future time rests entirely within its option, and you will give to that question only such measure of consideration, in passing upon tbe question of pres-' ent damages or future reduction in tbe value or future increase in tbe value of tbe property, as you may consider it entitled to in tbe light of all tbe evidence upon that subject.”

Tbe measure of damages for a permanent injury to land caused by tbe construction and operation of a railroad in close proximity to it is the difference between the market value immediately before tbe constructions were made and operations begun and immediately afterwards. Tbis seems to be tbe well-recognized rule in tbis state. Railway v. Downie, 82 Tex. 383,17 S. W. 620; Express Co. v. Dunn, 81 Tex. 85, 16 S. W. 792; Railway v. Helsey, 62 Tex. 593; Railway v. Seymour, 63 Tex. 347; Railway v. Schofield, 72 Tex. 499, 10 S. W. 575; Railway Co. V. Evans, 47 S. W. 280.

It is also tbe well-established rule that, in a suit for damages growing out of permanent injury to real estate, but one recovery can be bad for tbe wrong inflicted, and that, in arriving at tbe amount of tbe depreciation caused by tbe wrong complained of, while tbe only measure of damages is the difference between tbe value before and after, it is proper to take into consideration all tbe elements entering into tbe causes of tbe depreciation, which may be, among other things, tbe contemplated or probable additional acts of tbe wrongdoer with reference to tbe matter or thing wbicb has caused tbe injury, including tbe increase of operations, and any other matter that enters into the depreciation of the property immediately following the act which produces the injury. But, while it is true that these elements may be looked to in determining the amount of the decrease in value as the result of the act complained of, the safest rule for the guidance of the jury is the difference in the value just before and just after the doing of the act which produces the depreciation. Thus, in arriving at the damages sustained, the question always is: What is such difference? The witnesses qualified to testify as to values may give their opinions as to the difference in value before and after, and, in forming their opinion, may take into consideration the past and present effect of the construction and operations and probable future constructions and operations, and the effect thereof upon the property damaged, as affecting the depreciation of the property immediately after the commission of the act resulting in injury. The theory is that all such considerations have entered as elements of depreciation at the time the act complained of is done, and that, while the jury may take into consideration injuries which the plaintiff may, in reasonable probability, sustain in the future, this is allowed only as determining the amount of diminution in value just after the commission of the act or acts producing the injury. In no case would it be proper for the jury to allow, in addition to the diminution immediately following the act complained of, damages that might grow out of further acts or operations which the plaintiff might, in reasonable probability, sustain in the future, where said probable acts or operations had not entered into the causes that had produced the diminution just after the commission of the acts complained of.

When the jury in this case allowed plaintiff any amount for the depreciation in value of her property, there was in contemplation of law included in such allowance all injuries inflicted up to the time of the trial, as well as all injuries which might thereafter be inflicted. The court’s charge is reasonably susceptible to the construction, and the jury probably construed it to mean, that, in reaching their verdict, they should take into consideration, not only the use of the tracks immediately after the construction and commencement of operations, but all' uses to which they had been put to up to the time of the trial, and all uses to which they might be put in future, and that, inasmuch as plaintiff was entitled to only one recovery, they should allow her as damages, not only the amount of the depreciation caused by the construction and operation, but also such further damages as might, in reasonable probability, accrue in future; in other words, they might allow the plaintiff, in addition to the depreciation, a further amount, so as to compensate her for damages which she might suffer in the future. To the extent that the charge is susceptible to this construction, it is wrong and prejudicial to the defendant, for, when an allowance had been made to cover the depreciation in the value of the property, the same covered all elements of future damages and injuries, and any amount that the jury was authorized by the charge to award to plaintiff to coyer probable future injuries that did not enter as an element in fixing the amount of the present diminution was improperly authorized by the charge. While the court correctly instructed the jury in the tenth paragraph of the charge that, if the laying of the tracks near the property of appellee, and the operation of the trains thereon, taking into consideration, not only the uses then immediately made, but also such as will, in reasonable contemplation, likely be made thereof in the future, had the effect to reduce the value of the property, so that it was worth less immediately after such construction and operation than it wa.s immediately before, to the extent it was reduced to find a verdict in favor of plaintiff, we think the giving of paragraphs 8%, 9%, and 12 was calculated to confuse and mislead the jury, and to lead them to believe that they could allow damages other than the depreciation in the value of the property, and that this probably accounts for the size of the verdict rendered, which in the amount awarded seems clearly against the preponderance of the evidence.

Appellant’s eighth assignment is predicated on the refusal of the court to give the fifth special charge requested by it, which is as follows: “If you believe from the evidence before you that the market value of the property described in plaintiff’s petition for any use to which such property might be put, or to which it was adapted, immediately after the construction of the tracks complained of, and the beginning of operations thereover, was greater than or equal to its market value for any use to which it might be put, or for which it was adapted, immediately before the construction of said tracks, and the beginning of operations thereover, then .-and in such event you will let your verdict be in favor of the defendant Houston Belt & Terminal Railway Company.”

The evidence raised the issue whether the plaintiff’s property immediately after the beginning of the operations complained of was enhanced thereby, and was of greater market value for commercial purposes than theretofore for any purpose to which it might be put. The issue sought to be submitted by the special charge was not submitted by the court in its general charge. The charge should have been given. Boyer v. Railway, 97 Tex. 108, 76 S. W. 441. Appellee contends, in support of the court’s action in refusing to give the charge, that the same was properly refused because there was no pleading raising the issue in the form presented so as to require a more definite submission than was submitted in the main charge. We overrule this contention. The defense was one that could have been made under the general denial. Nor do we agree with, appellee that the charge requested was upon the weight of the evidence, in that it singled out one phase of the evidence for submission to the jury. Nor do we agree that the special charge was defective, as contended by ap-pellee, because it failed to advise the jury that, in arriving at the market value of the property, they should consider all the uses, not only those presently occurring, but those which might, in reasonable probability, in the future occur with reference to the property. This phase of the case was sufficiently submitted in the main charge, and it was not necessary to repeat it in the special charge.

If the fifth special charge had been given, as we think it ought, it would not have been necessary to give the third and seventh special charges, the refusal to give which is complained of in the seventh and ninth assignments.

O. A. Clark, an occupant of one of ap-pellee’s houses involved in this suit, while testifying, was asked this question by appellant’s counsel: “State whether or not you or your family experienced any discomfort or annoyance from the operation of these trains there.” Whereupon the following objection made by appellee’s attorney was sustained : “The law does not allow the inquiry as to whether an individual experiences discomfiture or annoyance, because, if that were the case, we might bring one man to say it did, and they would say it didn’t, and all the time of the court would be consumed in contradictory evidence of that kind; it is a question for the jury to determine whether persons of ordinary sensibility would experience any inconvenience or not.” If the witness had been permitted, he would, have answered that he and his family did not experience any discomfiture or annoyance from the operation of trains over the tracks complained of. Appellee alleged in her petition that the entire property had been greatly damaged for the purpose of rentals to residence tenants; that the construction and maintenance of the railroad tracks, and the beds thereof, and the operation of locomotives, cars, and trains thereover, had destroyed, or at least materially impaired, her premises in the comfortable use and enjoyment, to an extent working unreasonable hurt to occupants as persons of ordinary taste and sensibilities; that said passing engines, cars, and trains greatly interfere with conversation on the premises, and work discomfort and annoyance to the inmates thereof; that the passing locomotives had been emitting noxious and disagreeable smoke, gases, steam, coal dust, and cinders, which continually filled the premises, and rendered same unfit for any comfortable or healthful use or enjoyment by occupants thereof; and that said premises were subject to violent and disagreeable vibration, so as to render their reasonable comfortable enjoyment by any occupants thereof impossible.

Under the issues raised by the pleadings we think the evidence was admissible, and that the court erred in rejecting it. Daniel v. Railway, 69 S. W. 198. We also think that the testimony of the witness W. S. Tate, who from 1903 to 1912 lived in one of appellee’s houses, as to whether any of the members of his family at any time complained to him of any annoyance or discomfort suffered on account of the operation of trains over the tracks in question, was material upon the issues raised by the pleadings, and should have been admitted; and the twelfth assignment raising the point is sustained.

While said witness Tate was upon the stand, and after he had testified that in 1912 he had moved out of one of the houses of appellee involved in this controversy, and that the house thereafter was vacant, he was asked by appellant if he knew why it was vacant. The question was objected to by appellee’s counsel, and the objection- sustained. Thereafter the witness was called by appellee’s counsel and asked by him why the house was vacant, and replied, “Mr. Curb told me that they wanted too much rent for it.” Whereupon appellant’s counsel asked, “Did he tell you why they wanted too much rent for it?” This question was objected to by appellee, on the ground that the same was immaterial and irrelevant, and the objection was sustained. Had he been permitted to do so, he would have answered that Mr. Curb stated to him that appellee wanted too much rent in view of the bad repair of the house.

We think that, appellee having drawn from the witness a part of the conversation between himself and Mr. Curb as to the rental price of the property, the court should have permitted the appellant to introduce the remainder of the conversation relative to the same matter; and the thirteenth assignment of error raising the point is-sustained.

The fourteenth assignment complaining of the action of the court in sustaining objections to the testimony of the witness Taylor, if error, was harmless error, in view of the fact that the substance of the testimony of the witness was afterwards admitted; and the same, also, may be said of the action of the court in refusing to permit the introduction in evidence of the map of the city of Houston in connection with the testimony of the witness B. C. Morgan, the facts desired to be proved by this evidence being otherwise fully shown.

We have examined all of appellant’s assignments, and are of the opinion that, except as hereinbefore stated, none of them points out reversible error. For the errors indicated, the judgment of the court below is .reversed, and the cause remanded.

Reversed and remanded.


author: TALBOT, J.

text:
    HARTFORD FIRE INS. CO. v. PIRES.
    (Court of Civil Appeals of Texas. Dallas.
    April 4, 1914.)
    1. Costs (§ 231) — On Appeal — Recovery of MORE Favorable Judgment.
    While Rev. St. 1911, art. 2046, provides that if the losing party appeals, and the judgment in the court above be against him, but for a less amount, such party shall recover his costs in the court above, yet, as article 2048 declares that the court may, for good cause, to be stated on the record, adjudge the costs otherwise, the county court could, on appeal from the justice court, adjudge all the costs to appellee, though the judgment rendered was less than that of the justice court, where the difference in amount was due to a miscalculation of interest by the justice, and the error was not called to his attention.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 847, 852, 853, 855, 872-875; Dec. Dig. § 231. 1
    2. Insurance (§ 507) — Policy — Construction — Property Covered by Insurance against Fire.
    An insurance policy, indemnifying against loss of rents caused by fire or lightning, actually sustained on rented premises, for such period as may be reasonably necessary to restore the premises to the same tenantable condition as before the fire, covers the period needed to place the contract for repairs, and was not limited to thi time actually spent in the mating of the repairs.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1283; Dec. Dig. § 507.]
    3. Insurance (§ 669) — Action on Policy-Instructions.
    In an action upon an insurance policy, indemnifying against the loss of rents on premises for such period as was reasonably necessary to restore the premises to the same tenantable condition as before the fire, the evidence being undisputed that from the date of the fire to the restoration of the building the rents were $175, the insurance company contesting alone the amount of recovery, the court properly charged that, if the time actually spent was no more than was reasonably necessary, they should find for the insured for the sum of $175.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. § 669.]
    4. Insurance (§ 665) — Action upon Policy —Sufficiency of Evidence.
    In an action upon an insurance policy indemnifying insured against the loss of rents on property for the period reasonably necessary to restore the property to the same tenantable condition as before the fire, evidence held, to sustain a finding that the time consumed was reasonably necessary to restore the building.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    Error to Dallas County Court; W. F. Whitehurst, Judge.
    Action by D. A. Pires against the Hartford Fire Insurance Company. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Wm. Thompson and Will. C. Thompson, both of Dallas, for plaintiff in error. Cock-rell, Gray & McBride, of Dallas, for defendant in error.

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

   TALBOT, J.

L. A. Pires, defendant in error, brought this suit in the justice court of Dallas county, Tex., against the Hartford Fire Insurance Company, plaintiff in error, to recover the sum of $175, with interest, claimed to be due on an insurance policy issued by the said insurance company, whereby said company insured the said Pires against loss by fire of the rents of his building situated in the city of Abilene, Tex. Judgment having been rendered in favor of the plaintiff, Pires, in the justice court, the insurance company appealed to the county court at law, and, judgment being again rendered for Pires in that court, the insurance company sued out a writ of error to this court.

It is first assigned that the county court erred in refusing, upon motion of the insurance company, made at the conclusion of the evidence, to tax the costs of that court against the plaintiff, Pires. The contention is based upon the fact, as we understand it, that the judgment as entered in the justice court was for about $6 more than the plaintiff, Pires, recovered ,in the county court. We think the action of the county court should not be disturbed. The record discloses that the trial judge, upon a hearing, concluded that the judgment actually rendered in the justice court was for the principal and interest sued for by the plaintiff, Pires, and that through inadvertence the judgment was written to bear interest from April 20, 1912, instead of November 20, 1912, and that as no motion for a new trial was filed by the defendant insurance company in the justice court, nor attention otherwise called to the error until upon trial of the case in the county court, all costs should be taxed against the insurance company. While article 2046 of the Revised Statutes of 1911 provides that in eases of appeal taken by the party against whom the judgment was rendered in the court below, if the judgment of the court above be against him, but for a less amount, such party shall recover the costs of the court above, but shall be adjudged to pay the costs of the court below, etc., yet article 2048 of said statute declares; “The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided in the preceding articles of this chapter.” The judgment of the county court recites that, “it appearing to the court upon hearing that good cause exists for taxing all costs, both in the county court and justice court against the defendant,” it is ordered that all costs be charged against the defendant, and under the last article of the statute above quoted the county court had authority to so charge the costs in this case. Railway Co. v. Wheeler, 99 Tex. 428, 90 S. W. 481; Railway Go. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W. 655.

The other assignments of error complain of the court’s charge to the jury, of the refusal to give certain special charges requested by the insurance company, and that the verdict and judgment are contrary to the law and the evidence. We are of opinion that neither of these assignments is well taken. The policy of insurance provided: “The intent of this insurance is to make good the loss of rents caused by fire or lightning actually sustained by the insured on occupied or rented portions of the premises which have become untenantable for and during such period as may be necessary to restore the premises to the same tenantable condition as before the fire”—and the sole or controlling question in the case was whether the plaintiff, Pires, had consumed more time than was reasonably necessary in repairing and putting his building back into tenantable condition. The time so consumed was about two months and a half, and the contention of the insurance company was and is that “the undisputed evidence showed that a period of approximately 36 days was the time necessary to restore the building to its former condition.” The court’s charge correctly instructed the jury as to the measure of the plaintiff’s damages, and fairly submitted the controverted issue in the case for their determination. The special charge asked by the insurance, company, to . the effect that the plaintiff could not recover for the time lost in the placing of the contract for repairs of the building described in the policy of insurance sued upon, was properly refused. The evidence shows that a few days’ time was reasonably necessary for the plaintiff, Pires, to ascertain the extent of the damage to his building, and to procure bids from persons who would repair it. For rents lost during such necessary time he was entitled to recover under the policy sued on, a right which would have been denied him had the special charge in question been given. The effect of this charge was to tell the jury that, under the terms of the policy issued to the plaintiff, Pires, to indemnify him against the loss of rents for the time reasonably necessary to restore his building to the same tenant-able condition as before the fire, he could only recover for the time that would actually be necessary to put the lumber and other material into place. This is not a fair and reasonable construction of the insurance contract. It was evidently in contemplation of the parties to the contract when it was made, that in the event the building was destroyed or materially damaged by fire, some period of time would necessarily have been consumed in ascertaining the extent of the damage to the building, the work and material necessary to repair it, and the prices to be charged therefor, etc., and the contract should be construed as covering such time.

Nor did the court err in that portion of the general charge complained of in the third assignment of error. As said by counsel for the defendant in error, the evidence being undisputed that, for the actual time between the date of the fire and the date the building was finished, the rents would be $175, and the insurance company contesting alone the amount of recovery, it was proper for the court to tell the jury, as in effect he did, that if the actual time consumed in repairing the building was no more time than was necessary to restore it to its former ten-antable condition, they should find for plaintiff, Pires, the sum of $175.

The contention that the verdict and judgment is contrary to the law and the evidence is not well founded. The evidence, which we shall not undertake to detail, is sufficient to support the verdict and judgment. It is, in substance, that the fire occurred on December 6, 1911; that shortly thereafter the plaintiff, Pires, who lived in the city of Dallas, Tex., sent a representative to Abilene, where the building burned was situated, who made a contract with a carpenter and builder to repair the building; that an investigation disclosed that extra long joists would be necessary in repairing the building, which could not be obtained in Abilene; that an order was promptly made for such joists, but that they did not arrive in Abilene until some time in January, according to one witness, January 23, 1912; that these joists had to be shipped from some mill in East Texas, and that a reasonable time in which to get them to Abilene was from four to six weeks; that before their arrival the débris was cleaned away, and everything in readiness to proceed with the restoration of the building when the joists did arrive; that the work did then proceed, and the building was finally completed on February 13, 1912. It appears that no effort was made to remove the dSbris until in the early part of January, 1912, but no time was lost on this account, since the joists which could not be had in Abilene, and without which the work of repairing the building could not proceed, were not on hand until after the debris was cleared away. Mr. Bishop, the contractor, testified, without contradiction, that there was no delay except in getting the joists; and, while the witness Curtis stated that, provided the material was on hand, and excepting freezing weather, a few days of which they had during the time the repairs were being made, 30 days was a reasonable time in which to complete the repairs on the building, yet he further stated that the building could not have been completed without the material (the joists) which had been ordered, and that if the material arrived on January 20,1912, the finishing of the building by February 13, 1912, “was very quick work.”

The case is distinguishable in its facts from the eases cited by the insurance company, and not ruled thereby. Believing that the evidence supports the verdict and judgment; that the court’s charge was sufficient to safeguard the rights of the insurance company — the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    MILES v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.
    On Motion for Rehearing, April 15, 1914.)
    1. Perjury (§ 33) — Evidence.
    A conviction of perjury cannot be sustained on proof that at other times accused, when not under oath, made statements contradictory of the statement which is charged as the perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. § 33.]
    2. Perjury (§ 33) — Conviction — Circumstantial Evidence.
    A person may be convicted of perjury on circumstantial evidence alone.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. § 33.]
    3. Criminal Law (§ 429) — Evidence—Indictment.
    In a prosecution for a perjury consisting of defendant’s testimony in a prior prosecution against him for assault on J., it was proper for the state to introduce the indictment against defendant in such prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1018, 1020; Dec. Dig. § 429.]
    4. Criminal Law (§ 1169) — Harmless Error —Introduction of Evidence.
    In a prosecution for perjury consisting of defendant’s testimony in a prior prosecution against him for an assault on J., he was not prejudiced by the introduction in evidence of the judgment in that case showing his acquittal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dee. Dig. § 1169.]
    5. Criminal Law (§ 1169) — Harmless Error —Introduction of Evidence.
    Reversible error is not shown because. of evidence erroneously admitted over objection, where other testimony showing the same fact is admitted without objection.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    On Motion for Rehearing.
    6. Criminal Law (§ 1038) — Instruction-Omissions.
    Failure of the court to define a credible witness was not error, where no objection was made to the court’s charge at the trial, and no special instruction on the subject was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    7. Perjury (§ 15) — Former Jeopardy — Identity of Offenses.
    Where accused was indicted for assault with intent to 'murder J., alleged to have. been •committed June 13, 1912, and, on the trial of that offense held September 17th following, willfully and falsely testified that he did not shoot or assault J., his acquittal on the charge of assault did not constitute former jeopardy so as to preclude his subsequent trial and conviction for perjury committed in the assault case.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 62; Dee. Dig. § 15.]
    Appeal from ¡District Court, Rockwall County; Kenneth Foree, Judge.
    Haywood Miles was convicted of perjury, and he appeals.
    Affirmed.
    T. B. Ridgell, of Rockwall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of perjury, and his punishment assessed at the lowest prescribed by law.

On or about June 13, 1912, at night, one America Jones was shot, while she was in her residence on a bed, by some one outside through a window. Unquestionably the assault upon her amounted to an assault with intent to murder by whomsoever committed. Appellant was duly indicted soon thereafter for this offense on her. The case was duly tried in the district court of said county before the court and jury. Appellant, being duly sworn, testified in that case to the effect that he was not at her house that night, and did not shoot nor assault her, but that he was at his home in Rockwall at the time. What he swore was very material in the trial against him for said assault. The indictment is predicated upon his said testimony, alleging that it was willfully and deliberately false, and that he knew it was so when he so testified.

The indictment in this case is clearly sufficient, charging perjury against appellant properly in accordance with the statute, and the standard forms for such indictment and repeatedly held so by the decisions of this court. P. G. arts. 304. et seq.; Johnson v. State, 160 S. W. 965. It is unnecessary to cite the many other cases to the same effect.

The most material question in this case which was raised by appellant in various ways and assigned in various ways by many of his assignments, which he groups, is his contention that the evidence does not measure up to the requirements of the statute wherein article 806, O. O. P., requires: “In trials for perjury, no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness, corroborated strongly by other evidence as to the falsity of the defendant’s statement; under oath, or upon his own confession in open court.” It becomes necessary, therefore, that we shall recite briefly, but substantially, the material evidence introduced by the state on this point.

Appellant did not testify. He introduced no witness, nor other evidence. The state alone introduced witnesses and documentary evidence. It was unquestionably established by the testimony of several witnesses, who were in no way disputed or contradicted, that said America Jones was assaulted and shot, as stated above; that appellant was indicted and tried for- this offense; and that he was duly sworn on that trial, and testified substantially as alleged in the indictment.

America Jones testified: That at the time she was shot she was lying across the bed with her arm lying on the knee, and resting her head against the breast of her son, who was sitting on the bed at the time; that she was shot through the hip, the ball passing entirely through her body; that appellant was at her house the night before, and objected to the people holding their lodge meeting upstairs over her house; that he belonged to that lodge, and said they had beat him out of his money, and he wasn’t going to let them hold their meeting there; that they had to move; that, the evening before she was shot that night, she told him not to come down there that night, but he said he was going; that she told him she would have the city marshal there, and he said, “All right,” that he was sure going to meet him there, because he was coming back.

H. T. Huffines testified that he was at said-lodge meeting upstairs right over where America Jones was shot that night; that, as he was going to the lodge that night, he saw appellant some 15 or 20 steps from appellant’s house, towards America Jones’ house; that appellant’s house was some 300 feet from America Jones’; that he asked appellant if he was going to the lodge, and he said he guessed not, and, upon his inquiry, he told appellant that he (the witness) was going; that this was some 15 or 20 minutes just before the shooting; that, at this time he was talking to him, appellant had something in his right hand down by bis left side which he, the witness, thought was a hoe (this evidently was appellant’s gun).

By several witnesses, among them was the deputy sheriff and the city marshal, who were called to the scene of the shooting very soon after it occurred, it was shown that appellant fled, and, although they hunted for him at his home all through his house and everywhere else they thought they could find him, they did not find him, but located him some day or two later attempting to make his escape, and arrested him. It was also shown by more than two witnesses that appellant at the time owned a certain make of gun which, was designated. This gun was produced on the trial, identified, and introduced in evidence before the jury.

Joe Fuqua testified that, some time the next day after America Jones was shot the night before, appellant came to his house at Rowlett, in Dallas county, where he lived, and said he was hungry and wanted something to eat; that he fed him; that, after he got through eating, appellant told him he was in trouble; that he had shot a woman over in Rockwall the night before; that he aimed to kill her, but her daughter was between' him and her, and he didn’t get a good shot at her, but he aimed to shoot her right through her heart, and aimed to kill her; that he shot her with the gun he then had and showed to this witness. The gun was the one afterwards recovered by the officers, produced, identified, and introduced on the trial.

Sam Macon testified that, the day after America Jones was shot the night before, appellant came down in the field where he was working, before the officers got him; that he had a gun with him at the time, and that he left the gun with the witness’ wife, and she put it in the house; that this is the same gun which the officers afterwards secured, and was identified, introduced in evidence, etc.

Adam Carter testified that, shortly after the shooting of America Jones, appellant came to his house and woke him up, tided to borrow money from him to get off on; that he wanted to go to Sulphur Springs; that said woman had been shot, and he was satisfied that he would be charged with it, and he wanted to leave; that, after some further talk with him, appellant admitted that he had shot the said woman; that he intended to kill her when he shot her, but her son was in the way, and he didn’t want to hurt him; that he wanted to shoot her in tbe head, but her son was in the way, so he shot her where he could see her; that the appellant at the time was bareheaded and in his shirt sleeves, and also asked him, the witness, if he had a shirt or anything he could give him; that he looked like he had been traveling pretty fast. The witness gave him nothing.

Will Walker testified that, shortly after the shooting of America Jones that night, appellant came down to his house and told him he was in trouble and asked him for money; that, after some further talk, he said that said woman was shot, and that he would be accused of it, and, still talking bn further, he told the witness that he (appellant) had shot her himself; that he would have shot her somewhere else if it had not been for her son being in the way; that appellant was bareheaded at the time, and wanted a hat. The witness gave him no money, hat, or anything else.

Dr. Jackson testified that he was called in and waited on America Jones the night she was shot; that he examined the woman’s wound at the time and in the house where she was, and where she had been shot he found a lead bullet, but he didn’t know whether that was the lead that went through her or not.

The sheriff, Ed. Hall, testified that, soon after the shooting of said woman, he went down to her; that, after seeing the shot woman, and, hearing what had occurred, he went to appellant’s house and searched for him, but didn’t find him; that he also, at the time, searched for appellant’s gun there, but did not find it; that he then went back to the woman’s house, and he and the city marshal looked for tracks; they found a track across the road from the woman’s house and followed it 75 or 100 yards with a lantern; that it was a man’s track; that they hunted for appellant, but did not locate him until the third day after the shooting; that he finally located him by telephoning around; that he afterwards located appellant’s gun at said witness Macon’s house, and had his deputy to get and bring the gun in; that he also found three shells with the gun; that it was Miles’ gun.

The city marshal, Williams, testified that the next morning after the shooting, where they had found the tracks the night before, he found an empty shell to the character of said gun belonging to appellant; that he had, before this shooting, seen the gun at appellant’s house, but he and the deputy sheriff couldn’t find it there the night before, when they were searching for appellant and said 'gun; that the tracks that he followed through said cornfield went right straight from America Jones’ house down towards where said witness Carter lived. This witnéss told of the location of said America Jones’ house from the places where they saw these tracks, fixing the location of her house across the road and about 75 or 100 yards from where they found these tracks going from the direction of her house.

Some, but not all, of the witnesses who testified on this trial testified on the trial of appellant for said assault upon America Jones.

It is well settled in this state by several decisions that a conviction for perjury can-jnot be sustained upon proof that at other times the accused, when not under oath, made statements contradictory of the alleged false statement which is charged to constitute the perjury. Appellant cites several cases to this effect, among them Brooks v. State, 29 Tex. App. 58 2, 16 S. W. 542. This case does not come within that line of authorities, because much other evidence in addition to appellant’s said statements was introduced which tended to show, and did show, that in connection with said statements to several witnesses, as shown above, that his testimony given on the trial of said assault case was false and untrue.

In discussing whether or not an accused can be convicted on circumstantial evidence alone, and what was circumstantial evidence, this court, through Judge Hurt, in Maines v. State, 26 Tex. App. 22, 9 S. W. 53, said: “Now there may be evidence technically circumstantial which would be amply sufficient under our Code to establish perjury. Let us illustrate: B. is on trial for the murder of A. C. swears that he was, at a certain time, at a certain place in Travis county, Tex.; that B. and A. were present at that time and place, and that no other person was present; that he saw B. shoot and kill A., giving the circumstances. B. is convicted and executed. Subsequent facts lead to the conclusion that C. perjured himself, and he is indicted for that offense. Upon the trial it is evident that the prosecution cannot adduce direct evidence against C., but by one or more witnesses it can be shown that he was, at the time of the homicide, and on the day of the homicide specified by him, in the city of New York. Now, technically speaking, this would be circumstantial evidence, but of such character as to be virtually positive or direct evidence. There would be no room for inferences or presumptions; for, if the jury believed the witnesses, guilt would result without any process of reasoning or presumptions.” The character off proof in this case by the various witnesses, we think, is clearly within that class of evidence- designated by Judge Hurt above, and that, taken altogether, it was amply sufficient, under said article 806, O. C. P., to authorize and require appellant’s conviction in this case.

It was proper for the state to introduce the indictment against appellant in said case of assault upon said woman.

While it may be unnecessary, it was certainly no error prejudicial to appellant, to introduce the judgment in that case, showing that he was acquitted therein. This was to his advantage, instead of against him. It is not like that character of case where an accused was convicted, and the judgment showing his conviction in the previous case was introduced. But, even if error in this case, the fact that appellant was acquitted in that case was expressly proved by appellant in the cross-examination of the state’s witness Hall, the sheriff, who, at appellant’s instance, testified expressly: “He [appellant] was acquitted in that ease.” In addition to this, the state proved the same thing by the former county attorney, Austin, without any objection whatever by appellant. Mr. Austin testified: “The jury turned Haywood Miles loose on that charge.”

It is well settled that, when other testimony is introduced without objection, showing the same thing, no reversible error is presented because the same proof was made by others over objections. Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, and cases cited. This court, through Judge -Ramsey, in that case said: “It is well settled in this state that the erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to”—citing many cases. It is useless to cite the many cases decided by this court since then. So that, not only because appellant proved the same thing first which was the first testimony on the subject, as well as the state afterward proving it without objection, and that it was to appellant’s interest and benefit to show this, and not against him, no error whatever is shown because of the introduction of said judgment.

The court sufficiently, by the terms of his charge, defined “willfully.” Johnson v. State, 160 S. W. 966, and cases there cited and quoted on the point.

The judgment is affirmed.

On Motion for Rehearing.

Appellant contends that the original opinion herein holds, in effect, that a person may be convicted of perjury on circumstantial evidence alone. This is true. If there is any uncertainty that the original opinion does not so hold, we now expressly do so hold. This doctrine has been expressly and repeatedly so held by this court.

. In Plummer v. State, 35 Tex. Or. R. 204, 33 S. W. 228, this court, through Judge Hurt, said: “These requested charges are based upon the proposition that perjury cannot be proved by circumstantial evidence, and that there must be at least one credible witness, corroborated as the law requires, swearing positively to the statement assigned for perjury. The statute — Code Crim. Proc. art. 806 (746) (786) — requires that the falsity of the statement be established by the testimony of two credible witnesses, or by one credible witness strongly corroborated. We hold that the falsity of the statement can be established by circumstantial evidence, but this must be done by the testimony of at least two credible witnesses, or by one credible witness strongly corroborated, as the law requires. In all criminal cases the guilt of the accused can be established by circumstantial evidence. Why cannot the falsity of a statement in a perjury case be established by the same character of evidence? The difference between other cases and perjury cases is this: While one witness may be sufficient to establish the guilt of the accused in other cases, the law requires two credible witnesses, or one credible witness strongly corroborated, in perjury cases. It is not the character of the proof that is contemplated by the statute, but the number and character of the witnesses.”

In Beach v. State, 32 Tex. Cr. R. 253, 22 S. W. 977, this court, through Judge Simkins, held: “But counsel insist that one cannot be convicted of perjury upon circumstantial evidence in Texás, because the Code declares that, ‘in trials of perjury, no person shall be convicted except upon the testimony of two credible witnesses, or upon the testimony of one credible witness corroborated strongly by other evidence as to the falsity of defendant’s statement made under oath, or upon his own confession in open court.’ Code Crim. Proc. art. 806 (746). It was decided by this court that, in order to convict of perjury, it is not required in every case that the two witnesses must swear directly adversely to the fact or facts sworn to by the defendant, but it is sufficient when the facts sworn to by said witnesses, if true, conclusively demonstrate defendant’s guilt. Thus, if the facts so sworn to, if true, show that defendant must have been ignorant of the matter about which he swore, it is sufficient to sustain a conviction (Maines’ Cáse, 26 Tex. App. 22 [9 S. W. 51]); or when the facts testified to by said witnesses conclusively show as true that defendant swore contrary to what he necessarily knew to be the truth (United States v. Wood, 14 Pet. 430 [10 L. Ed. 527]; 2 Bish. Crim. Proc., § 932). There is ordinarily no other way of proving the second and third assignments of perjury as ‘to delay’ and ‘reasonable expectation of procuring attendance of witness’ except by circumstantial evidence, and, if perjury can be assigned at all (of which we have no doubt) on these statements, they must be proven by facts conclusively showing their falsity.”

In Franklin v. State, 38 Tex. Cr. R. 348, 43 S. W. 85, this court, through Judge Henderson, said: “Appellant contends that the proof was of a purely circumstantial character, and that, under our statute, a conviction of perjury cannot be had on circumstantial evidence alone, and cites us to the statute on this subject (article 786, Code Criminal Procedure) and to Kemp v. State, 28 Tex. App. 519 [13 S. W. 869]. Said decision is a construction of the article in question in accordance with the contention of appellant. This construction appears to have been overruled in Beach v. State, 32 Tex. Cr. R. 240 [22 S. W. 976], and Plummer v. State, 35 Tex. Cr. R. 202 [33 S. W. 228].” This doctrine is also approved by this court in Rogers v. State, 35 Tex. Cr. R. 221, 32 S. W. 1044, and Maroney v. State, 45 Tex, Cr. R. 526, 78 S. W. 696.

Appellant cites to the contrary Kemp w. State, 28 Tex. App. 519, 13 S. W. 869, and Waters v. State, 30 Tex. App. 289, 17 S. W. 411. It is true, without any discussion, the doctrine contended for by appellant was announced in these two cases. But, as said by Judge Henderson in the Franklin Case, supra, the Kemp Case was overruled, and we say that, in addition, the Waters Case was also overruled. In order that neither of these cases may be considered as establishing the doctrine that perjury cannot be proved by circumstantial evidence alone, both of those cases are here expressly again overruled. Appellant cites, as sustaining his contention, Billingsley v. State, 49 Tex. Cr. R. 620, 95 S. W. 520, 13 Ann. Cas. 730; Cleveland v. State, 50 Tex. Cr. R. 6, 95 S. W. 521; Conant v. State, 51 Tex. Cr. R. 610, 103 S. W. 897; and decisions of other courts. These cases from this court, cited by appellant, do not sustain his contention, and are not contrary to what we hold in this case. We deem it unnecessary to further discuss the question.

Appellant complains in this court and by his motion for rehearing of an omission in the court’s charge to define what is a credible witness. This case was tried after the act of April 5, 1913 (Acts 33d Leg. c. 138), amending articles 735, 737, and 743, and adding article 737a, had been- in force. No objection was made in the court below to the court’s charge now complained of,' and no special instruction on the subject was there requested; so that it is too late to raise the ■question in this court, and, under the law, as it now is and was when this case was tried, we cannot review the question.

The only other contention he now makes is that, as he was tried for an assault with intent to murder, and swore therein that he did not commit that offense, and was acquitted of that offense, he cannot now be convicted for perjury committed by him in the trial of said cause, contending that he is being tried again for the same offense. In other words, he contends, as we understand him, that former jeopardy attached. He filed no plea in the lower court in any way pleading former acquittal. The only way such a question was even suggested or intimated is an unsworn motion to quash the indictment from which possibly he thinks such suggestion may have been made. This could in no sense be considered a plea of former acquittal. Such pleas as the statute requires (article 572, C. C. P.) must be in writing, and (article 573) shall he verified, 6y the affidavit of the defendant. Nothing of the kind was done in this case. Even if it had been, it could not possibly be held to be a good defense in this case. The facts are: On the night of June 13, 1912, America Jones was shot while lying on her bed in her house. The shot was fired by some one in the dark outside of her house, through a window. Thereafter appellant was duly indicted, charged with that assault with intent to murder, and tried therefor on September 17, 1912. He falsely swore in that case that he did not shoot said America Jones. His testimony in that ease was as in this, unquestionably shown to be willful and deliberate, and knowingly false. By reason, doubtless, of his said false testimony in-that case he secured an acquittal. The penalty for an assault with intent to murder is confinement in the penitentiary for not less than 2 nor more than 15 years. For perjury not less than 2 nor more than 10 years. The assault to murder was committed' on June 13, 1912. The perjury was committed by appellant in a trial had in the district court on September 17, 1912. The Constitution and statute are that no man shall be put in jeopardy twice for the same offense. By no stretch of the imagination can an assault with intent to murder committed on June 13, 1912, be held to be the same offense, or anything akin to it, as perjury committed on September 17, 1912, even though the perjury is committed on the trial of the assault to murder case. Such a doctrine contended for by appellant could not, for one moment, be sanctioned by this court as correct. Here it is established without doubt and without question that appellant, in the dead hours of the night, with his gun, a deadly weapon, crept up to within shooting distance of his intended victim, who was lying upon her bed in her own house, and attempted to assassinate her by shooting her through the body; and, soon thereafter, stated to four or five separate and distinct witnesses that he had shot and intended to kill her, and he fled, and attempted to make his escape. Afterwards he was caught by the officers, duly indicted, and tried, and, by his perjured testimony, secured an acquittal of his dastardly assault to murder and intention to assassinate his victim. Then to hold that, because he escaped merited punishment for his first crime, he should go scot-free from his crime of perjury would be monstrous indeed. We deem it unnecessary tc further discuss the two offenses to demon strate that they are not the same, and by no stretch of the imagination could be construed to-be the same. See Branch’s Criminal Law, § 398, and section 18 of Judge White’s Ann. C. O. P.; also the notes under the constitutional provision in Harris’ Texas Constitution, p. 119 et seq.

The motion is overruled.


author: HARPER, J.

text:
    BLACK v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.
    On Motion for Rehearing, April 15, 1914.)
    1. Ckiminal Law (§ 982) — Suspension on? Sentence — Question foe Juey — Statutory Provisions.
    The act providing for the suspension of sentence does not apply to burglary, and, on a trial for burglary, it is not error to refuse to submit to the jury the question of suspension of sentence, in case of a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    2. Criminal Law (§ 1159) — Evidence—Instructions.
    Where, on a trial for burglary, the undisputed evidence showed that accused entered', in the nighttime, the private residence of prosecutor, and that, ■ if accused intended .to steal, he was detected and arrested before accomplishing that purpose, and accused proved that he was so intoxicated that he did not know what he was doing, and the court charged that, if accused was so intoxicated that he did not have sufficient mind to form an intent, he must be acquitted, and that, before conviction, the jury must find that he entered with the intent to steal, a conviction will not be disturbed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074r-3083>; Dec. Dig. §- 1159.]
    On Motion for Rehearing.
    3. Burglary (§ 41) — Evidence — Sufficiency.
    Where one at night, by stealth, enters the private residence of another, with no right to do so or legal excuse, the evidence of intent to steal, sufficient to support a conviction for burglary, may be slight and circumstantial, in the absence of anything to indicate that the entry was made with any other intent.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-10-3, 109; Dec. Dig. § 41.]
    Appeal from -District Court, Houston County; John S. Prince, Judge.
    Handy Black was convicted of burglary, and be appeals.
    Affirmed.

      Madden & Denny, of Crockett, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

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

Appellant filed a written reguest that the court submit to the jury the question of suspension of his sentence in case he was found guilty. Appellant was charged with burglary of a private residence at night, and convicted of that offense. By the terms of the suspended act he was not entitled to have that question submitted to the jury, for it provides that the law shall not apply to that character of offense; therefore the court did not err in refusing to submit that issue to the jury.

The evidence clearly shows that appellant entered the private residence of W. D. Granbury in the nighttime, for he was detected by Mr. Granbury and arrested by him. He does not deny this fact, but says he was so drunk he did not know what he was doing, and he introduced several witnesses to prove that he was so intoxicated that he did not know what he was doing. However, Mr. Granbury and Mr. Leaverton testify that, while appellant was drinking, he had not reached that state of intoxication which rendered him incapable of knowing what he was doing, thus making that an issue of fact. The charge was that he entered this house with the intent to commit the crime of theft. If he intended to steal, he was detected before accomplishing that purpose and arrested. The court, among other things, instructed the jury: “If you believe ■from the evidence that the defendant’s mind was so much affected by drink as to make him incapable of forming an intent when he entered the house, if he did enter the house, and that when he so entered the house, if he did, he did not at the time of such entry, if any, have sufficient mind or discretion to form an intent, then you will acquit the defendant.” He instructed them also that, before they would be authorized to convict, they must believe beyond a reasonable doubt ' he entered the house with the intent to commit the crime of theft. The jury finds adversely to appellant’s contention, and we do not feel authorized to disturb their verdict.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing, insisting that the indictment charged that he broke and entered the house with the intent to steal, and, as at the time he was detected he had stolen nothing, the evidence is insufficient. The evidence discloses that the kitchen door was broken in law, tbe door being opened and an entry made therein, his tracks being found inside the kitchen, although he was on the gallery when Mr. Granbury found him. But prior to this time appellant had been heard making a noise in the kitchen or in opening the door of the kitchen. The fact that he had not, when detected, in fact stolen anything would not entitle him to an acquittal, for when one at night, by stealth, enters the private residence of another, with no right to do so and no legal excuse for so doing, the evidence of intent to steal may be slight and circumstantial, if there is nothing to indicate that the entry was made with any other intent. Alexander v. State, SI Tex. Cr. R. 362, 20 S. W. 756; Mullens v. State, 35 Tex. Or. R. 149, 32 S. W. 691; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406.

The motion for rehearing is overruled.