source: Caselaw Access Project

author: WILLIAMS, Special Judge. PRENDERGAST, P. J.

license: Public Domain

text:
    SORRELL v. STATE.
    (No. 2828.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.)
    1. Homicide (§ 203) — Evidence — Dying Declarations.
    Where deceased after being shot came into a yard and stated that he was killed,_ asking for a bed to die on, such statement constituted a sufficient predicate for the admission of his subsequent statements with reference to the difficulty as a dying declaration.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    2. Homicide (§ 8) — Degkees oe Murder — Abolition — Retrial.
    Where accused was tried under the law dividing murder into degrees and convicted of murder in the second degree, and before retrial after reversal the degrees of murder were abolished, accused was still subject to conviction at least of murder in the second degree under the old law.
    [Ed. Note. — Por other eases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    3. Criminal Law (§ 126) — Venue—Change of Venue — Prejudice of Inhabitants.
    In a prosecution for homicide, facts held to entitle defendant to a change of venue for prejudice of the inhabitants.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. § 126.]
    4. Criminal Law (§ 126) — Venue—Change of Venue — Local Prejudice.
    Const, art. 1, § 10, guaranteeing accused a speedy public trial by an impartial jury, means that the trial judge shall not put accused to trial in a county unless the circumstances and conditions of public sentiment are such that the judge feels able to give an absolute assurance that neither by accident nor design will any sentiment against 'accused creep into the jury box except such as is alone raised by the testimony introduced at the trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. § 126.]
    5. Homicide (§ 174) — Dying Declaration— Statement by Witness to Deceased.
    A statement by a witness to deceased after he had been shot and while he was giving a dying declaration that deceased should have known better than to have gone out with defendant to the place where the shooting occurred was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    6. Homicide (§ 215) — Evidence — Dying Declaration.
    A dying declaration by deceased that “he was shot down like John Ross” was mere opinion and inadmissible.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 451-456; Dec. Dig. § 215.]
    7. Criminal Law (§ 1163) — Appeal—Prejudice — Presumption.
    Where an inadmissible statement of deceased’s opinion that “he was shot down like John Ross” was deliberately introduced, and there was nothing in the record to disclose what its weight or effect would probably be before the jury, its character being such as could reasonably be hurtful, the appellate court was bound to presume that the state, in offering the testimony, did so intelligently and that it was helpful to the state and detrimental to accused.
    [Ed. Note. — Por other cases, see Criminal Law, Cent Dig. §§ 3090-3099; Dec. Dig. § 1163.]
    8. Criminal Law (§ 351) — Evidence — Plight — Bail Bond — Forfeiture — Judgment Nisi.
    While evidence of flight is ordinarily admissible as indicative of guilt, yet a judgment nisi in an ex parte proceeding against accused for the forfeiture of his bail bond because of his failure to appear for trial, not being a final adjudication of any fact, was inadmissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dee. Dig. § 351.]
    9. Homicide (§ 156) — Theory of Killing— Evidence — Prior Difficulty.
    Where the state claimed that the killing was malicious, while defendant claimed that he was, at most, guilty of manslaughter, and that the killing was on adequate cause, evidence of knowledge or information brought home to accused concerning the prior difficulty between his brothers and deceased was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 286, 287; Dec. Dig. § 156.]
    10. Witnesses (§ 277) — Cross-Examination of Accused — “Conviction of Felony.”
    The term “conviction of a felony,” referred to in the suspended sentence law, means a final conviction, and hence the fact that accused invoked the benefit of such law did not place on him the burden of proving that a former jury on the prior trial of the same case had returned a verdict of guilty, which, for some reason, had been vacated; and hence it was error to compel accused as a witness in his own behalf to testify that he had been convicted on a prior trial of the same case.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    11. Criminal Law (§ 1169) — Evidence—Erroneous Admission — Prejudice.
    Error in compelling defendant to testify as a witness in his own behalf that he had been convicted on a prior trial of the same case was not rendered harmless because he had accepted jurors after they had testified on their voir dire that they had heard of the former conviction, nor because accused had filed certain pleas before the jury was impaneled in which such prior conviction appeared.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    12. Homicide (§ 160) — Evidence — Relevancy.
    In a prosecution for homicide, evidence that some time prior thereto and subsequent to a difficulty between deceased and defendant’s brothers a witness saw defendant with a gun near a fence dividing deceased’s field from that of defendant’s father was inadmissible, in the absence of any evidence that defendant was carrying a gun with the intention of having a difficulty with deceased.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 301; Dec. Dig. § 160.]
    13. Criminal Law (§ 351) — Evidence — Relevancy.
    Where, in a prosecution for homicide, there was no evidence indicating that defendant’s purpose in going to Louisiana while on bail was with intent not to return in time for trial, evidence that when he returned he apologized to one of his bondsmen for not telling him in advance about his intended trip, and that he did not blame him for refusing to become a bondsman a second time, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig.'§§ 776, 778-785, 930-932; Dec. Dig. § 351.]

      14. Homicide (§ 158) — Evidence — Price Declarations or Accused.
    In a prosecution for homicide a statement made by accused shortly before the killing that he did not want any trouble with deceased, but if they did have trouble it would be serious, and he would kill out the entire crowd, and then the court could do with him what they pleased, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 298-296; Dec. Dig. § 158.]
    15. Criminal Law (§§ 680, 1153) — 'Trial-Reception or Evidence — Oedee or Peoof.
    Reception of evidence out of its proper order is a matter within the discretion of the trial court, the exercise of which will not be reviewed unless abused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1609,1610, 1613, 3061-3066; Dee. Dig. §§ 680, 1153.]
    16. Homicide (§ 158) — Evidence—Inculpa-tory Acts.
    Evidence that accused on the night of the homicide and prior to the killing obtained a box containing his pistol from a jeweler who had repaired it, and that as he received it he threw up the boxj caught it in his hands, and remarked that he would “use that gentleman that night,” was inadmissible, in the absence of evidence that he referred to deceased and had him in mind as the object of the remark at the time it was made.
    [Ed. _ Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    17. Homicide (§ 169) — Evidence—Conversation Between Parties.
    In a prosecution for homicide, evidence of a conversation between defendant and deceased just prior to the killing in which defendant, on finding deceased on the back gallery of a house where a party was in progress, asked him to walk away a little distance that they might talk together, etc., was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dee. Dig. § 169.].
    18. Homicide (§ 300) — Self-Defense—Provoking Difficulty.
    A charge on provoking a difficulty or abridging the right of self-defense is not called for, unless the interview was sought by defendant to provoke a difficulty, and when the meeting occurred defendant did some act or used- some abusive and insulting language to deceased reasonably calculated to provoke the difficulty, and the act or acts so done or the language so used were used with intent to provoke a difficulty, and, in fact, did provoke a difficulty in which deceased was the aggressor.
    [Ed. Note — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee.Dig. § 300.]
    19. Homicide (§ 300) — Self-Defense — Provoking Difficulty — Evidence.
    Where deceased in his dying declaration stated that defendant cursed him and told him he would have to take it, whereupon deceased grabbed defendant, and, as he grabbed, defendant hit him on the head with a pistol, and the shooting commenced in which defendant shot and killed him, such proof was sufficient to justify the court in charging on provoking a difficulty.
    [Ed. Note — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630 ; Dee.Dig. § 300.]
    20. Homicide (§ 300) — Self-Defense — Instructions.
    In a prosecution for homicide, an instruction that defendant was entitled to invite deceased off from a crowd to “peaceably” discuss and settle with him a previous difficulty between him and defendant’s brothers for any threats, etc., was erroneous in the use of the ' word “peaceable” or other language of similar import in such connection.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]”
    21. Criminal Law (§ 829) — Trial—Requested Charge — Instructions Given.
    _ A requested charge substantially covered by instructions given may be properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge. .
    Pearl Sorrell was convicted of murder, and he appeals.
    Reversed and remanded.
    Geo. S. King, of Houston, for appellant. Norman & Shook, of Rusk, and C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   WILLIAMS, Special Judge.

Appellant was convicted in the district court of Cherokee county of the offense of murder, and the punishment assessed was a term of 11 years’ imprisonment. Appellant was tried under this same indictment in January, 1912, and was convicted of murder in the second degree, and punishment assessed at 10 years’ confinement, but that conviction was set aside in the lower court.

