author: GREENWOOD, J.

text:
    BAKER v. PITLUK & MEYER.
    (No. 2533.)
    (Supreme Court of Texas.
    Oct. 23, 1918.)
    1. Justices oe the Peace <©=»48 — Jurisdiction — Sale under Attachment.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 268, a justice court, in suit within its jurisdiction, has authority to decree a foreclosure of attachment lien on real estate, and direct an order of sale of the land; Const, art. 5, § 8, not conferring exclusive jurisdiction on district courts.
    2. Justices oe the Peace <§=>86 (7) — Saxe under Attachment — Procedure.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 268, a justice court possesses authority to enforce by express foreclosure a lien acquired on land by levy of attachment from the court decreeing the foreclosure, although there is no valid objection to the method provided by said article for enforcement of attachment lien by mere judgment recital of issuance and levy of attachment followed by execution.
    Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.
    Trespass to try title by Pitluk & Meyer against C. C. Baker. Erom the judgment rendered defendant appealed to the Court of Civil Appeals, which certified certain questions to the Supreme Court.
    Questions certified answered in the affirmative.
    W. R. Petty, of Palestine, for plaintiff. Fitzgerald, Butler & Bullock, of Tyler, for defendant.
   GREENWOOD, J.

Questions certified from the Court of Civil Appeals of the Sixth Supreme Judicial District of Texas in an appeal from the district court of Smith county.

The certificate of the honorable Court of Civil Appeals is as follows:

“T'o the Honorable Supreme Court of the State of Texas- The suit was brought by ap-pellees in trespass to try title to 50 acres of land. It was agreed that R. W. Baker is the common source of title of both appellant and appellees. On March 6, 1911, the Moore Grocery Company, a corporation, recovered a judgment in the justice court of precinct No. 1 of Smith county, Tex., against R. W. Baker, for $67.06 and costs of suit. At the time of filing the suit an attachment was sued out and levied upon the land in suit. The judgment of the justice court is as follows:
“ ‘On this the 6th day of March, 1911, this cause coming on regularly for trial, and the plaintiff appearing bj; its attorney and announced ready for trial, and the defendant, though duly and legally cited and service being in all things complete, failed to appear and answer herein, wherefore the plaintiff ought to recover of the defendant its damages by occasion of the premises; and it appearing to the court that plaintiff’s cause of action is liquidated and proven by a promissory note executed by the defendant, and that the amount due thereon is the sum of $67.06, together with 10 per cent, interest thereon from December 9, 1911. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, Moore Grocery Company, a Texas corporation, do have and recover of and from the defendant, R. W. Baker, the sum of sixty-seven and e/ioo ($67.-06) dollars, together with 10 per cent, interest from December 9, 1911, together with all costs in this behalf expended, and for all of which execution may issue. And it further appearing to the court that a writ of attachment issued out of the court on the 31st day of December, 1910, and the following described property was levied on under said writ of attachment, to wit: [Here follows description of land.] And said attachment lien is hereby foreclosed on said real estate and the same ordered sold to satisfy this judgment as under execution.’
“On April 11, 1911, the justice of the peace issued and delivered to the sheriff the following writ:
“ ‘The State of Texas.
“ ‘To the Sheriff or any Constable of Smith County, Texas, Greeting: Whereas, on the Oth day of March, 1911, Moore Grocery Co., a corporation, recovered in the justice court of precinct No. 1, Smith county, a judgment against R. W. Baker for the sum of sixty-seven and G/ioo ($67.06) dollars, with interest thereon from the 9th day of December, 1911, at the rate of ten per cent, per annum and all costs of suit; and whereas, the said judgment is a foreclosure of an attachment lien as it existed on 12-31-1910 on the following described property, to wit: [Here follows description of land.] And that said property be sold as under execution in satisfaction of said judgment. And if said property shall sell for more than sufficient to pay off and satisfy said sums of money the excess shall be paid over to the said R. W. Baker; but if said property shall not sell for enough to pay off said sums of money, the balance due shall be made as under execution, and such order of sale shall have the force and effect of a writ of possession, and the officer executing the same shall make a good and sufficient deed, and place the purchaser of said property in possession thereof within thirty days from date of sale.
“ ‘Therefore you are hereby commanded that you proceed to seize and sell the above-described property as under execution, and make good and sufficient deed, and to place the purchaser of the same in possession hereof within thirty days after the day of sale, and you apply the proceeds thereof to the payment and satisfaction of said sum of sixty-seven and <¡/ioo ($67.06) dollars, together with the interest that may be due thereon, and the further sum of - dollars, costs of suit, together with your legal fees and commissions for executing this writ. And if said property shall sell for more than sufficient to pay off and satisfy said sums of money, then you are hereby directed to pay over the excess thereof to the defendant. But if you fail to find said property, or if the proceeds of such sale be insufficient to satisfy said judgment, then you are directed to make the money, or any balance thereof remaining unpaid, out of any other property of defendant, as in cases of ordinary executions.
“ ‘Herein fail not, but due return make hereof within sixty days, showing how you have executed the same.
“ ‘Given under my hand at my office in Tyler, Texas, this 7th day of April, 1911.
“ ‘S. O. Halverson,
“ ‘Justice of the Peace, Precinct No. One, Smith County, Texas.
“ ‘Bill of Costs: [Here follows itemized bill of costs.]’
“Under this writ the sheriff sold the land in suit, after legally advertising the same, to the Moore Grocery Company, and made the grocery company a deed on May 2, 1911.
“The appellees’ title to the land is dependent upon the validity of the judgment of foreclosure and order of sale; and, if the justice court entered a judgment exceeding its authority to do, the appellees have wholly failed to show title to the land sued for.
“The assignments involve the point of whether a justice court is empowered under the law to decree a foreclosure of an attachment lien on real estate and sell it under an order of sale. Being of the opinion that the judgment rendered by the justice court foreclosing the attachment lien on the real estate and directing an order of sale thereunder was void as beyond authority, and that the order of sale issued and delivered to the sheriff not being the “execution” defined and required by statute no title passed to appellees by or under the sale, we reversed the judgment in appellees’ favor. In a motion by appellees for rehearing it is insisted that our ruling is in conflict with Grizzard v. Brown, 2 Tex. Civ. App. 584, 22 S. W. 252, and Rule v. Richards, 149 S. W. 1073. We still are of the opinion that the justice court has not authority under article 26S, Bev. Stat. of 1911, to decree a foreclosure of an attachment lien on real estate and to direct an order of sale of the land. We therefore certify to your honors the following questions:
“Question 1. Did this court err in holding that the judgment of the justice of the peace,, so far as it decreed a foreclosure of an attachment lien on the land and order of sale thereunder, was not authorized by article 268, Bev. Stat. of 1911, and therefore void?
“Question 2. Didi this court err in holding that a sale of the land under the order of sale issued by the justice of the peace, and under winch the land was sold by the sheriff, was void?
“Question 3. The sale of the land in controversy was made under the judgment of foreclosure of the attachment lien and the order of sale mentioned. Did this court err in holding that the sale of the land in controversy was void?”

Before the adoption of the Bevised Statutes of 1879 there was no requirement of an express foreclosure of an attachment liem. The statutes merely provided that attached property should remain in the hands of the officer until final judgment, and the form of the judgment was not prescribed' further than that it should be “as in ordinary suits.” Paschal’s Digest of the Laws of Texas, arts. 139, 142, 143, 145, and 146. When the Supreme Court was called upon to determine whether, an attachment under these statutes was vacated by a judgment for debt only, making no mention of .the attachment, it was held that “all the foreclosure necessary is accomplished by the recovery of a personal judgment,” on the ground that, “upon the question of the right to enforce the lien by a sale of the property, nothing more than the right of the plaintiff to recover the debt is in issue between the plaintiff and the defendant on the trial of the cause,” and that to determine that in favor of the plaintiff “is to decide that he has a right to sell the attached property to satisfy his judgment.” Wallace v. Bogel, 66 Tex. 572, 2 S. W. 96. This opinion harmonized with the generally announced rule that an order of foreclosure, in the absence of any express statutory requirement, though customarily made, was not essential to the enforcement of the lien of the attachment. 4 Cyc. 826.

Article 180 of the Bevised Statutes of 1879 provided:

“Should the plaintiff recover in the suit, such attachment lien shall be foreclosed as in case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real estate levied on, to satisfy the judgment.”

In 1882 the Court of Appeals held, in the case of Shandy v. Conrales, 1 White & W. Civ. Cas. Ct. App. § 238, that the county courts could not foreclose attachment liens on land, on the ground that article 5 of section 8 of the Constitution of Texas conferred on the district courts exclusive jurisdiction of all suits for the enforcement of liens on land, and that attachment liens were included within the term “liens” as used in the article. The following year the Supreme Court refused to follow the holding of the Court of Appeals, 'declaring in an opinion by Chief Justice Willie that the liens referred to in article 5 of section 8 of the Constitution “may be defined to be such as were created by the act of the parties as existed before the suit was commenced, and formed the basis of it, or an important part of the same,” and that attachment liens were not included among those within the exclusive jurisdiction of the district courts. Hillebrand v. McMahan, 59 Tex. 450. Notwithstanding this opinion, and notwithstanding the Commission of Appeals, when the question was referred to them, concurred in the conclusion of the Supreme Court, the Court of Appeals refused to follow same, and continued to declare invalid all decrees of county courts and of justice courts which foreclosed liens on land. Newton v. Heidenheimer, 2 Willson, Civ. Cas. Ct. App. § 126; Rowan v. Shapard, 2 Willson, Civ. Cas. Ct. App. §§ 297, 302; Miller v. Schneider, 2 Willson, Civ. Cas. Ct. App. § 372; and Wright v. Cullers, 2 Willson, Civ. Cas. Ct. App. § 750.

Thereupon the Legislature enacted a statute providing that—

“when an attachment issued from a county or justice court had been levied upon land, no order or decree foreclosing the lien thereby acquired shall be necessary, but the judgment shall briefly recite the issuance and levy of suen attachment, and such recital shall be sufficient to preserve such lien. The land so attached may be sold under execution, after judgment, and the sale thereof shall vest in the purchaser all the estate of the defendant in attachment in such land, at the time of the levy of such writ of attachment.” Act March 27, 1885, 9 Gammel’s Laws of Texas, p. 693.

In the Bevision of 1895 the provisions of article 180 and of the act of March 27, 1885, were combined into article 214, which has since been in force, and is now article 268, and which reads as follows:

“Should the plaintiff recover in the suit, such attachment lien shall he foreclosed as in case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real estate levied on, to satisfy the judgment: Provided, however, that when an attachment issued from a county or justice court has been levied upon land, no order or decree foreclosing the lien thereby acquired shall be necessary, but the judgment shall briefly recite the issuance and levy of such attachment, and such recital shall be sufficient to preserve such lien. The land so attached may be sold under execution after judgment, and. the sale thereof shall vest in the purchaser all the estate of the defendant in attachment in such land, at the time of the levy of such writ of attachment.” Article 214, R. S. 1895; article 268, Vernon’s Sayles’ Tex. Civ. Stat.

We are entirely satisfied with, the conclusion in Hillebrand v. McMahan that the Constitution does not confer exclusive jurisdiction on the district courts to enforce attachment liens on land, and we see no reason to doubt the power of justice and county courts, as well as of district courts, to foreclose such liens, in suits within their respective jurisdictions, even in the absence of express statutory authority.

The personal judgment in attachment proceedings was rightly declared in Wallace v. Bogel, 66 Tex. 574, 2 S. W. 96, for reasons there stated, and which therefore need not be repeated, as “in effect a recognition of the lien, and, if that be necessary, a foreclosure of it.” That being true, the power to foreclose an attachment lien on land or personalty is embraced in the power to render a personal judgment, and no one denies the power of the justice and county courts to render personal judgments on causes of action for amounts within their respective jurisdictions.

The principle applied in Wallace v. Bogel is a corollary from the elementary doctrines that, “when an attachment is sued out, a lien on the property attached is created which nothing subsequent can destroy but dissolution of the attachment,” and that “the whole office of an attachment is to seize and hold property until it can be subjected to execution.” Drake on Attachments, §§ 224, 228.

The particular procedure specified for county and justice courts by article 268 could not be valid if the Constitution deprived those courts of the power, through their judgments, to enforce attachment liens on land. Eor the method which the statute affirms shall be sufficient to vest the purchasers at execution sales with all the estate of defendants in attachment at the dates of levies of the writs issued from county and justice courts is through the judgments of those courts with specified recitals.

Full effect is given to the portion of article 208 taken from the act of 18S5 when purchasers at execution sales on judgments in attachment suits, without express foreclosures, are held to be invested with the interest of the defendants at the dates of the attachment levies. .Under such holding the purchasers’ complete rights under attachment levies are upheld, though the proceedings lack the express foreclosures condemned by the Court of Appeals. But there is nothing inconsistent with this holding to also sustain the title of a purchaser under an express foreclosure of an attachment in the county or justice court, as considered valid by the Supreme Court.

Since there is no necessary inconsistency between the remedy provided by the portion of article 268 taken from the act of 1885 and an express foreclosure on land in a county or justice court, and since the portion of article 268 taken from the Revised Statutes of 1879 expressly authorizes such foreclosure,' our conclusion is that a county or justice court does possess the authority to enforce, by express foreclosure, a lien acquired on land by the levy of an attachment from the court decreeing the foreclosure. At the same time there is no valid objection to the method of enforcing an attachment lien in a county or justice court by mere judgment recital of the issuance and levy of the attachment, followed by execution, and, as this method is simple, it is to be commended in practice.

Tire opinions of the Court of Civil Appeals at Texarkana in this case, and in. Hamill v. Samuels, 135 S. W. 747, and the opinion of the court of Civil Appeals at Ft. Worth in Patterson v. McMinn, 152 S. W. 225, announce different conclusions from those we have reached. Previous to the opinions just mentioned, article 268 had been twice construed in the same way as we have interpreted it, by two different courts of Civil Appeals.

In Grizzard v. Brown, 2 Tex. Civ. App. 585, 22 S. W. 253, the Galveston Court of Civil Appeals, par Justice Williams, had said:

“The ruling of the county court was probably based upon decisions of the Court of Appeals, as formerly constituted, holding that the county court had no jurisdiction to foreclose attachment liens on land. 2 Civil Cas. Ct. App. 126-297. The Supreme Court has never held to that view of the law, a conflict having existed on that point between its decisions and those of the Court of Appeals. Hillebrand v. McMahan, 59 Tex. 450. A statute was passed to remedy the difficulty, the effect of which we need not consider, inasmuch as we think it proper to follow on this question the rulings of the Supreme Court, and to hold that the county court had jurisdiction to cause the levy of its writs upon land, and to enforce the levy by foreclosure of liens thereby created.”

In Le Doux v. Johnson, 23 S. W. 905, the Austin Court of Civil Appeals bad announced the opinion tbat “the county court might have foreclosed the lien of the attachment issued out of that court, though it was a lien upon land.”

The Amarillo Court of Civil Appeals refused to follow Hamill v. Samuels'and Patterson v. McMinn as authorities for the proposition that a judgment of a justice’s court foreclosing an attachment lien on land would be void, under article 268, saying:

“The objection is made that the judgment of the justice court foreclosing the lien is void, as it had no power to render such judgment. This court held on the former appeal that the judgment was not void for that reason, basing its opinion on the case of Hillebrand v. McMahan, 59 Tex. 450; Grizzard v. Brown, 2 Tex. Civ. App. 584, 22 S. W. 252. We think the opinion of this court in that holding correct.” Rule v. Richards, 159 S. W. 389; Id., 149 S. W. 1075.

The San Antonio Court of Civil Appeals also held, subsequent to the opinions in Hamill v. Samuels and Patterson v. McMinn, that article 268—

“does not in terms prohibit the foreclosure of an attachment lien, but merely declares it unnecessary as a means of enforcing the lien. If, as held by the Supreme Court, county courts had the authority to foreclose attachment liens before the enactment of the statute, the latter does not deprive them of that power.” McCall Co. v. Page, 155 S. W. 655.

We answer each of the questions certified in the affirmative.
      <g=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    BYBEE v. STATE.
    (No. 5126.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Criminal Law <&wkey;1097(6) — Statement oe Pacts — Necessity.
    A motion for new trial, claiming that the verdict is contrary to law and evidence, cannot be considered, in absence of a statement of the facts; the indictment being in the usual form.
    Appeal from District .Court, McLennan County; R. I. Munroe, Judge.
    Homer Bybee was convicted of violating the local option law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for a violation of the local option law. Appellant’s motion for new trial is based upon the ground that the verdict is contrary to the law and the evidence. The record is before us without, a statement of the facts.. The indictment seems to be in the usual form. Without the testimony we cannot review the questions raised in the motion for new trial

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


author: PRENDERGAST, J.

text:
    PORTER v. STATE.
    (No. 4783.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.
    Rehearing Denied Oct. 30, 1918.)
    1. Criminal Law <&wkey;594(l) — 'Continuance.
    Where accused was indicted nearly a year before trial, but issued subpoena for absent witness only a few days before trial,, and the testimony would have been only for impeachment, continuance was properly denied, in view of court’s statement that the witness would not have testified as alleged.
    2. Ckiminal Law <&wkey;1092(ll) — Bill oe Exceptions— Sufficiency.
    Where indictment charged a sale of liquor “on or about” a certain date, and testimony was admitted as to two sales, and bill of exceptions to admission of evidence of one sale, as approved by judge, showed defendant was only tried for offense, the bill showed no error.
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Hall Porter was convicted of selling intoxicating liquors unlawfully in prohibition territory, and he appeals.
    Affirmed.
    T. C. Hutchings, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of making an unlawful sale of intoxicating liquor in prohibition territory and assessed the lowest punishment. While the evidence was conflicting, that by the state, which the jurors testified they believed, was amply sufficient to sustain the conviction.

The court did not err in overruling the appellant’s motion for a continuance. The diligence was wholly insufficient. He was indicted on July 17, 1916, but was not tried until about the third term thereafter, nearly one year. Just a few days before he was tried, for the first time he had a subpoena issued for two witnesses. Only one of them was served. The other was out of the state at the time. His application shows that the testimony of these, two witnesses would have been for impeaching purposes of the state’s witness, and for no other. The court, in approving the bill, said that the witness who was subpoenaed would not have testified as claimed and alleged by appellant.

Appellant has another bill, which alleges that after the state’s witness had testified that he had purchased from defendant one bottle of something which he thought was whisky on the 1st of February, 1916, but stated that he did not taste it and could not say it was whisky, or what it was, he was permitted to testify, over defendant’s objections, as follows:

“I bought another pint from him on the 1st day of March, 1916, at the same place in Titus county, Tex., and paid him $1 for it. It was whisky. I tasted it, and drank some of it, and it was whisky.”

The balance of appellant’s bill is his objections to this testimony. They were not approved as facts by the court at all. In approving the bill the judge explained it by stating: “The defendant was only tried for one offense, and the indictment charged the sale on or about the date alleged.” This bill shows no error. The case of James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612, is directly in point against appellant and decisive against him.

In his amended motion for new trial he alleged .misconduct of the jury, to the effect that the jury heard and discussed other evidence than that which was introduced on the trial in making up their verdict. His motion was not sworn to by any one. He alleged in it that he attached an affidavit supporting his allegations; but none is attached, and none appears elsewhere in the record.

In acting on appellant’s motion for a new trial, the court heard testimony. The appellant introduced two of the jurors only. At most, their testimony as a whole would hardly be sufficient to sustain his allegation; but, if so, the state introduced the other jurors all of whom in effect directly disproved his allegation. At any rate it was a question for the trial judge to pass upon. He did so. The evidence heard by him was amply sufficient to sustain his holding in overruling appellant’s motion for new trial.

The judgment is affirmed.


text:
    PATTERSON v. STATE.
    (No. 5143.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Indictment and Information <&wkey;159(3) — Amendment — Place of Offense.
    Allegation in indictment as to county in which offense was committed is matter of substance, amendment of which is prohibited by Code Or. Proe. 1911, art. 598.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Luther Patterson was convicted of receiving and concealing stolen property and appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted and convicted of receiving and concealing stolen property. The sole question to be decided is whether or .not the court erred in permitting the district attorney to amend the indictment as he did. The indictment found by the grand jury is as follows:

“In the name and by the authority of the state of Texas, the grand jurors, duly selected, organized, and impaneled as such for the county of Erath, state of Texas, at the March term, A. D. 1918, of the district court for said county, upon their oaths present in and to said court; that on or about the 24th day of September A. D. 1917, and anterior to the presentment of this indictment, in the county and state aforesaid, Luther Patterson .did then and there unlawfully receive from G. H. McMillan, and did then and there unlawfully conceal, certain corporeal personal property.”

The balance of the indictment is regular. No motion was made to quash it on any ground. The case was called for trial, both parties announced ready, the jury was impaneled and sworn, and the district attorney began to read the indictment. It will be seen from the quotation of it above that the allegation was that it was the grand jury of Erath county which preferred it, and that the allegation thereof alleged that the venue where the offense was committed was in said Erath county. As a matter of fact, it seems that it was the grand jury of Palo Pinto county that preferred the indictment, and not that of Erath; the district attorney using a printed form with the county of Erath printed therein. By amending the indictment in striking out “Erath” and inserting therein “Palo Pinto,” it is seen that the amended indictment charged the offense to have been committed in Palo Pinto county, whereas the original indictment charged it was committed in Erath. This, we think, was an amendment of substance, and not of form merely. The statute (article 598, O. G. P.) expressly provides that—

“Any matter of form in an indictment * * * may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.”

It has always been held under this statute, in compliance with its express provisions, that no matter of substance can be amended, and that even in a mere matter of form the amendment generally must be made before the trial begins. There are some exceptions to this latter rule. Young v. State, 55 Tex. Cr. R. 385, 116 S. W. 1158; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536.

The amendment herein being of a matter of substance, the court committed an error in permitting the indictment to be amended, for which the judgment is reversed, and the cause is remanded.
      &wkey;sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BELL v. STATE.
    (No. 5129.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Larceny <&wkey;30(l) — Indictment—Description of Property.
    Indictment for theft of a bale of cotton, giving its value, need not allege its weight.
    2. Larceny <&wkey;31 — Indictment — Value of Property.
    Indictment alleging taking of a bale of seed cotton, “of the value of $100,” sufficiently alleges its worth.
    Appeal from District Court,' Wood County; J. R. Warren, Judge.
    John Bell was convicted of theft, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the theft of a bale of seed cotton valued at $100; his punishment being assessed at three years’ confinement in the penitentiary.

He made a motion to quash the indictment, because it charged no offense against the law, and because the description of the property was not sufficient to require him to plead, or form the basis of conviction, and further because the indictment, in alleging the theft of one bale of seed cotton, failed to give its weight and value. The indictment charged that appellant “did then and there unlawfully and fraudulently take from the possession of one Jim Ellison one bale of seed cotton, of the value of $100, the same then and there being the corporeal personal property,” etc., of Jim Ellison. We are of opinion the indictment is sufficient. It was not necessary to give the weight of the bale of cotton. There were sufficient allegations to show that it was a felony, and that it was a bale of cotton, and that it was worth $100.

Appellant also contends in his motion for new trial that the court committed error in permitting the witness Ellison to testify that a bale of seed cotton usually weighed about 1,500 pounds. Just how this arose is not shown, even in the motion for new trial, and, if there was an exception reserved in the form of a bill, it is not presented in the record. We are of opinion- there is no sufficient error shown by this record to require a reversal.

The judgment is affirmed.


author: MORROW, J.

text:
    TOLBERT v. STATE.
    (No. 5130.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Labceny <®^30(1) — Indictment—Description of Pboperty.
    Description of property in indictment for theft as “one bale of seed cotton, of the value of $100,” is sufficiently specific.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Bruce Tolbert was convicted of theft, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of theft of property over the value of $50, and his punishment assessed at two years’ confinement in the penitentiary.

The only question raised on the record relates to the sufficiency of the indictment, which is challenged on the ground that it is' not sufficiently specific in describing the property, which is alleged in the indictment to have been “one bale of seed cotton, of the value of $100.” We think the allegation is sufficient. See Bell v. State (No. 5129) 205 S. W. 986, this day decided.

The judgment of the lower court is affirmed.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BENNETT v. STATE.
    (No. 5133.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Vagrancy -<@=3 — Evidence—Sufficiency.
    In a prosecution for vagrancy, evidence held not sufficient to sustain a conviction.
    Appeal from Corporation Court of Tex-arkana ; E. Newt Spivey, Recorder.
    Leona Bennett was convicted of vagrancy, and she appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for vagrancy in the corporation court of the city of Texarkana. The complaint alleged vagrancy under subdivisions (b), (c), (d), (i), (j), and (m) of the vagrancy statute. Article 634, P. C.

The only question necessary to be passed upon is whether the evidence is sufficient to authorize her conviction. There were but three witnesses who testified, the chief of police and two policemen of the city of Tex-arkana. All three testified that she lived on Ward street, in Texarkana, in what is known as the sporting house district, and all three swore that she had the reputation of running a house of prostitution. The chief swore that he knew her, and had known her for several years. One of the policemen swore that he had known her since about January 1, 1913. The other policeman swore he had known her for 18 years. Each of the policemen swore that on one or two occasions he had seen one or two other women at the place she lived. One swore that he does not know whether or not she has any occupation. The other swore the same, and that he never did see her do any work. This is the whole of the testimony, and it is wholly insufficient to authorize her conviction.

Reversed and remanded.


text:
    CROCKETT v. STATE.
    (No. 5107.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Weapons <§=»17(4) — Unlawful Carrying— Evidence.
    Evidence in a prosecution for unlawfully carrying a pistol held not sufficient to sustain a conviction. ‘
    Appeal from Jefferson County Court at Law; D. P. Wheat, Judge.
    John Crockett was convicted for unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction was for unlawfully carrying a pistol. Appellant, while walking on the street in company with two girls, was found in possession of a pistol. He explained his possession of it with testimony that he had, some months before, taken it to a refinery at which he worked at the request of one of the guards, who was guarding the property, the guard stating that he wanted to buy it; that he left it at the refinery, the guard laying it away, where it remained until the day of the arrest, at which, time appellant was on his way home, taking the pistol with him, the guard having failed to buy it. The evidence shows that he was going directly home the nearest route. The Assistant Attorney General concedes the insufficiency of the evidence to sustain the conviction, and in this we agree with him. See Mangum v. State, 90 S. W. 31; Roberts v. State, 60 Tex. Cr. R. 112, 131 S. W. 321; Buckley v. State, 70 Tex. Cr. R. 550, 157 S. W. 765.

The judgment of the lower court is . reversed, and the cause remanded.


text:
    THOMPSON v. STATE.
    (No. 5113.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Criminal Law <3=5599 — Continuance — Surprise.
    There was no error in refusing continuance or postponement to enable a witness, objected to as a convict, to produce his pardon from another county, where defendant knew of the conviction, and so was not surprised, as stated in application.
    2. Witnesses <3=49 — Convicts—Production oe Pardon.
    Where a witness is objected to as a convict, to entitle him. to testify, he must produce his pardon.
    3. Criminal Law <3=1099(10) —1 Appeal-Statement oe Pacts — Approval.
    A statement of facts, to be available, must be approved by the trial judge; signing by the lawyers not being enough.
    Appeal from District Court, Denton County; John Speer, Judge.
    Joe Thompson was convicted of theft, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged with the theft of 40 bushels of wheat, of the value of $100, from T. A. Cole.

A bill of exceptions recites an application of appellant for a continuance or postponement. This application shows that, when he offered his witness Sexton, it developed he had been convicted of a felony and served a term in the penitentiary, but had been pardoned. It is shown that the witness did not have his pardon with him, but that it was in Mills county. Appellant also swore in his application that he was unaware of this condition of his witness, and for this reason asked a postponement or continuance, so that he might present the pardon; the state having objected to the witness testifying unless he produced the pardon. The court qualifies this bill by stating that the state introduced the witness Pat Gallagher, sheriff of Denton county, who stated, before he arrested appellant in this case, he heard a conversation between the defendant and the witness Sexton, in which defendant stated to the witness Sexton that he (defendant) had j gotten him out of the penitentiary once, and had kept him out another time, and now he (witness) was turning him (defendant) in, from which testimony on the motion the court concluded the defendant knew that witness had been in the penitentiary, and could not be surprised upon hearing witness so testify, and for this reason he did not permit defendant to withdraw his announcement, and postpone or continue the case. This developed during the trial, it is to be presumed, from the statement in the application. In the absence of statement of facts, which cannot be considered, because not approved by the judge, and under the statement made by the trial judge of the testimony of Gallagher in this connection, we are of opinion that the court did not commit reversible error. It seems to be well settled that where a convict witness is offered, and objection is made on that ground, then, in order to permit his testimony, it must be shown by the production of pardon that he has been restored to his citizenship, where it is urged. The state could have waived this, and raised no objection, and the witness could have testified on his oral statement that he had been pardoned; but this is not waived by the state, but used as a reason why the witness should not testify. Under the adjudicated cases of this state, this ruling of the court was correct.

There are some questions with reference to the charge which cannot be considered in the absence of statement of facts. There is what purports to* be a statement of facts accompanying this record, but it is not approved by the trial judge. It is signed by the lawyers. Without the approval of the judge, the statement of facts cannot be considered.

As this record presents itself to this court, we are of opinion that no reversible error is shown, and the judgment must be affirmed.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GREEN v. STATE.
    (No. 5074.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Criminal Law <3=1091(9, 10) — Bills oe Exceptions — Instructions.
    Bills, which do not show at what time defendant’s several charges were requested, and give no reason why such charges should have been given, are not in such condition that they can be properly considered.
    2. Criminal Law <3=814(1) — Erroneous Special Charges — Refusal.
    Special charges, inapplicable to any issue in the case, were properly refused, although requested at the proper time.
    3. Criminal Law <3=1099(5) — Statement oe Facts — Authentication and Filing.
    A purported statement of evidence heard on motion for new trial, not agreed to by attorneys or approved by court, and not filed until nearly three months after court adjourned, cannot be considered on appeal.

      4. Criminal Law <&wkey;1144(18) — Presumption —New Trial.
    Where statement of evidence heard on motion for new trial cannot he considered, it will ho presumed that it disproved allegation of defendant’s motion; new trial having been denied.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Joe Green was convicted of hog theft, and appeals.
    Affirmed.
    Briggs & Florence, of Gilmer, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of hog theft, and assessed the lowest punishment. The evidence, without question, showed that appellant stole the hog as alleged. The indictment did not charge appellant with receiving or concealing stolen property, nor did the evidence raise that question. The court in an apt charge submitted every question that was raised by the testimony.

Appellant has several bills complaining of the refusal of the court to give severa] special charges which he claimed to have requested, and one bill to one of the charges in his favor given by the court at the request of the state. Not a single one of these bills show at what time his said several charges were requested and his objections to the court’s charge were made. Neither does either of them give any reason why his charges should have been given. He simply shows that he requested a certain special charge, quoting it, and the court refused to give it. Hence neither of his bills are in such condition that they can be properly considered. But, if his bills had shown they were requested at the proper time, neither of them should have been given. They were inapplicable to any issue in the case.

In his motion for a new trial he alleged that the jury had separated, and that he was not present when his attorneys announced ready. This was denied and contested by the state. In passing on the motion for new trial on these grounds the court heard evidence and overruled the motion. There is with the statement of facts what purports to have been a statement of the evidence heard on that motion, but it is not agreed to by the attorneys nor in any way approved by the court. It was not filed until nearly three months after the court adjourned, and hence cannot be considered, and we must presume that the evidence heard by the judge disproved his allegation. Reyes v. State, 196 S. W. 533, and cases cited.

The judgment is affirmed.


text:
    KIMBALL v. STATE.
    (No. 5124.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Criminal Law <&wkey;1064(l) — Appeal—Review —Plea op Guilty.
    The charge and judgment showing that, before receiving the plea of guilty, on which defendant was convicted, he was admonished of the consequences of his plea, as required by Code Or. Proc. 1911, art. 565, and defendant having merely filed a motion for new trial, alleging the judgment and verdict were contrary to the law and evidence, there is nothing to review.
    Appeal from District Court, McLennan County; R. I. Munroe, Judge.
    Oscar Kimball was convicted of theft, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Upon his plea of guilty appellant was convicted of the theft of an automobile of the value of $400. There is no statement of facts or bill of exceptions. The charge and judgment of the court distinctly show that the appellant was properly admonished of the consequences of a plea of guilty by the court before the court would receive it. Article 565, C. C. P. Appellant merely filed a motion for a new trial, alleging -that the judgment and verdict were contrary to the law and the evidence; hence there is nothing to review.

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


text:
    LEROY v. STATE.
    (No. 5144.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Criminal Law <§=*1092(7), 1099(6) — Bills of Exception — Time, foe Filing.
    Statement of facts and bills of exception, not filed within 20 days after adjournment of court as provided by statute, cannot be considered on appeal.
    Appeal from Gregg County Court; E. M. Bramlette, Judge.
    Z. T. Leroy was convicted for violation of the local option law, and appeals.
    Affirmed.
    McCord & Campbell, of Longview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for violation of the local option law. The court adjourned on the 27th day of April. The statement of facts and bills of exception were not filed within the 20 days authorized by the statute. In fact, they were filed on the 3d day of June. This was over 35 days after court adjourned. Therefore neither the statement of facts nor the bills can be considered. In the absence of these there is no question presented that can be reviewed.

The judgment will be affirmed.
      <E=oFor other eases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    CITY OF SEGUIN v. BERMAN.
    (No. 6074.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 16, 1918.)
    1. Pleading <®=*34(3) — Construction—General Demurrer.
    Every reasonable intendment must be indulged in favor of a pleading, when assailed through a general demurrer.
    2. Pleading <§=*205(1) — Complaint—General Demurrer.
    A complaint for recovery of an occupation tax paid under duress set out, and held sufficient as against a general demurrer, though it may have been subject to special exception.
    3. Licenses <®=>3A — Recovery of Tax Paid-Duress.
    Where a foreigner, dealing in merchandise, but not selling cannon crackers or toy pistols, as described in Rev. St. 1911, art. 7356, paid a city an illegal occupation tax under threats of prosecution, fines, and imprisonment, his action for recovery thereof was not subject to defense of voluntary payment.
    Error from Guadalupe County Court; J. B. Williams, Judge.
    Suit by Sam Berman against the City of Seguin. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    P. E. Campbell, of Seguin, for plaintiff in error. Dibrell & Mosheim, of Seguin, for defendant in error.
   FLY, C. J.

Defendant in error, who will be called plaintiff herein, sued the city of Seguin, herein called defendant, to recover $300, alleged to have been paid, as occupation taxes, under duress. The cause was tried by jury, resulting in a verdict and judgment for plaintiff in the sum of $200.

It is not claimed by defendant that the taxes were lawfully imposed or lawfully collected, the only issue being as to whether the taxes were voluntarily paid, without any force or fraud being used to collect them. It was alleged that the taxes were paid in 1913, 1914, and 1915, each time a payment of $100 being made. The allegations are as follows:

“That notwithstanding the fact that plaintiff was never a dealer in selling cannon crackers or toy pistols or firecrackers or other combustible packages, as described in article 7356 of the Revised Statutes of the state of Texas, the city of Seguin fraudulently and oppressively demanded of plaintiff, and forced him against his will and protest to pay, a tax or an occupation tax for the privilege of selling any sort of fireworks within the corporate limits of the city of Seguin, and by force and compulsion, and by-threats of prosecution and incarceration of plaintiff in the county jail, and by threatening to subject plaintiff’s property to the payment of said unlawful tax, the officers of said city, under the authority and power given them to collect said tax of plaintiff, plaintiff, under duress and impelled by threats of prosecution and confiscation of his property by defendant and its agents, did on the 28th day of November, 1913, pay to defendant, city of Seguin, $100 in cash, and on December 2, 1914, the sum of $100 in cash, and on November 30, 1915, the sum of $100 in cash, as an occupation tax for the privilege of selling fireworks, and that plaintiff, under the circumstances and at the various times set out, paid to the city of Seguin, for the purpose aforesaid, the aggregate sum of $300, and which sum of money was illegally and fraudulently demanded of him, and was paid by him under protest and on account of fearing imprisonment and the taking of his property by and on the part of the defendant. * * * That plaintiff was upon a great inequality with the defendant by reason of the fact that he was an unlearned man and was not accustomed to having city officers threatening to place him, in jail and to take his property upon his failure to pay an illegal occupation tax that had been authorized by defendant; and plaintiff says that defendant by virtue of certain city ordinance had empowered its tax collector and city marshal with authority to take plaintiff’s property and to arrest plaintiff and place him in jail upon his refusing to pay said occupation tax, which was not authorized by the laws of this state, and which was illegal and contrary to the statutes of this state.”

The allegations are attacked through, the first assignment as being insufficient to state a cause of action. While the pleading may have been subject to a special exception, it cannot be successfully attacked through a general demurrer. Every reasonable intendment must be indulged in favor of a pleading, when assailed through a general demurrer, and the application of that rule protects the petition in this case. The first assignment of errbr is overruled.

However diversified decisions may be as to the character of threats of prosecution or imprisonment which will cause payments to be involuntary, the few opinions on the subject in Texas seem inclined to the holding that illegal taxes paid under moral pressure may under certain circumstances cause such payments to be involuntary and subject to be recovered. City of Marshall v. Snediker, 25 Tex. 471, 78 Am. Dec. 534; Baker v. Panola County, 30 Tex. 86; Gas. Co. v. Galveston County, 54 Tex. 292; City Co. v. City of Galveston, 56 Tex. 486. In some of the cases cited it seems to be concluded that even a mere protest against the payment of taxes might form the basis of a recovery of them, for instance in the three cases first cited. Referring to them, it is said in Gas. Co. v. Galveston, herein cited:

“These cases recognize that a payment may be compulsory, although not made to relieve the person or goods from seizure or detention, actual or threatened, if made under circumstances creating a moral pressure of ‘equal influence in perverting the free will.’ Galveston County v. Gorham [49 Tex. 279], supra. Where made to avoid the danger of a heavy penalty, which, however, could only have been enforced by a criminal prosecution, in which the party would have had his opportunity to set up the illegality of the tax as a defense, the recovery back was allowed. [City of Marshall v. Snediker] 25 Tex. 471, 78 Am. Dec. 534, and [Baker v. Panola County] 30 Tex. 86, supra. On the same principle, we think that the plaintiff here was not compelled to risk the heavy loss which might have resulted from the sale, although his possession could only have been disturbed by a suit in which he would have had his day in court. The moral pressure was sufficiently * * * immediate and urgent, to remove the payment, made under protest, from the class of voluntary payments.”

That was said in a case to recover illegal taxes paid under compulsion arising from the seizure and advertising of the property of the plaintiff for sale. There was a threat to arrest. The decision in that case has never been questioned, but has been cited several times with approval. City Co. v. Galveston, 56 Tex. 486; Cassiano v. Ursuline Academy, 64 Tex. 673. In the case of Houston v. Feeser, 76 Tex. 365, 13 S. W. 266, it was held that the question of voluntary payment was one of fact, and that the facts in that case showed voluntary payment of the taxes and consequently a recovery could not be sustained. The law as laid down in Gas Co. v. Galveston was not questioned; in fact, the turning point in the ease with the Supreme Court seemed to be that Feeser, a butcher, admitted that he had made his customers pay the tax by an increase on the price of meat, and if he recovered the taxes paid under compulsion it would be a double recovery.

The facts in this case show that the plaintiff was a foreigner, who came from Russia, perhaps in 1907 or 1908, and was engaged in selling fruits, vegetables, groceries, and fireworks, such as Roman candles, skyrockets, and sparklers. 1-Ie had about $125 invested in fireworks. The mayor of Seguin called on the plaintiff in November, 1913, and demanded the sum of $ 100 for a license to sell fireworks, and plaintiff was told by the mayor that if he did not pay the license money he would be put in jail. An alderman told him the same thing. Plaintiff under fear of imprisonment paid the tax. Again in 1914 and 1915 the mayor and city marshal told plaintiff that he would be arrested if he did not pay the occupation tax, and that then the tax would be doubled. The marshal told him every sale would be a separate offense, and that he would arrest him every time he made a sale, and make him pay the sum of $200. Plaintiff consulted an attorney as to the tax, and was advised to pay it, or that he would be indicted and found guilty. The tax was illegal and invalid. The evidence justified the verdict of the jury for $200. The court sustained a plea of limitation as to the payment made in 1913.

There is no merit in any of the assignments of error, and the judgment is affirmed.


author: RICE, J.

text:
    CAWTHON v. BUFORD.
    (No. 5949.)
    (Court of Civil Appeals of Texas. Austin.
    June 29, 1918.)
    Appeal from Bell County Court; J. B. Hubbard, Special Judge.
    Action- between Fred Cawthon and M. F. Buford. From a judgment for the latter, the former appeals.
    Affirmed.
    Ware & Countess, of Belton, for appellant. Frank Burford, of Belton, for appellee.
   RICE, J.

After a careful examination of the record in this case, together with the briefs of counsel for the respective parties, we have come to the conclusion that no reversible error is shown, and the. cause should therefore be affirmed ; and it is so ordered.

Affirmed.


text:
    ST. LOUIS & S. F. R. CO. v. HALE.
    (No. 2537.)
    (Supreme Court of Texas.
    Nov. 6, 1918.)
    1. Appearance <@=>S(4), 24(1) — Motion for Security por Costs — 'Waiver. of Defects.
    A motion by a defendant for an order requiring plaintiff to give security- for costs constitutes a voluntary appearance by defendant, and is a waiver of any defect in the service of citation on him.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appearance.]
    2. Appearance <§=9(1) — “General Appearance” — Wi-iat Constitutes.
    A “general appearance” is entered whenever defendant invokes the judgment of the court in any way on any question other than that of the court’s jurisdiction, without being compelled to do so by previous rulings of the court sustaining the jurisdiction.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, General Appearance.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by S. T. Hale against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (153 S. W. 411), and defendant brings error.
    Affirmed.
    W. F. Evans, of St. Louis, Mo., Andrews, Ball & Streetman, of Houston, and Head, Smith, Hare, Maxey & Head, of Sherman, for plaintiff in error.
    Randell & Randell and Jones & Hassell, all of Sherman, and R. F. B. Logan, of Hernando, Miss., for defendant in error.
   GREENWOOD, J.

This writ of error was granted because it appeared to the court that there probably was no proper service of citation on plaintiff in error. Two days before the plaintiff in error, a foreign railroad corporation, moved to quash the service of citation; it filed the following motion:

“S. T. Hale v. St. L. & S. F. R. R. Co. In 15th District Court, Grayson County. Now comes the defendant and moves the court for an order requiring plaintiff to give security for costs. Head, Smith, Hare & Head, Attorneys for Defendant.”

In our opinion, this motion operated as a voluntary appearance by .plaintiff in error and waived any defect in the service. The motion to require the plaintiff to give security for the costs obviously implied that the defendant had an interest in the adjudication to be made with respect to such costs. That interest could arise, in the absence of valid service of citation, only from the defendant’s voluntary appearance; for the court would otherwise have lacked jurisdiction to adjudge costs to or against defendant. Hardy v. Beaty, 84 Tex. 569, 19 S. W. 778, 31 Am. St. Rep. 80; York v. Texas, 137 U. S. 21, 11 Sup. Ct. 9, 34 L. Ed. 604. Having come into the case for a purpose entirely inconsistent with lack of jurisdiction by the court over it, the defendant, in effect, confessed that jurisdiction and cannot be allowed to thereafter deny same. Alderson v. White, 32 Wis. 312.

It seems to be almost uniformly held that a general appearance is entered whenever the defendant invokes the judgment of the court in any way on any question other than that of the court’s jurisdiction, without being compelled to do so by previous rulings of the court sustaining the jurisdiction. 4 Corpus Juris, p. 1389; 2 Enc. PI. & Pr. 637; Rogers v. Penobscot Mining Co., 28 S. D. 72, 132 N. W. 792, Ann. Cas. 1914A, 1187, 1190, note; Lumber Co. v. Lance, 50 W. Ya. 643, 41 S. E. 128; Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1106; Healy v. Aultman & Co., 6 Neb. 351. It is so held -by the Supreme Court of the United States. Laing v. Rigney, 160 U. S. 544, 16 Sup. Ct. 366, 40 L. Ed. 525; Merchants Heat & L. Co. v. Clow, 204 U. S. 289, 27,Sup. Ct. 285, 51 L. Ed. 488. The above rule has not only been announced and enforced in this state (Mortgage Co. v. Briggs [Civ. App.] 41 S. W. 1039, St. L. & S. F. Ry. Co. v. Kiser [Civ. App.] 136 S. W. 854, Baugh v. Baugh [Civ. App.] 175 S. W. 726), but our statute has been upheld which makes an appearance to the succeeding term follow even a motion, well taken, to .quash a citation or its service; and the reason for upholding the statute is quite conclusive of the instant question, that reason being that “it is not the fact that the motion to quash a citation or service is sustained which operates as an appearance, but it is the fact that a defendant appears and asks an adjudication, which makes the appearance.” York v. State, 73 Tex. 656, 11 S. W. 871. The defendant having appeared, and not having assailed, hut having invoked, the court’s jurisdiction, became subject thereto, and the validity or invalidity of the precedent service of citation was entirely immaterial.

We have examined the other assignments but find no reversible error, and the judgments of the District Court and of the Court of Civil Appeals are affirmed.
      ©=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. v. LEMONS et al.
    (No. 2536.)
    (Supreme Court of Texas.
    Nov. 6, 1918.)
    1. Infants <§=30(1) — Contracts — Ratification After Removal of Disability.
    Where plaintiff, after removal of his disabilities as a minor, converted to Ms own use land obtained through a previous contract of settlement with defendant for plaintiff’s personal injury, he ratified the settlement.
    2. Infants <®^11 — Removal of Disabilities — Resibence of Minor.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5947, providing a petition for removal of a minor’s disabilities shall be presented to the district court in a county where he resides, the minor’s residence is always that of his father.

      3. Infants @=>11 — Removal of Disability —Venue—Domicile—“Reside.”
    The term “reside,” in Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 5947, fixing the venue of proceedings to remove disabilities, does not refer to the place of minor’s bodily presence, but to his domicile with his parents, since he is unable to choose his residence.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Reside.]
    4. Infants %=>11 — Removal of Disabilities — Venue.
    That a father gave a minor son the light to woid!; in another county and to spend his earnings, idid not confer upon the minor the right to choose his residence, or oust the jurisdiction of the district court of the father’s residence over the minor’s application for removal of disabilities.
    5. Infants @=>11 — Removal of Disabilities — Statutory Procedure.
    To relieve a minor’s disabilities with respect to choice of domicile, the statutory method for removal of disabilities must be pursued.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by T. E. Demons and others against the Gulf, Colorado & Santa Fé Railway Company. From a judgment of the Court of Civil Appeals (152 iS. W. 1189), affirming a judgment for plaintiffs, the defendant brings error.
    Both judgments reversed, and judgment rendered for defendant.
    Terry, Covin & Mills, of Galveston, H. C. Shropshire, of Weatherford, and Dee & Domax, of Ft. Worth, for plaintiff in error.
    Stennis & Wilson, of Weatherford, for defendants in error.
   GREENWOOD, J.

This was a suit by T. E. Demons, referred to in this opinion as the defendant in error, to recover of the Gulf, Colorado & Santa Fé Railway Company, plaintiff in error, damages for personal injuries sustained by defendant in error, when a minor. Defendant in error averred that a settlement had been made of his cause of action for said damages, between the guardian of his estate, acting under an order of the probate court, and the Railway Company, and sought, by means of a certiorari, to revise the settlement, on certain grounds which need not be here stated. The plaintiff in error pleaded, among other defenses, that the defendant in error had ratified the settlement made with it by the guardian, after the disabilities of defendant in error, by reason of his minority, had been removed as prescribed by statute. Defendant in error alleged, in avoidance of plaintiff in error’s plea of ratification, that the proceedings relied on for the removal of the disabilities of defendant in error were void, because had in the county of Parker, when he then resided in the county of Dallas.

The trial in the district court resulted in a verdict and judgment for defendant in error, which was affirmed in the Court of Civil Appeals; it being held by the latter court that the question was one of fact as to whether defendant in error resided in the county of Parker or in the county of Dallas, when the order was made for the removal of his disabilities, and that the finding of the jury that defendant in error resided in the county of Dallas should not be disturbed, and that, considering the proceedings in Parker county for the removal of the minor’s disabilities as void, there was no binding ratification of the settlement of the guardian with the railway company. G., C. & S. F. Ry. Co. v. Demons, 152 S. W. 1189.

The undisputed evidence disclosed that the father of the minor had his domicile in Parker county, without removing therefrom, from the date of the minor’s injury to the date of trial of this cause; that in 1904, when the minor was about ^8 years old, his father had given him permission to go and make a living for himself, and from that date until subsequent to the order removing the disabilities he had worked and boarded at Dallas, receiving his own wages, and paying his own board and other living expenses; that on March 12, 1906, an application was filed for the minor in the district court of Parker county, alleging that he resided in Parker county, that he was a minor over 19 years of age, that he owned property both real and personal, that he was capable of managing his property and had been managing his own affairs for some time, and that it was advisable and would be to his interest and advantage, in person and property, to have his disabilities as a minor removed; that he would be 21 years old on February 22, 1907; that he and an older brother desired to go into business together at Dallas on May 1, 1906, and he would need money to put into the business; that he owned real estate in Parker county, which he had an opportunity to sell at a good price, and that unless he was enabled to make the sale he could not go into the desired business; that his father was living and resided in Parker county, and the application closed with the customary prayer for notice and for an order removing the minor’s disabilities; that on April 3, 1916, a judgment was entered by the district court of Parker county, reciting that, said application coming on to be heard, the minor appeared by attorney, and the father of the minor also appeared and consented to the application, and it having appeared to the court that the grounds set out in said petition were sufficient, and that the minor was over 19 years of age, and that it would be advantageous to the minor to have his disabilities removed, it was therefore ordered, adjudged, and decreed by the court that the disabilities of minority of said T. E. Demons be and the same were removed, and that the said T. E. Demons should be deemed and held, for all legal purposes of full age, and should be held1 responsible, and should have all the privileges and advantages as if he were of full age, saving only that he should not vote until he arrived at the full age of 21 years; that the land referred to in the above-mentioned application was purchased by the guardian with $1,000 of the money obtained from the settlement of the minor’s claim for damages against plaintiff in error; and that defendant in error, subsequent to the entry of the order removing his disabilities, first mortgaged and then sold and conveyed the land, with full knowledge of all material facts, and after having had advice of counsel with respect to his rights.

Since the land, which defendant in error mortgaged and sold, was obtained, through the contract of settlement in behalf of the minor with the railway company, he could not, with full knowledge, convert the land to his own use, without having imputed to him a ratification of the contract of settlement, unless he was under the disabilities of minority at the time he mortgaged and sold the land. 14 R. C. L. 251; Lemons v. G., C. & S. F. Ry. Co., 63 Tex. Civ. App. 524, 134 S. W. 742.

We have concluded, after giving careful consideration to the question, that, on the undisputed facts, the law fixed the venue of the proceedings for the removal of the disabilities of T. E. Lemons, as a minor, in Parker county, and that such order was valid. Article 5947, Vernon’s Sayles’ Texas Civil Statutes, provides that the bill or petition, showing the cause or causes which make it advisable or advantageous to a minor to have his disabilities removed, shall be presented by any minor in this state, over the age of 19 years, who may desire to have his disabilities removed, to the district court of the county where he may reside. It is certain that the domicile and residence of

T. E. Lemons, under any meaning which may be ascribed to those words, was in Parker county until his removal to Dallas and his alleged emancipation; for T. E. Lemons was living in Parker county and that was the domicile of his father, and it is settled law in Texas that the domicile of a minor child is always that of the father, and necessarily changes with any change of the father’s domicile. Russell v. Randolph, 11 Tex. 465; Franks v. Hancock, 1 Posey, Unrep. Cas. 561, 562; Lanning v. Gregory, 100 Tex. 314, 315, 99 S. W. 542, 10 L. R. A. (N. S.) 690, 123 Am. St. Rep. 809; First State Bank v. Fain, 157 S. W. 454. The reason for this rule is given by Judge Wheeler in the following language of Judge Story in his Conflict of Laws, section 44:

“Minors are generally deemed incapable, pro-prio marte, of changing their domicile, during their minority.” Hardy v. De Leon, 5 Tex. 237.

Schouler states:

“The domicile of origin remains until another is lawfully acquired, and, since minors are not sui juris, they may not change their domicile during their minority, though they may when of full age.” 'Schouler’s Domestic Relations, p. 313.

It is obvious that the disability of a minor to effect a change of domicile by act of his will rests at least in large measure on his presumed lack of capacity to form the intention, which is tire all-important element in effecting such a change, and the law makes no distinction with respect to this lack of capacity at the varying stages of minority; the presumption being the same at 18 years as at 18 months. Since there is no important difference between the intention required to effect a change of domicile and to effect a change of residence, whenever the word “residence” is used in the sense of a home fixed by intention, concurring with bodily presence, it must be held that the disability, which prevents the minor, through lack of capacity to have the essential intention, from acquiring a new domicile, likewise prevents him from acquiring such a new residence as is above mentioned. Brown v. Boulden, 18 Tex. 435; Brisenden v. Chamberlain (C. C.) 53 Fed. 311; In re Cannon’s Estate, 15 Pa. Co. Ct. R. 312, 314.

It was necessarily determined by this court that the woyd “reside,” as used in article 5947, means something different from being bodily present, when it was decided in Durrill v. Robison, 138 S. W. 107, that a proceeding for the removal of a minor’s disabilities showed upon its face that the minor did not reside in Travis county, because the application showed that the minor came to Travis county for the purpose of having her disabilities removed, and the order granting the application recited that the minor “was temporarily a resident of Travis county.”

The word “residence” not being used in article 5947 to denote the mere place of a minor’s bodily presence, and a minor having no residence, separate from his domicile, when the word “residence” is used in any other sense than the place where one is bodily present, article 5947 fixes the venue of proceedings for the removal of a minor’s disabilities in the county in which he has his domicile, and that is the county of his father’s domicile.

The reason why the Legislature has prescribed that proceedings for the appointment of a guardian and for the removal of the disabilities of a minor shall ordinarily be in the county of the domicile or residence of the father, and that the father is entitled before all others to be appointed guardian of the estate of his minor child, and is entitled to notice of a petition for the removal of the disabilities of minority of his child, is, no doubt, because of the natural affection of the father and his parental obligations and duties. In no other way could the welfare of the child be better safeguarded.

If the father be living in this state, upon him alone devolves the duty of resisting the application, if the 'true interests of the minor require its defeat. In effect this makes the father, when living in Texas, the sole real defendant in the proceeding, and our construction of this statute accomplishes what is recognized as the principal, general object of our venue statutes, viz. “to bring litigation to the home of the defendant.” Pearson v. West, 97 Tex. 243, 77 S. W. 945. Notice is not to be given the father unless he is living within the state, because if he is living without the state our courts would have no jurisdiction, as determined in Lanning v. Gregory, 100 Tex. 315, 99 S. W. 542, 10 L. R. A. (N. S.) 690, 123 Am. St. Rep. 809.

In Arkansas the venue of proceedings to remove disabilities of minority is fixed in the circuit court of the county in which the minor “is a resident.” In affirming the jurisdiction in the county of the minor’s domicile, the Supreme Court of Arkansas said:

“It is contended that the circuit court of Sebastian county, for the Ft. Smith district, did not have jurisdiction of John Rollinson at the time it undertook to remove his disabilities as a minor, because he was not a resident of that district, and for that reason the order made for that purpose is void. But the last domicile of the deceased father was in that district, and by reason thereof it was the legal residence of the minor son, John Rollinson, and, according to the general rule, so remained, and could not be changed or removed by his own act until he reached his majority. Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. 66; Johnson v. Turner, 29 Ark. 280; Lamar v. Micou, 112 U. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751; Allgood v. Williams [92 Ala. 551], 8 South. 722. And see Lamar v. Micou, 114 U. S. 218, 5 Sup. Ct. 857, 29 L. Ed. 94.” Young v. Hiner, 72 Ark. 299, 79 S. W. 1063.

The Supreme Court of Maryland in Sudler v. Sudler, 121 Md. 46, 88 Atl. 26, 49 L. R. A. 866-869, Ann. Cas. 1913E, 1191, stated at some length the reasons which require that residence be construed as synonymous with domicile in arriving at the meaning óf a statute providing for the appointment of a guardian of an infant by “the orphans’ court of the county in which such infant shall reside.”

In our opinion the fact that T. E. Lemons’ father had given him permission to go out and make a living for himself, and he had thereafter gone to Dallas and made and spent his own earnings, did not affect the jurisdiction in Parker county. We think the correct principle is that annoünced in Ruling Case Law, that such an emancipation does not remove the disabilities of minority except as to the father’s interest in, and control over, the minor’s labor and earnings. 20 R. C. L. 608, 609. The father has a true property right in the fruits of the minor’s labor, which he may release, though the general rule appears to be that the father may even revoke this release, if it does not interfere with rights acquired on the faith thereof. 20 R. C. L. 611. But the father’s right to the custody and control of the person of his-minor child, apart from his right to the benefit of his labor and earnings, is in no sense a property right of the father. Instead, the right of the father here springs from the duty and trust imposed on him by law, for the child’s protection and benefit, and it is therefore held that the father, under the common law, cannot divest himself, even by contract'with the mother, of the custody and control of his minor child. Lanning v. Gregory, 100 Tex. 314, 315, 99 S. W. 542, 10 L. R. A. (N. S.) 690, 123 Am. St. Rep. 809; Schouler’s Domestic Relations, § 251, p. 346; Legate v. Legate, 87 Tex. 252, 28 S. W. 281.

In an early case in Massachusetts it was-contended that upon a minor acquiring a right, as against his father, to apply his own, earnings to the support of one whom the minor had married with the father’s consent, ha also acquired the right to' fix the residence of himself and family. But the Supreme-Court of Massachusetts held that the laws of ■that state recognized no such consequences of emancipation, saying:

“But it [emancipation] did not give him [the minor] a capacity to make binding contracts, beyond other- infants; or any political or municipal rights, which -do not belong by law to minors.” Taunton v. Plymouth, 15 Mass. 203.

To the same effect is Jacobs’ Law of Domicile, §§ 229, 231.

In order for a minor in Texas to be relieved of the disabilities, imposed on him by law,, with respect to domicile, for his own special protection, the statutory method for the removal of his disabilities must be pursued. Article 5947, Vernon’s Sayles’ Tex. Civ. Statutes. There is authority for the proposition that, even where the proceedings to remove a minor’s disabilities, as in Texas,, are held to be special, and not to be supported by the presumptions which usually uphold judicial’ proceedings, yet the recital of facts on the face of the proceedings, which sustain the jurisdiction, cannot be collaterally impeached. Young v. Hiner, 72 Ark. 299, 79 S. W. 1054; Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052, 13 L. R. A. 490. But the conclusions we have reached render it unnecessary for us to determine the correctness of this proposition.

It is ordered that the judgments of the District Court and of the Court of Civil Appeals-be reversed, and that judgment be here rendered for plaintiff in error.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RUSSEEL v. STATE.
    (No. 5061.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.
    Rehearing Denied Oct. 80, 1918.)
    1. .Criminal Law <&wkey;264—1Time foe Arraignment.
    It is not error to arraign accused after the jury is sworn individually and collectively.
    2. Criminal Law' <&wkey;llll(3)—Bill op Exceptions — Acceptance op Qualifications,
    Acceptance of a bill of exceptions with qualifications binds accused to the qualifications.
    8. Criminal Law <&wkey;404(4) — Exhibits — Admissibility.
    In prosecution for murder, deceased’s bloody coat, containing knife slash, held admissible, to show relative positions of deceased and accused, in view of conflicting testimony on such issue.
    4. Criminal Law <&wkey;1037(l)—Trial—Dem-onstrations in Argument.
    Allowing state’s attorney to put on deceased’s coat and have colleague take accused’s position, where no objection was made at the time, was not error.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Grady Russell was convicted of murder, and he appeals.
    Affirmed.
    Chandler & Chandler, of Stephenville, and W. J. Oxford, of Thurber, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

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

The statement of facts is rather voluminous. The testimony introduced by the state, .and as a whole, without doubt, was amply sufficient to sustain the conviction of appellant for murder. Some of the testimony by appellant and his witnesses raised the question of manslaughter, and appellant insists that if convicted he should have been convicted for that alone. However, the court submitted every question raised, including that of manslaughter, in a clear and apt charge to which there was no objection. The jury had a right under the law and testimony to believe and find that appellant was guilty of murder and not of manslaughter.

There is no necessity for reciting the testimony. There are but few questions raised.

By his first bill it is shown: That when the case was called for trial both parties announced ready. That the jury was selected from a special venire, and as each jilror was accepted he was sworn individually. When the jury was completed, they were.sworn collectively. That thereupon, for the first time, the appellant was arraigned. That he was arraigned before any testimony was introduced, and to his arraignment he also pleaded not guilty. Appellant complains of this, claiming that the arraignment should have been had before the jury or any of them were selected. This court has uniformly held that, while it was proper to arraign an accused before the selection of the jury, the fact that it was done after the jury was selected and sworn presents no error. Smith v. State, 1 Tex. App. 408; Morris v. State, 30 Tex. App. 95, 16 S. W. 757; Cardova v. State, 6 Tex. App. 207; Mays v. State, 50 Tex. Cr. R. 165, 96 S. W. 329; and other cases.

Appellant has another bill complaining that the court erred in permitting the bloody clothes of deceased to be introduced in evidence, claiming in his bill that there was no difference between the doctors as to the location of the wound, its extent, and the course of the stab. The court qualified the bill in •approving it. Appellant accepted the bill as qualified and is bound thereby. The judge’s qualification is quoted:

“I do not certify as to the correctness of the testimony therein shown, or that there was no controversy between the physicians for the state and those for the defendant as to the location of the wound on the body of the deceased. Dr. Naylor, witness for the state, testified that the knife, which inflicted said wound entered the body of the deceased 2% inches back of the top of his left shoulder and near the edge of the shoulder blade, close to the spine, and that the opening of the wound was almost perpendicular to the median line of the body, but inclined a little outward at its lower edge.
“Dr. Harris, who testified for the defense, as to the character and location oí said wound, stated that the knife entered the body of deceased near the top of the left shoulder, ranging downward, and that the cut or orifice of the wound made by said knife was in a horizontal position to the body of thes deceased, and said witness, in the presence of the jury, described said wound upon the person of another person, as above stated.
“Witnesses for the state, who saw the blow struck, and afterwards saw the wound on the person of the deceased that proved his death, testified that said wound was located at different points on the back of deceased, some as much as six inches below the top of the shoulder and near the spine, and that the knife entered the body directly from behind, and that the wound was perpendicular to the body of the deceased, with the cutting edge of the knife downward; and others putting said wound not over three inches below the'top of the shoulder blade, and entering the body directly from behind. Witnesses for defendant put him in front of deceased, striking over his shoulder at the time the blow was struck, with the knife that produced the death of deceased, there being only one blow struck. While other of said witnesses put the defendant in different positions near the front and left side of deceased at the time the fatal blow was struck.
“With the record in this condition, I admitted the clothing worn by the deceased at the time he was stabbed in order to shed light upon the actual position occupied by defendant relative to deceased at the time he struck the fatal blow, and to enable the jury to locate, with accuracy, the wound as it was made on the body of deceased, and to enable them to pass upon the weight to be given to the testimony of the witnesses with respect to the matters mentioned above.”

From the authorities and the judge’s qualification of the bill and from the testimony of the witnesses themselves, the clothes, although bloody, were admissible in evidence. See cases cited in 2 Branch’s An; P. C. § 1855.

Appellant has another bill complaining that the court erred in refusing to give his specially requested charge to the effect that they would not consider the demonstration made by counsel for the state in his closing argument in which demonstration the coat of deceased was placed upon one of the prosecuting attorneys, and it was demonstrated therefrom where the defendant might have struck deceased. The court in approving this bill also explains it. Appellant accepted the bill as explained and is bound thereby. We quote the judge’s explanation:

“The state’s witnesses testified that, at the time the deceased was stabbed by the defendant, the deceased was standing still with his back to the defendant, and that the defendant walked up behind him and stabbed deceased; and the clothes of deceased were admitted in evidence, to enable the jury to determine the controversy which existed between the witnesses to where the deceased was stabbed, and during the argument and after said clothes had been admitted in evidence the matters complained of in the bill occurred. And during said demonstration the district attorney stood with his back to the jury and put the coat on, so that the same would be in the position that said coat would be when ordinarily worn by the deceased, and Mr. Hiner stated to the jury at the time that he made, this demonstration, in order to show that the deceased could not have been facing the defendant at the time defendant stabbed him, as was testified to by some of defendant’s witnesses, and in order to show as he claimed that the deceased was stabbed by the defendant while the defendant was directly behind the deceased. No objection was made to this proceeding at the time it occurred, and after the argument had closed and the court had delivered the indictment and charge to the jury, and while they were still within the bar of the court, the defendant presented the charge set out in the bill, which was refused because the court was of the opinion that the matter could not have injured the defendant and was entirely proper, and that if the defendant did not desire said demonstration to occur that he should have objected to the same at the time it was made.”

This bill shows no error.

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


text:
    VANN v. STATE.
    (No. 4764.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.
    Rehearing Denied Oct. 39, 1918.)
    1. Criminal Law ©=>1159(3) — Review—Conflicting Evidence.
    The Court of Criminal Appeals cannot disturb a verdict rendered upon conflicting evidence, sufficient, nevertheless, to sustain it.
    2. Criminal Law ©=>1141 (1) — Appeal—Pee - SUMPTIONS.
    The legal presumption is that the ruling of the trial court was correct unless the bill of exceptions shows otherwise.
    3. Criminal Law ©=>1091(2) — Bill op Exceptions — Sufficiency.
    A bill of exceptions should be made so full and certain that in and of itself it discloses .all that is necessary to show the supposed error.
    4. Indictment and Information ©=>176— Provable Pacts — Acts Within Period of Limitation.
    Where indictment was returned April 23, 1917, charging an offense on December 24, 1916, which was a misprint for December 24, 1915, evidence was properly admitted as to the offense on December 24, 1915, which was within the period of limitation and prior to the indictment.
    5. Criminal Law ©=1091(4) — Bill of Exceptions — Exclusion of Evidence.
    Bill of exceptions from which it could not be ascertained whether statement of physician was inadmissible held not to show error.
    6. Criminal Law ©=>1091(10) — Bill of Exceptions — Showing of Objection.
    Bill of exceptions to admission of evidence failing to show an objection to the answer of the witness and from which it cannot be determined that any of his objections to the question were good presents no error.
    7. Witnesses ©=>340(3) — Credibility—Character and Conduct — Cross-Examination.
    In prosecution for procuring, the state’s attorney could cross-examine the woman involved, who testified for defendant, as to whether she was in the habit of having intercourse with men.
    Appeal from Harris County Court at Law; W. E. Momteith, Judge.
    Roy Vann was convicted of procuring under Penal Code, art. 498, and be appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant.
    John H. Crooker, Cr. Dist. Atty., of Houston, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The evidence by the state’s witness, which was more or less supported by the testimony of others, clearly and distinctly established the offense against appellant. On the other hand, the evidence oy the appellant, which was also supported and corroborated by the testimony of other of his witnesses, was clearly sufficient, if believed, to have authorized the jury to acquit him. It was peculiarly a question of fact to be settled by the jury and the lower court. They believed the state’s witness and testimony, and disbelieved that of appellant and his witnesses. The law makes the jury the exclusive judges in such matters. This court cannot disturb the verdict.

These two propositions are laid down in 1 Branch’s Ann. P. C. pp. 131,132, and are unquestionably established by the many decisions of this court, some of which are cited by Mr. Branch, to wit:

“The legal presumption is that the ruling of the trial court was correct, unless the bill of exceptions shows otherwise.”
“A bill of exceptions should be made so full and certain in its statements as that in and of itself it will disclose all that is necessary to manifest the supposed error.”

Appellant has some bills, the consideration of which is objected to by the state because in and of themselves they are wholly insufficient under the authorities to authorize or require their consideration. The state’s contention is correct. However, if they could be considered, in the light of the whole record none of them present reversible error. The questions attempted to be raised by them will be stated.

The indictment herein was returned by the grand jury April 23,1917. It charged the offense to have been committed on December 24, 1916. The state’s witness testified that the facts constituting the offense occurred on December 24, 1915. Appellant objected to the proof that the facts occurred on December 25, 1915, instead of 1916, claiming that because the indictment alleged the prior date the proof had to be confined thereto. The court in approving the bill explained that the state’s witness on the examining trial had given the correct date as that of 1915, and that when this case was first set for trial at a time prior to the time of trial Mr. Branch, assistant district attorney, had stated to the counsel for appellant that his stenographer by mistake had inserted the date “1916” instead of that of “1915” in the indictment, and that the state was expecting to prove on the trial that the offense occurred in 1915, and not in 1916. The court’s ruling in the admission of the testimony was correct, as has all the time been held by this court. The time alleged was prior to the indictment and within the period of limitation. Section 439, 1 Branch’s Ann. P. O. and cases there cited, and many other cases which could be cited. In every one of appellant’s bills his objections were mere objections. The court in no instance approved them as a fact. He merely approved the bill to the effect that such objections were made and nothing more.

In his next bill it is alleged that when Dr. Brown was on the stand as a witness in his behalf, and had testified that he was a graduate of a medical college and had 12 years’ experience, he was asked this question:

“Q. From your experience as a physician, you having testified that you saw, professionally called on, Frankie Van on the morning of December 25, 1915, from the condition that you found her in on that morning, it being your first visit to her, and from the history of her case and illness she gave you, could you state whether or not she had been sick or suffering any time before that date?”
The bill claims that the state objected to this, and that he would have testified:
“I would state she had been sick some two or three days prior to my first visit to her on the 25th day of December, 1915.”

It will be seen by this that from the bill it cannot be ascertained whether this testimony was admissible or not. The bill is wholly insufficient to show that it was inadmissible. In explanation of the bill the court states that he suggested to appellant’s attorney to ask a hypothetical question based on the testimony, but counsel insisted on this question. He states:

“The witness did testify without objection that from his experience as a physician and the way she complained it must have been two or three days getting in the shape sbe was in when he visited her.”

If we could look to the statement of facts, we would find that it contained the testimony •of Dr. Brown substantially as stated by the court and substantially as appellant claimed he would testify. In no contingency does this bill show any error.

His next bill alleges that when Dr. Brown was on the stand as a witness for him, and he having testified that on Christmas morning, 1915, he visited Frankie Van for the first time, and that she was sick in bed, the state, on cross-examination of him, asked him this question:

“I will ask you, Doctor, if on the night before Christmas, you not having seen her before Christmas Day, suppose a young healthy fellow from the country had intercourse with her, and stayed all night with her, would that not have produced the condition that you found her in.”

Appellant objected to this question as being irrelevant, immaterial, and a question based on matters not in evidence, calls for a conclusion of the witness, improper and highly prejudicial. Of course, from this bill it cannot be told that any of his objections were good. Nothing further is stated in the bill than as given above. He did not object to the answer of the witness, which was this, “It might have.” So that this bill shows no error.

His next bill is just as insufficient as the others above noted, in that it is alleged that when the witness Frankie Van was on the stand for him, and having testified that appellant did not bring the state’s witness to her, and that she never had intercourse with him, the state asked her on cross-examination this question, “You have had intercourse with men, haven’t you, Frankie?” To which he objected as irrelevant and immaterial, has no bearing on the guilt or innocence of the defendant, and is an attempt to impeach said witness on the immaterial matter, and an attempt to bring her character in issue all to the detriment and prejudice of the defendant. No objection yvas made to her answer, which was this, “Yes; I have my friends well as you have yours, I guess, Mr. Crooker.” This bill presents no error. The question asked was on cross-examination of this witness, and if we could look to the whole record, it would show that it was proper cross-examination of her under the circumstances of this ease. McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941; McCray v. State, 38 Tex. Cr. R. 613, 44 S. W. 170; Carter v. State, 45 Tex. Cr. R. 432, 76 S. W. 437; Wilson v. State, 71 Tex. Cr. R. 426, 160 S. W. 967.

The judgment is affirmed.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes