author: BUCK!, J.

text:
    PIERCE-FORDYCE OIL ASS’N v. FARROW.
    (No. 8067.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1915.
    On Motion for Rehearing, Jan. 23, 1915.)
    1. Mastee and Seevant @=>276 — Action fob Injubies— Sufficiency of Evidence — Negligence.
    Evidence in a servant’s action for injury from the sudden blowing of a newly installed whistle, making a loud, shrill, unusual noise, frightening a gentle team of mules, so that they started and threw him from a wagon, held, to sustain findings of the master’s negligence, proximately causing the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. @=>276.]
    2. Negligence @=>136 — Question foe Juey.
    The issues of negligence and of the proximate cause of an injury are nearly always questions for the jury, and never become questions of law, where there is evidence of probative force in support of the issue, and the question of negligence should not be taken from the jury, except where there is no material conflict in the evidence, and where there is no room for doubt or for different minds to draw different inferences.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §3 277-353; Dee. Dig. @=>136.]
    3. Negligence @==>58 — '“Peoximate Cause.”
    If an injury follows an act of negligence in natural sequence, without independent intervening cause, and would not have occurred but for the negligence, the wrongdoer, as a matter of law, is held to have had the injury in contemplation, so that the negligence is the “proximate cause” of the injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 71; Dec. Dig. @=>58.
    For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]
    4. Teial @=>194 — Instructions—Weight of Evidence — Statute.
    In a servant’s action for injury, where the court submitted the issue as to whether or not the whistle sounded just before the accident occurred was an unusual one, reasonably calculated to frighten an ordinarily gentle team, the court’s explanatory words on submitting another issue, “If you find that it was unusual and of such frightening character, your answer to this question will be, ‘Yes,’ otherwise, ‘No,’ ” was not within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, forbidding the court to charge or comment on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. @=>194.]
    5. Damages @=>132 — Excessive Damages — Injuey to Foot.
    A verdict of $2,000 for an injury to the left foot, fracturing one or more of the smaller bones of the foot and one of the bones of the leg, which caused a great deal of pain, suffering, and inconvenience, and which was probably permanent, was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. @=>132.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by J. E. Farrow against the Pieree-Fordyce Oil Association. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Smith, Robertson & Robertson, of Dallas, and Thompson & Barwise, of Ft. Worth, for appellant. Carlock & Carlock, of Ft. Worth, for appellee.
   BUCK!, J.

J. E. Farrow, plaintiff in the court below, sued the Pierce-Fordyce Oil Association, defendant, to recover damages on account of personal injuries sustained by the plaintiff while engaged as a common laborer at defendant’s refinery.

Plaintiff alleged that he was an employe of the defendant, working as a common laborer; that on July 15,1912, plaintiff, together with other employes, was engaged in gathering up in barrels quantities of oil that had been spilled from different tanks; that the barrels were transported on a wagon to a tank, and there the oil was removed from the barrels by means of buckets; that the wagon in use was drawn by a team of gentle mules; that plaintiff’s duties required him to assist in filling the buckets with oil out of the barrels and to hand the bucket to a man- on the tank; that, while he was so engaged, the defendant caused other employés of the defendant to suddently emit from a whistling device, then erected by defendant, and which liad not theretofore been nsed by it, an unusual, loud, shrill, and penetrating and deafening noise; that said noise was wholly unexpected by the men at wort, and no previous notice had been given to them by the defendant of its intention to mate the blast of said whistle at said time; that the said whistle had not been tested out or regulated, so as to be used with reasonable safety and without danger of searing teams that might be employed about the said plant; and that, by reason of its not having been so regulated, the same was uncontrollable and gave out an unnecessarily large, shrill, and penetrating volume of sound, which was well calculated to frighten teams that might be in or near where the said whistling took place. Plaintiff further alleged that it was negligence on the part of the defendant to cause or permit that whistle to blow at said time, and that, by reason thereof, the team attached to the said wagon, upon which •plaintiff was at work, was frightened by said sudden and unusual sound of the whistle, and that it suddenly leaped forward, throwing the plaintiff from the rear of the wagon, spraining his ankle, and breaking one of the bones of his foot. Plaintiff sued to recover damages in the sum of $5,000.

The defendant answered by general demurrer and general denial, and specially answered, denying that the defendant had been negligent in any manner, as charged by plaintiff, and denying that plaintiff had been damaged in any sum for which defendant was responsible, and further pleaded contributory negligence, assumed risk, and that the person responsible for the blowing of said whistle was a fellow servant.

Trial was had before a jury upon special issues submitted to it, and judgment was entered in favor of the plaintiff in the sum of $2,000 upon the verdict of the jury, from which an appeal was perfected to this court.

Appellant in its first and second assignments of error complains that the trial court erred in refusing to give its specially requested instruction No. 1, reading as follows: “You are instructed to return a verdict herein for the defendant, Pierce-Fordyce Oil Association” — for the reason that: First, the evidence was insufficient to support any verdict that the jury might render in favor of the plaintiff; second, for the reason that the evidence was insufficient to show that the blowing of the whistle complained of by plaintiff was the proximate cause of the injury sustained by the plaintiff; third, that the evidence was insufficient to show that the defendant was guilty of any negligence in blowing the whistle and in the manner same was blown when plaintiff was hurt; fourth, because the evidence in the case wholly fails to show that the defendant had been guilty of any negligence proximately causing the injury; fifth, for the reason that it appears from the evidence that the injury sustained by the plaintiff did not result from any failure on the part of the defendant to avert or avoid a peril that an ordinarily prudent person, situated as was the defendant, in view of the facts, would have reasonably anticipated that injury might result as a natural consequence of the blowing of the whistle at the time and under the circumstances that the same was blown. And in its third and fourth assignments of error complaint is made that the evidence was insufficient to support the jury’s finding in response to special issue No. 2, wherein the jury found that said accident was proximately caused by reason of the sounding of the whistle then being installed by the defendant in its plant in North Ft. Worth on the date of said accident. And that said finding was contrary to' the • evidence. These four assignments we will consider together.

The evidence shows: That the whistle then being installed by the appellant was of a large pattern, calculated to give out a very considerable volume of noise, which volume of noise could not be gauged or regulated until the said whistle was tuned or tested and brought into harmony. That the volume and character of noise emanating from said whistle was of such an unusually piercing and threatening character as was reasonably calculated to frighten ordinarily gentle teams that might be in use in the near vicinity of the said whistle, and did in fact frighten the team of mules hitched to the wagon in which plaintiff was engaged in un- • loading the oil at the time of the accident.

Plaintiff, J. E. Farrow, testified, after giving a short history of his work and employment during several years, prior to the date of his injury, as follows:

“I found work as a day laborer at the Pierce-Fordyce Oil Association. My employment there was varied; some of it was digging ditches. One job I had there, I remember, was digging some brick out there between some walls. I had to do a laborer’s job there, and was receiving $2 a day. * * * I had been there, I think, about two months before X got hurt, and had been taken out of the gang, possibly three weeks before this accident occurred, and, after being out there quite a while, I was put on the wagon with a teamster as assistant to the teamster. * * * My work was in connection with the construction of the plant, which was still under construction. At the time I was hurt, there was a whole lot of oil that had been spilled ; I don’t know how. There was a levee thrown up around one of these iron tanks to prevent oil escaping, and the inside of it had been filled up with oil. We were called to take the wagon up there and get some barrels and get that oil and carry it to a certain tank. * * * Our method of transporting that oil from there to where w,e put it was that we took buckets and carried it up and put it in the wagon in the barrels on the wagon, and there was a number of us doing that; one or two standing on the wagon and some more dipping oil. * * * It was a flat-bottomed wagon, without siding, and we were working two mules to the wagon. A man named Wiley was driving the wagon at that time, and had been for two or three days. It would be a guess with me as to how far this place where we were getting this waste oil out of the tank was from the office where the whistle blowed. * * * It would be probably 200 feet from where the whistle was. We had carried a number of loads, possibly four or five or six, before that whistle blew. That whistle blew at 5:40 in the evening. This whistle had never been blown before that. I presume it was a new whistle that had just been installed. Never had seen it and never have seen it yet. * * * During the two months I was there they had never used any whistle, and I did not have any previous notice that there was going to be any whistle sounded. At the time the whistle blew, I was standing on the rear edge of the wagon behind those barrels and moving from the pit where we were getting the oil to the place where we were delivering it. I rode on the wagon each trip with those barrels after one or two. The oil would spill out over the barrels, and Mr. Best came up and asked me would I get something to keep the oil from sloshing out and put it over the barrels. Mr. Best has followed Mr. Luke Mooney as general manager. He directed the loading operations of that oil, and for a few minutes would get us lined out to work, and he came back a number of times to see how we were doing with it. * * * Bart of the time I assisted in emptying buckets into the wagon, and part of the time stood on the ground and handed them up. My. crew had been working in that particular work something like 2% hours when I got hurt. It was along up in tbe afternoon. At the time the whistle blew I was passing up a bucket of oil to one of the other men. There was an iron ladder that ran up alongside of the tank, and a man stood on that ladder, and another man stood up on the top and reached down, and we made a bucket brigade, and when one handed them up another took them and poured them into a tank. * * * We were not able to dip the bucket into the barrel and hand it to a man without getting down upon the ground. You could not empty the barrels and stand elsewhere than on the wagon. * * * At that time the driver a'nd another man were up on the wagon standing just behind me, I think, and there was one man on top of the tank and another one on the ladder. Wiley was the man that had charge of the team. I did not have anything to do with controlling the team at the time this particular work was being done. My work was to help get those buckets to the man. As I recall, at the time the whistle blew I was reaching up to hand a bucket of oil. That whistle sound was loud. It was as loud as any fire alarm I have ever heard. It was something like an Anchor Line steamboat whistle. I have heard whistles at plants before and since. I do not know of any that makes a noise that loud. It was sudden — a shriek. It was a blast. It was like a fire alarm. It was coarse and shrieking, and the effect it had upon the team was that it leaped instantly. They threw me from my balance. 1 caught at the barrel. The barrel was very near over. It came on over, and I went out tbe back. A man standing behind me in the wagon was thrown to the ground. The driver was out of my range of vision. After I got to there I could look around. The team ran only a short distance. The wheel, I think, was hung over a piece of iron, or ran into something possibly and stopped.”