There was an ice-cream supper at G. P. Messer’s residence in the northeastern portion of the county on the night of July 2, 1910. The appellant, the deceased, and quite a number of other neighbors, male and female, assembled there that .night. It was on this occasion that the homicide out of which this conviction grew occurred. The deceased and appellant were each at that time approximately 23 or 24 years old. The deceased, under the evidence, was the larger man. Estimates giving him the advantage in weight varying from 20 to about 50 pounds, the appellant’s weight being generally estimated from 125 to 135 pounds. The deceased some month, or possibly a little more, prior to the homicide had an altercation with two younger brothers of appellant. One of appellant’s brothers had a cut on his head as if he had been struck with a stick. The deceased said this trouble was over “the fixing of a fence,” It is not shown how, if at all, this former difficulty concerned appellant, further than his two younger brothers were involved in it. Nor is it shown that he had any connection with, or took any interest in, it, except that some time after the difficulty between the deceased , and the younger Sorrell boys the appellant, in talking about the matter with the state’s witness J. F. Martin, stated to him (Martin) that he (the appellant) was not going to raise any racket with him (deceased), and that he did not blame him as much as he did the other crowd or crew; “and then he told me that if they ever did have any trouble, or if I ever start, I am going to get the whole d-business, and then they can do what they please with me.” This was after the trouble between deceased and the younger Sorrell boys, which the evidence shows occurred some time in the spring of 1910 and prior to the homicide in July; it being no more definitely fixed. Deceased had made serious threats against appellant, which had been communicated to him prior to the homicide. Appellant had taken his pistol to a jeweler at Troupe to be repaired about a month before the homicide, and had gone to Troupe on the day of the homicide and gotten it back in good shape. On the night of the homicide the appellant and deceased reached Mr. Messer’s residence about dark, the deceased arriving first. Quite a number of others also arrived about the same time and disported themselves about the premises. One at least of appellant’s brothers also attended the gathering. The house fronted north. There was a front porch and a hall extending north and south between the rooms, and a rear addition with a porch fronting east. Shortly after arriving, appellant walked through this hall and approached deceased, who was seated, it seems, on the edge of the back porch or steps. The evidence is not entirely in accord as to just what language passed between them at this time, but we will not now go into the details of what was said there, or what ensued. It is sufficient for a general statement of the case to say that appellant invited the deceased to step aside with him on the plea that he wanted to have a conversation with him. Deceased at first demurred, but finally upon appellant’s solicitation went; and all agree that they walked away together side by side and apparently upon friendly terms. They walked out through a side gate in the east line of the yard fence and to a stump some 18 or'20 feet from the gate. They had not been gone through the gate but a few minutes — some say about five — until three shots were heard, and the deceased came running back through the gate saying Pearl Sorrell had shot him. The three shots were in pretty close succession, but there was a greater time between the first and second than there was between the second and third. The injured party died about 3 o’clock that night. He was shot once just below the navel, and this bullet went entirely through him and his clothes. This wound caused his death. There was another flesh or skin wound on the front and side near the hip, but this did not enter the cavity and was not serious. There was a wound or cut on the top of his head and a little to the left, and both the scalp and hat showed he had re? ceived a blow there. His clothes were on fire in front of both body wounds. There is some divergence in the evidence as to the extent of the darkness, but all agree that it was. dark. No one except the participants was present or saw the fatal difficulty or heard what was said, except one witness, who testified he saw the blaze of the last two shots, and saw the bulk of the form of deceased coming away from the flash while the said last two shots were being fired. As to what transpired there between appellant and deceased after they left the yard, we are confined for information to the dying declaration of deceased and the evidence of appellant— in connection with the physical facts in the case.

When deceased came back through the gate he stated to some one that he was killed, and asked them to get him to a bed to die on. This, we take it, is' a sufficient general statement of the case for the present, and we will discuss other details in connection with the questions raised.

2. The new law abolishing the degrees of murder was in effect, at the time of the trial from which this appeal is had. As before stated, the appellant had been tried once before this under the old law and convicted of murder in the second degree. By various special pleas and motions, the appellant properly raised and presented the question that, having been convicted of murder in the second degree, and thereby acquitted of murder in the first degree, and second degree murder having been abolished by the statute, he cannot be tried for any higher offense than manslaughter. He presents his position on this subject from various angles, but all tending to the one position ’ as above stated. His counsel, upon this question, has filed a very able, exhaustive, and persuasive separate brief. This same question, however, has recently been before this court in several cases. The court has taken occasion to consider and discuss the same fully, and have ruled adversely to appellant’s contention on the point. We do not therefore now regard it as an open question in this state. Appellant’s contention in this respect is overruled. Shaw v. State, 160 S. W. 104; Cook v. State, 160 S. W. 468; Hill v. State, 161 S. W. 120.

3. Appellant filed an application for a change of venue, alleging, in substance, that there existed so great a prejudice against him in Cherokee county that he could not expect a fair and impartial trial. His affidavit was properly supported by compurgators, but the state filed counter affidavits in statutory form, and the issue of fact was therefore raised as to the existence or nonexistence of prejudice to the extent alleged.

The homicide occurred in 1910, and this trial was had during the May term, 1913. There had been a former trial of this case, which resulted in a conviction of murder in the second degree and a penalty of ten years’ confinement assessed. This was in January, 1912. It also appears that there had been a former application for change of venue. At the last prior term of the court before the instant trial the defendant was not present at a date when his case upon resetting was called for trial, and his bond was declared forfeited. There are some things in the record about which there is but little, if any, controversy. It seems at the former trial of tile case the sheriff was called upon to attach and bring to court a witness whose wife was sick, and during the thus enforced absence of the husband from the home the wife died. In the ensuing election an opponent of the sheriff sought to make political capital of this unfortunate incident. He had printed and distributed generally oyer the county *at least 3,000 circulars narrating the occurrence, thus bringing this case into public notice and under discussion in every precinct and neighborhood in the county. The evidence further shows that at the former trial of this case there was a large attendance composed of citizens from various parts of the county, who were present at court and heard the evidence and argument of counsel in the case and the verdict of guilty with the ten-year penalty. Upon another occasion, when appellant’s bond was declared forfeited, it appears that there was some other case or cases set for trial, and there was an attendance upon court of a great ¡number of citizens, witnesses, jurors, etc., from the body of the county. At this time the rumor became prevalent that appellant had intentionally forfeited his bond and had fled to the state of Louisiana as a fugitive from justice. It is a fair presumption and fully borne out by the record in this case that these citizens who attended court upon the occasions referred to returned to their respective homes in the remote precincts of the county and there very naturally disseminated the news occurring at the county seat. In this connection it is further shown that several newspapers of general circulation in the county published accounts of these various court proceedings had in this case. None of these publications was bitter or unfair, except possibly a short article appearing in the Rusk Sentinel, relative to appellant’s arrest after his alleged flight. The article is as follows:

“Deputy Sheriff Forest Reagan brought in Saturday Pearl Sorrell, who forfeited his bond at the last term of the district court. When Forest goes after them, he generally gets them, and Sorrell will have to take a longer and more extended trip next time.”

The evidence of 30 witnesses introduced by-appellant, together with the examination of the jurors, which is also included in the- bill of exceptions, together with the testimony of some of the state’s witnesses introduced upon this point, established the fact, we think, that appellant’s case had been discussed and was generally known in every precinct in the county. The evidence shows that his former conviction was commonly and generally well known; that his former bond forfeiture and alleged fugitive flight to Louisiana were equally well known. A statement that appellant had killed one or more men prior, to the homicide in this case and was a bad man had also gained both general circulation and credence. Three of appellant’s witnesses showed especially good opportunity to know the general concensus of public sentiment about over the county. These, the candidate for sheriff, who had canvassed the entire county; a collector whose occupation required him to fully cover all the territory within a radius of within 12 or 15 miles of the county seat; the third was a trader whose business took him all over the county. In addition to these were his other 27 witnesses from the various precincts; as far as we can judge, of the county. They all, with one or two exceptions, say that appellant’s case had been prejudged all over the county sa far as they had opportunity to know, and that they had heard it frequently and generally discussed; that this prejudgment was against him; that the court’s history of this case was generally known, including the fact of his former conviction and the reports concerning appellant above referred to.

To meet this the state introduced 20 witnesses. A great many of these witnesses testified that they believed defendant could get a fair and impartial trial in the county. Some of them said that the ease, so far as they knew, had not been “generally discussed.” But quite a number of them, if not a majority, upon examination showed that they themselves were fully conversant with the history of the case and all the steps that had been taken in it. The county attorney, Mr. Guinn, who was one of the state’s witnesses, based his reason for his belief that the defendant could get a fair trial “because of the confidence I have in the citizenship of the county, but not altogether, though.” If this were the true test, then it is not likely any change of venue would ever be needed from that county. Witnesses in other counties might also, with equal assurance, claim this high standard of citizenship for their respective counties, and thus the change of venue statute be abrogated.

The county superintendent was another state’s witness, who testified he thought he could get a fair trial, but upon cross-examination it developed that this witness had been discussing the case quite freely himself, and that he was sufficiently conversant from some source with the facts to feel justified in making public the expression of his belief that the appellant got off light before for ten years, and further said that was his present opinion about it. An extended digest of the testimony of these witnesses would serve no good purpose. As above stated, while they in the main testify that they think the appellant could get a fair trial, yet they themselves show a familiarity with the case .and everything that had been done in the case; that defendant forfeited his bond and his alleged fugitive flight to Louisiana; that he had been guilty of a similar offense before, and just such other matters as appellant contended were prevalent talk in the county. Not all of the witnesses were thus familiar with the current talk, but a great number of them. We are of the opinion that ■the court should have ordered a change of venue in this case. Doubtless there are men in Cherokee county who never heard of this case, and it is without question that even those who had, if selected as jurors, would attempt to lay their prejudice aside and try the case upon its merits, but neither of these questions were the issue.

The Bill of Rights, under the head of “Guaranties” (article 1, § 10, Constitution), provides: “In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury.” This is intended to be a guaranty. It doesn’t mean that 11 of the jury should be fair and impartial. . It doesn’t mean that the district judge shall force the defendant to trial with the hope of securing a fair and impartial jury. But it does mean that he must not put him to trial in a county unless the circumstances and conditions of the public sentiment are such that he feels able to give an absolute assurance that neither by accident or design will any sentiment against the accused creep into the jury box, except such alone as is raised by the testimony heard upon the trial. The verdict of the jury should reflect the testimony in the case. The reflection should be a perfect one, not a distorted or imperfect one. One crack in the. mirror, one ripple upon the surface of the pool, is sufficient to destroy the trueness of the reflection. One improper juror destroys the integrity of the verdict. Where the great majority of the citizenship of a county is shown to be conversant with a case, and their minds have been poisoned with wild rumors against the accused, which possibly might not be admissible as evidence, where they ha've heard of his former conviction, and where general public sentiment is in the condition as the testimony in this ease indicates, we think it indeed a risky thing to undertake to guarantee an impartial jury under such conditions.

As said by Judge Henderson in the Cortez Case: “Prejudice is a sinister quality; and the very persons whom it actuates may be unconscious of its existence.” Witnesses frequently testify that they believe an accused could get a fair trial, and in this they are honest. They are not given an opportunity, or possibly called upon, to express their further opinion that with them a fair trial would mean the penitentiary or the gallows. As was held in the Randle Case, prejudice, referred to in the statute, does not necessarily mean the prejudice against the defendant, but may and often with equal force does mean prejudice against his case. If upon another trial appellant should present his application for a change of venue, and upon contest make substantially the same showing, as made upon this hearing, the venue of the case should be changed. Randle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953; Cortez v. State, 44 Tex. Cr. R. 169, 69 S. W. 536.

4. Bills of exceptions 4, 5, and 15 present questions relating to the admissibility of the dying declarations offered in evidence by the state. We think it is made sufficiently to appear from the evidence that the deceased, at the time the declarations offered were made, was properly imbued with the belief of the near approach of his dissolution, and that the objections upon that issue were fully met. We do not think that the record shows any such leading or pressing in order to induce the declarations as to reject them on that score, and the court was not, therefore, in error in admitting the declarations in general.

We do not think, however, that the advice given by the witness Messer to the deceased, to the effect that he ought to have known better than to go out there, should have been admitted.

4%. We think the court erred, as shown in bill No. 15, in permitting for any purpose the declarations of the deceased that “he was shot down like John Ross.” This could but be an opinion of the deceased. If the deceased had not died and had been on the stand testifying, he would not have been permitted to have given such testimony; that is, that he was shot down like John Ross. W^e understand the rule to be that the knowledge of approaching dissolution is substituted for the solemnity of the oath, but that in all other respects the general rules of evidence apply, and. that an opinion or conclusion is no more admissible as part of a dying declaration than it would be if the witness wás upon the stand personally testifying. It is urged by the state that this testimony was not hurtful to the interest of appellant, as there is nothing in the record showing how John Ross was shot down, or that the jury were conversant with any of the facts surrounding his death. To so hold, we think would be an uncalled for reflection upon the prosecution in this case. They were insistent upon the admission of this evidence even after objection had been made; and in the absence of testimony, either one way or the other, for us to presume it was not helpful to the cause which they represented and injurious to appellant’s cause before the jury would be a conclusion which we would not feel justified in indulging. The evidence was not accidentally, incidentally, or inadvertently introduced.

Where evidence of this character is intentionally and deliberately introduced in the record, and there is nothing in the record to disclose what its weight or effect would probably be before the jury, and it is of such a character as could reasonably be hurtful, we feel that it is the duty of this court to presume that the party offering it was acting intelligently, and that the evidence so offered was helpful to the one and hurtful to the other.

5. Bill of exceptions No. 6 is an objection to the admission in evidence, at the instance of the state, of a judgment nisi, rendered in January, 1913, declaring a forfeiture of appellant’s bond for his failure to appear for trial. Evidence of fliglit is ordinarily accepted as an indication of guilt, and is admissible. So also, upon the. same theory, would be evidence showing or tending to show that appellant had intentionally absented himself from court in order to avoid a trial of his case. The judgment nisi, however, was an ex parte proceeding, having no legal weight or effect except in the matter of the bond forfeiture, and legally establishing no conclusion. For these reasons it should not have been admitted. It was taken in the absence of the accused, without an opportunity on his part to be heard on the issue. It was not, and could not have been, a final adjudication of any fact, and was therefore, as stated, not admissible. The state, upon this issue, should be confined to evidence of the defendant’s flight or intentional absence, and should not be permitted to bolster the same up by an ex parte proceeding of the court.

6. The evidence discloses that something like two months prior'to the homicide the deceased and two of appellant’s younger brothers engaged in a difficulty or fight, which appears to have grown out of “fixing a fence.” As growing out of this difficulty, it is alleged that deceased made some threats in the intervening time between then and the homicide, and this difficulty is one of the things that appellant claims he called deceased aside for, at the time of the homicide, to talk to him about. The merits of this difficulty, as such, are not material to any issue in this case; but the state, upon one hand, contended for malice on the part of appellant, and, on the other hand, manslaughter, and the necessary adequate cause were in part appellant’s defense to the charge of manslaughter. Then any knowledge or information brought home to appellant concerning this difficulty between his brothers and deceased would be evidence, in view of these contending theories. In view of the fact that the case is being reversed, it is not necessary for us to pass upon defendant’s bill of exceptions objecting to the admission of evidence showing that his brothers were convicted in the justice court of assault growing out of this difficulty with the deceased. The rule above announced will be sufficient to govern the admission and rejection of evidence on this issue upon another trial.

7. By bill of exceptions No. 8 it is shown that, while appellant was on the stand as a witness in his own behalf, the state was permitted to ask him if it was not a fact that he had before been convicted upon a former trial in the case now being tried.' Timely and full objections were made by his counsel, but were overruled by the court, and defendant was required to testify before the jury that he had been convicted upon a former trial in this case. The only qualification to this bill is that it was admitted under the defendant’s plea of suspended sentence, and that it is qualified by the charge of the court. Of this latter we will see later. We do not understand how the effect of an affidavit invoking the benefits of the suspended sentence law could be so far misinterpreted. The conviction of a felony, referred to in that statute, means a final conviction. The statute was passed for the benefit of those upon trial for their first offense. It was intended as a beneficent statute, and not as a license to deprive one of a fair and impartial trial for which the Bill of Rights stands guarantor. It is true when one files an affidavit under this statute he opens the question of whether or not he has ever before been finally convicted of a felony. He may also, if he sees fit, and has especially invited it in the affidavit, in this way put his general reputation in issue. But the fact that he puts in issue the question of whether or. not he has ever been convicted of a felony by no means places upon him the necessity of carrying the additional burden before the jury that a former jury, upon a former trial of this same case, had returned a verdict of guilty, which for some reason had been vacated. This was clearly not the intention of the law. We "are not sure that we quite understand the position of the state in its brief with reference to this most grievous and unnecessary error. In one place they say, in substance, that by the affidavit for suspended sentence the issue of former conviction was open, and “for this purpose the question asked appellant by the state’s counsel was a proper and legitimate one, and the fact that appellant may have misinterpreted it and made the answer which he did should not result in a reversal of the case, and this even though the fact had not already been well known to tile jury as a result of appellant’s conduct of the trial.” The inference, as we read it, intended here is that by mistake the defendant answered with reference to his former conviction in this case, when such was not the purpose of the query. The bill of exceptions flatly contradicts this position, for it says the state was permitted to ask defendant “if it was not a fact that he had before been convicted upon a former trial in. the ease now being tried.”

The state then in its brief takes the position that, inasmuch as the jury already knew of appellant’s former conviction, and inasmuch as defendant had testified in answer to questions from his own counsel that he had never been convicted of a felony, etc., that, “rather than being hurtful to the defendant from the peculiar facts of this case, it seems to us to have offered him an opportunity to explain what he meant by conviction and to relieve him of the danger of the jury thinking he had made a false statement when he said he had not been before convicted of a felony.” But how did the jury, as such, have any evidence of his former conviction? Why should an accused be wrongfully placed in the position that he is called upon to explain something that the jury should in no event, have ever known? True, the state says that appellant accepted some jurors after they had testified upon their voir dire that they had heard of the former conviction. We do not know to what stress appellant was driven in accepting jurors, but, admitting this contention of the state, these several jurors could not legally impart their personal information to the remainder of the jury. Again, the state intimates in its brief that by the defendant’s conduct of the case this information of his former conviction had already been brought before the jury. We do not so read the record. True appellant had filed certain pleas setting up his former conviction of second degree murder as an acquittal of any grade of offense higher than manslaughter; but all of these various pleadings and motions relative to this issue were disposed of, as we understand it, without the intervention of the jury and before the jury had been impaneled; in fact, before the application for change of venue had been overruled. This condition here shown but illustrates the reason why the change of venue should have been granted. No man should ever be tried before a jury who knew, or any part of whom knew, that a previous jury had convicted him upon a former trial of the same case. It is true jurors may say that this knowledge would not affect them and that they could lay it aside, but we know human nature too well, and the first impression is too strong to be thus lightly disposed of. It was error to admit this fact in evidence, or even any reference to it, and it was of such a prejudicial character that we see no way that the court could have cured the error after it was once injected. As to what effect it had, the two verdicts themselves are a fair indication; the first was a 10-year penalty and this last penalty was fixed at 11 years’ confinement.

8. The testimony of Mrs. Streight was to the effect that some time subsequent to the difficulty between deceased and defendant’s brothers and before the homicide she passed along the lane running between the field of deceased and the field of defendant’s father, and that as she passed she saw defendant near the fence of deceased in a skirt of woods with a gun, and that the fence of deceased was up as she passed, but as she later returned the fence of the deceased was down. 'There is nothing in the bill of exceptions, nor so far as that is concerned in the statement of facts, showing that this incident had any connection whatever with the homicide. Its tendency was prejudicial, and the court by admitting it necessarily led the jury to believe that it was material upon some issue. We see no inference that the jury could have drawn from this testimony except one prejudicial to the rights of the defendant. Testimony of this character should never be admitted, unless there is either some direct or adequate circumstantial connection between the incident offered in evidence and the occurrence concerning which the trial is being had. To be admissible under circumstantial connection, the circumstances should be sufficient to meet the test of certainty required in cases of circumstantial evidence. What we have here said also disposes of the bills with reference to appellant going backwards and forwards to his field and at times having a gun in the wagon. There is no evidence in this record to show that this gun was being carried for the deceased, or even that it was in the personal possession of the appellant. There are some other similar questions to the two above in the record, and they will be controlled by the rule here announced, and will not be admitted unless there is first introduced evidence showing that they had some real connection with, or bearing upon, the homicide.

9. There are two bills of exception with reference to the testimony of the witness Fitch. It appears that appellant was not present in court one.time when his case was set for trial, but that, instead of being in court, he was Louisiana, and his bond was declared forfeited. According to Mr. Fitch’s testimony, after appellant returned he approached him (Fitch) and apologized to him for not telling him in advance about his intended trip to Louisiana, and in this connection told the witness that he did not blame him for not again becoming his bondsman. It seems by one of the bills of exception this testimony was admitted as original evidence, and by another admitted for the purpose of impeaching appellant and for which a predicate had already been laid. This evidence could only have been admitted originally for the purpose of showing that appellant had intentionally avoided being present for trial at the time set; in other words, as showing an attempt to avoid trial under the indictment. We see nothing in this particular testimony to indicate or tend to show that such was appellant’s purpose in going to Louisiana. The mere fact that he apologized to his bondsman for not telling him in advance of his intended trip is no indication, as we see it, that he had made the trip with no intention of returning in time for trial. Not being admissible as original evidence, upon the ground that it was not material to any issue in the case, no predicate and impeachment could be laid and met by it. Unless there is something more to this testimony than is shown by the bill of exceptions and something sufficient to at least amount to an intimation that the defendant had willfully left with no intention of returning in time for trial, then this evidence upon another trial should be excluded.

10. The court did not err, as complained of, in bill of exceptions No. 12, in admitting the testimony of Jim Martin, to the effect that in a conversation with appellant a short time before the homicide the appellant said “he did not want any trouble with the deceased, but if they did have trouble it would be serious trouble; that he would kill out tile entire crowd, and tlien the court could do- with him as they pleased.”

While this testimony was offered out of the regular order, still, if admissible, its admission out of order was a matter within the discretion of the trial court, unless abuse is shown. We see nothing to indicate that the court abused its discretion in this matter. On the contrary we think this ruling was correct and proper under the circumstances, and we further think that, if there be any objection at all to the testimony, it would go to its weight rather than to its admissibility.

11. By the witness Rooks it was shown oyer appellant’s objection that he was present in the town of Troupe on Saturday evening (the homicide occurred that night) when appellant received his pistol from the man who had repaired it for him; that the pistol was in a box; ánd that appellant threw the box up containing the pistol and caught it in his hands, remarking at the time that he would “use that gentleman that night.” Appellant upon cross-examination had denied making this remark, and we presume that the evidence was offered both as original and impeaching testimony; for, if admissible as one, it was admissible for both purposes. As stated before in this opinion, testimony of this character is only admissible when there is other evidence tending directly to show.with reasonable certainty that the remark had application to deceased, and that the appellant, at the time he made it, had the deceased in mind; an accused is not to be tried for every idle remark which he may make. There are other things in unlimited numbers which he might have had in mind as the object of this remark other than the difficulty with the deceased. There is no evidence in the record tending to - show that- appellant knew that deceased would be at the ice-cream suppér that night, even if appellant had already made up his mind to attend. There is nothing in evidence to show that appellant had any right to anticipate a meeting with the deceased that night. Even if true, none of these things could indicate with any degree of certainty that deceased was the object of the remark. There is evidence that the deceased was not in the habit of attending entertainments of this character. True, none of these things that we are discussing are in the bill of exceptions, and possibly we, strictly speaking, are violating the rules in going outside, but, if that be true, it is equally'true that there is absolutely nothing in the bill of exceptions to indicate that the testimony -was admissible. However, we are discussing this question now not so much for the purpose of passing upon the bill of exceptions, but, on the contrary, in view of another trial. Upon another trial, unless there be evidence introduced tending to show with reasonable certainty that the deceased was the ultimate object of this remark, then, this testimony should be rejected. Holley v. State, 39 Tex. Cr. R. 307, 46 S. W. 39; Gaines v. State; 63 S. W. 625.

12. Bills of exception 16 to 18, inclusive, are objections to the introduction .of parts of the cpnversation between the appellant and deceased at the back gallery just prior to the homicide; the chief objection being that some of the statements made by the deceased were merely opinions,- and others that the questions were leading. This was the conversation between the parties, and was, of course, admissible just as it occurred, without reference to whether it was composed of opinions or statements of facts. Some of the questions were rather leading, but this cannot always be avoided, and is a matter largely for the discretion of the trial court.

13. - While there seems to be no exception to the second paragraph of the court’s charge under the head of justifiable homicide — that is, the paragraph instructing the jury about resorting to other means, retreat, etc.— yet, in view of another trial, we think it proper to suggest that we do not think that the evidence in this case calls for said para'graph; nor was the paragraph, with reference to the presumption arising from the use of a deadly weapon by the deceased, called for by the facts in evidence.

14. There is some criticism of the court’s charge for submitting the case to the jury under the murder statute as. it now exists, and we think that the criticism is correct to the extent that under the decisions of this court since the passage of the new murder statute, in cases in the condition this case is in, the defendant should be tried under the old second degree murder statute and for manslaughter. As stated, this court has passed on this question in several cases, and it is not now open. See Shaw’s Case and other cases cited supra. In view of the fact, however, that under the established law of this state a person who has been convicted of murder in the second degree and thereby acquitted of murder in the first degree can thereafter be convicted of second degree murder on the testimony showing conclusively a first degree homicide, we fail to see how this error could be injurious to the defendant.

15. Appellant also makes the contention that the facts in this case do not raise the issue of provoking a difficulty, and that the court erred in submitting this issue to the jury. In this connection he makes further complaint on the manner in which the issue .was submitted, if it be held that‘provoking a difficulty was in the cáse, and of the court’s refusal to give his special charge upon this subject. From a reading of a great many eases we understand that the following combination of facts must exist before a charge on provoking a difficulty or' abridged right of self-defense is called for or permitted:

(1) The interview or meeting- must be sought by the defendant for the purpose of provoking a difficulty. Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17; Airhart v. State, 40 Tex. Cr. R. 472, 51 S. W. 214, 76 Am. St. Rep. 736.

(2) When the meeting occurs the defendant must do some act or use some abusive and insulting language to the deceased or injured person reasonably calculated to provoke the difficulty. Hjeronymus v. State, 46 Tex. Cr. R. 161, 79 S. W. 313.

(3) The act or acts done or abusive cr insulting language used must be dope or used, as the case may be, with the intent of provoking the difficulty. McCandless v. State, 42 Tex. Cr. R. 61, 62, 57 S. W. 672, 674.

(4) The act or language just referred to must actually provoke a difficulty in which the deceased or injured party is the aggressor. McOandless v. State, supra.

Some of the cases hold that the court should point out in his charge the evidence upon which the charge on provoking a difficulty is based. Carter v.. State, 37 Tex. Cr. R. 403, 35 S. W. 378; Mozee v. State, 51 S. W. 250. But this rule does not appear to have met with approval in later cases, the fear being expressed that it approached too near a charge upon the weight of evidence. In the McOandless Case, above cited, it is said that the charge should be couched in general terms, and that the court “should instruct the jury in effect that, if the defendant sought the occasion for the purpose of slaying his adversary (if he did so), and, having found him, did some act or used some language, or did both, as the ease may be, with the intent to produce the occasion and bring on the difficulty, and that the same, under the circumstances, was reasonably calculated to produce a difficulty, and on such account his adversary attacked him, and he then killed his adversary in pursuance of his original design, then such killing would be murder.”

The above, however, was not there given, nor is it here given, as a form for-a charge, but is merely a suggestion of the essential elements. Most all of the cases announce the rule to be that, before a court is justified in charging upon provoking a difficulty at all, he must be able to point out definitely “to put his hand, on” the testimony which justifies the charge. Some of the cases speak very reverently of “the inalienable right of self-defense,” and suggest that the rule in cases of provoking a difficulty or an abridgment of this right in any wise can only be justified upon the ground of estoppel. Some of the older cases say that it is based upon the legal maxim that, “A man may not take advantage of his own wrong to gain favorable interpretation of the law; he seeks the law in vain who offends against it.” And others, “That one cannot willingly and knowingly bring upon himself the very necessity which he sets up for his defense.” All of the authorities are to the effect • that where a difficulty is provoked, but with no intent to kill or do serious bodily injury, and the one provoking the difficulty is driven to the necessity of killing in protection of his own life that he is in such a case only guilty of manslaughter. We have carefully considered the evidence bearing upon the question of provoking a difficulty to first determine whether such issue is in the case.

In addition to the statement of the case made in the beginning of this opinion, we state the further facts shown by the record to be in evidence. The state’s witness Joe Hamilton testified that the appellant went to the deceased, who was sitting on the edge of the rear porch or steps of Mr. Messer’s house on the night of the ice-cream supper, and further testified as follows:.

“Pearl just told Tom to come on out, that he wanted to talk with him. Tom told Pearl, ‘No’; that he did not want to go; that he wanted to get him out there and kill him. Pearl then said ‘No’; that he only wanted to talk with him. Tom then went on with Pearl.”

This witness further stated that Pearl in that conversation told Tom (meaning the deceased) “that if he was as game as he used to be that he would come,” and that Pearl then went.

By another witness it is shown that when the appellant asked the deceased to go out with him, that the deceased got up and replied :

“If he wanted to fight to fight there, and Sor-rell said, ‘No, we will go out here; I just want to talk with you.’ Tom said something then, but I did not hear what it was, and then Sor-rell said, ‘If you are as game as you used to be, you will go with me,’ and they then went on together.”

This is a sufficient statement of the state’s theory of what was said there. ■

The appellant’s theory, with reference to this conversation, is probably best shown by his own testimony upon this point. He contended that he had heard of threats made by the deceased against him and of the difficulty which the deceased had had some time in the spring with appellant’s two younger brothers, and that he had never seen the deceased until the night of the ice-cream supper; that as he (the appellant) went out to the well and started back he saw the deceased sitting there, and walked up to him and told him that he would like to talk to him.

“I wanted to talk to him about the threats that he had made about my life. Mr. Oox and Mr. Jennings had told me about his threats against me. I just wanted to ask him about those threats, and also about the way he had been treating my minor brothers. When I told him that I wanted him to come on and- have a talk with me, or that I wanted to talk with him, he just raised up and said, ‘No; if you want to fight fight here.’ I then told him I did not want to fight him; that I just wanted to have a friendly conversation with him. He then got up, and me and him left there and went out towards the gate.”

By all the evidence it is shown that they walked off apparently friendly, side by side out through the gate in the side fence of the yard in the comparative darkness some distance, probably 20 or 30 steps from the house, and that in a very few minutes three shots were heard, and the deceased came back through the gate towards the house saying the appellant had shot him. These shots were fired in rapid succession, but there was more intervening time between the first and second than the latter two shots.

The state’s only testimony as to what happened out there in the dark at the place of the homicide was through the dying declarations of the deceased. The state’s witness Davis testified that the deceased, in a dying declaration made to him, stated that when they got out there the appellant commenced cursing the Normans (who it seems were friends of the deceased), and that he told the appellant not to do that, that he could not stand it, and appellant replied that he would have to stand it, and when appellant said that he hit him (deceased) over the head with a pistol, and that when appellant hit him with a pistol over the head the deceased grabbed the pistol and had hold of it when he was shot. On cross-examination he said: “I never heard him make any statement that he grabbed Sorrell.” This, as we understand it, presents the state’s theory in chief of the manner in which the difficulty arose, and, if this be true, the doctrine of provoking a difficulty could not be in the case. Under this testimony, regardless of the intent in seeking the meeting, and regardless of the sufficiency of the provocation given to provoke the difficulty, or the intent with which the same was given, the fact clearly remains that the deceased was not provoked into beginning the difficulty, and did not, in fact, begin the difficulty, but, on the contrary, the difficulty was begun by the appellant. As we have seen under the cases cited, this could in no event bring this case within the rule.

Under the appellant’s theory, as shown by his own testimony, he invited the deceased out for the purpose of a friendly talk with him over the threats that he had heard as having been made by deceased and with reference to the trouble between the deceased and his two younger brothers. Appellant testified:

“When we got there I just told Mr. Barker that X understood he had threatened my life and I just wanted to know why he .did it and talk with Mm about it. He replied to me and said that he understood that I had threatened his life; and I asked him who told him that I had threatened his life; and he said Arthur Norman; and I said, ‘If Arthur told you that he is a damn lie.’ Just as I said that Barker struck me. He just struck me with his fist on my body. When he struck me-he grabbed me, and as he grabbed me I drew the pistol, and he hit me again, and then I hit him with the pistol. * * * I hit him over the head with it. When I hit him with the pistol I was trying to knock him loose from me, but when I struck him with the pistol it did not knock him loose, and I drew back to hit him again, and he grabbed the gun by one hand and me by the throat with the other and cursed me and said he would kill me.”

Appellant further testified in this connection that the gun went off accidentally the first time and when he had no control of it, and that while they were scuffling over the gun, the deceased having him by the throat with one hand and the gun with the other, that he finally managed to turn the gun on the deceased and shot him twice. Under this theory, if true, provoking a difficulty would not be in the case, because appellant’s purpose and acts were all of a conciliatory character, and the deceased, according to appellant’s statement, committed an unprovoked assault upon him which got to the point where appellant’s life was endangered. There is, however, another version of this case as developed through the testimony of the witness Messer, at whose house the ice-cream supper was being held and the homicide occurred. Mr. Messer, in testifying to the dying declaration made to him by the deceased to the effect that after the deceased had gotten outside the yard with appellant the appellant made some derogatory remark with reference to something the Normans were doing or had done, and the deceased denied that the Normans had done this or were doing it, and the dying declaration of the deceased then proceeds as follows:

“And that Pearl then cursed him [deceased], and told him they were, and deceased said, ‘Pearl, do not curse me.’ He said he told Pearl he could not take it, and that Pearl cursed him again, and told him he had to take it, and he said then he grabbed Sorrell, and as he grabbed Sorrell he [Sorrell] hit him on the head and brought the gun down and the shooting commenced. He said that as he grabbed Sorrell Sorrell hit him on the head and brought the gun down and the shooting commenced.”

On cross-examination this witness further testified as to the dying declaration:

“He just said he [deceased] grabbed him [appellant]. He said Sorrell then hit him over the head with a pistol. He did not say Sorrell hit him just as soon as he grabbed him, but said he grabbed Sorrell and Sorrell hit him.”

If this last dying declaration be a true version of what occurred at the immediate time of the homicide, then provoking a difficulty was in the case. As the rule is that the court must charge upon every phase of the case presented by any testimony, howsoever slight, it became the duty of the court to charge in this case the law with reference to the doctrine of provoking a difficulty. This charge should, of course, be carefully drawn to cover the particular facts in evidence in this case which justify it, and worded in such a way that the jury could not misapply it to other facts and circumstances. Having thus decided that the court was correct in submitting the doctrine of provoking a difficulty as part of the law of this case, the appellant’s contention to the contrary will, of course, be overruled, and we next come to consider his objections to the charge upon that issue as given.

16. In this connection the court instructed the jury that appellant “had a right in law to invite deceased off from the crowd for the purpose of peaceable discussing and settling with him [Barker] any previous difficulty between deceased and his [defendant’s] brothers, or any threats, if any,” etc. Appellant made timely objections to this charge on account of the use of the word “peaceable.” As this opinion has already grown lengthy, though seemingly unavoidably so to the writer, we content ourselves by a statement that under the authorities in this state the use of the word “peaceable” or other language of similar import in this connection is error. It places a burden upon the appellant not placed there by law. The court in charging on provoking a difficulty ordinarily presents the state’s case affirmatively, as was done in this instance, from the state’s viewpoint. The appellant is then entitled to the converse of the proposition from his viewpoint untrammeled by any extra burden or insinuation. Duke v. State, 61 Tex. Cr. K. 19, 133 S. W. 435; King v. State, 51 Tex. Cr. R. 210, 101 S. W. 237, 122 Am. St. Rep. 881; McCleary v. State, 57 Tex. Cr. R. 139, 122 S. W. 26. As seen, the court undertook, after having charged on provoking a difficulty, to charge the converse of the proposition. With the exception above pointed out, these charges presenting the appellant’s side of this issue seem to have been correct as far as they went, but we think that the charge should have gone further and applied the law to the facts substantially as it is done in appellant’s requested charges Nos. 1 and 8. In other words, the jury should be told that appellant had the right to call the deceased aside for the purpose of having a conversation with him with reference to threats or the former difficulty with his brothers, etc., and that if deceased assaulted appellant that appellant’s rights of self-defense would not be impaired. The jury should also be told plainly that if the appellant provoked a difficulty, but with no intention to kill the deceased, he would not be guilty of a higher grade of homicide than manslaughter. The above suggestions are not intended as a form of the charge, but merely calling the court’s attention to the point.

Appellant’s requested charge No. 5 is a correct enunciation of the law as we see it, but, if the suggestions hereinbefore made are met in the main charge, this issue will be sufficiently covered without this special charge, nor will the special charge No. 7 be necessary. The other special charges all refer to evidence which has been excluded by rulings made in this opinion and to conduct of prosecuting attorneys, which will not likely occur upon another trial. So we see no good purpose to be served by discussing these matters at this time.

The state’s requested charge No. 1, which was given by the court, we think, was error. This issue was sufficiently covered by the general charge, and to give the special charge directly pointing out specific acts was upon the weight of evidence. Parnell v. State, 51 Tex. Cr. R. 623, 103 S. W. 907.

The record in this case is voluminous, containing something over 400 pages. We have undertaken to dispose of all of the issues essential for another trial as briefly as the questions presented would permit.

For the errors pointed out, this cause is reversed and remanded.

PRENDERGAST, P. J.

I believe the judgment should be affirmed, and dissent from its reversal.


author: JENKINS, J.

text:
    WESTERN UNION TELEGRAPH CO. v. CHAMBERLAIN.
    (No. 5357.)
    (Court of Civil Appeals of Texas. Austin.
    May 13, 1914.
    Rehearing Denied June 17, 1914.)
    1. Damages (§ 117) — Breach of Contract— Measure of Damages.
    Damages are recoverable for a breach of contract, and the proper measure is pecuniary compensation for the injury suffered.
    [Ed. Note. — For other, cases, see Damages, Cent. Dig. §§ 285, 286, 2^8; Dec. Dig. § 117.]
    2. Telegraphs and Telephones (§ 68) — Delay in Transmission of Messages — Damages.
    In case of delay or negligence in the transmission of a telegram, damages for resulting mental anguish may, contrary to the rule of the common law, be recovered.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    3.Telegraphs and Telephones (§ 68) — Delay in Transmission of Messages — “Mental Anguish.”
    Mental anguish is that keen and poignant suffering which results from some great grief; and hence mere disappointment because plaintiff’s grandchildren were prevented from visiting him on account of delay in the transmission of a telegram was not mental anguish for which damages might be recovered.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dee. Dig. & 68.]
    For other definitions, see Words and Phrases, vol. 5, p. 4475.]
    4. Telegraphs and Telephones (§ 68)— Actions For Delay in Transmission oe Messages.
    For the sender of a telegram to recover damages for mental anguish resulting from delay in its transmission, the facts must have been such that the sender would naturally suffer mental anguish in case of delay, and they must have been known to the agent of the telegraph company.
    [Ed. Note. — For other cases,, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. & 68.]
    Appeal from Falls County Court; W. E. Hunnicutt, Judge.
    Action by A. G. Chamberlain against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Geo. H. Fearons, of New York City, and Spell & Sanford and W. W. Ñaman, all of Waco, for appellant. Tom Connally, of Marlin, for appellee.

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

   JENKINS, J.

This suit was brought to-recover damages for mental suffering alleged to have been occasioned by the negligent failure of appellant to promptly deliver the telegram hereinafter set out. From a judgment in favor of appellee, appellant appeals and assigns error upon the action of the court in overruling its general demurrer to appel-lee’s petition.

Appellee alleged: That on June 3, 1912, he resided near Reagan, in Falls county, Tex., and that on- that day he caused to be ' delivered to appellant’s agent at said town of Reagan, for transmission to A. G. Johnson, charges prepaid, at 1136 Wall street, Los Angeles, Cal., the following telegram:

“Bring children. Will pay fare. “[Signed] A. J. Chamberlain.”

That his daughter was the wife of said Johnson, and was then contemplating a visit to appellee. That the children mentioned in said message were the children of his said daughter, and the grandchildren of appellee. That his daughter was not financially able to pay the railroad fare of said children, and would have brought them had said telegram been promptly delivered, but not otherwise. That an affectionate regard existed between appellee and his said grandchildren, all of which facts were explained and fully known to appellant’s agent at Reagan, when he received said telegram for transmission. That appellant negligently failed to deliver said telegram until the 8th day of June, 1912, in consequence of which appellee’s daughter left Los Angeles on her visit to appellee on June 6, 1912, without bringing said children with her. That appellee, on account of such failure to deliver said telegram, was deprived of the pleasure of seeing said children and enjoying their society, by reason of which he “suffered great mental anguish and pain.”

It is a general principle of law that damages are recoverable for breach of contract, and that the proper measure of damages is pecuniary compensation for the injury suffered. Mental suffering, in a proper case, has always been recognized as an injury for which damages are recoverable. The common law, however, from motives of public policy, adopted certain standards by which damages for breach of contract were to be measured, which excluded mental suffering. For instance, the measure of damages for failure to pay money is the lawful interest on same; for failure to deliver personal property contracted to be sold, the difference between the market price and the price agreed to be' paid, etc. The reason for this was that, in the absence of such standard, the uncertainty as to the amount of damages that might be recovered would open up an unlimited field of litigation, to the discouragement of business and the annoyance of the citizens. For these reasons, it became a general rule of the common law that damages for purely mental suffering, unaccompanied with bodily pain or willful or malicious wrong, were not recoverable; and hence that such damages were not recoverable, where they arose solely from breach of contract. Mental suffering was not excluded for the reason that it might not, in some instances, be just as acute and intense from the breach of a contract as when induced by traumatic injury. But by reason of the ease with which it might be simulated, and the difficulty of disproving it on account of the intangible nature of mind, and the varying degrees of temperament, it was thought best that this field of litigation be entirely closed.

The introduction of telegraphy, and the peculiar duties of telegraph companies as public service corporations, was thought by the Supreme Court of Texas, and as the writer thinks justly so, to demand a modification of the ancient rule that damages for mental suffering were not recoverable for breach of contract unaccompanied by bodily pain, or the element of willful wrong. So Relle v. Telegraph Co., 55 Tex. 308, 40 Am. Rep. 805. This doctrine has been followed in several other jurisdictions, though a majority of the states and the Federal courts still apply the old rule to telegraph cases.

It is the settled doctrine of this state that damages are recoverable for mental suffering of a certain character, occasioned by the failure to promptly transmit and deliver a telegram under certain circumstances. In addition to cases where the telegram related to the sickness or death of a near relative, or where physical suffering resulted, this doctrine has been applied in this state in the following cases: Telegraph Co. v. Procter, 6 Tex. Civ. App. 300, 25 S. W. 813; Telegraph Co. v. Norton, 62 S. W. 1081; Rich v. Telegraph Co., 110 S. W. 95; Telegraph Co. v. Simpson, 73 Tex. 422, 11 S. W. 386. Application of this doctrine has been denied in the following cases: Telegraph Co. v. Arnold, 96 Tex. 494-496, 73 S. W. 1043; Telegraph Co. v. Luck, 91 Tex. 181, 41 S. W. 469, 66 Am. St. Rep. 869; De Voegler v. Telegraph Co., 10 Tex. Civ. App. 229, 30 S. W. 1107; Ricketts v. Telegraph Co., 10 Tex. Civ. App. 226, 30 S. W. 1105; Telegraph Co. v. Bell, 61 S. W. 942; Telegraph Co. v. Partlow, 30 Tex. Civ. App. 599, 71 S. W. 584; Telegraph Co. v. Edmonson, 91 Tex. 206, 42 S. W. 550; Morrison v. Telegraph Co., 24 Tex. Civ. App. 347, 59 S. W. 1127.

The distinction in principle, as applied to the two lines of cases above cited, may not, in some of them, be very clear, but running through them all it may be safely said these two elements are announced or recognized as essential to recovery, viz.: The suffering must be of that character denominated mental anguish, and the circumstances must be such that the company could reasonably have anticipated that such suffering would probably result Irofa the failure to promptly transmit and deliver the telegram.

What is mental anguish? The Supreme Court of North Carolina in Hancock v. Telegraph Co., 137 N. C. 497, 49 S. E. 952, 69 L. R. A. 403, said:

“There is a very material difference between the significance of those words (‘disappointment’ and ‘regret’) and that keen and poignant mental suffering signified by the words ‘mental anguish.’ * * * The language used in nearly •all the eases in this and other states where such damages are allowed is ‘grief and mental anguish.’ * * * The lexicographers define anguish to be ‘intense pain of body or mind.’ It is derived from the Latin word ‘anguis,’ a snake, referring to the writhing and twisting of the animal body when in great pain.”

This definition of “mental anguish” might well have been deduced from the general tenor of Texas cases on this subject, and is in accord with the decisions in other states. We quote from 37 Cyc. p. 1780, as follows:

“It is well settled, however, that damages cannot be recovered on this ground for every mental disturbance or injury to the feelings, and that to constitute mental anguish there must be something , more than worry, vexation, or disappointment or anger or resentment.”

When the telegram relates to the sickness or death of a near relative, the failure to transmit and deliver it promptly may result in depriving the party to whom it is sent of the opportunity of ever again seeing the loved one alive, or of looking upon the face of the beloved dead, or of assisting in the sad rites of sepulture. Common experience tells us that these results are calculated to fill the heart with poignant grief and sadden the life of the sufferer, and such results ought to be anticipated from a general knowledge, of .thei human heart with its human affections. Not so, however, where the allegations, as in the instant case, show only a temporary disappointment calculated to produce regret, and perhaps resentment, toward the telegraph company for its inexcusable negligence. It is not alleged that the contemplated visit of the grandchildren was appellee’s last opportunity to see them. For aught that appears to the contrary, they may have been of sufficient age to have come by themselves, had appellee sent them money with which to pay for their transportation, upon hearing that they had not come with their mother; or appellee might have visited them at an expense not exceeding that which he would have incurred had the telegram been promptly delivered.

In order for appellee to recover, not only must such facts be alleged as would reasonably indicate that appellee would suffer mental anguish by reason of the failure to deliver the telegram, but it must also be alleged that appellant’s agent was advised of such facts, otherwise he would not be required to anticipate such result.

For the reason that it does not appear from the allegations of the petition that the telegram was sent under such circumstances as reasonably required appellant to anticipate that appellee would suffer mental anguish, if such telegram was not promptly delivered, the general demurrer should have been sustained, and, for the error of the trial court in overruling the same, this cause is reversed and remanded.

Reversed and remanded.


author: KEY, C. J.

text:
    GORDON v. RATLIFF et al.
    (No. 5292.)
    (Court of Civil Appeals of Texas. Austin.
    March 11, 1914.
    Rehearing Denied June 10, 1914.)
    1. Trial (§ 251) — Instructions—Conformity to Issues.
    In replevin, where defendant set up as a counterclaim plaintiff’s breach of a construction contract, but did not allege plaintiff’s conversion of material deposited on the lot where the building was to be erected, the submission to the jury of the question whether plaintiff was liable for the conversion was erroneous.
    (Ed. Note. — For other cases, see Tidal, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    2. Pleading (§ 127)— Construction.
    Where plaintiff generally denied defendant’s cross-petition, which though alleging defendant deposited material on plaintiff’s premises did not charge a conversion, the filing of a ’special plea, alleging that plaintiff purchased the material, is not an admission against interest authorizing recovery by defendant for the conversion.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 264r-268; Dec. Dig. § 127.]
    3. Appeal and Error (§ 1173) — Determination — Reversal.
    In replevin against two defendants, one of whom counterclaimed for breach of contract, a judgment for both will be reversed and remanded, when an improper issue on the counterclaim was submitted and the rights of the parties to the goods replevined depended upon the determination of the issues raised by the counterclaim.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. § 1173.]
    Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by E. B. Gordon against Arch Ratliff and one Coker, who counterclaimed. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    W. D. Gordon and Thos. J. Baten, both of Beaumont, and I. J. Rice, of Brownwood, for appellant. Arch Grimman and Harrison & Wayman, all of Brownwood, for appellees.

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

   KEY, C. J.

This is the second appeal in this ease, and we refer to our former opinion for a statement of the nature of the suit. Ratliff v. Gordon, 149 S. W. 196. At the last trial the jury found against the plaintiff, Gordon, upon his suit to recover the wagon and team, and found in favor of the defendant, Coker, on his cross-action against the plaintiff for $451, and the plaintiff, Gordon, has appealed.

In his cross-action Coker sought to recover from Gordon the profits which he alleged he would have made if he had not been prevented by Gordon from performing his part of the contract between him and •Gordon, by which he agreed to furnish the material and construct the stone walls of a ■certain building for Gordon. He did not allege that he had sold any material to Gordon to be paid for by the latter, regardless of whether the building was constructed; nor did he allege that Gordon had converted any of the material to his own use. In submitting the cross-action to the jury the trial court instructed them, in substance, that if they found that there was a contract between Gordon and Coker, and that in pursuance thereof Coker delivered any of the material to Gordon on the lot where the building was to be erected, and Gordon refused to allow Coker to proceed with the construction of the building and failed and refused to comply with his contract, to find for Coker the reasonable value of the material so furnished by him to Gordon. Error is assigned upon that portion of the charge for the reason that Coker had sued appellant for the profits he would have made if he had been permitted to perform his part of the contract, and he did not allege that Gordon had either purchased or converted any of the material which Coker had placed upon the lot, and intended to use in the construction of the building, and we sustain that assignment. The plea asserting the cross-action is as stated by counsel for appellant, and, while it alleges that Coker had delivered certain material to Gordon on the lot where the building was to be constructed, it does not allege that Gordon promised to pay for the material, or that he had converted it to his own use. The substance of the plea is that, for an agreed consideration of $1,000, Coker was to furnish the material and construct stone walls for the building of certain dimensions on a certain lot in the town of Brownwood, and that, although Coker was able and willing to perform his part of the contract, he was prevented from doing so by Gordon, and had therefore lost the profit which he would have made, as stated in the pleading. It is true that the plea alleged that Coker had delivered certain specified material of certain specified valúes upon the lot where the building was to have been erected; but the allegation that it was so delivered to Gordon did not show that he had become liable to pay for the value of that material. If he was liable at all, it is for the breach of his "contract, and the measure of the plaintiff’s damage was the profit he would have made if there had been no breach. Of course, if Gordon converted to his own use any of the plaintiff’s material which he had placed upon the lot, the plaintiff might have the right, upon a proper plea, to recover the value of the property so converted. And also a similar right would exist if any of the material was sold to Gordon and has not been paid for. But Coker’s pleading failed to allege either a sale or conversion, and therefore he was not entitled to recover for the value of the material; and this is especially true as to the 7,000 feet of lumber which he alleged he had delivered upon the lot, and which it seems was no part of the material to be used by Mm in tbe construction of tbe walls of tbe building. According to tbe aver-ments in bis pleading, be only undertook to construct the walls, and yet be alleged and submitted testimony tending to prove that he delivered upon tbe lot 7,000 feet of lumber of the value of $175, but be did not allege that Gordon bad ever agreed to pay him for tbe lumber, or that be bad converted it to his own use. It is true that Gordon alleged in bis answer to Coker’s cross-action that he had bought from Coker all tbe material referred to, and had paid him for it, but be also filed a general denial, and therefore tbe averment referred to in his special answer cannot be considered in aid of Coker’s pleading, as an admission against Gordon. Bauman v. Chambers, 91 Tex. 108, 41 S. W. 471. This is tbe only reversible error pointed out in appellant’s brief. No doubt Coker will replead and thereby obviate some of tbe objections urged against bis pleading.

The appellee, Ratliff, insists that the case should be affirmed as between him' and appellant, Gordon, even though it be reversed as between Gordon and Coker; but we are of opinion that the entire case should be reversed and sent back for another trial. The wagon and mules which Gordon sought to recover from Ratliff bad been sold to the latter by Coker. Coker alleged and testified that be and Gordon had made the contract above referred to, and that Gordon had sold in the wagon and mules in part payment upon that contract. Gordon denied the existence of any such contract, and testified that he had never sold the wagon and mules to Coker, but bad merely loaned them to him. Upon that vital issue the testimony was in sharp conflict, and the rights of both Ratliff and Gordon depend upon whether the contract and transactions between Gordon and Coker were as stated by Coker; and therefore we think it would be more in harmony with justice to have that issue finally tried but once, and let tbe rights of all tbe parties depend upon the result of sueb final trial.

Reversed and remanded.


text:
    LA GRANGE & LOCKHART COMPRESS CO. v. HART.
    (No. 5366.)

    (Court of Civil Appeals of Texas. Austin.
    June 3, 1914.
    Rehearing Denied July 4, 1914.)
    1. Damages (§ 132) — Excessiveness — PERSONAL INJURIES.
    Plaintiff’s feet were caught in a cotton press and crushed in such a manner as to render him a cripple for life. It was necessary to amputate both feet at the junction of the instep with the heel, and one of plaintiff’s physicians testified that he would never be able to walk without crutches. He was about 43 years old at the time of the accident, in good health, industrious, of good character, and able to get manual labor at good wages, and was qualified for no other character of employment. Helé, that a verdict allowing him $10,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    2. Trial (§ 256)— Instructions — Requested Charge — Duty to Make Request.
    In general, if a party desires to have inaccuracies in instructions given cured, it is his duty to ask properly prepared special instructions for "that purpose.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    3. Trial (§ 253)— Instructions — Requested Charge — Elimination oe Issues.
    Where, in an action for injuries to a- servant, plaintiff alleged negligence in the employment of incompetent fellow servants, and also in the furnishing of defective and dangerous machinery, a requested charge that plaintiff could not recover on account of his fellow servant’s negligence if defendant exercised proper care in employing him, and concluding by instructing the jury that if they found-the facts to be as therein recited to return a verdict for defendant, were properly refused as eliminating plaintiff’s right to recover, based on the ground of defendant’s furnishing defective machinery.
    [Ed. Note — Eor other cases, see Trial, Cent Dig. §§ 613-623; Dee. Dig. § 253.]
    4. Trial (§ 260) — Requested Charge — Instructions Given — Contributory Negligence.
    The court having charged that, if the jury believed from the evidence that plaintiff was negligent in going on the block of a cotton press by which he was injured, or in not acting as an ordinarily prudent person would have acted under all the circumstances, then he was not entitled to recover, other requested instructions on the issue of contributory negligence were properly refused.
    TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    5. Appeal and Error (§ 1058) — Harmless Error — Reception oe Evidence — Curing Error.
    Error in excluding certain evidence is cured where the facts sought to be proved are otherwise shown before the end of the trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.]
    Appeal from District Court, Caldwell County; P. S. Roberts, Judge.
    Action by Jesse Hart against the La Grange & Lockhart Compress Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hunt, Myer & Teagle, of Houston, and E. B. Coopwood, of Lockbart, for appellant. Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, and Paul Kayser, of Lock-bart, for appellee.

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

       Application for writ of error pending in Supreme Court.

   KEY, C. J.

We copy from appellant’s brief tbe following concededly correct statement of tbe nature and result of tbis suit:

“This is an- action by Jesse Hart to recover damages for personal injuries sustained by having his feet crushed in a cotton press on the 11th day of August, 1913. Plaintiff based his action on the negligence of a fellow servant in turning on the steam which operated said press while the plaintiff was standing on the lower platform thereof; he also alleged that the press was weak and defective, and that the servant who turned on the steam, one Polly, was incompetent and inexperienced, and that defendant knew of this in time to have prevented the injury to plaintiff. Plaintiff alleged his injuries were permanent, and prayed for damages in the sum of $20,000. Defendant answered by general demurrer, general denial, special denial of the allegations that the press was out of repair, special denial that Polly was incompetent, and denial that the press was weak or defective. Defendant also pleaded that the injuries were received through the negligence of a fellow servant, and pleaded contributory negligence and assumed risk. The cause was tried before a jury on November 10, 1913, and on the same day a verdict was returned in favor of the plaintiff for $10,000. Defendant filed its motion for new trial, which was overruled by the court, to which defendant excepted and gave notice of appeal to the Court of Civil Appeals. Defendant filed its appeal bond herein on the 28th of November, 1913, which was duly approved., and submits this cause for review upon the’ following assignments of error, propositions, and authorities.”

The proof shows that the plaintiff was injured substantially as alleged in his petition. The trial court submitted to the jury three issues of negligence on the part of the. defendant, as charged in the plaintiff’s petition, and the issue of contributory negligence on the part of the plaintiff, as charged in the defendant’s answer. The verdict of the jury embodied a general finding for the plaintiff and assessed his damages at $10,000. The issues of negligence charged against the defendant and submitted to the jury by the court’s charge were: (1) Whether or not the defendant’s employé and servant Polly was guilty of negligence as charged in the plaintiff’s petition; (2) whether or not Polly, who was a fellow servant with the plaintiff, was inexperienced, careless or negligent, and whether or not the defendant by the exercise of proper care could have known of such facts when it employed him; and (3) whether or not the machinery was faulty and defective, as charged in the plaintiff’s petition, and whether or not, by the exercise of ordinary care, such defec t could have been ascertained and remedied by the defendant — and told the jury that in the event they found for the plaintiff on the issues referred to, to return a verdict for him, unless they found that he was guilty of contributory negligence. On the subject of contributory negligence the court instructed the jury as follows:

“If you believe from the evidence that the plaintiff at the time of his injury was guilty of negligence in going upon the block of the press, or that he did not act as an. ordinarily prudent person would have acted under all the circumstances, then he is not entitled to recover, and you will so find.”

There was testimony tending, to show that the defendant was guilty of negligence or the want of ordinary care in all the respects charged in the plaintiff’s petition and submitted to the jury by the court’s charge; and, while the evidence referred to may not be as strong and convincing as that in many other cases, still we are not prepared to say that it would not support a finding of negligence in all the particulars a liuded to; and we, therefore, overrule all of the assignments which complain of the verdict in those respects. Also the same may be said in reference to the issue of contributory negligence, which issue the jury must have decided against the defendant and in favor of the plaintiff, which finding we hold should not be disturbed by this court.

We also hold that the verdict of the jury is not excessive. The proof shows that both of the plaintiff’s feet were caught in the press and crushed in such a manner as to render him a cripple for life. In fact, his injuries were such as rendered it necessary for the attending physicians to amputate both feet at the junction of the instep with the heel, and one of the physicians expressed the opinion that he will never be able to walk without crutches. He was about 43 years of age, was in good health, industrious, sustained a good character, and was able, to get employment at manual labor at good wages, and was not shown to be qualified for other character of employment.

Many objections are urged against the court’s charge, and many complaints made of the refusal of requested instructions. It must be conceded that the charge of the court is, in some respects, prolix and not as distinct and accurate as it might have been; but we do not believe that the objections urged against it are such as require a reversal of the case. We do not think the jury were misled by the inaccuracies referred to, nor do we think the criticisms addressed to the charge point out affirmative error. The charge may have contained some unnecessary verbiage, and it may not have presented some of the issues as clearly as might have been done; but such defects in a charge do not necessarily constitute reversible error. The general rule is that if the party desires to have such defect's cured, he should seek to accomplish that result by asking properly prepared special charges correcting such defects.

Appellant requested, and the court refused to give, quite a number of special charges. The most of them related to the law of fellow servant, and sought to make it clear to the jury that the appellant’s employs Polly was the plaintiff’s fellow servant, and that the plaintiff could not recover on account of Polly’s negligence if appellant exercised proper care in employing him. The requested instructions referred to were properly refused because they concluded by instructing the jury that if they found the facts to be as therein recited to return a verdict for the defendant. If either of these charges had been given, it would have limited the plaintiff’s right to recover to the question of the defendant’s liability arising out of the conduct of its employs Polly, and its conduct in employing him, and would have ignored and tended to eliminate the other ground of liability based upon defective macMnery; and therefore they were properly refused.

Certain other requested instructions related to the issue of contributory negligence; but, in view of the court’s charge upon that subject as set out above, we hold that no error was committed in refusing to further charge in that regard. .

We also overrule the assignments which complain of the court’s ruling upon the-admissibility of testimony. In one of them it is urged that the court erred in sustaining an objection and not permitting the witnesses Polly and W. L. Inman to testify that the operation of the lever and press was simple, and did not require special skill to operate same. We overrule that contention because appellant admits in its eighteenth assignment that the facts show that the lever and pipe were the only parts of said press having anything to do with the operation, that the lever was a simple apparatus, and that its operation did not require any special skill or training. So from the statement referred to it would seem that the facts which appellant sought to prove by the testimony adverted to in the first assignment were otherwise proved before the trial ended, and therefore we hold that the exclusion of the testimony of the witnesses Polly and W. L. Inman, if erroneous, does not constitute ground for reversal.

All the questions presented in appellant’s brief, though some of them are not discussed in this opinion, have been duly considered, and our conclusion is that the judgment should be affirmed; and it is so ordered.

Affirmed.