text:
    GRACE v. STATE.
    (No. 5232.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    1. Rape <&wkey;53(2) — Assault with Intent— SUFFICIENCY OP EVIDENCE.
    Evidence held to sustain conviction of assault with intent to rape.
    2. Rape <&wkey;46 — Assault with Intent — Evidence.
    In prosecution for assault with intent to rape, testimony of witness for state that after he and others were informed of what had happened they went directly to prosecutrix’s house and made investigation, found a hat, found blood on each of two beds, etc., held admissible.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    George Grace was convicted of 'assault with intent to rape, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an assault with intent to rape, and his punishment assessed at 40 years in the penitentiary.

The proof shows that Mrs. Sarah Abbott, the assaulted woman, lived in the country in Harris county about 1% miles off of the Dayton road. The assault occurred about 9 :30 at night, just after she and her children had gone to bed. She said her attention was first attracted by hearing the screen door, which opened into her boys’ bedroom, opened. Two of her boys were in bed in that room. She asked her boys who'it was and said her boys supposed it was their older brother coming in. She asked them again who it was, and they did not reply. One of her sons who testified said that when he first saw appellant he was sitting ion their bed and feeling around over him and his brother. “He saw that there was two of us boys in the bed, and went into the next room.” Mrs. Abbott further testified that—

Slie saw him come out of her boys’ room into hers. “He came right towards mo. I jumped out of the bed, when he got about halfway of the room, and I said, ‘Earnest, is that you?’ and he made no answer, but come and grabbed me, grabbed me by this arm (left arm), and gave me a jerk, and I grabbed at the bed, and it jerked' down. He never spoke a word. * * * He kept ahold of me. He continued to hold me and pulled me into the boys’ bedroom, and was trying to get me out of the door he came in at. I grabbed everything I could to hold to, and I was holding to the facing of the door, when the boy ran out to get something to defend us with, and came in with a club, and hit him, and he turned me aloose and ran. He had hold of my arm mostly until he got into the boys’ bedroom. He run his hand up clear under my dress. Just one time is all that he touched me in that way. He did that just before I got ahold of the door facing, and didn’t hold me long from the time he first got hold of me in my right arm, till ho got mo to the door, where the boy hit him, as my strength against him was not very much. It all happened in a very short time. Yes, he held me with one ' hand, and the other hand he put under my dress, and I hit him with all my strength with my right hand; but that was not very much.” She said that he was a large, strong man. It was dark, no lights burning. She did not know who it was, and said: “No, I could not tell his color, but you know a colored fellow has a scent you can tell. I could tell it was a colored man from the odor.”

Her testimony and her son’s was further to the effect that when her son struck him on the head with a club, when he had hold of her trying to drag her out, he turned loose and ran. They then got the gun and loaded it with the only one cartridge they had, and thus prepared to defend themselves from another attack. That some 15 or 20 minutes later he came back into the house and her son shot him. He fell. She and all of her children then ran from thei house, went some half mile to a neighbor’s, and alarmed them and phoned for the officers.

Appellant was thoroughly and completely identified as the person who made this assault by other testimony. The next morning he returned to his employer’s. He was then found to have been shot in the arm and a bruise on his head. I-Ie was without his hat. The .officers arrived soon after they were notified, and took Mrs. Abbott’s boy who had done the shooting with them back to the house. They found therein on the floor appellant’s hat and smears of blood on both beds. No doubt, after he had been shot and Mrs. Abbott and her children fled from the house he got up and hunted over the two beds for them, which is how came the blood on both beds.

Appellant testified that he was drunk and claimed not to know anything about his going into Mrs. Abboitt’s house, assaulting her, getting knocked in the head with a club, and later shot therein. He was a negro; Mrs. Abbott was a white woman.

In Washington v. State, 51 Tex. Cr. R. 542, 103 S. W. 879, this court, through Judge Henderson, said that the appellant contended therein that the evidence did not authorize the jury to believe that his intent was to rape the 17 year old girl whom he assaulted, but that it equally tended to show that he intended tdi rob her. He said:

“We do not agree with this contention. The evidence shows that appellant seized hold of the prosecutrix; made no demand of her to surrender her property; he knew she was a woman, and there is no testimony tending to show that he had any reason to believe she had valuables; she attempted to scream, and he merely told her to hush, and then persisted in choking her down, evidently to make her hush. If he had wanted to take her valuables, he had ample opportunity to do so. If appellant had any other purpose than to have carnal intercourse with prosecutrix, there is no manifestation of it in this record, and the circumstances furnished him ample opportunity to have taken her pocketbook, which was in her hand at the time of' the assault, or to have taken her breastpin from her neck if he had so desired. His setting upon a young girl in the nighttime, under the circumstances, and his violence, and when she attempt-e<l to scream telling her to hush, would strongly : indicate his intent. In our opinion the facts are amply sufficient to show his purpose, and, but for the fact of her screams, and of assistance rushing to her rescue, he would, no doubt, have accomplished his design.”

The assault in that case occurred at night in the dark while the girl was going from a street car to her home a few blocks away.

In Taff v. State, 69 Tex. Cr. R. 528, 155 S. W. 214, the assaulted woman lived with her mother. On the night of the assault she said some one knocked at the door and tried to push it open, but she refused to admit him. He then left. He soon returned and went to the window and asked her to come out, offering her from $5 to $10 to do so. She asked him to leave, and he agreed to do so if she would give him some bread and butter, which she did. He left, but came back again and asked for water, and when she gave it to him he drank it and tried to raise the window. She tried to prevent the window from being raised, when he caught her by the wrist and pulled her tofwards him. She screamed and Jerked away from him. He left. In that case he contended that the evidence was insufficient to show assault with intent to rape. This court held otherwise and affirmed the decision in that case, which carried a penalty of 50 years’ confinement in the penitentiary.

In Stout v. State, 22 Tex. App. 339, 3 S. W. 231, Emma Gatz, a married woman, was the assaulted party. She testified that she and her husband went to bed in a room with the doors closed but a window up. They both went to sleep. Some time after they both went to sleep, she felt the hands of some person pressing on her chest. Thinking it was her husband, she told him to let her alone; she was sick. She went to sleep again, but was awakened after a little while by some one raising her gown. She attempted to raise up, but was pressed back. She attempted to raise the second time and was pressed back by the hand of some one. She then looked and saw appellant in. that case. She then called to and kicked her husband, who was hard to awaken, and the appellant sprang out of' the room through the windotw. In that case the appellant contended the evidence was insufficient to( sustain his conviction for an assault with intent to rape. This court, through Presiding Judge White, said that, while it would ordinarily appear exceedingly improbable and highly incredible that a party would attempt to ravish a married woman in bed with her husband, yet it is by no means impossible. He further said:

“In this case there are some apparent ineon-. sistencies shown in the statements made at different times by the principal witnesses for the prosecution, but they do not occur as to the main facts that the assault was made and that defendant was the guilty party. There is also some conflict in the evidence. This was matter exclusively for the jury to determine. They have seen fit to credit the testimony of the prosecuting witnesses, and we cannot see that that testimony is either improbable or untrue. The jury and the court below were in much better attitude to judge of the credit and weight to be given it than are we. That it is sufficient to support the judgment, if entitled to credit, we have no doubt. Having found no error in the conviction, the judgment is affirmed.”

In Dibrell v. State, 3 Tex. App. 456, be was convicted of an assault with intent to rape. Tbe sole question in tbe case was whether the evidence was sufficient to' sustain the conviction. This court, through Presiding Judge Ector, said the facts were that tbe young lady assaulted was sleeping alone. Her sister, who was in the habit of sleeping with her, was from home at her neighbor’s. Her father and two brothers were sleeping in an adjoining room and her mother in still another room in the same building. She was awakened from her sleep by some one pulling her bed clothes. She raised up and saw something on the floor which she took to be a dog. She put her hand on it and discovered it was a man. He was crouched on his hands and knees and had nothing on but a shirt. She screamed, and he fled. She recognized him. She awakened her father and brothers by her screams, and they pursued appellant, but did not apprehend him. Her brother testified that about an hour before this he saw the defendant just outside of the fence looking into the window, and that when appellant saw him he turned aiway. The court said:

“If the defendant entered the room in which the young lady was sleeping, for the purpose of having carnal knowledge of her, without her consent, by force, and, in attempting to uncover her to accomplish his purpose, she awoke and gave the alarm, and he, through fear, desisted and ran off, we think the offense as charged was complete, and the judgment should not be set aside.”

Tho court further said:

“Wlas it not legally inferable from the evidence that the intent of the accused was to gratify his lust forcibly? The jury was warranted in believing from the evidence that his intent was to commit a rape, and that the accused went far enough to establish such intent. The judgment of the lower court is affirmed.”

In Shepard v. State, 34 Tex. Cr. R. 35, 28 S. W. 816, wherein appellant was convicted of an assault with intent to commit a rape and the judgment affirmed, the court, through Presiding Judge Hurt, said that Emma Shepard, the daughter of appellant, therein detailed several assaults committed upon her .by appellant. She testified that these several assaults were committed upon her at different times, some of them while she was sleeping in the room occupied by her father and mother and other members of the family. She made no outcry at any time. She claimed to have told her mother and brother and others of these several assaults soon after they occurred. Her mother and brother and the others all testified that she made no complaint to them at any time. When the sheriff arrested him, he was found secreted under some bushes some distance from the house and inquired of the sheriff what it took to constitute the offense of rape. Judge Hurt said:

“The court and jury before whom this case was tried had every opportunity of judging of the credibility of each and every witness, of the manner in which they testified, and we do not feel called upon to disturb the verdict and judgment.”

In Crew v. State, 22 S. W. 973, it was shown that at midnight a 15 or 17 year old boy went to where Nancy Johnson, the assaulted woman, lived, and told her that her aunt living some distance from her was sick and had sent for her. She dressed, went out, and got in the buggy with the boy, and noticed that he left in an opposite direction from where her aunt lived. She wanted to know why he was going in that direction, and he told her they were going to drive by Jo Crew’s to leave the buggy and would walk from there on to her aunt’s. Upon further inquiry, she found that Crew’s wife was not at home. She at once ordered him to stop the buggy, and upon his refusal she stopped the horse and jumped out and began running home. Appellant, Crew, then ran from a fence near, chased her, and succeeded in overtaking and seizing her near her home. He told her to come and go with us. She refused and demanded to be released, and appellant did release her at her second demand and her threat to call her father. Her mother said it was a bright, moonlight night. She saw appellant catch her daughter near the gate and hold on to her as he dragged her some six or eight feet; that she started calling to appellant to let her daughter go, when he turned her aloose. This court, through Judge Simkins, said:

“A new trial is * * * asked upon the ground that the testimony is not sufficient .to convict appellant of any crime greater than an aggravated assault. We think the facts in this case are sufficient to sustain the verdict. It is true that since the trial of this case the young woman has filed an affidavit that appellant released her as soon as she told him to do so, and before her mother or any one else told him, and she has good reason to believe that he did not intend to use more force than he did, and that she did not believe he intended to rape her. Yet her belief cannot disprove the actual facts in the ease. Decoying her from her house, and endeavoring to get her to his own house, at midnight, and then endeavoring to carry her by force — such conduct, if not authorized by previous circumstances, of which there is no proof, becomes so gross an outrage that it is difficult to appreciate the leniency of the jury. Judgment is affirmed. Judges all present and concurring.”

In Allen v. State, 76 Tex. Cr. R. 634, 177 S. W. 88, it ¡was shown that the young lady assaulted was going from a street car to her home a few blocks away; that she discovered the appellant on a corner of the street with his clothes unfastened and his person exposed. When she got near him, he called her attention to his exposed ¡person and grabbed for her. She ran, and he caught the end of her coat; but she jerked away from him and escaped. In that case the jury assessed a penalty of 50 years in the penitentiary. The appellant contended therein that the evidence was insufficient to show that his intent was to commit a rape upon her by force. This court held that the evidence was sufficient and affirmed the case.

See, also, Duckett v. State, 68 Tex. Cr. R. 331, 150 S. W. 1177; Hightower v. State, 65 Tex. Cr. R. 323, 143 S. W. 1168; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ross v. State, 60 Tex. Cr. R. 555, 132 S. W. 793; Gimmett v. State, 22 Tex. Cr. R. 36, 2 S. W. 631, 58 Am. Rep. 630. A large number of other cases in point could be cited, but it is unnecessary.

There is but one bill of exceptions in the record. Even if it could be considered under the rules, it presents no error. It merely shows that the state, over his objections, asked the witness Dave McKinney this question: “After you were informed of what happened, state what you did and where you went?” To which the witness answered:

“We went directly to the house and made an investigation as soon as we got there. I found a hat there. That is the hat. It was found in the bedroom. I think it was the bedroom where Mrs. Abbott slept. It was found right by the door. I found blood on each bed. I found a piece of plank, one by three, lying across one of the beds that was broken down. Looked like blood stains on each bed from one side to the other. Marton Clauson and one or two others were there at the time.”

This evidence was clearly admissible.

The judgment is affirmed.
      <®^3Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    STONE v. STATE.
    (No. 5217.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.)
    Criminal Law <&wkey;970(7) — Saving Objection.
    In a prosecution under the prohibition law, objection on motion in arrest of judgment, claiming that court did not have jurisdiction because date of prohibition election was not alleged in indictment, was too late.
    Appeal from Rains County Court; O. H. Rodes, Judge.
    Bill Stone was convicted of unlawfully selling intoxicating liquors, and he appeals.
    Affirmed.
    B. A. Carter and W. F. Shipp, both of Emory, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

On May 25, 1918, appellant was indicted by the grand jury of said county for unlawfully selling intoxicating liquors therein after an election had been properly held in that county, at which prohibition carried and the proper orders were made, published, etc. The date of the election was not alleged.

The indictment was transferred from the district to the county court, and appellant was tried in the county court under the misdemeanor clause of said statute. There is no statement of facts. Appellant in no way at the time objected to the trial in the county court, and filed no plea to the jurisdiction, or motion in any way questioning the jurisdiction of the county court, before trial. After his trial and conviction, he then for the first time made a motion in arrest oí judgment, claiming the county court did not have jurisdiction, because the date of the election showing that prohibition was put in force as a misdemeanor was not alleged. His motion came too late, and the court did not err in overruling it. This has been uniformly held by this court in a large number of cases. Garner v. State, 62 Tex. Cr. R. 525, 138 S. W. 124; Hamilton v. State, 65 Tex. Cr. R. 508, 145 S. W. 348; Dobson v. State, 65 Tex. Cr. R. 638, 146 S. W. 546; Mealer v. State, 66 Tex. Cr. R. 145, 145 S. W. 353: Meyer v. State, 65 Tex. Cr. R. 580, 145 S. W. 919; Crawford v. State, 66 Tex. Cr. R. 440, 147 S. W. 229; Ferguson v. State, 66 Tex. Cr. R. 427, 147 S. W. 239; Hart v. State, 67 Tex. Cr. R. 501, 150 S. W. 188; Snell v. State, 68 Tex. Cr. R. 1, 150 S. W. 615; Parker v. State, 68 Tex. Cr. R. 181, 150 S. W. 1184, and other cases.

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


author: DAVIDSON, P. J.

text:
    HAYS v. STATE.
    (No. 5227.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    1. Assault and Battery <&wkey;92 — Aggravated Assault — Evidence—Sufficiency.
    Under evidence of wife that she was about to strike defendant husband, and that he either struck her with his fist or hand and ran, and that she chased him with a view of giving him a beating with a club, husband would not be guilty of aggravated assault.
    2. Assault and Battery <&wkey;67 — Assault by Husband — Defense.
    If defendant’s wife made an assault upon him or was trying to assault him at the time, he had the right to use necessary force to escape, and would not be guilty of assault.
    3. Criminal Law <&wkey;415(7) — Conversation in Accused’s Absence — Admissibility.
    Conversation had by defendant’s wife with police officers, when she went to have defendant arrested for assault, and testified to by her, being in his absence, was inadmissible.
    4. Criminal Law <&wkey;673(l) — Conversation in Accused’s Absence — Admissibility.
    Conversation had by defendant’s wife with police officers, when she went to arrest defendant for assault, would not be admissible on the theory that the court used it in reference to graduating the punishment or assessing the penalty.
    5. Assault and Battery &wkey;>83 — Aggravated Assault — Impeachment—Use as Original Evidence.
    Where state’s case, as made by wife’s testimony, was that she was about to hit defendant husband, when he struck her, if she made statements contradictory of this, or showing more aggravation than she stated, still it would be impeachment and could not be used as original evidence by the state in making out its case.
    Appeal from Jefferson County Court; A. M. Butan, Judge.
    Theo. Hays was convicted of aggravated assault, and appeals.
    Eeversed and remanded.
    H. B. Tucker, of Port Arthur, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault, his punishment being assessed at a fine of $25.

The evidence shows that the assault was committed upon appellant’s wife. This is shown by the testimony of the wife, and that he struck her either with his fist or hand but did not knock her down. She says this occurred on the 21st of July. She testified:

“At the time that my husband hit me, I was trying to hit him. After he assaulted me ho ran, and I ran after him about 25 yards. I was going to hit him if I caught him. I did not catch him; he outrun me. I was. crying when I came to the police station because I was angry. If I had got hold of my husband and clubbed him, I would not have been crying. No one interfered with us at the time that he struck me. He was not prevented from striking me more licks if he had wanted to.”

She further testified she was indifferent as to whether he was prosecuted or not. This trouble occurred at Port Arthur, in Jefferson county. In August afterwards, appellant was arrested in Orange, Tex., and brought to Jefferson county for trial.

Four bills of exception are shown by the record. They, in substance, recite that the state introduced Miles, chief of police, and Lee, a subordinate police officer. Lee testified:

“I was on duty on the 21st day of July, when this woman came up to get her husband arrested. She was crying, and I asked her what was the trouble, and she said her husband had been beating her, and I asked her who her husband was, and she said Theo. Hays. I asked her where he struck her at, and she said all over. ‘Pie beat me up,’ she said ‘Want him arrested.’ She said: ‘You cannot get him now, he has run out in the rain; but I want you to get him when he comes back to the house.’ I told her I would try to get Mm when he came back; I arrested Mm on August 5th.”

Miles testified he was in the police station the day the woman came and made complaint. “She made the statement to me and Mr. Lee that she wanted her husband arrested because he had choked her and beat her up.”

Various and sundry objections were urged to this testimony: First, it was hearsay, it not being shown that the defendant was present at the time the conversation occurred between Miles, Lee, and the witness; second, because it is an attempt on the part of the state to contradict, discredit, and impeach the witness Alice Hays, it not being offered as res gestee. The court placed this qualification upon the bill:

“Upon the argument of the motion for new trial, counsel for the state offered and asked leave to withdraw the evidence given by the witnesses Lee and Miles, to which counsel for defendant objected.”

Another bill recites that the state introduced Lee, and the prosecuting officer was permitted to have the witness state in detail what Alice Hays said to him on the morning of July 21st, when she came into the chief of police’s office. This is the testimony as set out in bill No. 3 above. In admitting said conversation the court makes this statement :

“It is admitted solely for the purpose of proving the extent or degree of the assault and only as bearing on the amount of fine to be assessed, and it appearing to the court that the witness to some extent is unfriendly to the state at this time, and it being claimed that she has changed her statement as to the nature of the assault since immediately after the assault was made.”

These two bills are practically the same as the two former bills, all bearing upon the introduction of the testimony of these two officers. In Leonard v. State, 27 Tex. App. 186, 11 S. W. 112, Judge Hurt, rendering the opinion of the court, said:

“There may not be much gallantry or chivalry in repelling with force assaults made by the wife, still, at law1, a husband has the right to defend himself even against the attacks of his ■wife; and, unless greater force is used than is necessary to repel the violence, he would not be guilty of an assault or battery. In this case the wife was the aggressor, it not being shown that appellant was in the wrong in chastising the girl, and the force -used by him was very slight indeed.”

This quotation is used to indicate the husband may resent an attack made on him by his wife. It is evident from the wife’s testimony that she was about to strike him, and he either struck her with his fist or hand and ran, and she chased him with a view of giving him a beating with a club. The evidence is indefinite as to when she got the club, whether she had it at the time she was trying to hit him or not. But if she had made an assault on him, or was trying to make an assault on him at the time, he had the right to resent it. The assault was of a slight nature. She said he either struck her or slapped her with his fist and ran. We are of opinion that, under this showing, appellant had the right to use necessary force to get away from his wife, and that he would not be guilty of committing any assault under such circumstances.

We are also of opinion the testimony of the officers was not admissible. These were matters occurring between the officers and witness in the absence of defendant. Even if the state had a right to impeach his wife, which is here questionable under the 'facts, still this did not make out a ease for the state; but we are of opinion the evidence was not admissible. Mr. Branch lays down the rule, which seems to be fully sustained by the authorities, that—

“It is error to permit the state to impeach her own witness where such witness fails to remember, or refuses to testify, or fails to make out the state’s case. A mere failure to make proof is no ground for impeaching such witness.”

This quotation is made from section 164, p. 95, Branch’s Ann. P. C. It is supported by a great number of cases which have been listed by Mr. Branch under this note. He further states in the same note that the state may impeach her own witness by proof of contradictory statements where he testifies to either affirmative or negative facts injurious to the state’s case, citing a great number of cases to support the proposition. He further states on page 96:

“Where the state impeaches her own witness by proof of statements not made on the present trial, such impeaching testimony is not original evidence against defendant, but is only admissible to affect the credibility of the witness, and would have to be limited in the charge. It follows that such hearsay testimony will not support a conviction, and, if the witness fails to make out a case, there is nothing to be gained by impeaching him, where the state has no other witnesses to make out the case.”

There are a great number of cases cited in support of this proposition. The testimony certainly could not be used on the theory advanced by the court in the quotation made from his qualification of the bill, that he used it in reference to graduating the punishment or assessing the penalty. The state’s case, as made by the wife’s testimony, was that she was about to' hit her husband when he struck her and ran, and that she chased him with a view of clubbing him. This was the state’s case and if she made statements contradictory of this, or showing more aggravation than she stated, still it would be impeachment and could not be used as original evidence by the state in making out its case. We are of opinion, therefore, the state has not made out a case sufficiently strong to authorize a conviction, and that the impeaching testimony under the condition of this record was not admissible.

The judgment is reversed, and the cause remanded.
      <S=»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    TUCKER v. STATE.
    (No. 5241.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    Criminal Law <®=1144(3) — Review — Presumptions.
    Where indictment charging forgery did not give initials of payee, but stated that false instrument was in possession of accused, and grand jury was unable to obtain it, and could not set it out by its tenor, it will be presumed on appeal, in the absence of a statement of facts, that proof showed forgery as alleged, that original instrument was in appellant’s possession, and that state was unable to obtain it, and for that reason could not further set it out.
    Appeal from District Court, Red River 'County; Ben H. Denton, Judge.
    Neal Tucker was convicted of forgery, and he appeals.
    Affirmed.
    See, also, 206 S. W. 943.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for forgery. There is no statement of facts and no bill of exceptions.

The following is a copy of the alleged forged check;

“Clarksville, Texas.
“Hirst National Bank of Clarksville, Texas;
“Pay to Gatts $10.40 Ten & 40/100 Dollars.
“W. H. Miller.”

The indictment, after the necessary allegations of forgery, alleged that said false instrument was in possession of appellant, and the grand jury was unable to obtain it, and could not set it out by its tenor.

Appellant made a motion to quash the indictment, for the reason that the alleged forged check does not give the name of the payee, only gives the name “Gatts,” but does not give the initials, and claimed that because thereof the check was void on its face, and created no pecuniary obligation sufficient, if true, to constitute forgery. .

We must presume, and do, in the absence of a statement of facts, that the proof showed the forgery as alleged, and that the original instrument was in appellant’s possession, and that the state was unable to obtain it, and for that reason could not further set it out. The court did not err in overruling bis motion to quash.

There is nothing else to review. The judgment is affirmed.
      (&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TUCKER v. STATE.
    (No. 5242.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    Criminal Law &wkey;1090(7) — Bill oir Exception — Continuance.
    The appellate court cannot reverse an order overruling an application for a continuance on account of absence of witness, unless there was a bill of exceptions and statement of facts.
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Neal Tucker was convicted of forgery, and he appeals.
    Affirmed.
    See, also, 206 S. W. 943.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of forgery, and allotted two years in the penitentiary.

The record is without a statement of facts. The motion for a new trial is predicated upon the action of the court overruling the application for a continuance on account of the absence of witnesses, who are therein mentioned. The application ’is not in the record, nor does the evidence adduced on the trial accompany the record. This court cannot reverse with reference to this contingency, unless there was a bill of exceptions reserved to this action, and also un-, .less there be a statement of facts, even if there had been a bill of exceptions. The matters being so presented, they cannot be' considered. This is the question presented for revision.

The judgment is affirmed.


text:
    GRAYSON v. STATE.
    (No. 5235.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    1. Criminal Law <&wkey;1104(4), 1105(1) — Appeal — Statement of Facts in Misdemeanor Cases.
    In misdemeanor cases, the clerk must include a copy of the statement of facts in the transcript, when properly approved and filed; and certify thereto, the same as the other documents; the original 'being sent up only in felony cases.
    2. Criminal Law <&wkey;1099(5) — Appeal — Statement oe Facts — Time for Approval anb Filing.
    A statement of facts in a misdemeanor case cannot be considered on appeal, where not approved or filed until October 12th; term having ended August 3d.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    J. N. Grayson was convicted of aggravated assault and battery, and be appeals.
    Affirmed.
    B. B. Sturgeon, of Paris, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appealed from a conviction of an aggravated assault and battery, wherein be was fined $50.

The term of court at which he was tried adjourned August 3, 1918. There is no statement of facts in the record. In misdemeanor cases, where a statement of facts has been duly approved and filed within time, the clerk must include a copy of it in the transcript, and certify thereto, the same as the other documents, orders, etc., in the case. It is only in felony cases that the original must be sent to tbis court, instead of it’ being copied in the transcript. 1 Branch, An. P. C. § 594.

There is with the file, but not in the record, what is styled a statement of facts, which appears to be the original. However, it was not approved by the trial judge nor filed until October 12th. Hence it cannot be considered by this court, and the Assistant Attorney General’s motion to strike it out must therefore prevail. Sorrell v. State, 79 Tex. Cr. R. 453, 186 S. W. 336; McGee v. State, 78 Tex. Cr. R. 638, 182 S. W. 309; 1 Branch, An. P. C. p. 306. There is nothing which can be -considered in the absence of a statement of facts.

The judgment is affirmed.


author: HARPER, C. J. HIGGINS, J,

text:
    THOMAS v. WESTERN INDEMNITY CO.
    (No. 889.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1918.
    Rehearing Denied Dec. 12, 1918.)
    Contracts <&wkey;10(l) — Construction—Unilateral Contracts.
    Where an indemnity bond issued by plaintiff provided it should remain in force for one year, unless canceled by plaintiff, the contract held unilateral, and terminable at the will of either party, being enforceable only for the period for which plaintiff had received the premium.
    Higgins, J., dissenting.
    Appeal from El Paso County Court, at Law; W. P. Brady, Judge.
    Action by the Western Indemnity Company against W. N. Thomas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Rufus B. Daniel and Del W. Harrington, both of El Paso, for appellant.
    Ware & Norcop, C. H. Kirkland, and W. M. Peticolas, all of El Paso, for appellee.
   Statement of the Case.

HARPER, C. J.

Through its agent in El Paso, Tex., the Western Indemnity Company was engaged in the business of executing bonds as surety for a moneyed consideration. Appellant, W. N. Thomas, being desirous of operating a jitney motor bus in the city of El Paso, and before doing so it being required of him by city ordinance to file a bond, he approached the appellee’s agent with a view of getting the indemnity company to execute the bond as surety, whereupon its said agent gave to Thomas an application blank to be filled and signed by him.

The parts of this application which appertain to the points at issue are:

“Whereas, the undersigned was on the 1st day of April, 1917, granted a permit by the city of El Paso, Tex., to operate a motor bus within the limits of the city * * * in compliance with the terms of an ordinance, * * * and before a license can be issued there must J be filed with the city clerk of the city of El Paso a bond in the sum of $1,000: Now, therefore, application is hereby made to the Western Indemnity Company to execute said bond as surety, which bond, if executed, shall continue in force and effect for one year from the date thereof, unless canceled by the Western Indemnity Company. * * * 'The applicant will pay the company $150 per year, payable in 12 equal installments, monthly in advance, and said entire premium shall be paid in any and every event, save, only, if the Western Indemnity Company shall itself cancel said bond, in which event there shall be no premium liability against the applicant for the remaining term’ of said year from the time of said cancellation. The Western Indemnity Company shall have the right at any time, at its option, to cancel its bond and to withdraw therefrom as surety, upon releasing the applicant from any further liability for premium,”

Pursuant to tbis application being signed by Thomas and presented to the agent of the company, the required bond was executed, as required by the city ordinance, by the company. The consideration to the company for so signing as surety the note sued on was executed by Thomas. It contains the following stipulations:

“For value received * * * I promise to pay to Western Indemnity Company * * * the sum of $150. * * * This note is payable as follows: In monthly installments of $12.50 each; the first of said installments being due and payable one month after date, and the remainder of such installments being due and payable one on the 1st day of each month thereafter, etc., and the failure to pay any of the installments shall mature the entire amount of the note.”

Dated February 13, 1917.

Thomas paid on the note $31.25, being for the balance of the month of February and ail of March, and on the 1st of April notified the company’s agent to cancel the bond, and filed another bond with the city, with different surety.

This suit was filed by the Indemnity Company May 28, 1917, for the balance due upon the face of the note, interest, and attorney’s fees, etc., and for foreclosure of chattel mortgage on an automobile. Thomas answered, first, that the contract, for which the note evidenced the consideration, was a contract of indemnity from month to month, that it had been terminated on the 1st day of April by notice, and by filing a new bond with the city, with a different surety, and that therefore there was no consideration for the part of the note sued on; second, that the contract was null and void as to either party beyond the period of 30 days, because it lacks mutuality, is unilateral, etc., and subject to be terminated by either party.

Trial without a jury, and judgment rendered for the Indemnity Company for the balance of the note, interest, and attorney’s fees, from which Thomas has appealed.

Opinion.

The question presented by the assignments is: Did the trial court “err in not holding as a matter of law that Thomas was not bound for the payment of the balance due, according to the face of the note sued on because the contract was unilateral?” Construing this contract as a whole, as we are required to do, we have concluded that the clause in the contract providing that the “bond shall continue in force for one year unless canceled by the Western Indemnity Company, makes it terminable at the will of either party, and therefore unenforceable for any period except that for which the company had received the money. Ap-pellee urges that when, in response to the application, the company signed the bond, it had done all it was required to do uhder the contract, and that it thereby became executed, the consideration perfected, and that payment for that reason can be enforced. If the act of signing the bond as surety had been all the company was to do under the contract, this well-settled principle of law would support its judgment. But it will be noted that by the contract relied upon the company binds itself to keep the bond in force and effect for one year, unless it chooses to cancel it, and there were ten months of the time yet to elapse before all that was to be done could have been done; so it is clear that the principle cannot be applied to the facts of this case. If the company had by its contract bound itself to keep this bond in force for one year in all events, then even a part payment by Thomas would have perfected the consideration. M., K. & T. Ry. Co. v. Smith, 98 Tex. 47, 81 S. W. 22, 66 L. R. A. 741, 107 Am. St. Rep. 607, 4 Ann. Cas. 644.

The writer is of the opinion that, construing the two writings together, the application and the note, it is clear that the company only bound itself to keep the bond alive or in force for one month at a time, and from month to month only as Thomas paid in advance the monthly charge of $12.50 per month. Justice WALTHAL does not concur in the latter proposition.

We are of the further opinion that, by the clause in the contract reserving to the company the right to at any time cancel the bond, the contract was unilateral, and terminable at the will of either party, and that by Thomas giving notice as he did, and filing another bond with the city, the contract was terminated, and the Indemnity' Company could and should have withdrawn from the bond; therefore the indemnity company has no cause of action for the unpaid portion of the note.

Reversed and rendered.

HIGGINS, J,

(dissenting). On February 12, 1917, appellant, Thomas, applied to the permit clerk of the city of El Raso for a license to operate a motor bus within the city over route No. 1, subject to the provisions of a city ordinance' approved May 28, 1915. In order to obtain the license, it appears to have been necessary for Thomas to give a bond in the sum of $1,000, payable to the mayor of the city, for the use and benefit of all persons in whose favor a cause of action might arise out of the negligent operation of the bus.

Upon a printed form, furnished by appellee, Thomas applied to appellee to make this bond. Those portions of this application material to a consideration of the question presented read:

“Application to Western Indemnity Company for Bond.
“Whereas, the undersigned was on the 1st day of April, 1917, granted a permit by the city council of the city of El Paso to operate a motor bus within the limits of the city of El Paso, Tex., in compliance with the terms of an ordinance approved the 28th day of May, 1915, and its amendments, and before a license can be issued there must be filed with the city clerk of the city of El Paso a bond in the sum of one thousand ($1,000.00) dollars:
“Now, therefore, application is hereby made to the Western Indemnity Company, a corporation, to execute said bond as surety, which bond, if executed, shall continue in force and effect for one (1) year from the date hereof unless canceled by the Western Indemnity Company under the provisions hereinafter set out.
“As a consideration for the execution of said bond, it is agreed by the applicant as follows:
“I. That the applicant and driver of said ear will obey the traffic ordinances of the city of El Paso.
“II. That the applicant will pay the Western Indemnity Company the sum of one hundred fifty ($150.00) dollars per year, payable in twelve (12) equal installments monthly in advance, and said entire premium shall be paid in any and every event, save only if the Western Indemnity Company shall itself cancel said bond, in which event there shall be no premium liability against the applicant for the remaining term of said year from the time of said cancellation.
“HI. The Western Indemnity Company shall have the right at any time, at its option, to cancel its bond and to withdraw therefrom as surety, upon releasing the applicant from any further liability for premium.”

To cover the obligation assumed by Thomas in the second paragraph of the application, he gave the Indemnity Company his note in the sum of $150, dated February 13, 19Í8, payable in the monthly installments of $12.-50 each; the first installment being payable in one month after date, and the subsequent installments on the 1st of each month thereafter. The bond requested was made by the appellee as surety, of date February 13,1917, filed with the city clerk, and the license was thereupon issued to Thomas by the city. The bond contains this provision:

“The surety herein may withdraw herefrom by giving written notice of its intention so to do to the mayor of the city of El Paso, Tex., and such notice shall have the effect of relieving such surety from anjr further liability hereunder after the expiration of 24 hours from the service of such written notice upon the said mayor of the city of El Paso, and return or a tender to return to the said principal the unearned portion of the premium paid herein calculated at pro rata rate.”

On April 1, 1917, Thomas applied to the permit clerk .for a license to operate another motor bus in the city over route 6. Upon a form the same as indicated above, and furnished by appellee, Thomas applied to appellee to make the necessary bond. To cover the obligation assumed by Thomas in the second paragraph of the application, he gave appel-lee his note in the sum of $150, dated April 1, 1917, and payable in monthly installments, like the note, first described. The bond to cover route 6 was made by appellee as surety, was dated April 1, 1917, filed with the city clerk, and license was thereupon issued by the city. The bond is in same form as the one covering route 1. Thomas operated under these bonds until May 1, 1917, and paid the installments due to that date. He then notified appellee of his refusal to pay any further installments of his notes. On the same day he made new applications to the permit clerk for licenses to operate the bus-ses over routes 1 and 6, and filed new bonds of like tenor and effect as the ones previously filed. These last bonds were executed by the Maryland Casualty Company as surety.

The notes above described contained an accelerated maturity clause, providing that failure to pay any installment when due should, at the option of the holder, mature the entire amount of the note.

Appellee filed this suit to recover the entire principal amount of the notes, and recovered judgment as sought. The record in this case discloses that the appellee has never exercised its option to withdraw from the bonds which it executed. At the date of the trial they were still on file with the proper city official, and there is nothing to indicate that the city has ever released appellee from the bonds which it made for Thomas.

It is possibly inferable from the testimony of the city clerk, Mr. Dawson, that the bonds made by the Maryland Casualty Company have been filed with him; but there is an absolute want of evidence to show that the city has ever taken any action to authorize a substitution of bonds, or issued any license to-Thomas based upon the new bonds. Thomas at the date of trial was still operating his motor busses.

Upon the facts indicated, I dissent from the conclusion reached by the majority. The entire contract between Thomas and appellee, whereby the latter undertook to make the bonds required by the city, is evidenced by the) notes and applications of Thomas. In their inception, it is very clear they were unilateral, because appellee obligated itself to do nothing; but it is well settled that, where one makes a promise in consideration of some act to be performed by another, and the latter does the act, the 'contract is not voidable for want of mutuality. The promisor is liable, and his promise can be specifically enforced against him, though the promisee did not, at the time of the promise, engage to do the act; for,i upon the performance of the act by the promisee, the contract becomes clothed with a valid consideration, which relates back and renders the promise obligatory. 6 R. C. L. subject “Contracts,” §§ 94-96; 9 Cyc. 329, 3301, 333, 334; 1 Parsons on Contracts (9th Ed,) p. 451; Taber v. Dallas County, 101 Tex. 250, 106 S. W. 332; Rose v. Ry. Co., 31 Tex. 60; Storm & Schrader v. United States, 94 U. S. 82, 24 L. Ed. 45; Griffin v. Bell, 202 S. W. at page 1036; Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372.

As I construe the applications, Thomas agreed to pay appellee $150 for each bond, if the latter would execute the bonds required by the city. The option to cancel is a part of the consideration for the execution of the bonds. The applications plainly say:

“As a consideration for the execution of said bond, it is agreed by the applicant as follows:
“II. That the applicant will pay the Western Indemnity Company the sum of one hundred fifty ($150.00) dollars per year, payable in twelve (12) equal installments monthly in advance, and said entire premium shall be paid in any and every event, save only if the Western Indemnity Company shall itself cancel said bond, in which event there shall be no premium liability against the applicant for the remaining term of said year from the time of said cancellation.
“III. The Western Indemnity Company shall have the right at any time, at its option, to cancel its bond and to withdraw therefrom as surety, upon releasing the applicant from any further liability for premium.”

Appellee did execute the bonds. By so doing the hitherto unilateral contracts became clothed with a valid consideration, mutuality was established, and they became valid contracts. Having become valid, they lost that feature peculiar to unilateral contracts, namely, the option of either party to refuse to abide by or perform the contract. Tho majority opinion holds that the option reserving to the company the right to cancel the bonds made the contracts unilateral. As I have attempted to show, the execution of the bonds supplied a consideration theretofore wanting, and, as I understand the authorities, an option of this ¡ nature in favor of one of the parties to a contract, supported by a consideration, is valid, and does not render the contract voidable for want of mutuality. ,This was expressly held by Judge Stayton in Railway Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758. In that case a contract of employment was made; the railway company agreeing to employ Scott in consideration of a compromise accepted by him of a claim for damages against the company. The suit was by Scott to recover for a breach of the contract to employ him. The contract alleged was that the railway company “would employ petitioner [Scott] for whatever length of time your petitioner might desire to retain such employment.” The company requested a peremptory charge in its favor upon the theory that the contract was wanting in mutuality. The court held that the charge was properly refused. The court held that it was optional with Scott whether or not he would serve appellant, and that hy the terms of the agreement he had the right to fix the period he would serve, if he willed to serve at all. It was further held that the right to this option could not be upheld on the theory of reciprocal promises as a consideration, but that the acceptance of the compromise afforded a consideration to support the option. The court held, however, that the contract was not sufficiently certain as to time, but could be made‘certain if Scott elected to fix the period of his service by offering to serve for any certain period, or any period that could be made certain. This case distinctly upholds the validity of an option based upon an executed consideration. Railway Co. v. Smith, 98 Tex. 47, 81 S. W. 22, 66 L. R. A. 741, 107 Am. St. Rep. 607, 4 Ann. Cas. 644, plainly recognizes that a contract wanting in mutuality at its inception will become binding by the promisee performing the act which was to be done, but which he had not bound himself to do. The court held that the promise to re-employ an injured servant, under consideration in that case, was too indefinite to furnish a consideration for his release of a claim for damages.

Now, in the ease at bar, appellant does not contend that the contract between the parties is in any wise indefinite, nor can it be so considered. When appellee executed the bonds, it did all that it was requested to do; a contract arose upon an executed consideration, and by that act appellee became entitled to demand of Thomas that he comply with his promise to pay (Anson on Contracts, 116; Bishop on Contracts, 37; Heisch v. Adams, 81 Tex. 94, 16 S. W. 790), and also became entitled to the option of cancellation upon the conditions prescribed in the contract. The only condition attached to the right of cancellation was that appellee release Thomas from liability for any premium from the date of cancellation. This provision for release from unearned premiums fully protected Thomas from paying for something that appellee did not earn. That this option did not destroy the mutuality of the contract, it seems to the writer, is conclusively established by the opinion in Taber v. Dallas County, supra, wherein Judge Brown says:

“But it is said that by the terms of the contract Taber could terminate it at his option by failing to pay interest for 60 days; hence his promise to pay is not a valuable consideration. We are not prepared to hold that Taber could terminate the contract by refusing to pay the interest. The question is not before us; but, admitting that to be a correct interpretation of the terms used,, it does not destroy the mutuality of the contract, but is simply an option which the parties contracted for and which may or may not be exercised by Taber. 9 Cyc. 333; Waterman v. Waterman [C. C.] 27 Fed. 829; Storm v. U. S., 94 U. S. 76 [24 L. Ed. 42].”

In addition to the authorities cited by Judge Brown, see, also, Railway Co. v. Jackson, 29 Tex. Civ. App. 342, 69 S. W. 91; Hayes v. O’Brien, 149 Ill. 403, 37 N. E. 73, 23 L. R. A. 555; Elliott on Contracts (1913 Ed.) § 231; 9 Cyc. 334; 6 R. C. L. subject “Contracts,” § 94.

The writer therefore concludes that the execution of the bonds furnishes a consideration for the promise to pay by Thomas, and that the option in appellee’s favor to withdraw from its contract of suretyship at any time upon releasing Thomas from liability for unearned premiums does not destroy the mutuality of the contract.

I think the case should be affirmed.
      <@=»For other cases see same topic and KEY-NU'MBBR in all Key-Numbered Digests and Indexes


author: HIGHTOWER, O. J.

text:
    FIDELITY LUMBER CO. v. HOWELL et al.
    (No. 371.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1918.
    Rehearing Denied Dec. 11, 1918.)
    1. Insane Pebsons <&wkey;100 — Judgment—'Validity.
    A judgment against an insane person is not void and .cannot be collaterally attacked by the insane person, or any person claiming from, through, or under him, or in privity with him.
    2. Judgment &wkey;>693 — Persons Bound — Husband and Wife.
    Where a husband was in adverse possession of land, but became insane before he acquired title thereto, and the wife took charge of the family and continued to live with the insane husband upon the land, the possession of the wife could not be distinct from that of the husband, and a judgment in trespass to try title against the husband was binding on the wife, notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. .3593.
    Appeal from District Court, Tyler County; J. Llewellyn, Judge.
    Action by the Fidelity Lumber Company against Mrs. R. C. Howell and others. From a judgment granting only part of the relief prayed for, plaintiff appeals.
    Affirmed as to part granting plaintiff relief, and, as to part in favor of named defendant, reversed and rendered.
    Thomas & Wheat, of Woodville, for appellant.
    R. A. Shivers, of Woodville, and V. A. Collins, of Beaumont, for appellees.
   HIGHTOWER, O. J.

This was a suit of trespass to try title, and was filed in the district court of Tyler county on October 11, 1916. The plaintiff was the Fidelity Lumber Company, and the defendants were Mrs. R. C. Howell, S. C. Howell, B. C. Howell,' D. Howell, G. C. Howell, J. W. Howell, a minor, Tom Howell, a minor, Gladys Howell, a minor, and Baby Howell, a minor. All the above-named defendants, except Mrs. R. C. Howell, are the children of I. P. Howell, deceased, and the said Mrs. R. C. Howell, and the minor defendants above named, were represented by guardian ad litem upon the trial. The land sued for by the plaintiff, Fidelity Humber Company, is a tract consisting of 480 acres, a part of section No. 41, G. & B. Navigation Company survey in Tyler county, which tract was fully described by metes and bounds in the plaintiff's petition. All the defendants above named, with the exception of G. C. Howell, filed a joint answer, in which they disclaimed as to all the land sued for by the plaintiff, with the exception of 160 acres thereof, which was described by specific metes and bounds in their answer. As to this 160 acres, said defendants answered by general demurrer, plea of not guilty, and further specially alleged that they had been in peaceable and adverse possession of this 160 acres for a period of more than 10 years before plaintiff’s suit was filed and after its cause of action, if any it ever had, accrued, and the statute of limitation of 10 years was pleaded as to this 160-acre tract, in bar of plaintiff’s recovery.

The defendant G. C. Howell filed a separate answer, in which he disclaimed as to all the land sued for by the plaintiff, except a tract thereof consisting of about. 40 acres, described by specific metes and bounds, and to which he set up title under the statute of 10 years’ limitation.

The case was tried with a jury and was submitted upon special issues by the trial judge, and upon the verdict returned by the jury, and the disclaimer filed by the defendants, judgment was entered in favor of the plaintiff, Fidelity Lumber Company, for all the land sued for, save and except the 160 acres claimed by specific metes and bounds by the defendant Mrs. R. C. Howell and the other defendants, except G. 0. Howell, and as to this specific 160 acres judgment was rendered in favor of the defendant Mrs. R, O. Howell. From the judgment so rendered, Fidelity Lumber Company alone has appealed to this court.

From the record before us, it is clear that the appellant has a perfect title to all the land sued for by it and was entitled to judg-nient therefor, unless Mrs. R. C. Howell has acquired title to the 160 acres awarded her by the judgment under the statute of limitation of 10 years.

We make the following findings of fact from the undisputed evidence as shown by the record in this case:

In the fall of 1898, I. P. Howell, who was the husband of the appellee Mrs. R. C. Howell, and the father of the other defendants below, entered upon the tract of land in controversy with his said family. At the time he so entered, there were some small improvements upon the land, consisting of a small dwelling house and perhaps other small houses used in connection therewith, and there was a clearing or small field consisting of 6 or 7 acres. I. P. Howell bought these improvements from one J. D. Brown, and with his family continued to occupy and use the premises peaceably and cultivated the same, and claimed the same adversely until some time in October, 1906, when J. A. Mooney, who was at that time the owner of said 480-acre tract of land, brought suit in the district court of Tyler county against said I. P. Howell in the form of trespass to try title to recover the title and possession of said 480-acre tract of land. On the 18th day of December, 1906, judgment was rendered by the district court of Tyler county in said cause of J. A. Mooney v. I. P. Howell for the title and possession of said 480-acre tract of land, and by that judgment a writ of restitution and possession was awarded in favor of Mooney. This judgment constitutes a link in appellant’s chain of title. In that cause the defendant, I. P. Howell, was duly cited, but did not appear, and no answer was filed by him or by any one for him, and judgment in that cause was in favor of Mooney by default. There was no appeal from that judgment, and the same became final; nor have any steps ever been taken to set the same aside by the said Howell, nor by any one for him.

At the time said suit of Mooney v. Howell was filed, the said I. P. Howell was insane, and he was insane at the time the judgment in said cause was rendered, and the evidence in the record is sufficient to warrant a finding by a jury that I. P. Howell was insane for perhaps two or three years before the filing of the suit against him by J. A. Mooney. After judgment was rendered in favor of Mooney, as before stated, I. P. Howell and his family continued to occupy the land and claimed the same as their homestead until some time in the fall of 1910, when I. P. Howell died. From the time that I. P. Howell became insane, whatever the date was, and until the death of I. P. Howell, he and his family continued jointly to occupy, use, and enjoy the premises on which they were living, and continued to claim 160 acres thereof adversely; but there was no change in the marital relations between I. P. Howell and his wife, Mrs. R. 0. Howell, until severed by death of I. P. Howell in 1910. I. P. Howell was not at home all the time between the date of said Mooney judgment and up to his death in 1910, but was frequently away from home at work, and would usually come home on Saturday evenings and return to his place of work on Sunday evenings following. I. P. Howell, notwithstanding the judgment in the Mooney Case, continued to enjoy the premises in controversy as his homestead, and there was no claim on the part of Mrs. R. C. Howell to any portion of the land in controversy as against her husband, I. P. Howell, and she during all the period of their marital relations recognized him as her husband, and treated him as such, and the children, adult and minors, recognized him as their father and treated him as such, and all of them recognized his claim and right, whatever it was, to the land in controversy up to the time of his death in 1910. Mrs. R. C. Howell, however, testified on the trial that after her husband became insane she considered that she thereby became the head of the family, and from that time she states that she claimed 160 acres of the land in controversy adversely and in her own right, and that the possession of the premises was her possession, and that no suit had ever been brought by any one against her until the present suit was filed, and under such circumstances she claims she has acquired title to the 160 acres recovered by her.

The record shows without dispute that, at the time the suit of Mooney v. I. P. Howell was filed in 1906, the plaintiff, Mooney, had no knowledge or notice of I. P. Howell’s insanity, nor had he any such knowledge at the time judgment in said cause was had.

The appellant in its brief makes a number of assignments of error, but we shall not take them up in -the order made, but we think that what we shall say in our conclusions of law upon the above facts will have the effect to dispose of them all.

Now the trial court submitted to the jury the following special issues having relevancy to the assignments of error here:

Issue No. 1: “Was I. P. Howell an insane person on October 15, 1906, the date of the institution of the suit entitled Mooney v. Howell?”
To this issue the jury answered: “Yes.”
Issue No. 2: “Has Mrs. R. O. Howell had actual, peaceable, and adverse possession of the specific 160 acres of land described in her* answer, or any part thereof, cultivating, using, or enjoying the same, for a period of 10 full years before the 11th day of December, 1916, and subsequent to the time that her husband, I. P. Howell, became insane?”
To this issue the jury answered: “Yes.”
Issue No. 4: “Has Mrs. R. O. Howell had actual peaceable, and adverse possession of the specific 160 acres of land described in her answer, or any part thereof, cultivating, using, or enjoying the same, for a period of 10 full years before the 11th day of October, 1916, and subsequent to the time that her husband, I. P. Howell. became insane?”
To this question the jury answered: “Yes.”
Issue No. 6: “If you have found that I. P. Howell was insane, then state if he had become so insane prior to October 11, 1906.”
To this issue the jury answered: “Yes.”

It is the contention, in effect, of appellant that upon the undisputed facts, as we have substantially above stated them, and as the same must be controlled by the law, it was entitled to an instructed verdict in its favor for all the land sued for in this case, and that the trial court was in error in refusing, as it did, to so instruct the jury. Appellant cldims in this connection that the judgment rendered in the cause of X A. Mooney v. I. P. Howell, above mentioned, was not void, even conceding that I. P. Howell was insane .at the time of such judgment or at the time said suit was filed, and that, the same having become final and never appealed from or in any manner directly attacked or set aside, the same was binding and became an estop-pel as against I. P. Howell, and also was binding upon and became an estoppel against the defendants in this case as to any of the land in controversy;' and, after careful consideration, we have reached the conclusion that appellant’s contention is correct and must be sustained.

It is the contention of the appellee Mrs. R. O. Howell that because of the insanity of I. P. Howell, her husband, which had existed and continued for several years pri- or to the filing of the suit of X A. Mooney against I. P. Howell, and which existed at the date thereof and continued to exist at the date of the judgment in said cause, said judgment at the most would only be a bar in appellant’s favor as against I. P. Howell himself, but that said judgment can in no manner affect her, because she was not made a party to said cause of Mooney v. Howell, and that she is not claiming the land awarded to her from I. P. Howell or through him or under him in any sense, and that she is not in privity with him in' any sense, and that therefore the judgment in said cause of Mooney v. Howell could not bind her or estop her, since the undisputed testimony shows and the jury found that she was in adverse possession herself of the 160 acres recovered by her, and that, in view of the insanity of her husband during said time, she became the head of the family, and that really during all of said period of time since the insanity of her husband she was the adverse possessor of the land recovered by her,'and that I. P. Howell, the husband, was, in contemplation of law, civilly and legally dead upon the day he became insane.

It is true that the record in this case shows without dispute that no title had vested in I. P. Howell at the ,time he was sued by J. A. Mooney in 1906, because he had only been in possession of the premises about seven years at the date of that suit, and could not, therefore, have acquired title under the 10 years’ statute at that date, and from this counsel for Mrs. R. C. Howell argue that, because no title had vested in I. P. Howell at the time he was sued by Mooney or at the time that judgment was taken, she cannot be said to be in privity in any manner with her said husband. Counsel for ap-pellee admit, however, that the judgment of the court in the cause of X A. Mooney v. I. P. Howell was not void for the reason that I. P. Howell was insane at the date thereof, but that at the most such judgment was only voidable, and could have only been set aside by appeal or a direct proceeding for that purpose.

It is well settled by the decisions of the Supreme Court of this state that' a judgment against an insane person is not void, and it is equally well settled that such a judgment cannot be collaterally attacked by such insane person or by any person claiming from, through, or under such insane person or in privity with him.

In support of their contention that Mrs. R. O. Howell acquired title to the 160 acres of land awarded her by the judgment herein under the statute of 10 years’ limitation, counsel cite Yemen’s Sayles’ Statutes, art. 3593. The article is found in the chapter dealing with the estates of deceased persons, and reads as follows:

“Where the husband or wife dies intestate, or becomes insane, having no child or children, and no separate property, the common property passes to the survivor, charged with the debts of the community; and no administration thereon or guardianship of the estate of the insane wife or husband shall be necessary.”

It is argued by counsel for Mrs. Howell that this statute treats insane persons and deceased persons as being in the same class, and that therefore an insane person is, in legal contemplation, a dead person. We cannot agree with this contention of appellee’s counsel; but, on the contrary, we think that there is, in legal contemplation, a vast difference between a person merely insane and one whose life is extinct. It is true that this contention finds support in the opinion of the court in the case of Forbes v. Moore, 32 Tex. 195; but that case on that point has not been followed. On the contrary, it has been overruled. Ry. Co. v. Bailey, 83 Tex. 24, 18 S. W. 482. True, it has been sometimes stated that, in case of a husband’s insanity, the wife becomes the head of the family. Robinson v. Frost, 54 Vt. 105, 41 Am. Rep. 835. And also it has been held that the wife is the natural guardian of her insane husband. See note 34 L. R. A. 223. The question, however, that must be here determined, was not before the court in either of the above-mentioned cases.

Counsel for appellee also cite in support of their contention Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242. Upon examination of that case, it will be found that the court only held that a judgment against a husband alone affecting the title to property which was the separate property of the wife was'not binding upon the wife. The authority is without application, here.

Counsel also cite 23 Cyc. p. 1262, subd. J. There it is said:

“There is no legal privity between the husband and wife in such sense that a judgment for or against the one will conclude the other, where the action concerns their separate property rights or interests not derived from each other.”

We concede that this quotation announces a sound doctrine and one that ia recognized in this state. It has been held in this state many times that a judgment against a' husband alone in a suit involving the wife’s separate property cannot have the effect to bind the wife, but it is also well settled that a suit against the husband alone for property claimed by the wife will have the effect to suspend limitation in favor of the wife’s claim. Read v. Allen, 56 Tex. 194; Burrell v. Adams, 104 Tex. 187, 135 S. W. 1156.

It has also been held that neither the husband nor the wife can. acquire title by adverse possession as against the other of land of which they are in joint occupancy, during the continuance of the family relation. Gafford v. Strauss, 89 Ala. 283, 7 South. 248, 7 L. R. A. 568, 18 Am. St. Rep. 111. And it has been held by the courts of this state that there can be no such thing as adverse possession to that of the husband’s by other members of his family. Burrell v. Adams, 104 Tex. 183, 135 S. W. 1156; Hurley v. Lockett, 72 Tex. 271, 12 S. W. 212.

Now the contention of the appellee Mrs. R. O. Howell simply amounts to this: Upon her husband’s becoming insane, she became as a matter of law the head of the family and in control of the premises in question and the possession thereof was in her, and that such possession was separate and distinct from that of her husband, and was in no manner in privity with him, and that notwithstanding their joint occupancy of the premises, and notwithstanding there was no change in the character of the possession so held, and no change in the marital or family relations, the judgment in the cause of Mooney against her husband did not have the effect to suspend the statute of limitations as to her; she not being a party to that suit. Counsel have not cited a single authority in this or any other state ■which, in our opinion, sustains this contention; and, -while counsel for. appellant have not cited any case directly in point to the contrary, yet upon principle and analogous cases we conclude that as a matter of law there could be no adverse possession of the premises in controversy by Mrs. R. C. Howell separate and distinct from the possession of her husband, I. P. Howell, upon the undisputed facts asi we have substantially above stated them, and further that unquestionably the suit of J. A. Mooney against I. P. Howell in 1906 had the effect to suspend the running of limitation, not only as against I. P. Howell, but also as against Mrs. R. C. Howell and their children, who claim with her in this suit.

It will be noted that 10 years had not expired between the date of the judgment in 1906 and the filing of this suit, and therefore there could be no claim of adverse possession predicated upon the time elapsing between said judgment and the filing of the present suit, and in fact appellee makes no such contention.

To concede the contention made by appel-lee in this case, it seems to us, would lead to. a legal absurdity. Unquestionably, it is the rule in this state that title to land acquired by adverse possession during the marital relation becomes community property, and if I. P. Howell were still living, and it should be held that Mrs. Howell had acquired title to the 160 acres of land awarded her, by adverse possession, then such land would be the community property of herself and I. P. Howell. On the other hand, under the settled rule in this state, the judgment against X. P. Howell in the Mooney suit was unquestionably a bar forever against him to any part of the land, unless such judgment should be set aside by a proper proceeding for that purpose. Therefore, and although I. P. Howell would be cut off by the Mooney judgment, he would, by the judgment in this case, if permitted to stand, get the very thing that he would be barred from getting by the Mooney judgment, because, under the undisputed facts in this ease, the appellant here de-raigns title from J. A. Mooney, in whose favor the judgment in that cause was rendered.

It seems to us that the error into which counsel for appellee have fallen in making their contention is that they have started with a wrong premise; that is, they take the position that because I. P. Howell was insane at the time he was sued and at the time judgment was taken, and for several years prior to the Mooney suit, he was legally and civilly dead, which, as we have shown, was not the case. It has been held by respectable authority that an insane person can acquire title to land by adverse possession. See Cathcart v. Matthews, 91 S. C. 464, 74 S. E. 985, Ann. Cas. 1914A, 36; Freeman v. Funk, 85 Kan. 473, 117 Pac. 1024, 46 L. R. A. (N. S.) 487.

While it is true that the trial court in this case submitted for the jury’s consideration the question of whether or not Mrs. R. O. Howell had acquired title to the 160 acres of land claimed by her by adverse possession, and while the jury, in effect,, found that she had, still, upon the undisputed facts in this case, that question became one of law, and in our opinion it must be held that she could not so acquire title to any portion of the land in controversy, and that the judgment in her favor for the 160 acres of land was erroneous. ■

As to the claim of 40 acres by G. G. Howell, the jury found that he had not been in continuous and adverse possession thereof for the required length of time to give him title thereto, and he was denied a recovery thereof, and properly so.

It follows from what we have said that the judgment should be affirmed in so far as it was in favor of the appellant for all of the land in controversy with the exception of the 160 acres claimed by Mrs. R. O. Howell, but that it should be reversed in so far as it awarded any portion of the land to Mrs. R. O. Howell, and since under no supposable state of facts, in view of the record before us, could she recover any portion of the land on another trial, it is our duty to here, not only reverse the judgment to the extent that it was in her favor, but also to render judgment in favor of the appellant for the land in controversy as against all the parties defendant to this suit; and it will be so ordered.
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author: RAINEY, O. J.

text:
    JOFFRE v. MYNATT.
    (No. 8017.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 9, 1918.
    Rehearing Denied Dec. 14, 1918.)
    1. Bills and Notes <@^»492 — Actions—Plea of Non Est Factum — Burden oe Proof.
    Plea of non est factum places the burden upon plaintiff of establishing defendant’s execution of note.
    2. Appeal and Error <&wkey;204(l) — Review — Necessity oe Objection Below.
    An exception to evidence as incompetent, and hence insufficient to support a verdict, must 'be overruled, where no objection was made below to the admissibility of such evidence.
    3. Evidence >&wkey;574 — Signatures — Expert Testimony— Sufficiency.
    The testimony of expert witnesses that the signature on a note was that of defendant held too weak and uncertain to support a judgment for plaintiff, as against the positive and direct testimony of defendant and others.
    4. Evidence <&wkey;589 — Weight and Sufficiency — Uncontroverted Evidence.
    While the jury are judges of credibility of witness, they cannot arbitrarily disregard evidence of unimpeached witnesses against whom there are no discrediting circumstances other than that one of them was a party interested.
    Appeal from District Oourt, Dallas County; Kenneth Foree, Judge.
    Action by Mrs. Berelia Mynatt against Mrs. Fannie Joffre. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Ohas. F. Olint and D. B. Eades, both of Dallas, for appellant.
    Albert Walker and Geo. K. Holland, both of Dallas, for appellee.
   RAINEY, O. J.

Suit is by appellee to recover on a note alleged to have been executed by appellant and E. H. Joffre for $1,250 and payable to the order of W. O. Mynatt. A plea of non est factum was interposed by Mrs. Fannie Joffre denying signing said note. E. H. Joffre was alleged to be dead and his estate insolvent. A trial was had before a jury, and verdict and judgment were rendered against Mrs. Fannie Joffre for the amount of the note, from which she appeals.

The only question we will consider is that the great weight and preponderance of the testimony is against the verdict and judgment, and it should be set aside.

By the plea of non est factum the burden of establishing the execution of the note by Mrs. Fannie Joffre was placed upon Mrs. Mynatt. She sought to do this by the testimony of three expert witnesses, whose testimony was to the effect that the signature of Mrs. Fannie Joffre to the note, as compared with the admitted signatures to documents admitted in evidence, was the same as that to said documents; that they were written by the same person, and: in their opinion said signature was written by Mrs. Jof-fre. Neither of these witnesses ever saw Mrs. Joffre write her signature, nor had any business transaction with her or had any experience with or handled her writing. Mrs. Mynatt, whose husband was dead, testified that she heard E. H. Joffre, before the note was given, ask her husband if he would accept the note if his mother would sign it, and that it bore Mrs. Fannie Joffre’s name when it was delivered to her husband. Mrs. Mynatt never claimed that she saw Mrs. Joffre sign said note, nor did any witness testify that they saw her sign it. On the other hand, Mrs. Joffre testified that she never executed the note or authorized any one to sign her name to same; that her son had signed, without her authority, her name to other notes which she paid to prevent trouble. Mr. Eades, a young attorney, testified that E. H. Joffre, while consulting with him about this, acknowledged on several occasions that he had signed his mother’s name to the note without her knowledge or consent, and wanted to know if he was criminally liable for so doing; that E. H. Joffre was dead from his own hands. Three witnesses were introduced by Mrs. Joffre as experts. Two of them were employés of the bank with which she did business. They both testified that they were familiar with Mrs. Joffre’s signature from handling her checks passing through the bank; that in their opinion she did not sign the note. One of them had been in the bank for sixteen years and the other five years passing on signatures. The third witness testified as follows:

“I am a banker at Irving. I know Mrs. Fannie Joffre. • • * * I have been a banker at Irving about nine years. I have to pass on signatures in that bank. Mrs. Joffre has done some business with me, not a groat deal; but she does some. I have had oeeasion to take her signature at the bank, and have had occasion to know it. (Witness was shown the note sued on in this ease.) In my opinion that is not her signature. I see that period after the ‘Fannie’ on that paper. (Witness was shown other signatures.) I do not see any period after the ‘Fannie’ on any of these others.”

Mrs. Joffre had been a patron of the National Bank of Commerce for more than sixteen years and was possessed of considerable property. Some eight witnesses, being banker, merchants, doctor, and business men living in a small town near where Mrs. Joffre lived and where she did business, testified that they “knew the general reputation of Mrs. Fannie Joffre in the community in which she lived for truth and veracity and honesty, and that it was good.” D. B. Eades testified in behalf of appellant in reference to a conversation had with E. H. Joffre and his brother Eric Eades regarding E. H. Joffre having signed his mother’s name to the note in question and about his liability, both civil and criminal.

Appellee contends that, before the note was delivered, E. H. Joffre asked Mynatt if the note was good with his mother’s signature, and thereafter presented the note signed as it is, which she claims is a corroborating circumstance showing its validity. We do not concur in this view, for it in no way tends to show that Mrs. Joffre executed the note. In our opinion the establishment of Mrs. Joffre’s signature by appellee rests on the mere opinion of the three witnesses, who were not acquainted with her or her signature. They never saw her write or had any transaction with her in which they would have a chance to learn anything upon which to base an opinion as to her writing. It is true proof of handwriting is permissible where comparison is made with an admitted or proved signature which is introduced for comparison. In this connection, appellant contends that the evidence on this point is not sufficient to base a verdict, as the evidence is incompetent; but the reply is that there was no objection made to its admission, and, this being so, we have to overrule the objection here urged. Said evidence being admissible, we next consider its weight and probative force. It is too weak and uncertain to support a judgment against the positive and direct testimony introduced by the appellant. Talbot v. Dillard, 22 Tex. Civ. App. 360, 54 S. W. 406; Willis v. Lewis, 28 Tex. 185; Railway Co. v. Schmidt, 61 Tex. 282; Zapp v. Michaelis, 58 Tex. 270; Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

The only testimony which is direct and positive to the signing of said note by Mrs. Joffre is that of herself, which is that she never signed nor authorized any person to sign, it for her. There is nothing in the evidence tending to contradict her testimony, except the testimony of three witnesses by comparison of handwriting. This being the case, the jury had no right to disregard her testimony because she was an interested party. Malone v. Bank of Commerce, 162 S. W. 369.

In the case of Grand Fraternity v. Melton, 102 Tex. 402, 117 S. W. 788, the court said:

“The jury were the judges of the credibility of the witnesses, but they had not the right to arbitrarily reject the evidence of an unimpeached witness against whom there was no discrediting * * * circumstance. * * * The jury were the judges of the weight of the evidence, but they could not lawfully deny proper weight to undisputed facts with no suspicion cast upon them. If the jury had the power to discredit any and every witness and to disregard any and all facts, their verdicts- could not be set aside by the judge nor reviewed by the appellate courts. Yet the law enjoins it upon the courts to set verdicts aside when contrary to the evidence or the law.”

In Hanley v. Gandy, 28 Tex. 211, 91 Am. Dec. 315, in discussing the weight to be given testimony as to the genuineness of signatures by comparison of handwriting, the court quotes from Boman v. Plunkett, 2 McCord (S. C.) 518, as follows:

“I come therefore to the conclusion, as a circumstance in aid of doubtful proof, comparison of handwriting is admissible, but, per se, is so feeble as to be unsafe to act upon; and that, in the absence of any other proof, it would be inadmissible.”

While the verdict of a jury is entitled to great weight when based on evidence reasonably sufficient to sustain it, yet, when it is rendered contrary to the great preponderance and weight of the evidence as adduced in this case, we feel compelled to reverse the judgment and remand the cause for a new trial.

Reversed and remanded.
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