Mack Berry testified as follows:

“My name is Mack Berry. I am 28 years old, and my occupation is that of a steam fitter. My present occupation is foreman of carpenter work on buildings. * * * I was employed by and working for the Pierce-Fordyce Oil Association in the construction of its plant at North Ft. Worth. My duties were those of general foreman, and under that title I hired and employed men, including the plaintiff, Farrow. My superintendent was Luke Mooney and George Best was assistant superintendent. Best was actively in charge while Mooney was away. I was blowing the whistle 600 feet from tbe team that ran away. I was working on the whistle. I had just installed it. I was testing the whistle for the first time. I blew the whistle just before the accident occurred. * * * Mooney directed me to blow the whistle. * * * My purpose in blowing the whistle was to test it and blow it at 5:30, quitting time. I blew the whistle at 5:30. Tbis was the first time the whistle had ever been blown at all. Well, it was a little out of the ordinary, loud for a whistle, and was different from most other whistles in the sound of the blast. It was located over the power house. It made a loud, shrill sound. Tbe whistle had not been adjusted at that time and I was blowing it partly for the purpose of adjusting it. It was greater in volume and penetration than an ordinary or locomotive whistle. No, I do not know of any whistle in this part of the country that are (is) as loud and shrill and penetrating as this one was at that time. No, the superintendent who directed me did not make any inquiries as to whether there was any teams near by to be frightened by the noise. I did qot make any investigation myself. No notice was given to the men that the whistle was going to be blown. I did not wait, because I had orders to blow it at 5 :30, if I got it up in time. It was hard to adjust. I had to make four adjustments of it before I got it to suit. It had not at that time been tested. ~ * * I toned it down to their satisfaction after the accident.”,

W. E. Stovall, witness for tbe plaintiff, after stating that he was a common laborer in the employ of the appellant, and. was working for the appellant at the time appellee got hurt, helping haul oil, testified, in part, as follows:

“I was dipping oil out of barrels and handed it up to other parties on the tank. Farrow was standing right in front of me. I was standing on the back end. Farrow was between me and the driver. * * * It was the whistle that frightened the mules and caused them to jump forward. It was a loud, shrill whistle. It had not been in the habit of blowing. It had not ever before been blown while I was there. I was working there a long time. I think it had just been put up. I did not have any notice that they were going to blow the whistle that evening. As compared to ordinary whistles in use in ordinary plants, this whistle seemed to be pretty loud and shrill.”

Geo. E. Best, superintendent, testified in part as follows:

“I know the tank at which Mr. Farrow was working at the time he got hurt. I know the approximate distance from the boiler house up to the turn in the road. It was about 300 feet, or 100 yards. I am certain that it is more than 100 feet. Down to the tank, approximately, after you turn the comer, is about 500 feet. I am certain that it is more than 100 feet. * * * That whistle was installed while I was there. It was installed on the afternoon of July 15, 1912, the day F'arrow was hurt. I did not pay much attention to the kind of noise that whistle made when I heard it; the same as an ordinary style of whistle, I call it, that has two cylinders in it, one of those ordinary whistles the same as these manufacturers have. They are all sirens. It did not, to my knowledge make any terrifying noise when it was blown. * * * We put in what we called a fire steam line. We had not installed the whistle, but we were having that done. I do not know the exact men Mr. Berry had helping him; probably had a couple of men. I did not tell him to put it in order. I did tell him .to install it. I did not tell him to test the whistle. I expected him to test it when they got it up. * * * I expected to use it and to try it as soon as I got it in readiness. I did not know that it would be gotten up that afternoon. As soon as it was gotten up, I expected him to try it and get it in working order. I never saw one installed before in my life. I did not give any notice to the men that the whistle was going to be tried out that evening. * * * I was in the office at the time. I do not know where Mr. Berry was. I had a whole lot to do besides watching my men on the yard. I turned that over to him to install the whistle. Installing the whistle meant testing it and putting it in order, and that was part of his work under that direction. I do not really know liow many times we had to test that whistle and retest it before we got it toned down sufficiently to be a good working whistle.”

W. T. Kirkpatrick, witness for the defendant, testified, in part, as follows:

“I remember the occasion of the installation of the whistle out there. Yes, I know about the installation of that whistle that day. I helped put it up there. E'red Williams, I believe, also helped to put it up there. We worked under the supervision of Mr. Black Berry. * * * I do not know the name of that whistle, or what kind it was, or whether or not it had a particular name. * * * That whistle is an ordinary steam whistle, double whistle; it has a double bell. A bell is a dome, usually termed a bell. * * * The whistle was on top of the building, and I was standing near the end of the building when I saw the man pull the whistle. He blew the whistle through curiosity, to see what it would sound like. That was necessary. We did not know what tones we would get, and we wanted to get it tested to see what it would be like. Those bells were screwed closer or farther away from the steam in order to adjust it and get your different tones. * * * You cannot tell, without blowing the whistle, what the tone will be. If you screwed one bell on in one position and the other bell in another one, you would first have to try your whistle to see what tones you got before you would know about regulating it, and then either draw it closer or farther away. You would blow the whistle, and, if too close together, you would put them apart; and, if too far apart, you would put them closer together. That is necessary to the installation of all steam whistles of that character. * * * The blast that was given by Berry was a reasonably short blast; just tried to blow it to see what it was going to sound like. It sounded like it was pretty dead; he had it a little too flat.”

Enough of the testimony is given above to sustain the finding of the jury, in answer to issue No. 2, that the accident, by reason of which plaintiff suffered the injury complained of, was proximately caused by the sounding of the whistle then being installed by the defendant company, and also the finding, in answer to issue No. 3, that Mr. Best authorized or directed Black Berry to test or sound the whistle on the occasion in controversy, and further, as found by the jury in answer to issue No. 4, the sound was an unusual one, and one reasonably calculated to frighten any ordinary, gentle team..' And further, as found by the jury in answer to issue No. 6, that the sounding of said whistle at said time, under all the circumstances, was negligence on the part of the defendant company.

As held by this court in the case of Bennett v. Railway, 159 S. W. 132, speaking through Chief Justice Conner, the issues of a defendant’s negligence and the proximate cause of an injury, on account of which a recovery is sought, are nearly always questions for the jury, and never become questions of law for the court, when there is evidence of probative force in support of the issue. It is well settled that the question of negligence, dependent upon the evidence, should not be taken from the jury, except in cases where there is no material conflict, and where there is no room for doubt or for different minds to draw different inferences from it. The question is one of law for the court only where the facts-are such that reasonable men must draw the same conclusion therefrom, and unless the conclusion follows, as a matter of law, that no recovery can be had upon any view that can properly be taken of the facts which the evidence tends to establish.

In Ft. Worth Belt Ry. Co. v. Cabell, 161 S. W. 1085, this court, speaking through Chief Justice Conner, says:

“In several forms it is earnestly insisted that if it be admitted, as ther.e was evidence tending to show, that the appellant railway company was guilty of negligence in either providing defective couplers or in maintaining a defective track, yet such acts of negligence cannot be held to be the proximate cause of appellee’s injury, for the reason that such injuries were not such as, in the light of the attending circumstances, ought to have been foreseen as a natural and probable consequence of such act of omission; numerous authorities being cited in support of this- contention. The doctrine of ‘proximate cause’ has been so frequently discussed, and is so well understood; that we cannot hope to add to what has from time to time been clearly stated on the subject in the decisions. There can be no doubt of the general proposition that it is ordinarily an issue for the jury to determine whether, in any given case, an injury similar in character to that under investigation ought to have been foreseen as a result of an act of negligence established by the evidence. If the injury follows the act of negligence in natural sequence, and' there is no independent, intervening cause, and the injury would not have occurred but for the act or acts of negligence shown, it meets the requirements of the law. Under such circumstances, the wrongdoer, as a matter of law, is held to have had the result in contemplation. The court gave an approved definition of the term ‘proximate cause,’ and we think it was for the jury in this case to say whether the acts of negligence shown caused or proximately contributed to cause appellee’s injuries, and whether such injuries, or some like injuries, under the attending circumstances, ought to have been foreseen. The jury’s verdict on this issue was in appellee’s favor, and under the evidence we do not think the verdict can be disturbed.”

Many other recent cases might be cited in support of this well-understood and generally accepted doctrine, but we will cite only Wininger v. Railway, 143 S. W. 1152; Little v. Jas. McCord Co., 151 S. W. 835; Railway v. Jackson, 133 S. W. 926; section 1925, vol. 2, Thompson on Negligence (1901 Ed). In view of the evidence in the case and the principles announced in the authorities cited, we are not prepared to hold that negligence on the part of the appellant company was not shown, and that said negligence was not the proximate cause of the injuries complained of, and therefore said assignments 1 to 4, inclusive, are overruled.

In its fifth assignment appellant complains of the submission by the court of special issue No. 4 of the main charge, wherein the court said:

“If you find that it was unusual and of such frightening character, your answer to this question will be, Yes,’ otherwise, ‘No.’ ”

This instruction was given in connection with the submission of the issue as to whether or not the whistle that was sounded by Mack Berry just before the accident occurred, was an unusual one, and one reasonably calculated to frighten any ordinarily gentle team. We think that said explanatory words were not improper and not subject to the objection of being upon the weight of the evidence, and indicating in any way the opinion of the court as to whether said whistle was unusual and of a frightening character, and does not contain the vice criticized in the case of Lee v. Yandell, 69 Tex. 37, 6 S. W. 665, cited by appellant, nor is it in conflict with article 1971, Vernon’s Sayles’ Tex. Civ. Stat., and therefore the fifth assignment is overruled, and likewise the sixth, which involves the same question.

In its seventh assignment of error, the appellant complains that the verdict of the jury was grossly excessive, and alleges cer-¡ tain misconduct of the jury in arriving at the amount of the verdict in that:

“The jury considered the statements and arguments made by jurors in the jury room while the jury were deliberating upon said case, to the effect that, of any amount the jury might award the plaintiff, he would have to pay one-half of the same to his lawyer, and, in arriving at their verdict, the jury awarded plaintiff an amount twice as large to which they thought he was entitled under the instructions of the court and the evidence introduced.”

There is no evidence shown in the record, and none adduced in support of the motion for new trial, that sustains the allegation of misconduct of the jury, and we only consider the question as to whether or not the evidence sustains the verdict. We think that the evidence in this case warranted the jury in finding that the plaintiff had sustained a painful and permanent injury to his left foot and leg, fracturing one or more of the smaller bones of' the foot and spraining the ankle of the other foot, and also fracturing one of the bones of the leg; that said injuries had caused plaintiff a great deal of pain and suffering and were probably permanent in their nature; and that they were reasonably calculated to cause the plaintiff inconvenience and suffering during the remainder of his life.

Plaintiff testified that he was 45 years of age, and was making, at the labor which he was then following, about $2 per day; that after the accident he was taken to Dr. Durin-ger’s office, where his foot was dressed and the breaks set; that the doctor inclosed it in a plaster of paris cast and wrapped it up; that plaintiff could not bear his weight on his foot at the time; that he suffered very severe pains for a period of several weeks; and that it “hurts to this good hour — hurts bad at night.” He further testified:

“When I got up, I think, it must have been ten weeks that I went around on two crutches. That cast remained on my foot about four weeks, and after that time there was no other dressing applied to it. I protected myself against injury by holding it up off the ground that way, and wore my sock and no shoe. I was on crutches about ten weeks, or probably longer. Then I got a big walking cane and went with that. I walked with that cane until May, I think, 1913. I went to Groesbeck, where I am now living, and was walking with a cane there, but I did not find it helped me much. I limp yet. I seemed to be getting along about as well without the cane as I did with it, so I discarded it. The shock to my system immediately following the accident and injury was quite intense for some little time. I judge a reaction set up. It grew very painful. It was acute. There is not a night I go to bed that I do not suffer. There is no cold spell or hot spell that does not register itself in that foot. It is not so bad early in the morning. If I am on my feet long during the day it [the foot] turns' out and gets painful. The tendons hurt. It hurts now. I have been walking some to-day. There is a projection on the bottom of my little toe — a lump right there. It is painful when I press it. There is a weakness there back of my little toe when I walk on that. There is a protuberance there, probably as much as a small pecan. There is not anything on the other foot to correspond with that. When that comes in contact with any hard substance, I get off as lightly as I can, turning my foot. I walk kind of like that (showing the jury). There is an enlargement in the ankle, that is the left. There is a lack of mobility or stiffness in the joint. * * * I have had that foot to go down with me, not before, but since, the injury. The use of that ankle after I got hurt was painful to me for a number of days — acute pain for several days. Dr. Duringer gave me some kind of an opiate or something he said would ease the pain. After I got so I could bear my weight on it, it was very painful. I tried to work for the Record and was walking, and after December I tried to walk on that foot, and it was swollen, so I had to keep my foot in hot water every night; and it turned blue, and it was painful all day. It is not so painful now, except at times.”

Dr. Geo. D. Bond, a physician, testified for the appellant that he made several X-ray pictures of the foot, and that it showed a fracture of the last bone of the left foot and the fifth metatarsal, back of the articulation of the toe; that every bone of the foot is necessary; and that the picture showed distinctly the break or fracture in the fourth metatarsal bone near the end, and also a fracture of what he called the “external malleolus.” He further testified that:

“Everything else being equal, the injury to the bones of the foot, after they have apparently healed, and the foot can be used again, gives more inconvenience and pain than injury to bones in .any other portion of the body, because they are called on to bear the weight of the body in walking. They are in constant use.”

He further testified:

“All the bones that were broken are united. They have grown together, but I do not think that the foot, in its present condition, is in good condition.”

Dr. W. E. Chilton, witness for the appellant, testified that he had examined appellee's foot in November, 1913, the injury occurring in July, 1912, and had found that there had been a fracture of the foot bone and the little toe, what is known as the fifth metatarsal bone, and there was some enlargement of the head of the fourth metatarsal bone. He further testified:

“I should think that it is a fact, by reason of frequent use of the foot, that anything abnormal, where it is an active part, is the occasion of more discomfort and inconvenience and pain than it would be in some other place where you do not have to put your weight on it.”

While $2,000 is a substantial recovery, we cannot hold, as a matter of law, that the same is excessive, and therefore appellant’s seventh assignment of error is overruled.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant, in its motion for rehearing, criticizes the finding and statement of this court as to the nature, extent, and location of the injuries of appellee. It urges that the evidence fails to show that any bones of ap-pellee’s leg were broken. Dr. Bond’s testimony was to the effect:

That the radiograph of the injured'foot, taken by him and exhibited during the trial, showed a fracture. “Picture 2000 shows a fracture of what we call the external malleolus ; that is, the end of the small bone of the leg. The fracture is across there, but it seems to have reunited. That dark in there shows where the fracture was across there, and the shadow is soft callous.”

The appellee testified that Dr. Duringer stated to him that there was a sprain of the ankle of the left foot. In the opinion, this court speaks of the sprain being in the “other foot,” to wit, the right foot. It appears we were in error as to which foot was sprained. But the sufficiency of the evidence to sustain the amount of the verdict may rest upon the left foot instead of the right and still be upheld.

Motion for rehearing is overruled.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    CAMPBELL BANKING CO. v. HAMILTON.
    (No. 8074.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 16, 1915.)
    1. Boundaries <®=»43— Judgment — Requisites — Certainty.
    In a suit to determine disputed boundaries to land, where it appeared that under judgment in favor of plaintiff for the possession of the land an officer could not put him in possession on account of indefiniteness, the judgment reading “beginning at the southwest corner of survey No. 1810,” etc., while not a single corner of such survey was actually fixed by a monument, its location being so indefinite that the results of two surveys to locate survey 1810 were in hopeless conflict according to the testimony of the surveyors who had made them, the judgment was ineffectual as not determining the issues involved in the suit,
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 20S; Dec. Dig. @=^43.]
    2. Appeal and Error <§=^301 — Objections Not Raised Below.
    The fundamental objection to a judgment that _ it does not determine the issues of the suit is not waived, though not raised on motion for new trial.
    [Ed. Note. — For other case, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <®=>301.]
    Appeal from District Court, Archer County; Edgar Scurry, Judge.
    Action by Geo. B. Hamilton against the Campbell Banking Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Fitzgerald & Cox, of Wichita Falls, and L. C. Counts, of McAlester, for appellant. W. E. Forgy, of Archer, and Kay & Akin, of Graham, for appellee.
   BUCK, J.

This suit was brought in the form of trespass to try title, but it is agreed by the counsel for appellant and appellee that there is involved a question, merely, of disputed boundary. Appellant owned the north one-half of section 1810, T. E. & L. Company survey, and appellee the south one-half. The location of the division line between their respective holdings was the issue sought to be determined by the suit. The cause was tried before a jury on special issues submitted, and plaintiff recovered judgment, which judgment, in part, is as follows:

“It is therefore considered, ordered, adjudged, and decreed that the plaintiff, Geo. B. Hamilton, do have and recover of and from defendant, the Campbell Banking Company, a firm composed of W. T. Campbell and R. T. Campbell, the following described tract and parcel of land situated in the counties of Archer and Young, in the state of Texas, to wit: Being 168.78 acres of land in the name of Texan Emigration & Land Company located by virtue of certificate No. 1810, and known as survey No. 1810. The whole of said survey being described by metes and bounds as follows: Beginning at the southwest corner of T. E. & L. Company survey No. 1810, the same being also the northwest corner of T. E. & L. Company survey No. 1809; thence north, 1,419 varas, to corner; thence east, 1, 344 varas, to corner; thence south, 1,419 varas, to corner, being the southeast corner of survey No. 1810 and the northeast corner of survey No. 1809; thence west, 1, 344 varas, to the place of beginning, and containing three hundred thirty-seven se/ioQ (337.56) acres of land — for which south one-half of said survey 1910 the plaintiff may have his writ of possession.”

It is claimed by appellant in the first assignment of error that this judgment decides nothing, and does not determine the disputed issue, and that the officer, under this judgment, could not put appellee in possession of the land described without assuming judicial functions to ascertain the boundary line and without locating the beginning point in said judgment mentioned, and which beginning point is not located on the ground, and was one of the disputed points in the trial of said cause. This specification we believe to be well taken. Wilhelm v. Bauman, 133 S. W. 292; Craig v. Mings, 144 S. W. 316.

Surveyor C. W. Henson, witness for appel-lee, plaintiff below, testified, in part, as follows:

“I began at the northeast corner of T. E. & L. Company 1398. There was a live corner there, a post oak. Erom there I went west 1,-344 varas, and there found a corner; yes, it was a live corner, as is called for in the field notes. I next went on 1,344 varas west, where I found another live corner, as called for in the field notes. I next went on west 1,344 varas, where I found another live corner. Then I continued on west for three surveys, each one being 1,344 varas east and west.. I passed two corners where there was nothing to indicate that there was a corner; there was no live corners there. They would be the northwest wner of survey No. 1377 and northwest corner of No. 1383. I did not find anything at the northeast corner of survey No. 1910; nothing to indicate a corner. Tes, sir; I looked, and there was nothing there. Erom there I went south 672 varas — one-half of a survey. No, sir; I did not run west from the northeast corner of 1810 at that time. I ran south from there for one-half of survey. I did not run the north line of 1810 clear through, at this particular time, but did run it through at another time. I ran a line straight west from the point 672 varas south of northeast corner of 1810 to the west line of said survey No. 1810. I did not run the west line of survey 1810 at that time, but did run it later on. The corner I put down 672 varas south from the northeast corner of survey No. 1810 was 122 varas north of the partition fence between Mr. Hamilton and Campbell Banking-Company. Tes, I later run the west line of survey 1810, and the corner I made, 672 varas south of the northwest corner of same, was 116 varas north of Campbell’s fence. The corners made by me were 122 varas on the east, and 116 varas on the west, north of the partition fence between Mr. Hamilton and Mr. Campbell. And the strip between these corners and the partition fence would be 1,344 varas long. If my work is correct, then Mr. Campbell would have this strip 1,344 varas long, and 122 varas wide on the east side and 116 varas wide on the west side, more land than the north 160 acres of survey No. 1810. In running these lines, I run on a variation of 9.45. I run from the northeast comer of survey 1398 to the northeast corner of survey No. 1810 on the variation of 9.45. I got this variation from these line corners over on the east where I commenced. I found four of those corners in line, and the variation remained the same in all of them. I continued west on the same variation, on this line. * * *
“Ordinarily, the surveyor, in running out this T. E. & L. Company land, did not run around a survey, but just run the base lines and did not run the lines between them. He would run the base lines and then double back, running 1,344 varas. If he was running west, then he would double back east 1,344 varas, and so continue, running the ends only. Mr. Campbell’s north fence on survey 1810 is 13 varas south of the line I run for the north line of said survey. There is a road or lane for a part of the way along the line I run until I got to 1810. There is no road on the north boundary line of 1398, nor 1397, nor 1389, but about two surveys I made further there is a lane on the north side. There is only one fence on the north of 1S10, but there is a road, and Mr. Campbell’s fence is on the north side of the road. There is no jog in the fence. Mr. Campbell’s pasture is on one side, and Dick Campbell’s pasture is on the other side. The line I run is about 13 varas north of the fence on the east side and a little closer on the west side. The fence bears away from the true line a little bit. I would say about 3 varas to the survey is the variation. At the northeast corner of 1373 it would be about 10 varas off. What I have stated before is all the surveying I have done over there, except that I ran down to the south side of Mr. Gilcrease’s survey, which is 160, and which lies south of Dr. Hamilton’s, and 1 did some surveying next day, over on the 1,300 tier of blocks. * * * Tes, if my work is correct, there is an excess of 75 varas overplus in survey No. 1810. That would be 17.8 acres of land, excess. Tes, 1 have recently surveyed to the north line of survey 1810. The way I did it was to go over to 1811’s northwest corner. This survey lies just north of 1810, and there are two corners over tljere; two stone corners, one 112 I believe, or 116 varas north of the other. At the south one of these corners which was 112 varas south of the other one, I found a stone in the ground; there were no bearing trees for that corner. The only other evidence of it being a corner was an elm tree called for in the field notes, but it did not fit the calling. There was no TEL mark on it.
“Q. Did the full distance from this marked corner take you to the Campbell fence? Is the Campbell fence 1,344 varas south from the corner with the bearing tree that you found? A. Now, when I got to Mr. Campbell’s fence from this north corner and went down south, I had 1,340 varas, and 4 varas further south there was a stone marked ‘NW to 1810.’ The distance was all right from corner to corner. Q. How far is it from that northwest corner of 1810, as established from the north, to the northwest corner of Dr. Hamilton’s land, as the fence now exists? A. Erom the north corner there, a stone on the north, I went south there; it is 774 varas from one of those corners, and from the other corner it would be 112 varas less; I mean from the live corner. I found at the northwest corner of survey 1811, it would be 774 varas to Dr. Hamilton’s land at the fence as it now exists. Erom the northwest comer of 1810 to the southwest corner of 1810 it is 1,419 varas, and from the northeast corner to the southeast corner it is the same distance as the west line, 1,419 varas. Dr. Hamilton has n’ot got as much as 160 acres of survey 1S10 inclosed in his inclosure. He lacks 47 varas on the east and 41 varas on the west. Tes, sir; there is an excess of 17.8 acres in survey No. 1810, and if Dr. Hamilton is entitled to one-half of it he would be entitled to 168.9 varas. In order for him to get the south half of survey 1810, his land would have to begin at a point 709% varas south from the northeast corner of survey No. 1810.”

On cross-examination he testified, in part, as follows:

“Tes, I located the corners I have testified about, that is, Campbell’s northeast and northwest corners and Hamilton’s southeast and southwest corners, from the four corners I found back east, being the corners of surveys Nos. 1397, 1389, and 1377, and from these corners I located the corners of No. 1810. These surveys are east of 1810. The nearest one is three surveys away from 1810. The way I found the corners of 1810, I started back here edst, six surveys, at the corner of 1398, northeast corner, and then run west passing the corners of 1397, 1380 (1389), and 1377, where I found corners. I did not find any other corners as I come west from 1377. I found the northeast corner of 1377, but did not find the northwest corner. Then I continued west another survey and made a corner there myself. Then continued west another survey and made a corner there. Then I run west another survey. I did not find any corner. I did not put down my distance. Then I went to the northwest (N. E. ?) corner of 1373 and run west 1,344 varas. That is the way I established the corners of survey No. 1810; and, in running from the corner that I made and called a corner, there is an excess in survey No. 1810. I run south then to what I termed the southeast corner of 1810. It was 1,419 varas. That brought me to a marked stone. There was nothing else there. The reason I run 1,419 varas here was because I had run those lines up there east on 1398 where there were good corners, and found that to be 1,419 varas. Yes, I made this last surveying this morning, of 1393. Yes, that excess of 75 varas over there on 1398 was what I was testifying about this morning on direct examination, and I base this overplus in survey 1810 on that of 1398. Yes, I established the south boundary line of survey 1810. I first established it by running from the east from the live corners at 1398, and then I established it from the north of 1811. In running from the north of 1811 due south for two surveys, and beginning at the south stone, at the northwest corner of 1811, running the distance of two surveys, would take me 125 varas south of the line of the south side of 1810, I make from the east. Beginning at the north one of the stones at northwest corner of 1811, and run south two surveys, carried me 13 varas south of the line made running from the east.”

E. W. Pry, witness for defendant, testified, in part, as follows:

“In surveying the land, I began at the southwest corner of survey 1809, in the middle of the road. I cannot say that it was a corner. It is a supposition, based upon the fact that it is the recognized corner of those land lines. There are no bearings there. Beginning there at southwest corner of 1809, I measured across 1809 and halfway across survey 1810. The distance gave out something like 10 feet south of a fence running east and west. * * * No, sir; I did not run entirely around survey 1810. Beginning at the point in the middle of the road above mentioned, we run north a survey and a half, and then turned east across 1810, and then run south back a survey and half, then west to the place of beginning. Then we went to the northwest corner of survey 1811, which is the southwest corner of 1S12. The field notes there call for an elm bearing tree, and I think a hackberry. At that point there is a regular corner there, possibly two of them left. I went to the elm tree. There were no letters on it. However, it had been chopped into. I measured the course and distance to locate the corner of 1811 and 1812. At that point the field notes call to go north on the west line of 1812 47% varas, crossing a creek. Prom the corner I found I run this line, and it crossed the creek at 47% varas.' Prom this corner I measured south across 1811 and halfway across 1810. Yes, there are two rocks at the northwest corner of 1811 and southwest corner of 1812, each having evidences of being put there for corners. I found the rock pile. I do not remember just how far apart these rocks are, but possibly 3 or 4 varas; something like that. Yes, from this corner I ran south across survey 1811 and halfway across 1810. This brought me to within three or four feet of the partition fence between Campbell and Hamilton. I did not run further down that west line, as I had run that before going up to the north of 1811, coming from the south from the middle of the road down there southwest corner of 1809. The middle of the road is the recognized line between those surveys. I have surveyed country there east, west, and north and south, on this T. E. & L. Company land. I did not run clear around survey 1810. I run the west line. I did not run the south line. I run across the survey a survey and a half from the northwest corner of 1811. At the meeting of the two lines I run one from the north and one from the south. Prom the line I ran, and taking into consideration the T. E. & L. Company land, the way it is surveyed, I could not tell whether or not there was an excess. There is no excess on the west side, and, if the survey is laid off in a square, there is no excess in it. The field notes of this survey show it to be laid off in a square.”

Enough of the evidence is given above to show the conflict in the testimony of the two surveyors, upon whose testimony the plaintiff and defendant in the court below, respectively, relied to support the contention advanced by each. As will be seen, there is not a corner in section 1810 fixed by any living object. The two surveyors disagree as to the location of the north line of said survey, and the corners of the south line are not determined by any fixed objects. The appellee, in order to locate a comer of section 1810, began at the northeast corner of section 1398, six miles east, and the appellant for the same purpose began at the northwest corner of section 1811, and also from the southwest corner of 1809. While the judgment merely awards the ap-pellee the south one-half of the section 1810, and without calling for any bearings and without any corner being located on the ground, the judgment proceeds to describe the entire section 1810, beginning at the southwest corner thereof.

We do not believe that the judgment determines the issues involved in the suit, and therefore is ineffectual.

Appellee objects to the consideration of this assignment because the question was not raised in the motion for new trial, and, if this were not a fundamental error, the objection would be sustained. But, since it is fundamental, the objection cannot be sustained.

Por the reasons given, the judgment of the trial court is reversed, and the cause is remanded.
      @^?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    GOLDMAN et al. v. SPANN et al.
    (No. 7274.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 13, 1915.)
    1. Assignments for Benefit oí1 Creditors <©=4^Gonveyances Creating Trusts.
    A conveyance by a debtor of Ms property to a trustee to take possession thereof, sell the same, pay certain preferred creditors and pay the remaining creditors a part of their claims, of making releases in full, and the residue, if any, to the debtor, is not a statutory general assignment for the benefit of creditors, but is a preferential deed of trust.
    [Ed. Note. — Por other cases, see Assignments-for Benefit of Creditors, Cent. Dig. §§ 2, 3; Dec. Dig. <©^4.]
    2. Assignments for Benefit of Creditors-(©=3268 — Conveyances—Right of Trustee.
    A trustee in a preferential deed of trust may not sue for a wrongful attachment on the property conveyed, where the creditors did not accept the provisions of the instrument and agree to its terms.
    [Ed. Note. — Por other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 804-839; Dec. Dig. <®^268.]

      Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by Jack Goldman and others against James W. Spann and others. From a judgment for plaintiffs, defendants appeal.
    Reversed and rendered.
    Spence & Haven and George Sergeant, all of Dallas, for appellants. Jones & Spann, of Dallas, for appellees.
   RASBURY, J.

On May 29, 1913, J. M. Camuti, of Dallas county, Tex., executed, acknowledged, and delivered to J. W. Spann an instrument in writing, whereby he conveyed to said Spann, in trust, a stock of groceries, together with all accounts due Camuti, all store fixtures, counters, desks, etc. Spann was vested with possession and given authority to sell the property so conveyed as his judgment dictated, and to apply the proceeds first to the payment in full of $50 attorneys’ fees to Jones, Jones & Spann; a sum equal to 10 per cent, of the whole amount realized from the sale of the property to J. W. Spann, the trustee, for services as such; $225 to Angelina Oliverier; and all rents due upon the premises occupied by Camuti at the time of the conveyance. The balance was directed to be paid pro rata to the other creditors named in the conveyance, numbering 10, on condition that the creditors released Camuti in full of their claims, if their pro rata reached an amount equal to one-third of the amount for which they were scheduled. It was finally directed by the conveyance that:

“The remainder of the proceeds, if any, after the above debts are paid, to be paid to J. M. Oamuti or representatives.”

None of those named as creditors in the conveyance accepted the provisions of the conveyance and agreed to be bound by its stipulations other than the trustee.

On June 10, 1913, Simmons-Newsome Company, one of the creditors scheduled by Ca-muti, sued him in justice court of Dallas county, for $182, securing at the time the issuance of a writ of attachment on the ground that Camuti was about to dispose of his property with intent to defraud his creditors, which by direction of Simmons-New-some Company was levied upon the property conveyed by Camuti to Spann as trustee. At trial there was judgment for Simmons-New-some Company, with foreclosure of attachment lien directing sale of the property impounded by the writ of attachment. The property was sold and the proceeds applied to the payment of costs and to part of the judgment.

After the filing of the suit by the Simmons-Newsome Company and the issuance and levy of the writ of attachment and on July 13, 1913, Spann, Camuti’s trustee, sued Jack Goldman, the constable levying the writ of attachment, and the sureties on his official bond, and the Simmons-Newsome Company, in the county court of Dallas county for $478.60, the alleged value of the property taken from the trustee, on the ground that such taking was wrongful. At the conclusion of the testimony the trial judge instructed verdict for the trustee, which was returned and followed by similar judgment, from which this appeal is taken.

The only issue on this appeal is whether the conveyance by Camuti was a mortgage — sometimes known as a preferential deed of trust — or a statutory general assignment for the benefit of creditors. Appellants maintain the conveyance was a mortgage and assert that, since the attachment was levied before acceptance by the beneficiaries, the mortgage was ineffective to fix a lien in their behalf, and as a further consequence the attachment lien became prior and superior to any right accruing to the beneficiaries in whose behalf the trustee was acting when he sued. We agree with the contention and hold the conveyance from Camuti to Spann a mortgage or preferential deed of trust. Its salient features are that the trustee shall take possession of Camuti’s property, sell' it, and with the proceeds pay certain preferred creditors in full, and, after so doing, pay the remaining creditors, one-third of their debt if release for full payment was made, the residue, if any, to be returned to Camuti. These provisions, particularly the one providing for the payment to Camuti of any surplus after payment of debts, are the ones that distinguish the instrument from a general assignment, and the rule is too well settled to require discussion. Adoue v. Collins, 36 S. W. 307; Willis et al. v. Holland et al., 13 Tex. Civ. App. 689, 36 S. W. 329; Tittle et al. v. Vanleer et al., 89 Tex. 174, 29 S. W. 1065, 34 S. W. 715, 37 L. R. A. 387; H. T. Simon-Gregory Dry Goods Co. v. Dean et al., 35 S. W. 305; Seward Confectionery Co. et al. v. Ullman et al., 89 Tex. 504, 35 S. W. 469; Seward Confectionery Co. et al. v. Ullman et al., 35 S. W. 1072; Watterman, Star & Co. v. Silberberg, 67 Tex. 100, 2 S. W. 578.

It is undisputed by the record, and was conceded by counsel for appellee upon submission of the case, that none of the creditors named in the conveyance accepted its provisions ánd thereby agreed to its terms. Such being the case, the trustee cannot, on behalf of the creditors, whom alone he represents or could represent, maintain the suit, since it was not only necessary for the trustee to allege and prove the execution of the conveyance, but to also allege and prove that the creditors in whose behalf he sues assented to or accepted the provisions of the conveyance before the levy of the attachment, thereby making the conveyance a completed contract. Schneider et al. v. McCoulsky, 6 Tex. Civ. App. 501, 26 S. W. 170; Scurry v. Fromer et al., 26 S. W. 461; Alliance Milling Co. v. Eaton et al., 86 Tex. 101, 25 S. W. 614, 24 L. R. A. 369. As we have said, the record here fails to evidence such facts. On the contrary, they show no assent to the conveyance by the creditors and a levy by appellant of attachment. Any wrongful acts, resulting from the attachment in the justice court, cannot affect the result, since that is a matter for adjustment between Camuti and Simmons-Newsome Company. The rights of the creditors whom ap-pellee represents arise upon the conveyance alone, and, said conveyance having never been completed by asset or acceptance, this suit cannot be maintained.

For the reasons indicated, the judgment of the trial court is reversed, and judgment here rendered for appellant, with costs of this court and the court below.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WADTHADD, J.

text:
    ZIMMER v. FIRST NAT. BANK OF PECOS.
    (No. 382.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 11, 1915.)
    1. Judgment <&wkey;713 — Conclusiveness — Questions Concluded.
    A judgment on the merits is conclusive between the parties and those in privity with them as to every matter litigated and any other matter which might have been litigated.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. &wkey;713.j
    2. Judgment &wkey;>715 — Res Judicata — Bae to Subsequent Suit.
    The principle of- res judicata operates as a bar to a second suit only when the point in controversy is the same in both suits.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1244-1246; Dec. Dig. <S&wkey;715.]
    3. Judgment &wkey;>715 — Res Judicata — Bae to Subsequent Suit.
    A judgment that funds in possession of a garnishee are exempt, because proceeds of a sale of the debtor’s homestead less than six months before the service of the writ, and discharging the garnishee, is conclusive on plaintiff, and bars a subsequent garnishment on the theory that before the judgment more than six months had expired since the sale, for the question could have been litigated in the original proceeding.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1244-1246; Dec. Dig. &wkey;715.]
    Appeal from Reeves County Court; H. N. MeKellar, Judge.
    Action by H. C. Zimmer against the First National Bank of Pecos, garnishee of P. D. Whitaker, a judgment debtor. From a judgment for the garnishee, plaintiff appeals.
    Affirmed.
    Hefner & Cooke, of Pecos, for appellant. J. A. Drane, of Pecos, and A. J. Wilson, of El Paso, for appellee.
   WADTHADD, J.

On April 21, 1913, -appellant, H. C. Zimmer, plaintiff below, had filed a suit against appellee, P. D. Whitaker, defendant in the justice of the peace court, Reeves county, and had at that time procured ; to be issued and served a writ of garnishment on the First National Bank of Pecos, Tex. The trial of the main suit, jury being waived, resulted in a judgment in favor of plaintiff against defendant for $123.85 and costs. In the garnishment branch of the suit, the bank answered that at the time of the service of the writ of garnishment, on the 26th day of March, 1913, there was and still is in the hands of the garnishee the sum of $243.40 to the credit of defendant, Whitaker; that said amount was placed to his credit on the 26th day of March, 1913, and was a part of the purchase money of certain property described in the garnishee’s answer, and was the-proceeds of a voluntary sale of the homestead of defendant, Whitaker, made less than six months before the service of the writ of garnishment, and in fact made on the date above mentioned, and the garnishee prayed that the court hear evidence as to the facts stated in its answer, so that it might not thereafter become liable by reason of the-premises. The record does not show that any answer was filed, other than a general demurrer and general denial, by the plaintiff, controverting the facts stated in the garnishee’s answer. The justice of the peace, in the garnishment part of the suit, a jury being waived, entered judgment discharging the garnishee, stating in the judgment that it appeared, from the answer of the garnishee and other evidence offered, that the funds in the hands of the garnishee at the time of the service of the writ, and now in its hands, are the proceeds of the voluntary sale of the homestead of defendant and wife, and were not .subject to garnishment, and that the sale of the homestead was less than six months before the time of the service of the writ. The judgment directed that the garnishee be authorized to pay the funds over to defendant, and gave judgment for costs. The plaintiff gave notice of and perfected his appeal to the county court from the judgment in garnishment. In the county court the garnishment appeal was ready for trial on the 17th day of October, 1913. On that day, the record shows, the cause being called for trial, the parties announced “ready,” and no jury being demanded, all questions both of law and fact were submitted to the court, and the court, having heard the pleading, the evidence, and argument, found that the funds in the hands of the garnishee are exempt property, being the proceeds of the voluntary sale of the homestead, made less than six months prior to the service of the writ of garnishment, and that the garnishee, having made full answer, was discharged, and authorized to at once pay the funds in his hands to the defendant. The record shows no answer filed by the plaintiff, controverting the answer of the garnishee.

The record shows that on the 14th day of October, before the judgment in garnishment was entered on the 17th of October in the county court, plaintiff made another affidavit in the justice of the peace court, where the original suit was pending, stating the fact of the said judgment against defendant, that it was unsatisfied, and on the same day, 14th of October, procured another writ of garnishment against the same garnishee bank on the same fund. The second garnishment proceeding took the same course through the justice and county courts, with the exceptions hereinafter mentioned. It is the second judgment in garnishment in the county court from which this appeal is prosecuted. To the second writ in garnishment, in the justice of the peace court, the garnishee bank answered that defendant Whitaker had on deposit when the' writ was served $243.40, omitting to state that it was the proceeds from the salo of the homestead. Defendant Whitaker intervened and answered, stating that the parties and the subject-matter in this proceeding were the same as that heard upon its merits in the county court on the former appeal, and in which a final judgment was rendered ; that the judgment was valid and subsisting, and had never been set aside or appealed from; that the funds in the possession of the garnishee were the identical funds in his hands on which the judgment in the county court was rendered; and pleaded that said judgment was a final adjudication of the subject-matter, and pleaded estoppel by said judgment and res adjudicata. He further pleaded damages by cross-action, but same was dismissed, and we need not further refer to it. The record does not show any answer filed by the plaintiff, either to the pleas of defendant Whitaker or to the answer of the garnishee. The justice of the peace entered up judgment, sustaining each of said pleas, and dismissed the garnishment proceedings, discharged tlib garnishee, and rendered judgment for costs against plaintiff. The plaintiff gave notice and perfected an appeal to the county court. At the January term of the county court, no other pleadings having been filed, all parties announced “Ready for trial,” a jury was waived, the county court entered up judgment, reciting:

“All matters of fact as well as of law being to the court submitted, and the court, having heard the pleadings read, the evidence offered, and the argument of counsel, is of the opinion that the pleas of res adjudicata and estoppel of the intervener, P. L. Whitaker, is well taken. It is therefore. ordered, adjudged, and decreed that the plaintiff, H. C. Zimmer, take nothing by reason of his writ of garnishment against the First National Bank of Pecos ”

—and ordered that the garnishee be discharged and awarded costs. Appellant filed a motion for a new trial, and, same being overruled, he gave notice of appeal to this court.

Appellant presents two assignments of error : First, error in rendering judgment in favor of the garnishee, because his answer showed that it was indebted to Whitaker, and there was no evidence showing that the fund was exempt from the garnishment; second, error in sustaining the pleas of res ad-judicata and estoppel of the intervener, be-j cause the evidence showed that the matters involved in the suit had never been adjudicated. The statement of facts filed in this case shows an agreement by the parties that appellant has a valid judgment against P. L. Whitaker, rendered in the justice of the peace court for the sum of $123.85, interest and costs. The statement shows a further agreement as to the identity of the plaintiff, the garnishee, and the defendant with the same parties mentioned in the several judgments and proceedings in the justice and county courts, and that the money shown to be in the possession of the garnishee by his answer in each of the causes was the identical and only money that Whitaker had in the garnishee bank. The evidence offered in the county court, from which this appeal is prosecuted, consisted of the writs of garnishment, answers of the garnishee, and the judgment of the justice' and county courts. The pleadings, so far as the record shows, consisted of the plaintiff’s affidavit in garnishment and pleas of the intervener.

The rule in this state is that the effect of a final judgment on the merits is conclusive of all questions decided between the same parties, and those in privity with them, as to every matter which was offered and received to sustain or defeat the claim or demand. It is a finality, not only as to every matter wdiich was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose: Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; Nichols v. Dibrell, 61 Tex. 541; W. C. Belcher Land Mortgage Co. v. Norris, 34 Tex. Civ. App. 111, 78 S. W. 390; Foster v. Wells, 4 Tex. 101; Brown v. Hearon, 66 Tex. 63, 17 S. W. 395.

The principle of res adjudicata operates as a bar to a second suit only when the point in controversy is the same in both suits. Freeman v. McAninch, 87 Tex. 132, 27 S. W. 97, 47 Am. St. Rep. 79. The final judgment affects both plaintiff and intervener alike. Hudson v. Morriss, 55 Tex. 595. Was the point in controversy in the two suits the same?

The plaintiff did not dispute the facts in either suit, recited in the garnishee’s answers and made a part of the findings of fact and judgment of both courts under the first writ, that the money in the possession of the garnishee bank was the proceeds from the voluntary sale of defendant’s homestead made within six months prior to the first writ of garnishment, and that at the time of the service of the first writ of garnishment, and the judgment of the county court on the 17th day of March, 1913, the money was exempt and not subject to his writ. The judgment, under the authorities recited, evidently precluded the plaintiff from denying the exemption of the money on the date of the judgment. The judgment of the county court, discharging the garnishee and directing that the garnishee could deliver the money in its possession to the defendant, could not be made effectual or executed, if the plaintiff could, prior to the rendition of the judgment, by another affidavit, procure another writ of garnishment on the same debt, against the same defendant and the same garnishee, as to the same money. The judgment of the county court on the 17th day of October determined all claims or liens that plaintiff could possibly have secured by writs of garnishment against that homestead money in the possession of that garnishee. Any other rule would fill the courts with causes which have once been determined, and render all rights of property uncertain and the most solemn judgments a mockery. Crane v. Blum, 56 Tex. 325. If the money in the possession of the bank was subject to plaintiff’s debt on the 14th day of October, 1913, by reason of the expiration of the six months period of limitation, as claimed by appellant, that fact could have been pleaded and made an issue in the case then pending in the county court. Not having been made an issue, under the law, it became res adjudicata, and plaintiff was thereafter estopped from making an issue of that fact in the second suit. Any other rule would effectually defeat the very purpose of the law in exempting the proceeds of voluntary sale of the homestead from the writ of garnishment for six months, if by successive writs of garnishment the money could be detained until the expiration of the time of its exemption, and then seize upon it and apply it to the payment of the debt.

There was no error in the judgment of the court in sustaining the pleas. The assignments are overruled, and the judgment is affirmed.
      <§=x>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    Ex parte McDANIEL.
    (No. 3439.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Habeas Corpus &wkey;>92 — Scope op Hearing —Interstate Extradition. '
    The court, on habeas corpus by one in custody under a requisition warrant for his arrest as a fugitive from the justice of another state, will not go into the facts of his guilt or innocence of the offense charged by the demanding-state.
    [Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. §§ 81, 83, 87-96; Dec. Dig. 92.]
    2. Extradition <&wkey;-30 — Interstate Extradition — “Fugitive prom Justice.”
    A person who commits a crime in one state and departs therefrom and is found in another is a “fugitive from justice.”
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. § 32; Dec. Dig. i5&wkey;30.
    For other definitions, see Words and Phrases, First and Second Series, Fugitive from Justice.]
    3. Habeas Corpus <&wkey;85 — Interstate Extradition.
    , An. extradition warrant for the arrest of a fugitive from the justice of the demanding state makes a prima facie case on habeas corpus for the discharge of accused, and the burden is on him to show that the warrant was not legally issued.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. &wkey;>85.]
    4. Extradition &wkey;>36 — Interstate Extradition — Warrant—Complaint.
    An extradition warrant, which recites that the demand was accompanied by a “complaint,” instead or by a copy of an affidavit duly certified as authentic by the Governor of the demanding state, is sufficient on habeas corpus.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 40-43; Dec. Dig. &wkey;36.]
    5. Extradition &wkey;>36 — Interstate —Valid - ity — Presumptions.
    An extradition warrant, which recites that accused stands charged by complaint before the proper authorities of the demanding state and that the demand is accompanied by a copy of a complaint sworn to before a justice of the peace, duly certified as authentic by the Governor of the demanding state, presents a prima facie case of the authority of a justice of the peace to act as magistrate, and accused has the burden of showing the contrary to obtain his discharge on habeas corpus.
    [Ed. Note. — For other cases, see Extradition, Gent. Dig. §§ 40-43; Dee. Dig. &wkey;536.]
    6. Habeas Corpus &wkey;>103 — Persons Subject to Extradition — Persons Charged with Crime.
    Where accused detained under an extradition warrant sought his discharge on habeas corpus and showed that two indictments found in the state were pending against him, the court must order the detention of accused until the indictments are disposed of, with direction for his delivery under the extradition warrant.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 90, 91; Dec. Dig. tg=^103.J
    Appeal from District Court, Fannin County ; Ben 1-1. Denton, Judge.
    Application for habeas corpus by W. L. McDaniel for his discharge from custody under an extradition warrant.
    From a judgment remanding him to custody, he appeals. Affirmed, and relator remanded to the custody of the sheriff to be dealt with in accordance with the opinion.
    Cunningham & McMahon, of Bonham, for appellant. R. T. Lipscomb, Dist. Atty., of Bonham, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Upon application made by the Governor of New Mexico, his excellency, Governor O. B. Colquitt, granted the requisition, in language as follows:

“In the Name and by Authority of the State of Texas.

“Executive Department.
“To All and Singular the Sheriffs, Constables, and Other Civil Officers of Said State:
“Whereas, it has been made known to me by the Governor of the state of New Mexico that W. L. McDaniel stands charged by complaint before the proper authorities, with the crime of drawing and uttering a worthless draft in the sum of four hundred dollars committed in said State, and that the said defendant has taken refuge in the state of Texas, and whereas, the said Governor, in pursuance of the Constitution and laws of the United States, has demanded of me that I cause the said fugitive to be arrested and delivered to James W. Johnson, who is as is satisfactorily shown, duly authorized to receive him into custody and convey him back to said state, and whereas, said demand is accompanied by copy of said complaint duly certified as authentic by the Governor of said state:
“Now, therefore, I, O. B. Colquitt, Governor of Texas, by virtue of the authority vested in me by the Constitution and laws of this state and the United States do issue this my warrant, commanding all sheriffs, constables, and other civil officers of this state, to arrest and aid and assist in arresting said fugitive and to deliver W. L. McDaniel when arrested .to the said agent in order that he may be taken back to said state to be dealt with for said crime.
“In testimony whereof, I have hereunto signed my name and have caused the seal of state to' be hereon impressed, at Austin, Texas, this 14th day of January, A. D. 1015.
“[L. SJ O. B. Colquitt, Governor. “By the Goveimor:
“D. A. Gregg, Secretary of State.”

Under this authority relator was arrested and delivered to Mr. Johnson. Relator sued out a writ of habeas corpus before Judge Denton. When a hearing was had, Judge Denton remanded the relator to the custody of Mr. Johnson, from which judgment he prosecutes this appeal.

Upon the hearing relator desired to go into the facts upon which the complaint or affidavit was founded, and show that he was guilty of no offense. This the court declined to permit him, and he presents this matter for review by bills of exception. It has been uniformly held by this court and the Supreme Court of the United States that the question of the guilt or innocence of a person of the offense charged will not be inquired into on habeas corpus in this character of ease. This question came before the Supreme Court recently in the case of Drew v. Thaw, 235 U. S. 432, 35 Sup. Ct. 137, 59 L. Ed. -, and it was held that on the habeas corpus hearing the question of guilt or innocence will not be inquired into; that court saying:

“When, as here, the identity of the person, the fact that he is a fugitive from justice, the demand in due form, the indictment by a grand jury for what it and the Governor of New York allege to be a crime in that state, and the reasonable possibility that it may be such, all appear, the constitutionally required surrender is hot to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place. We regard it as too clear for lengthy discussion that Thaw should be delivered up at once.”

In the same case the coiu’t also passed on the question that motive of the person in leaving the demanding state was wholly immaterial, it holding:

“If the conspiracy constituted a crime, there is no doubt that Thaw is a fugitive from justice. He was a party to the crime in New York and afterwards left the state. It long has been established that, for purposes of extradition between the states, it does not matter what motive induced the departure. Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; Appleyard v. Massachusetts, 203 U. S. 222, 226, 227, 27 Sup. Ct. 122, 51 L. Ed. 161-163, 7 Ann. Cas. 1073.”

In Denning v. State, 50 Tex. Cr. R. 629, 100 S. W. 401, this court held it was not error to refuse to hear evidence as to the guilt or innocence of the defendant, that being a question for the courts of the demanding state, the court saying:

“The question of the guilt of relator or any other ulterior purpose behind the prosecution cannot be inquired into.”

In Coleman’s Case, 53 Tex. Cr. R. 99, 113 S. W. 17, and Hibler’s Case, 43 Tex. 201, this court and the Supreme Court have both held that a person who commits a crime in one state and departs therefrom, and is found in another state, may be regarded as a fugitive from justice.

There is no contention that relator was not in the state of New Mexico when the crime charged is alleged to have been committed, and subsequently left and came to this state.

While in Cheatham’s Case, 50 Tex. Cr. R. 53, 95 S. W. 1077, it is held that the courts may go behind the Governor’s warrant and review the grounds upon which the Governor may have issued the warrant, and in that case, because the offense was alleged in the affidavit “upon information and belief” the relator was discharged, in this case the affidavit contains no such words; it being in the following language:

“State of New Mexico v. W. L. McDaniel.
“State of New Mexico, County of Chaves.
“On this 26th day of December, A. D. 1914, personally appeared Roy Ammerman before the court of R. D. Bell, justice of the peace in and for precinct No. 2 of the county of Chaves, in the state of New Mexico, and after having been duly sworn in conformity with law says that W. L. McDaniel did violate the laws of New Mexico by giving to the First State Bank & Trust Company of Roswell, N. M., a check or draft in the sum of $400.00 on the Farmers’ Bank of New Hope, Tex., and receiving the money on same knowing the same would not be paid, and that this happened on or near Roswell of the 10th day of December, A. D. 1914, in the county of Chaves and state of New Mexico, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of New Mexico.
“[Signed] Roy Ammerman, Complainant.
“Sworn to and subscribed before me on this 26th day of December, A. D. 1914.
“[Signed] R. D. Bell, Justice of the Peace.”

And while it is held that the courts may go behind the Governor’s warrant, yet it has always been held that the warrant issued by the Governor makes a prima facie case on habeas corpus,, and the burden is on the defendant to show that the warrant was not legally issued. White v. State, 39 Tex. Cr. R. 499, 46 S. W. 639; Hibler v. State, 43 Tex. 202; Stanley v. State, 25 Tex. App. 378, 8 S. W. 645, 8 Am. St. Rep. 440.

Relator indulges in a criticism of the Governor’s warrant for using the word “complaint,” instead of reciting that the “demand was accompanied by a copy of an affidavit duly certified as authentic by the Governor of Now Mexico.” This question was decided adversely to' relator’s contention in the case of Ex parte White, 39 Tex. Cr. R. 499, 46 S. W. 639. In addition to this, the complaint or affidavit was introduced in evidence, as hereinbefore shown, and it is such an affidavit as is required by law.

Relator also contends that, as the affidavit was sworn to before a justice of the peace, it was incumbent on the state to show affirmatively that under the laws of New Mexico a justice of the peace is a “magistrate” in that state. As the Governor’s warrant recites “relator stands charged by complaint before the proper authorities, and whereas said demand is accompanied by a copy of the complaint duly certified as authentic by the Governor of that state,” it presents a prima facie case, and, if in fact a justice of the peace is not a magistrate in New Mexico, it was incumbent upon relator to show that fact. Stanley v. State, 25 Tex. App. 378, 8 S. W. 645, 8 Am. St. Rep. 440; White v. State, 39 Tex. Cr. R. 499, 46 S. W. 639.

The only other question we deem it necessary to discuss is the one wherein relator shows there are two indictments pending against him in the district court of Eannin county; that he has been arrested on such indictments, and given bond, and he contends that he.should not be turned over to the New Mexico authorities while such indictments are pending. This record discloses that the two indictments are pending in the court over which Judge Denton presides ; that he was the judge who heard the application for habeas corpus, and, when relator introduced the two indictments in evidence, the district attorney filed motions asking leave to dismiss both of said cases, giving reasons therefor, with the knowledge and consent of the district judge. In approving the bill showing these facts, Judge Denton states when the district attorney filed those motions to dismiss the cases, and he consented and agreed that he might do so, the relator objected to it being done in vacation, and this is the only reason why the order of dismissal was not entered at that time. He further states that the order of dismissal will be entered in term time. In the case of Ex parte Hobbs, 32 Tex. Cr. R. 318, 22 S. W. 1035, 40 Am. St. Rep. 782, wherein the relator was under arrest for an offense against the laws of this state, it was held that the relator should not be extradited during the pend-ency of that case, but he should be held without bail until that case was disposed of and then surrendered to the Tennessee authorities. If relator objects to a dismissal being entered in vacation, under the authority of the Hobbs Case, supra, he is not entitled to be released from custody, but should be'remanded to jail in Eannin county to be held until the order of dismissal is entered, or the two cases pending against him are otherwise disposed of, and then be delivered by the sheriff of Eannin county to the officer authorized to receive him by the Governor’s warrant, and it is so ordered.

Affirmed, and relator is remanded to the custody of the sheriff of Fannin county, to be held and dealt with in accordance with this opinion.
      <©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McHENRY v. STATE.
    (No. 3399.)

    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Ckiminai, Law &wkey;>1092 — Appeal — Questions Reviewable — Bill of Exceptions.
    Where the court refused bills of exception, and accused made no attempt to prove them, they cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;5l092.].
    2. Criminal Law &wkey;>llll — Appeal—Bill of Exceptions — Qualification — Acceptance.
    Accused, accepting bills of exception as qualified by the court in. approving them, is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. <i&wkey; 1111.]
    3. Criminal Law &wkey;>419, 420 — Evidence-Admissibility.
    Accused, desiring the testimony of what third persons told a witness, should call the third persons as witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <&wkey;419, 420.)
    4. Criminal Law <&wkey;llll — Appeal — Questions Reviewable — Conduct oe District Attorney.
    A bill of exceptions relating to the argument of the district attorney, which, as qualified, shows that the district attorney used no such language as stated in the bill as prepared, and which then sets out the language which was used, and that the language was in direct reply to the argument of attorney for accused, presents no error for review on appeal.
    . [Ed. Note. — Eor other cases, see .Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. &wkey;> 1111.]
    5. Witnesses <&wkey;374 —Bias — Impeaching Evidence.
    The reason why a sheriff had discharged his deputy, the prosecuting witness, was properly excluded, as not showing animus or ill will toward accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dee. Dig. &wkey;374.)
    6. Criminal Law <&wkey;730 — Appeal — Questions Reviewable — Misconduct oe District Attorney.
    A bill of exceptions complaining that during the trial the district attorney said, while a witness was testifying, that accused was a pet of the officers of the county, that accused objected to the remarks, when the district attorney replied that he “never said that he was the officers’ pet,” but said “he might be this officer’s pet,” qualified so as to show that the remarks were made during a colloquy between the district attorney and accused’s counsel, and that the court directed the jury not to consider the remarks, and reprimanded the district attorney and accused’s counsel, presents no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=730.]
    7. Criminal Law <§=>726 — 'Trial—Argument of District Attorney.
    The statement of the district attorney that the law was made for negroes as well as the white people, called out by language of defendant’s counsel, was not improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. <@=726.]
    8. Criminal Law <©=3938 — New Trial — Grounds — Impeaching Testimony.
    Newly discovered testimony, impeaching the prosecuting witness on an immaterial issue, is not ground for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. <@=938.]
    9. Criminal Law <@=942 —New Trial-Grounds — Impeaching Testimony.
    A new trial on the ground of newly discovered testimony, which will not tend to impeach prosecuting witness, but, if anything, tend to corroborate his testimony, is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. <@=942.]
    10. Bribery <©=11 — Evidence—Sufficiency.
    Evidence held to sustain a conviction for attempted bribery.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. § 10; Dee. Dig. <@=11.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Tom McHenry was convicted of crime, and he appeals.
    Affirmed.
    B. L. Durham, of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       Rehearing denied February 24, 1915.

   HARPER, J.

In this case R'. B. Green, who was a deputy sheriff, testified that after the arrest of Tom Flemming on a charge of unlawfully carrying a pistol, and while he was on his way to jail with Flemming, appellant approached him and offered first to pay him $30 to release Flemming. Upon his declining to do so, appellant then offered him the sum of $50, and then $60, to release Flemming, all of which it seems he declined, and Flemming was placed in jail. Upon this testimony appellant was indicted, charged with attempting to bribe Green to release a prisoner, and, when tried, he was convicted, and his punishment assessed at two years’ confinement in the state penitentiary.

Bills of exception Nos. 7 and 8 were refused by the court for reasons stated, and, as appellant made no attempt to .prove them up, of course they cannot be considered.

Bills of exception Nos. 1, 2, 3, 4, 5, and 6 were qualified by the court in approving them. Appellant accepts the bills as qualified and files them, and, under such circumstances, is bound by the qualification. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368.

Bill No. 1 is in effect refused, because, in the. order approving same, it is stated that the witness was permitted to testify to all facts within his knowledge, and objections were sustained only to that portion of the testimony of the witness wherein appellant had sought to have him to testify what third parties had told him. If appellant desired such testimony, he should have called the persons as witnesses who told Justice Crawford these things, and not attempted to prove such statements by Judge Crawford.

Bills 2 and 4 relate to the argument of the district attorney. The qualifications state the district attorney used no such language as stated in the bills as prepared, and then in the qualification sets out the language which, in the opinion of the court, was used, and the further fact that the language used was in direct reply to the argument of Mr. Durham, attorney for appellant. As approved, these two bills present no error. The court was not requested to instruct the jury to not consider the remarks, and the authorities cited by appellant are not in point.

Bill No. 3 is a bill reserved to the' court declining to permit appellant to ask the prosecuting witness Green: “What reason did Sheriff Jordan give you for discharging you as deputy?” The witness Green was not on trial, but appellant was the person being tried. The bill does not allege that the witness Green had been indicted for any offense, and for this reason had been discharged by the sheriff. Attached to the contest of the motion for a new trial is an affidavit of the sheriff that the alleged answer in the bill does not correctly represent the facts, and the court, in approving the bill, shows that no such answer as is alleged could or would have been elicited from the witness. The matter does not relate in any way to the transaction for which appellant was being tried, and the court did not err in sustaining the objection, for it could not be a material inquiry in this case why the sheriff had dispensed with the services of Green as a deputy sheriff. At least appellant states no facts which would make it a material inquiry. The case of Green v. State, 54 Tex. Cr. R. 3, 111 S. W. 935, cited by appellant, does not sustain his contention. In that case it was held, as the question" and answer would have shown his animus, ill will, motive, etc., the testimony was admissible. In this case the question and answer could have had no such bearing.

In bill No. 5 it is claimed that during the trial Mr. Manry, the district attorney, said, while G. W. Childs was testifying, “that he (appellant) was a pet of the officers of Jefferson county”; that appellant objected to the remarks, when the district attorney replied, “I never said he was the officers’ pet,” but said, “He might be this officer’s pet, for all I know.” In approving the bill it is stated by the court the remarks were made dur-I ing a colloquy between appellant’s counsel and the district attorney, and the court at the time instructed the jury not to consider such remarks, and reprimanded at the time both the district attorney and appellant’s counsel for engaging in side-bar remarks. As qualified the bill presents no error.

Bill No. 6 complains that the district attorney stated during the trial, “The law was made for the negroes.” If such a remark had been made, it would have been improper, but in approving the bill the court says that, in reply to the language of the defendant’s attorney, state’s counsel had said, “The law was made for the negroes as well as the white people.” , This latter remark merely states a truism, and, as it was called out by the language of the defendant’s counsel, it was not improper.

These are all the bills in the record, but in the motion for a new trial appellant claims to have discovered new testimony, and asks a new trial on account thereof. In the course of his testimony the witness Green testified that after the arrest of Flemming he had turned him over to Dale Reeves, while he went to look for some other violators of the law; that he came back and got Flemming and started to jail with him, and it was as he was on his way to jail that the offer to bribe him was made by appellant. He did not state that Reeves was present when the offer was made, but his testimony excludes that idea.

Appellant, since the trial, has secured the affidavit of Reeves, who swears he was not present on that occasion, and that Green did not turn Flemming over to him to hold ■while he went to look for other persons. If Reeves had testified he was present and no offer to bribe was made, it would be material, but it is immaterial to whom Green turned Flemming over to hold for a few minutes. The offer to bribe, if made, had not then been made, and was not made until Green says he had again taken charge of the prisoner, and was on his way to jail with him. The testimony of Reeves could have no bearing, except to tend to impeach Green on an immaterial issue, and such testimony has never been deemed of sufficient importance to authorize a new trial.

He also attaches the affidavit of Mr. Tarver, who says he will testify that he had a talk with Green prior to the trial of this case, and he heard Green say: That the only way that he knew appellant was the man who offered to bribe him to release Flemming was that the man who offered to bribe him came on the train that day with Flemming. If Green did so state, this would be no contradiction of Green’s testimony on the trial. The testimony of Flemming and appellant both show that they came to Silsbee on the same train that day; that they got off the train together, and were together for some five minutes after getting off the train. So this testimony, instead of tending to impeach Green, would, if anything, tend to corroborate his testimony on the trial of the case, and the court did not err in refusing to grant a new trial on account of the alleged newly discovered evidence.

Appellant earnestly insists that the testimony is insufficient to sustain a conviction. We have read the testimony carefully and thoughtfully. If the testimony of Green is true, it supports the verdict, and evidently the jury believed him, and we cannot say his testimony is not true. Appellant presented a strong defense, and no one could have censured the jury if they had acquitted appellant. But it apparently did not raise a doubt in the minds of the jury that Green was not telling the truth. Appellant severely assailed Green on the trial, but this did not shake the jury’s confidence in his testimony, and it is asking too much that we, at this distance, wholly discredit and reverse the case.

There being no error pointed out in the record, the judgment is affirmed.
      <g^?Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©u5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes