text:
    WATERS v. STATE.
    (No. 4503.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.)
    1. Criminal Law <&wkey;llll(3) — Bill oe Exceptions — Qualification by Judge.
    Where appellant accepts a bill of exceptions as qualified by the court, he is bound thereby.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2894.]
    2. Criminal Law <&wkey;982 — Suspension oe Sentence — Examination oe Accused.
    Where a plea for suspended sentence is filed and the defendant takes stand in her own behalf, the state may, on cross-examination, prove her character and the number of times she has been arrested for different offenses.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2500, 2501.]
    »1. Criminal Law &wkey;>982 — Suspension oe Sentence — Instructions.
    In a criminal trial, where defendant offers lao testimony to show that she has never been convicted of a felony, the refusal of the court to submit a charge on a suspended sentence is ■proper under • Vernon’s Ann. Code Cr. Proc. 1916, arts. 865b, 865c.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501.]
    4. Criminal Law <&wkey;949(l) — Motion eor New Trial.
    Under Code Cr. Proc. 1911, art. 837, subd. 6, a motion for new trial on the ground of newly discovered evidencé is properly overruled, where it was not sworn to, affidavit of claimed witness and what she would testify is not attached, and no reason was given why this was-not done, no evidence offered to support intention, no newly discovered facts, and no diligence shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2341, 2344.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Mattie Waters was convicted of theft from the person, and appeals.
    Affirmed.
    B. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of theft from the person, and her punishment assessed at the lowest prescribed by law.

The evidence was conflicting. That by the state was amply sufficient, and it evidently was believed by the jury, to show her guilt. She herself testified and denied the whole transaction. The jury evidently did not believe her testimony.

She has several hills of exception. The court refused most of them outright and explained and qualified all the others. Appellant accepted them as thus qualified aud is bound thereby. The court in some of his explanations shows that the attorneys who prepared the bills did not try the ease, that no stenographic report of the testimony was written out, and that this accounts for the bills as prepared being incorrect and some of them -refused.

Appellant properly pleaded for a suspended sentence. She testified in her own behalf, and in cross-examination of her the state was permitted to prove her character and the number of times that she had been arrested for different offenses and such like matter, all of which was admissible because of her said plea, the court stating at the time that the testimony was admissible, and he admitted it because of her said plea, which was insisted upon all the time. She introduced no witness and offered no testimony other than her own, and then closed. She offered no testimony at all to- show that she had never been convicted of a felony in this state or elsewhere. Thereupon the court, in the absence of the jury, suggested to her attorney that if he was not going to make such proof it would be better if he would abandon or withdraw his application for a suspended sentence, which iVould make the rules of evidence much more clear in the case. He refused to do this. Thereupon, the court, at his own instance, withdrew from the jury all of the testimony of her character and of the different arrests which had been made of her, and instructed the jury not to consider any of that evidence for any purpose whatever; and as she offered no testimony to show that she had never been convicted of a felony, as stated, the court declined to submit to the jury any charge on a suspended sentence. The action of the court in all these respects was strictly in accordance with the statute and the many decisions of this court thereunder. 2 Vernon’s Ann. Crim. Stats, arts. 865b, 865c, and the decisions collated thereunder.

The only other bill com plains of the action of the court in overruling her motion for a new trial on the ground of claimed newly discovered testimony of Lottie Harris. The court calls attention to the fact in approving this bill that no diligence was shown, no fact newly discovered, and no oath by any one to the truth of the same. The bill does not intimate that appellant introduced or offered any testimony whatever to support her motion. Her motion on that ground is not sworn to by any person. The affidavit of the claimed witness and what she would testify is not attached, and no reason at all was even alleged why this was not done. Clearly the action of the court on this point was correct. Article 837, C. C. P. subd. 6; Gray v. State, 65 Tex. Cr. R. 206, 144 S. W. 283, and authorities there cited. It is useless to cite others.

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


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    MONTGOMERY v. STATE.
    (No. 4543.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Criminal Law &wkey;>1081 — Appeal—Notice oe Appeal — Necessity.
    Without notice of appeal the Court of Criminal Appeals cannot entertain jurisdiction.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2722-2724, 2962.]
    Appeal from Eisher County Court; M. A. Hopson, Judge.
    Trav Montgomery was convicted of an offense, and he appeals.
    Appeal 'dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of selling patent me'dicines without first having obtained a license therefor, and his punishment assessed at a fine of $150.

The record is before us with neither a statement of facts nor bill of exceptions. There is no motion for new trial in the record, and no notice of appeal was given, or, if it was, it is not shown in the transcript. There is a recognizance, however; but without notice of appeal this court could not entertain jurisdiction. But, inasmuch as the record contains neither a statement of facts nor bill of exceptions, it would make but little difference to final results whether the appeal be dismissed or the judgment affirmed. But, as this court cannot entertain jurisdiction for want of notice of appeal, the appeal will therefore be dismissed. However, if there was a complete record, the judgment would be affirmed, had notice of appeal been given, because there is nothing in the transcript that would require investigation.

The appeal is dismissed.


author: PRENDERGAST, J.

text:
    PARKER v. STATE.
    (No. 4383.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.
    State’s Rehearing Denied June 29, 1917.)
    1. Criminal Law <&wkey;134(3) — Change oe Venue — Contesting Affidavit.
    Where accused’s motion for change of venue on both grounds authorized by Code Or. Proc. 1911, art. 628, as to change of venue, was contested by state’s affidavits attacking the moans of knowledge of his compurgators, as authorized by Code Or. Proc. 1911, art. 633, it was not necessary that the contesting affidavits should also attack the credibility of such compurgators; the contest applying- to both grounds of motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 243, 252.]
    2. Criminal Law &wkey;>1150 — Appeal—Refusal of Change of Venue.
    Unless it is clear that the trial court has abused his judicial discretion, his action in refusing a change of venue will not require reversal.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 3044.]
    3. I-Iomicide &wkey;>169(2) — Evidence of Truth of Report Circulated by Deceased.
    In trial for murder, where alleged circulation by deceased of report of accused’s misconduct with a woman led to the killing, testimony of the woman as to such misconduct and of another witness that accused had stated that he had an engagement with the woman for such purpose was admissible.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 342.]
    4. Homicide <&wkey;169(2) — Evidence of Truth of Report Circulated by Deceased.
    In such trial, testimony by a witness that he participated in such misconduct was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 342.]
    5. Homicide <&wkey;112(5) — Self-Defense —■ Seeking Interview with Traducer.
    If accused heard that deceased had been circulating reports about him, he had the right to go to deceased to talk the matter over, and, if he believed this might bring on a difficulty, to arm himself for protection without forfeiting-his right of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 149.]
    6. Homicide <&wkey;276 — Evidence—Admissibility.
    That accused went armed to see deceased 'about alleged defamatory statements could be considered by the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 569.]
    7. Witnesses <&wkey;349 — Impeachment.
    In murder trial, it was error for the state to cross-examine accused’s witness as to whether on a particular occasion the sheriff did not try to arrest him and he ran and the sheriff shot at him, and if on this occasion he was not waiting around a certain man’s house for an engagement with Ms daughter.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1135-1139.]
    8. Witnesses <&wkey;350— Impeachment.
    While it was permissible to impeach accused’s witness by showing, if not too remote, prosecution for theft, it was error to permit the state to attempt to show that he had been shot when caught stealing.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1110-1149.]
    9. Criminal Law <&wkey;361(l) — Evidence—Explanatory Matters.
    In murder trial, where county attorney testifies for the state that prosecution was begun by accused against deceased, and that prosecution was dismissed, on cross-examination accused should be permitted to prove by the county attorney the ground on which he dismissed the prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 80S.]
    Appeal from District Court, Yan Zandt County; R. M. Smith, Judge.
    R. F. Parker was convicted of murder, and appeals.
    Reversed and remanded.
    Wynne, Wynne & Gilmore, of Wills Point, for appellant. Earl M. Greer, Co. Atty., C. L. Stanford, and M. G. Sanders, all of Canton, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at 30 years in the penitentiary.

This cause was formerly before this court on appeal from the decision of the lower court denying bail, and this court affirmed it. It is reported in 188 S. W. 983.

Appellant made a motion for a change of venue on both grounds authorized by the statute. Article 628, C. O. P. His brother and two of his warm personal friends were his compurgators. The state contested his application by the affidavit of the district and county attorneys. The contest was based, as shown by their affidavits, upon an attack of the means of knowledge of said compurgators. This was expressly authorized by the statute. Article 633, C. O. P. It applied to both grounds of his motion. This contesting affidavit did not attack the credibility of appellant’s compurgators. This was unnecessary under the plain provisions of the statute, as the contest which was filed applied to both grounds of his motion. Lemons v. State, 59 Tex. Cr. R. 299, 128 S. W. 416, and authorities therein cited; Smith v. State, 21 Tex. App. 303, 17 S. W. 471, and authorities therein cited. The court heard testimony on this matter. Appellant introduced some 86 witnesses who testified. Some two days, perhaps more, were consumed in hearing their testimony. It took at least 106 pages of typewritten matter in the record to record their testimony. It is, of course, out of the question to undertake to give this testimony in detail. It is unnecessary. From it. the trial judge unquestionably was authorized to find, as he must have done, that this testimony showed that there was no mob or attempt at any time by any persons to mob appellant, or in any way mistreat him because of his killing the deceased, or for any other cause. It showed that'Van Zandt county was a large county, rather densely populated; that there were a large number of towns scattered all over the county, perhaps 30; that the largest of these towns had a population of about 2,500, another 1,500, one or two others some 600, and the others of less population; that there were about 7,000 qualified jurors in the whole county. The killing occurred in the county seat, Canton, which had a population of only about 600 all told, men, women, and children. The whole of this testimony clearly authorized the court to believe and find, if it did not require him to find, that neither ground of appellant’s motion was true. On the contrary, it clearly justified him to believe and find that there was nothing to prevent him from obtaining a fair and impartial trial in that comity and from obtaining a qualified jury of fair and impartial jurors.

The settled rule is that unless it is clear that the trial court has abused his judicial discretion, his action in refusing a change of venue will not require a reversal. Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858; Bohannon v. State, 14 Tex. App. 271; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Grissom v. State, 8 Tex. App. 386; Clampitt v. State, 9 Tex. App. 27; Martin v. State, 21 Tex. App. 1, 17 S. W. 430; Magee v. State, 14 Tex. App. 366; Dupree v. State, 2 Tex. App. 613; Noland v. State, 3 Tex. App. 598; Grissom v. State, 4 Tex. App. 374. As said by this court, through Judge Ramsey, in the Tubb Case, supra:

“Of necessity, in respect to a question of this kind, much ought to be left to the discretion and sound judgment of the court trying the case, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue, unless it is clear that such court has abused Ms discretion. This is the doctrine laid down in almost the precise terms above stated, by Judge Hurt, in the ease of Gaines v. State, 37 S. W. 331” (citing some of the cases cited above, and others).

The court’s action on this point shows no error.

It is unnecessary to give the testimony. It is sufficient to say that from the state’s viewpoint it was amply sufficient to show that appellant was guilty of murder. It also raised the issue of self-defense, and perhaps also of self-defense because of threats. Perhaps it raised manslaughter. It also raised an issue of appellant provoking the difficulty at the time at which appellant killed the deceased. The court in his charge submitted ail of these issues, and in charges that are substantially correct, although appellant attacks some of them in some particulars.

It appears that deceased had, in substance, told that appellánt was caught out a few nights before the killing .with a woman, Mrs. Carpenter, under such circumstances as to show that he had had sexual intercourse with her on that occasion. Appellant had heard of deceased circulating this report, and claims that he went to him to see him about it, and it was about this matter that the immediate killing occurred. The state proved by said woman that appellant was out with her a few nights before the killing, and at that time did have sexual intercourse with her. Appellant objected to this testimony as irrelevant and immaterial, and that it had nothing to do with the crime for which he was on trial. The court in qualifying appellant’s bill on the subject states that it was the alleged circulation of this report by the deceased .which led to the killing. This testimony was clearly admissible.

By his next bill, No. 6, he also for the same reasons objected to the testimony of Mr. Downing, to the effect that on the evening before appellant met said woman and had the conduct with her as stated, appellant told the witness that-he had an engagement with said woman to meet her, specifying the time and place, and invited him to come and be with them in their lascivious enjoyment, and that he did go and meet the parties at the time and place that he had agreed. We think this testimony was also admissible, but that part of the testimony of this witness, to the effect that he carried a bottle of whisky along with him, and that the parties drank it, and that he later on that same night had sexual intercourse with the woman, should not have been admitted. However, there was no specific objection to that, and the bill as presented would show no error, but as the case is to be reversed, we call attention to this, so that that much of the witness’ testimony, if objected to, should be excluded on another trial.

As stated, the testimony raised, and the court submitted, the question of appellant’s provoking the difficulty with the deceased with the intention of killing him or of doing him serious bodily injury. Appellant-requested a special charge to the effect that if the jury believed that appellant had heard that the deceased had been talking about him and circulating a report on him, he had the right to seek the deceased for the purpose of talking the matter over with him, and if he believed his conversation with deceased was likely to bring on a difficulty, and that he would be attacked by the deceased, then he had the right to arm himself for his own protection, “and if you so find, you will not consider the fact that the defendant went into the restaurant where the deceased was and began a conversation with him, deceased, and that defendant was armed at the time as a circumstance against the defendant.” This charge was correctly refused; the latter part, just in quotation, is not the law, nor is it applicable to the question in this case. However, the law established by the decisions of this state is to the effect that when provoking a difficulty with the deceased is raised and the court submits that as a limitation of appellant’s right of self-defense, it is then proper for the court to in effect tell the jury, as in this ease, that if appellant had heard that deceased had been talking about him and circulating the said report, he, appellant, had the right to go to him for the purpose of talking the matter over with him, and if he believed that this might bring on a difficulty and cause deceased to attack him, he had the right to arm himself for his own protection, and that, so arming himself and talking to deceased about the matter, the fact that appellant had armed himself at the time would not of itself forfeit his right of self-defense. The question of his arming himself under the circumstances and seeking and talking to deceased was a matter for the jury to consider under a proper charge. The circumstance of his arming himself might be considered by the jury against him instead of for- him, but that would be a matter of argument and for the jury to pass upon. On another trial the court should properly charge in substance as stated above.

The testimony in this case did not raise the issue of appellant’s abandoning the difficulty With the deceased at the time of the killing. All that occurred between them after the appellant went to the restaurant where deceased was was the same transaction at the same time, and it all occurred in a very short space of time. The court did not err in not giving any charge on abandoning the difficulty. Wilson v. State, 71 Tex. Cr. R. 404, 160 S. W. 83.

Appellant had Homer Dorrity to give material testimony in his behalf to the effect of a threat by deceased against appellant, which was communicated to appellant before the killing, as claimed by said witness. The state, over appellant’s objections, on cross-examination, was permitted to ask this witness and require him to answer if on a particular occasion the sheriff did not try to arrest him and he ran, at which time the sheriff shot at him, and if on this occasion it was not about midnight when he was waiting around a certain man’s house for an engagement with his daughter, impliedly for an illicit relationship with her. While the rule is that considerable latitude is permitted on cross-examination to show the bias, prejudice, etc., of a witness, and for the purpose of impeachment that a witness has been formerly convicted of a felony or a misdemeanor involving moral turpitude when not too remote, yet the testimony elicited from this witness over appellant’s objections was inadmissible.

It was also improper, over appellant’s objections, to permit the state, in cross-examination of his witness Barnes, to prove, or attempt to prove, by him that he had. been shot when caught stealing. This ,was an improper attempted impeachment of him. It was permissible to prove by him, if not too remote, that he had been prosecuted for theft, whether the charge against him was a felony or a misdemeanor, as theft involves moral turpitude.

Under the circumstances of this case,' on another trial, if the county attorney testifies for the state about the prosecution which was begun against deceased and another by appellant for his claimed improper relationship with a prostitute, and that the prosecution was dismissed, on cross-examination the appellant should be permitted to prove by the county attorney the ground on which he dismissed that prosecution.

There are more or less other important questions raised; but, as they cannot arise on another trial, it is unnecessary to discuss them.

This writer is of the opinion that none of the errors assigned herein are of sufficient importance to authorize or justify a reversal of the judgment herein, but his associates are of a different opinion, and this reversal is based on their opinion.

Reversed and remanded.
      (S^aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      iteskor other oases see same tatúe and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte MITCHELL.
    (No. 4567.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Habeas Corpus <§&wkey;55 — Return op Writ — Place op Return.
    Under Vernon’s Ann. Code Cr. Proe. 1916, art. 167, requiring the writ of habeas corpus to be made returnable in the county of commission of the offense, a habeas corpus proceeding seeking bail must be made returnbale in the county where the offense was committed.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 58, 59, 80.]
    Appeal from District Court, Baylor County ; J. I-I. Milam, Judge.
    Habeas corpus by Will Mitchell, seeking bail. From an order denying bail, relator appeals.
    Judgment set aside.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a habeas corpus hearing denying bail. Mr. Mitchell was indicted by the grand jury of Knox county, charging him with murder in that county. By proper order of the district court of that county the venue of the case was changed to Baylor county. Both counties are in the same district, and Judge J. H. Milam, the judge of the judicial district, of which both counties are a part. After the venue had been so changed, Mr. Mitchell applied for a writ of habeas corpus, seeking bail. Judge Milam granted the writ, and had the trial in Baylor county, and the order denying bail was made in that county.

The Assistant Attorney General has made a motion to dismiss the appeal because the district judge had no jurisdiction to hear and decide the cause of habeas corpus in Baylor county.

The writ was properly granted, but the statute (article 167, C. C. P.) requires the writ be made returnable in the county where the alleged offense has been committed. This statute has uniformly been held to be mandatory as shown by the decisions noted in 2 Vernon’s Grim. Statutes, p. 107.

It is therefore the order of this court that the judgment of Judge Milam refusing bail will be set aside and the writ of habeas corpus will be made returnable in Knox county when Judge Milam will designate the time of hearing in that county and -make such orders as to notice and witnesses as will secure a speedy hearing.

Ordered accordingly.


text:
    DEANDO v. STATE.
    (No. 4535.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Criminal Baw &wkey;>1092(11) — Appeal—Record —Sufficiency.
    A bill of exceptions not approved by the judge cannot be considered.
    [Ed. Note. — For other cases, see Criminal Baw, Cent Dig. §§ 2837, 2841.]
    Appeal from Kinney County Court; Jos. Veltmann, Judge.
    Ramon Dcando was convicted of assault, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of simple assault; his .punishment being assessed at a fine of $20.

The record is before us without a statement of facts. There is a bill of exceptions in the record, but it is not approved by the judge. This bill reserves exception to a certain phase of the charge of the court. The bill cannot be considered because not approved.

There being no matter presented that can be reviewed, the judgment will be affirmed.


text:
    WILSON v. STATE.
    (No. 4541.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Criminal Baw <&wkey;1086(13) — Dismissal of Apiusal — Failure to Show Judgment in Record.
    Where no sentence or final judgment was shown in the record, the appeal will be dismissed.
    [Ed. Note. — For other cases, see Criminal Baw, Cent. Dig. §§ 2768, 2769, 2772.]

      Appeal from’ District Court, Bosque County ; O. L. Lockett, Judge.
    Harry Wilson was convicted of perjury, and applals.
    Appeal dismissed.
    . E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for perjury, and the lowest punishment assessed.

When appellant’s motion for a new trial was overruled, he then gave notice of appeal, which was duly entered at the time in the minutes of the court. There is no sentence— final judgment — in the record. The Assistant Attorney General’s motion to dismiss the appeal will therefore be granted.

Appeal dismissed.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    SHEPPERD v. STATE.
    (No. 4539.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    1. Intoxicating Liquors <&wkey;236(4) — Illegal Sale, — Identity oe Defendant — Evidence —Sufficiency.
    Evidence 7ieM insufficient to establish identity of defendant with the person who sold intoxicating liquors illegally.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 305, 306.]
    2. Criminal Law <&wkey;721(l) — Conduct of Trial — Argument of Counsel.
    Where the court instructed that accused’s failure to testify could not be taken against him, the prosecuting attorney was not thereby authorized to comment upon accused’s failure to testify in view of Vernon’s Ann. Code Or. Proc. 1916, art. 790, prohibiting such reference.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1672.]
    3. Criminal Law <&wkey;419, 420(1) — Evidence-Hearsay.
    In prosecution for illegal sale of intoxicating liquors, a witness could not testify that another witness in defendant’s absence told him that he bought whisky from defendant.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 973, 975, 976, 980-983.]
    Appeal from San Augustine County Court; E. T. Anderson, Judge.
    Pleas Shepperd was convicted of selling intoxicating liquor illegally, and he appeals.
    Reversed and remanded.
    K. W. Stephenson, of San Augustine, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by information with the sale of intoxicating liquors in territory in which such sales were prohibited, and on conviction his punishment fixed at a fine of $50, and 30 days’ confinement in the county jail.

The charge in the information was that the sale was made to John Curbo. Curbo testified that he bought a pint of whisky from a negro whom he did not know,* but who told him his name' was Pleas Shepperd, and at the time he bought it he was in company with the witness Henry Malone. Curbo stated that the defendant might look something like the negro that he got the whisky from, but that the negro that sold him the whisky had a mustache and was of lighter complexion than the defendant; that he could not swear that the defendant was the same negro, and he did not believe the negro who sold him the whisky was as tall as the defendant. Henry Malone testified that he was with Curbo at the time he bought the whisky, and was acquainted with Pleas Shepperd, the defendant; had known him a long time, and that the negro who sold the whisky was not the defendant. Both Curbo and Malone stated that the transaction took place in an old store building into which Curbo and the negro walked; Malone standing at the door.

We do not think the evidence is sufficient to identify the defendant as the person who sold the liquor. The court gave a special charge at request of appellant, advising the jury that they would not consider appellant’s failure to testify as a circumstance against him. The county attorney commented upon the defendant’s failure to testify, stating that he would not have done so if appellant had not requested this charge. A timely objection was made to this argument and overruled by the court. The statute (article 790, O. C. P.) provides that defendant’s failure to testify shall not be taken as a circumstance against him, and that it shall not be alluded to or commented upon by counsel in the cause. The failure to observe this injunction has frequently been held cause for reversal by this court. Vernon’s C. C. P. p. 716, note 29, and cases cited; Branch’s Ann. P. C. p. 209, and cases there listed. It has been frequently held that it is proper for a court to inform the jury in its charge of this law. Dougherty v. State, 59 Tex. Cr. R. 470, 128 S. W. 398; Branch’s Ann. P. C. p. 211, § 377, and cases cited. Parties may request special charges (C. C. P. art. 737), and when given by the court they are given as part of the law of the case and for the government of the jury and litigants. The fact that the law prohibiting the consideration by the jury of defendant’s failure to testify as a circumstance against him was given in a special charge would not give any more license to the attorneys trying the ease to .disregard the injunction in the statute against commenting upon defendant’s failure to testify than if the matter was contained in the regular charge. A similar question was passed upon in Anglin v. State, 47 Tex. Cr. R. 109, 80 S. W. 370.

A witness testified that John Ourbo in the absence of the defendant told witness that he bought the whisky from Pleas Shepperd. The admission of this evidence was violative of the rule against the use of hearsay evidence. Kirksey v. State, 58 Tex. Cr. R. 188, 125 S. W. 15, and Long v. State, 58 Tex. C. R. 28, 124 S. W. 640. Other matters raised will not likely occur on another trial.

For the errors pointed out, the judgment of the lower court will be reversed, and the cause remanded.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    ROYSTON v. STATE.
    (No. 4491.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.
    On Motion for Rehearing, June 20, 1917.)
    Assault and Battery &wkey;>92 — Aggravated Assault — Seriousness — Sufficiency on Evidence.
    In prosecution for aggravated assault, evidence held insufficient to show the character of seriousness required to render the assault an aggravated assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139.]
    Prendergast, J., dissenting.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Jesse Royston was convicted of an aggravated assault, and he appeals.
    Judgment reversed, and cause remanded.
    A. L. Hatchett and L. W. Greenly, both of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault by the judge who tried the case, a jury having been waived. His punishment was assessed at a fine of $25, and 60 days’ imprisonment in the county jail.

The complaint and information contain two counts, one charging the assault to have been committed with a rock, which was a deadly weapon; the other that the assault was aggravated by reason of the fact it produced serious bodily injury. There is nothing to indicate that the rock was a deadly weapon, except the fact that defendant, under the state’s view, knocked the assaulted party down twice, hitting him in the back of the head the first time, and upon his getting up defendant struck him again, and at this time he had a rock in his hand. The inference may be deduced that both blows were inflicted by the rock. The only evidence in regard to the seriousness of the wound was the testimony of the assaulted party wherein he states that he was laid up. or suffered from the wound for a couple of weeks. This is rather meager testimony to show that the assault was of a serious nature, but it may have been sufficient under the circumstances to have justified the court reaching the conclusion that the serious bodily injury was inflicted. Taking this view of the matter, the judgment will be affirmed.

On Motion for Rehearing.

On a former day of this term this judgment was affirmed. Appellant contends in his motion that the evidence does not sustain the conviction, and the affirmance was error.

In the opinion affirming it was stated that there was nothing to indicate that the rock was a deadly weapon, except the fact that defendant, under the state’s view, knocked the assaulted party down twice, hitting him in the hack of the head. It was also stated that the only evidence regarding the seriousness of the wound was the testimony of the assaulted party, wherein he states that he was laid up or suffered from the wound for a couple of weeks. After a more careful revision we are inclined to the opinion now that the affirmance ought not' to have occurred, and in order to make the matter clear we copy the testimony of the one state witness in respect to this phase of it. This witness says: .

“I started on past Royston on towards my home. The next thing I knew somebody struck me. Royston was behind me.' The blow knocked me to the ground, and I was unconscious for a few minutes. I was hit in the back of the head with some hard substance, and injured for a couple of weeks. When I arose, Royston struck me again. When I got up I saw that he had a largo rock in his hand. I picked up a rock to defend myself.”

This is the entire testimony with reference to the deadly nature of the rock and the seriousness of the wound. Reviewing this testimony, we are of the opinion that testimony does not show that character of seriousness contemplated by the law. The amount of the injury is not stated. It might have been a slight wound, and would take a couple of weeks for it to heal. The cases bearing upon this question will be found collated in Branch’s Criminal Law on page 43. It is unnecessary to make quotations from these opinions or investigation of the matter, as we are convinced that we were in error in the original opinion, and the motion for rehearing is granted, the affirmance set aside, and the judgment is now reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). The original opinion was correct, and should be adhered to. “Serious” bodily injury does not mean that the injury must anything like, or nearly, or almost, produce death. It means simply that the injury must not merely be trivial or slight. It must only be grave —serious. For one man to strike another in the back of the head with a large rock and knock him down and render him unconscious for a few minutes, and then strike him again with the rock when he gets up, and injure him for two weeks, would certainly be a serious injury. Such injury would not be trivial or slight. Bruce v. State, 41 Tex. Cr. R. 30, 51 S. W. 954; Fulkerson v. State, 57 Tex. Cr. R. 80, 121 S. W. 1111; Housley v. State, 55 Tex. Cr. R. 372, 116 S. W. 816; Thomas v. State, 55 Tex. Cr. R. 295, 116 S. W. 600.

I respectfully dissent.
      <&wkey;For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McCOY v. STATE.
    (No. 4540.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    1. Intoxicating Liquors &wkey;>236(4) — Prosecution — Evidence.
    In prosecution for selling intoxicating liquors in prohibition territory, evidence that accused, being given a dollar, got a pint of whis-ky for a purchaser, and express agent’s statements of whisky_ shipments, was .sufficient to sustain a conviction.
    [Ed. Note. — Eor other eases, see Intoxicating Liquors, Cent. Dig. §§ 305, 306.]
    2. Criminal Law <§=»1091(4) — Appeal—Bill op Exceptions.
    In a liquor selling prosecution, a bill of exceptions held too uncertain and vague for consideration.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2816, 2832, 2931-2933.]
    Appeal from San. Augustine County Court; E. T. Anderson, Judge.
    Clem McCoy was convicted of unlawfully selling intoxicating liquors in prohibition territory, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted for making an iunlawful sale of intoxicating liquor to Pox Canton on or about November 1, 1916, after an election on November 7, 1903, duly putting the law prohibiting the sale of intoxicating liquor in force, making it a misdemeanor. The case was tried before the judge without a jury. It was admitted that prohibition was in force at the time of said alleged sale.

Said Canton testified:

“My name is Pox Canton. I know Clem McCoy. I saw him at his father’s home in San Augustine county, Tex., on or about the 1st day of November, A. D. 1916. Harry Hight had given me $1 to get him some whisky with, and I went to Bill McCoy's home, where Clem McCoy lives, and when I got there Clem McCoy came out of the house, and I asked him if he had any whisky, and he replied, ‘I think I can get you some.’ I gave him the dollar, and he went back into the house, and in a short time came back to where I was on the gallery and delivered to me a pint bottle of whisky. I did not see where he got the whisky from. While Clem McCoy was in the house before he brought me the whisky, I looked through the glass of the window from the gallery, and the only person I saw in the room was Bill McCoy, father of Clem McCoy, and a man by the name of Mr. Jackson, sitting near the fire place. I was not looking at them all the time while Clem McCoy was in the house after the whisky. There' could have been other persons in the room besides Bill McCoy and Mr. Jackson, but if there was I did not see them, I was looking through the window glass from the gallery. If Clem McCoy got the whisky from Mr. Jackson, I did not see him do so. I do not know the given name of Mr. Jackson. I always heard him called Mr. Jackson.”

Said Hight testified:

“On or about the 1st day of November, A. D. 1916, I gave Pox Canton a dollar in money and told him to get me a pint of whisky. I never knew a negro down in that portion of the country that was called Mr. Jackson, but there could have been such a negro in there without me knowing him.”

Mr. R. H. Young, testified:

“I am agent of the Wells Pargo Express Com* pany at their station in the town of San Augustine, Tex., and keep a record of all shipments by express of whisky coming into my office, to whom it is shipped, and by whom taken out. Referring to my record of express packages, I find that during the month of September, A. D. 1916, that C. McCoy received a package labeled three gallons of whisky, and that during the month of October, A. D. 1916, Clem McCoy received a package labeled three gallons of whisky.”

He further testified that he thought C. McCoy and Clem McCoy were one and the same person, but that he really did not know.

This evidence was sufficient to sustain appellant’s conviction. Appellant introduced Buck Holman and Cleveland Phillips, each of whom testified, in substance, that they were at the house of Clem McCoy and his father Bill McCoy.on the day and at the time it was alleged that Clem McCoy sold to Pox Canton a pint of whisky; that it was in the afternoon of Saturday, as well as they remembered, when Canton came to McCoy’s house on said occasion; that they, said Bill McCoy and the negro who they knew as “Mr. Jackson,” were inside of the house sitting around near the fireplace; that Clem McCoy went out on the gallery after Canton had called him, and in a few minutes came back into the room where they all were and went over to where Mr. Jackson was sitting and said something to Mr. Jackson in a low tone of voice or a kind of a whisper; they could not tell what he was saying, but heard Harry Hight’s name mentioned, and that Clem McCoy said that “he is all right”; that then the man they knew as Mr. Jackson reached down and opened the satchel or grip that was near him and took out a pint bottle of whisky and gave it to Clem McCoy, and Clem McCoy gave Mr. Jackson a dollar, and then went out on the gallery where Canton was with the whisky; that they could see over into Mr. Jackson’s satchel when he got the said pint bottle, and saw that he had several more pint bottles of whisky in it, and that on the same evening the said Holman bought a pint also from Mr. Jackson; that Mr. Jackson had been staying around in that neighborhood some time, but they never knew what his name was; that they all called him Mr. Jackson; that Mr. Jackson claimed he was selling some kind of oil lands in Louisiana, and also claimed to be a kind of doctor and preacher.

William Garner testified that he knew a man called Mr. Jackson; that he came to his house some time in the fall of 1916 and ate dinner; that he claimed to be selling some kind of lots in Louisiana; that he did not know what his given name was.

The appellant testified:

“On or about the 1st day of November, 1916, I resided with my father, Bil) McCoy, 'about six miles east of the town of San Augustine. 1 never sold Eox Canton any whisky. The transaction for which X am being tried occurred in this way: At the time charged in the indictment against me Pox Canton came to my father’s house, where I lived. Myself, my father, Bill McCoy, Buck Holman, Mr-. Jackson, and Cleveland Phillips were all in the house at the time, and when Pox Canton came I left the room and went out on the gallery and asked Pox Canton what he wanted. He said Mr. Harry Hight had given a dollar to him to buy some whisky with, and asked me if I had any whisky. I told him that I did not have any whisky, but that I could get him some. Mr. Jackson, who was in the house, had told me earlier in that day that he had some whisky to sell if any one wanted to buy some whisky; and that’s why I told Pox Canton I could get him some. Pox Canton gave me the dollar, and I went back in the house to Mr. Jackson, where he was sitting, and told him that Pox Canton wanted to get a pint of whisky for Mr. Harry Hight, and had given me a dollar to pay for it. He asked me what about Mr. Harry Hight, and I told him that I thought Mr. Hight was all right. Mr. Jackson then reached down and opened his grip or satchel and got out a pint of whis-ky. I gave him the dollar that Pox Canton had given to me, and Mr. Jackson gave me the pint bottle of whisky, which I carried out on the gallery and delivered to Pox Canton, who left and carried it with him. I did not sell the whisky. I had no interest in the sale nor did I get any profits of the sale of the whisky whatever. I bought the whisky for Pox Canton as an accommodation only. * * * I ordered whisky for myself twice last year. I think one of the shipments was in the month of October, as well as I remember. I had known Mr. Jackson for several weeks. Never knew what his given name was. We all called and knew him as Mr. Jackson. He claimed to be selling lots, oil land near some oil field in Louisiana; He also doctored some and preached some.”

Bill McCoy did not testify, neither did “Mr Jackson.”

The credibility of the witnesses and the weight to be given to their testimony is by our statute left exclusively to the jury when a jury is impaneled, and, when not, of course, to the trial judge. It is clear in this case that the trial judge believed the testimony of the state’s witnesses, and did not believe that of the appellant and his witnesses. He unquestionably had the right to disbelieve them. They were all before him. Tie saw their manner of testifying, and could judge of their credibility. This -court cannot.

Appellant has only one bill of exceptions, which after the style and number of cause and the usual begining of “be it remembered,” is as follows:

“The state’s witness R. H. Young, express agent at San Augustine, Tex., being .upon the stand, the said witness was permitted over objections of defendant to testify to the following facts, to wit: By referring to his express record he testified to shipments of whisky consigned to and taken out of the express office. Nu-gent McCoy and Joe McCoy, and the defendant at the time it was offered objected to said testimony for the reasons following, to wit: Because there was no evidence tending to show that the defendant was in any way interested or connected in any way whatever with whisky shipments consigned to either Nugent McCoy or Joe McCoy, and the court overruled defendant’s objection to said testimony, and permitted to go before the court as evidence, to which action and ruling of the court defendant then and there excepted, and tender this bill of exception, and asks that the same be allowed, signed, and filed as a part of the record in this case. Approved and ordered filed as a part of the record in this case”

—which was duly signed by the county judge. This bill is too uncertain and vague to show auy such error, if at all, which would justify a reversal. It wholly fails in the requisites prescribed for bills of exceptions. See 1 Branch’s Ann. P. O. 131 et seq, where Mr. Branch collates some of the cases.

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


author: CONNER, C. J.

text:
    ZURN et al. v. MITCHELL et al.
    (No. 8591.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    April 14, 1917.
    On Motion for Rehearing, May 22, 1917.)
    1. Corporations <&wkey;382 — Ultra Vires Contracts — Statute.
    Under Rev. St. 1911, art. 1164, as amended by Acts 34th Leg. c. 102, providing no corporation doing business in this state, shall employ or use its stock, means, assets, or other property, directly or indirectly, for any purpose whatever other than to accomplish the legitimate business of its creation, etc., where the purpose of a corporation was to manufacture and deal in building material and to purchase and sell such material as is necessary in the transaction of its business, a contract made by it to construct improvements on a lot was not merely ultra vires, but was effected with a positive illegality which rendered it void for all purposes and as to all persons.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1514, 1515, 1517, 151S, 1536.]
    2. Corporations <&wkey;487(l) — Ultra Vires Contract — Statute—Notice.
    Rev. St. 1911, art. 1164, as amended by Acts 34th Leg. c. 102, being the law of the land, was in contemplation of law. known to one who entered into a forbidden contract with a corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1893, 1898.]
    3. Principal and Surety &wkey;>7 — Liability, op Surety in Void Contract.
    Although sureties on bonds to a corporate obligee are liable even though the transaction may be ultra vires as to the corporation, the sureties on an indemnity bond given for the performance by a corporation of a contract which was positively forbidden by statute law, and hence absolutely void, were not bound.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 8-12, 14, 16, 18.]
    On Motion for Rehearing.
    4. Corporations i&wkey;388(5) — Ultra Vires Contracts — Estoppel.
    Where a contract with a corporation, void because ultra vires and absolutely forbidden by statute, was wholly executory, no ground of recovery against sureties on the theory of estop-pel existed.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1565-1561.]

      Appeal from District Court, Tarrant County ; R. B. Young, Judge.
    Suit by J. E. Mitchell and others against Jake Zurn and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    Miller & Miller and John W. Wray, all of Ft. Worth, for appellants. Bryan, Stone & Wade, of Ft. Worth, for appellees.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

Appellants, Jake F. Zurn, Mrs. Mary M. Harold, and Mrs. Josie H. Barnes, as executrices of the estate of E. B. Harold, deceased, suffered a judgment in the sum of $1,926,83, principal and interest, upon an indemnity bond given to secure the performance of a contract on the part of the Hydraulic Building Stone Company, a corporation, to construct for appellee certain improvements upon one of his lots in, Ft. Worth, Tex. As alleged and found !>.y the court, the Hydraulic Building Stone Company was duly incorporated under the laws of the state of Texas, with purpose, as stated in its charter, as follows:

“The purpose of this corporation shall be to manufacture and deal in building material and to purchase and sell such material as is necessary in the transaction of its business.”

The contract for breach of which appellee sued provided, among other things, that the Hydraulic Building Stone Company should, according to certain drawings and specifications, “well and sufficiently perform * * * all the work included in the excavating grading, cement floors, brickwork, concrete blocks and footing (foundation walls to be of 12-inch concrete blocks instead of solid concrete) of the two-story and basement residence on Pennsylvania and Eighth avenues in the city of Ft. Worth.” The work so contracted for was never materially commenced or completed by the corporation, and the court finds that the contract on the part of the corporation was beyond the purposes for which the corporation had been created, and was therefore as against the corporation ultra vires and void. The corporation subsequently was discharged from all liability for its said breach of the contract by the judgment rendered, and of all this appellee makes no complaint.

Appellant’s contention on this appeal from the judgment against said sureties on the indemnity bond is that, inasmuch as the court found the contract to be ultra vires and void, it was error in the court to render judgment against the sureties on the indemnity bond. Appellees, however, while admitting that the contract of the corporation was ultra vires and void as to the corporation, insists that nothing beyond this can be said; that an agreement on the part of sureties guaranteeing the performance of a contract merely ultra vires is binding upon the sureties, even though not binding upon the principal; and appellee cites in support of his contention and of the court’s judgment the following authorities: Revised Statutes, art. 1164; Railway Co. v. Gentry, 69 Tex. 625, 8 S. W. 98; Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053; Lee v. Yandell, 69 Tex. 34, 6 S. W. 665; Logan v. Loan Ass’n, 8 Tex. Civ. App. 490, 28 S. W. 141; Walters v. Loan Ass’n, 8 Tex. Civ. App. 500, 29 S. W. 51; Texas Loan Agency v. Hunter. 13 Tex. Civ. App. 402, 35 S. W. 399; Kincheloe Irrigation Co. v. Hahn, 105 Tex. 231, 146 S. W. 1187; Taylor Feed Pen Co. v. Bank, 181 S. W. 534; Lancaster Township v. Graves, 48 Ind. App. 499, 96 N. E. 172; Davis v. Stokes County, 72 N. C. 441; Mason v. Nichols, 22 Wis. 376; Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123, 13 L. R. A. (N. S.) 1171; Gist v. Drakely, 2 Gill (Md.) 330, 41 Am. Dec. 426; 20 Cyc. 1422; 7 Cyc. 663.

The direction to be given to the appeal must turn, we think, upon a determination of whether the contract of the Hydraulic Building Stone Company was merely ultra vires — that is, one voidable merely because it was beyond the purposes defined in the charter — or whether such contract was void altogether for all purposes and as to all persons. It has been held in many cases that sureties on bonds to a corporate obligee are liable even though the transaction may be ultra vires as to the corporation. So, too, sureties upon the bond of a minor or of a feme covert, or of one non compos mentis, are bound, and to such effect, generally speaking, are the cases cited by appellee. But it is equally well settled, we think, that the agreement of a surety is not binding where the contract between the primary parties out of which it springs is contaminated by positive illegalities.

Amended article 1164 of our Revised Statutes provides, so far as necessary to state, that:

“No corporation, domestic or foreign, doing business in this state shall employ or use its stock, means, assets, or other property, directly or indirectly, for any purpose whatever other than to accomplish the legitimate business of its creation,” etc.

See General Laws, 34 Legislature, p. 156

The record, as we think, leaves no room to doubt that the contract between appellee and the Hydraulic Building Stone Company was in violation of this statute. The court not only finds that the contract was ultra vires, but the evidence shows that the performance of the contract would involve the necessary expenditure of considerable sums of money for labor, material, etc., other than that necessary in the manufacture, or the purchase, or sale of material in the transaction of the business of the corporation. In supplying such additional sums the corporation of necessity would be required tp “use its stock, means, assets, or other property,” directly or indirectly in violation of the article of the statute referred to. The contract therefore, as we conclude, was affected with a positive illegality which rendered it void for all purposes and as to all persons. See Revised Statutes 1911, art. 1164; Edwards County v. Jennings, 89 Tex. 621, 35 S. W. 1053; Republic Trust Co. v. Taylor, 184 S. W. 773; Brenham v. Water Co., 67 Tex. 561, 4 S. W. 143; Levy v. Wise, 15 La. Ann. 38; Lancaster Township v. Graves, 48 Ind. App. 499, 96 N. E. 172; Schaun v. Brandt, 116 Md. 560, 82 Atl. 551; First National Bank v. Clark’s Estate, 59 Colo. 455, 149 Pac. 612; Denison v. Gibson, 24 Mich. 187; Tandy v. Elmore-Cooper Live Stock Com. Co., 113 Mo. App. 409, 87 S. W. 616.

The simple citation of the above authorities would perhaps be all that is necessary to do, as the principles involved are therein fully discussed, and what we could say would, in a measure, be largely mere repetition; but for the sake of clearness it may not be amiss to here add that in the case of Edwards ■County v. Jennings, supra, it was held by our Supreme Court that the sureties for the performance of a contract between the county and Jennings, which was in violation of our Constitution and laws against monopolies, were not bound. The court makes clear the distinction . between contracts which are merely ultra vires — that is, contracts that merely extend beyond the charter purposes or powers — and those which are not only beyond such purposes or powers but also positively forbidden, as here, by some statutory or constitutional law. The statute quoted had in view the protection of the stockholders of corporations. It was part of the law of the land and, in contemplation of law, was known to appellee at the time he entered into the contract with the Hydraulic Building Stone Company, and it must be held that, in a legal sense, he then knew that the contract was forbidden. In the ease of the Republic Trust Co. v. Taylor, cited above, the Dallas Court of Appeals held that a promissory note was void, even in the hands of an innocent purchaser, which had been given £or stock in a corporation in violation of the Constitution, art. 12, § 6, declaring that no corporation shall issue stock except for money paid, labor done, or property actually received. Other illustrations doubtless could be given, but we think the authorities cited and what we have said sufficiently support the conclusion already stated.

It follows that the appellant sureties, in our opinion, were not bound upon the indemnity bond given by them, and that other questions presented upon this appeal need not therefore be discussed. The trial court’s findings of fact not inconsistent with what we have hereinbefore stated are, accordingly, adopted; but thereon the judgment will be reversed and here rendered for appellants.

Reversed and rendered.

On Motion for Rehearing.

It is earnestly insisted that we were in error in holding that the contract for .which appellants became sureties was void and not merely ultra vires, and many authorities are cited in support of this contention. But, while all of the cases on the subject may not seem to be harmonious, yet for the most part they are cases easily distinguishable from this. They present cases, either where the contract attacked has been fully executed, or where the party pleading the illegality thereof has been held to be estopped from pleading its vice. The case most strongly pressed upon us on the oral submission was that of Bond v. Terrell Mfg. Co., 82 Tex. 309, 18 S. W. 691. In that case it appears that the manufacturing company loaned to Bond certain moneys when not authorized to so do by the terms of its charter and when it was by implication forbidden to so do by a statute cited in the case. The court, however, did not hold the contract as such valid. It merely held, in effect, that because Bond had entered into and induced the making of the contract, and by virtue thereof had received moneys of the corporation and yet retained the same, he was, upon principles of equity, estopped from urging the contract’s illegality. But we will not undertake to reconcile conflicts, or to point out 'distinguishable features in the numerous decisions on the subject for much has been written. We deem it sufficient to say that in this case the contract between appellee and the Hydraulic Building Stone Company was never executed. It was wholly executory. Nor in this case is there an element of estoppel. Appellant paid nothing upon the contract, nor did the building company or appellants receive anything whatever by virtue thereof. No ground of recovery therefore in behalf of appellee existed. See, in addition to the cases cited by us originally, T. & P. Ry. Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Mitchell, Receiver of Commonwealth Bonding & Casualty Ins. Co., v. Porter (No. 8534) 194 S. W. 981, by this court, not yet officially reported. We therefore continue to think that the contract under consideration was wholly void as to all parties to it, and this was all that was intended by our expression on the subject in our original opinion.

The motion for rehearing will, accordingly, be overruled.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes