text:
    BIERMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    On Motion for Rehearing, March 18, 1914.)
    1. Criminal Law (§ 1023) — Decisions Reviewable — Conviction and Suspended Sentence.
    Under Code Cr. Proc. 1911, art. 856, providing that, in all cases of felony, sentence shall be pronounced before an appeal is taken, one at whose instance sentence was suspended had no right of appeal before sentence was pronounced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. § 1023.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1023) — Decisions Reviewable — Conviction' and Suspension op Sentence — Statutes.
    Under the Suspended Sentence Law (Acts 32d Leg. c. 44) § 2. providing that the court, upon request of defendant, shall submit his general reputation, and the question of his former conviction of a felony to the jury, and shall suspend sentence if they so recommend, in which case neither the conviction nor the judgment entered thereon shall become final, except as provided by section 4, which declares that, upon final conviction of any other felony pending suspension of a sentence, the court shall issue a capias for defendant’s arrest, and, upon execution thereof, shall pronounce sentence, on the original judgment of conviction, a conviction with suspended sentence was not a final ap-pealable judgment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. § 1023.]
    Appeal from District Court, Cooke County; C. F. Spencer, Judge.
    Frank Bierman was convicted of unlawfully selling intoxicating liquor in prohibition territory and his sentence suspended, and he appeals.
    Dismissed without prejudice.

      Gulp & Culp and W. O. Davis, all of Gainesville, for appellant. Lewis Rogers, Co. Atty., and Owen Davis, Asst. Co. Atty., both of Gainesville, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of unlawfully selling intoxicating liquor in prohibition territory.

Appellant filed a plea praying that, in the event he was found guilty, his sentence should be suspended, and the jury returned the following verdict: “We, the jury, find the defendant guilty and assess his punishment at one year’s confinement in the penitentiary. We find that he has never been convicted of a felony, and recommend to the court that his sentence be suspended in this case.” The court, in accordance with said verdict, entered up a judgment adjudging appellant guilty, also reciting and adjudging as follows: “But, it appearing to the court that the defendant, Frank Bierman, had filed herein his request in writing under oath for a suspension of the sentence herein, and the jury having heard said request and the evidence in support thereof, and having found by their verdict that the defendant was a man of good character, that he had never been convicted of a felony prior to this time, and having recommended in their verdict that the judgment and sentence of the court be suspended, it is considered and ordered by the court that sentence of the judgment of conviction herein be and the same is hereby suspended during the good behavior of the defendant.” No sentence has ever been pronounced, but appellant filed a motion for a new trial, and, when it was overruled, gave notice of appeal, and undertakes to prosecute an appeal to this court.

The question arises: Has a person adjudged guilty, and who at his request and instance has had. the sentence suspended, the right of appeal before sentence is pronounced? The right of appeal is given in this state upon such conditions and, restrictions as the Legislature may adopt, and we think it clear, from reading the Suspended Sentence Act, it was not the intention of the Legislature to give the right of appeal in this character of case until sentence has been pronounced. Article 856 of the Code of Criminal Procedure provides that in all eases of felony (except where the death penalty •is assessed) sentence shall he pronounced before an appeal is talcen, and, where the person on trial secures the suspension of pronouncing of sentence, his right of appeal does not arise until sentence is pronounced. If the court should hereafter, for any reason, call him before the court and pronounce sentence, his right of appeal would then accrue, and he could then prosecute an appeal to this court, but not until then. No sentence having been pronounced, and it being at his instance and request that sentence was suspended, this appeal must be dismissed, but without prejudice to his right to appeal, if sentence should hereafter be pronounced on the verdict and judgment.

The appeal is dismissed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing, in which he earnestly insists we were in error in dismissing his appeal; that the judgment entered was a final judgment, although no sentence was pronounced. To so hold would be in direct conflict.with the provisions of the Suspended Sentence Law (Acts 32d Leg. c. 44). Section 2 reads: “The court shall permit testimony and submit the question as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant has ever been convicted of a felony; such testimony shall be heard and such question submitted only upon the request in writing by the defendant; provided, that in all cases sentence shall be suspended if the jury recommends it in their verdict. Provided further, that in such cases, neither the verdict of conviction nor the judgment entered thereon shall become final, except under the conditions and in the manner and at the time provided for by section 4 of this act.” It is thus seen that by law it is now specifically provided that this shall not be a final judgment. Section 4 reads: “Upon the final conviction of the defendant of any other felony, pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court; and upon the execution of a capias, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction.” As said in the original opinion, that, should circumstances in the future arise whereby under the provisions of this latter section, the court should pronounce sentence, then and not until then does his right of appeal lie under our law.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: DAYIDSON, J.

license: Public Domain

text:
    HAYS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.
    Rehearing Denied March 18, 1914.)
    1. Criminal Law (§. 595) — -Continuance-Absence off Witness.
    A continuance in a homicide case should have been granted to secure the testimony of defendant’s wife, who was unable to attend the trial, and by whom' it was expected to prove that, just before the homicide, his daughter, as she testified, informed Ms wife of misconduct of deceased toward her, and that his wife telephoned him what his daughter said, and that his mind was much excited and outraged thereat.
    [Ed. Note. — For other cases, .see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    2. Criminal Law (§ 662) — Reception of Evidence — Right to Coneeont Witnesses.
    Written statements of witnesses, not introduced to impeach defendant, but as original evidence, are inadmissible; defendant being entitled to be confronted by the witnesses, and have them testify to the facts.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3, 1538-1548; Dec. Dig. § 662.]
    3. Homicide (§ 216) — Evidence—Dying Declarations.
    Where testimony is admitted as a predicate for the introduction of a dying declaration, it should be limited to that purpose, and it was prejudicial error to admit, without such limitation, what deceased said to his wife in telling her about their financial affairs, and how he had looked out for her future wants.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 457; Dec. Dig. § 216.]
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    M. M. Hays was convicted of manslaughter, and he appeals.
    Reversed.
    Lattimore, Cummings, Doyle & Bouldin, W. M. W. Splawn, and Tom Bradley, all of Ft. Worth, for appellant. John W. Baskin, Co. Atty., and A. J. Baskin, both of Ft Worth, and C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAYIDSON, J.

Appellant was convicted of manslaughter; his punishment being assessed at five years’ confinement in the penitentiary.

The theory of the state was that appellant, being an employs of the railroad, while in the discharge of his duties permitted some cars to be pilfered, and for this reason was discharged. It is further the theory of the state that on account of this he harbored ill will and bad feeling towards the deceased, Boswell, who seems to have been in charge of that particular department of railway service. There is evidence showing that appellant felt sore and outraged over his discharge. The theory of the defendant is that his 16 year old daughter was sent by his wife to see the deceased with a view of getting her father, appellant, reinstated. When she approached deceased, he requested her to go with him to his uptown office. She did so, and, as they were ascending the flight of steps leading to the office, he told her that, if she would submit her person to him, he would reinstate her father. She became outraged, and, having declined to accede to his proposition, went home, and informed her mother of what had occurred. Her mother subsequently over the telephone informed appellant of what the daughter had said. The girl herself did not inform her father. Subsequently to being so informed by his wife, he procured a gun, went to the office of the deceased, and said to him that he had “taken bread and meat from my family and deprived me of making a living for them,” and appellant testified, in addition, he had sought to ruin his family; that deceased got up and started in the direction of his private office, which was nearby, and appellant shot him.

1. When the case was called for trial, appellant sought a continuance for the testimony of his wife, who, it is shown, was physically unable to attend the trial, and about this there seems to be no question. He desired to prove by her the fact that she had communicated to him what the girl had said, and also that the girl had made the communication to her, and further that appellant’s mind was very much excited and outraged on account of these communications. We are of the opinion that this application should have been granted. It was the first application, no question about the materiality of the testimony, and of the inability of the witnesses to attend the trial. While the girl testified that she communicated to her mother the insulting conduct by the deceased, and appellant testified that his wife had informed him of it, yet the absent witness would have corroborated ' both witnesses, as well as shown the effect of these communications upon the defendant in regard to the excitement.

2. Another bill of exceptions recites the state was permitted to introduce in evidence" the written statements of L. 0. Wood and L. M. True. They state, in substance, that appellant and themselves were working in the transfer yard of the railroad company, and that Wood and True entered a box car and took from it some chili con carne. Wood, True, and defendant were in the employ of the railway company at that point and in those yards. Various objections were urged to the introduction of these statements. These objections are well taken. If appellant made statements or heard the statements of these men made to Boswell, the deceased, who was in charge of the yard, to the effect that True and Wood got these goods with appellant’s permission, and that this was the moving cause for his discharge from the railway service by the deceased, Boswell, it was admissible upon the question of motive or ill will as against Boswell. But the written statements of these two men could not be introduced. Appellant was entitled to be confronted by these witnesses and have them testify to the facts. This testimony was introduced as original testimony, and not impeachment. This was error.

3. Another bill recites that, while the witness Wallace was testifying for the state, over the objections of appellant, he was permitted to testify that soon after the shooting of the deceased he (Wallace), went into the depot where deceased was, and deceased’s wife came in, and deceased said to her: “Sweetheart, I have made ample provision for you, and I have done the best I could by yoii. You know where my land papers are and my insurance policies.” After this was introduced, appellant asked the court to limit this evidence to the question of establishing the admissibility of the purported dying declaration, which was by the court refused. The court signs this with the explanation : ' “That this was allowed to show the condition of deceased, and that he knew of pending death.” Of course, the state could prove by any legitimate testimony, as a predicate for the introduction of the dying declaration, that the deceased recognized the fact that he was going to die, but this testimony, if admissible for that purpose, ought to have been limited to it. The court says he admitted it to show the fact that deceased knew he was going to die, but he does not so inform the jury. It was not necessary to show, as the court called it “pending death,” by such statements made by deceased, but, if the court thought it was proper to admit this on that theory, it should have been limited as contended by appellant for that purpose. It was damaging, to say the least of it. There was a man who, as the court says, recognized he was going to die; his wife came in and found him in that condition; he was telling her about their financial affairs, and hów he looked out for her future wants. This was calculated to affect the jury, and, if not properly guarded, detrimentally. This was not and could not be original testimony, nor part of a dying declaration. It could only be admissible, if at all, as a predicate for the introduction of the dying declaration.

For the reasons indicated, the judgment is reversed, and the cause remanded.


author: HARPER, J.

text:
    SIMMONS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    On Motion for Rehearing, March 18, 1914.)
    1. Criminal Law (§ 1037) — APPEAL—PRESENTATION OP GROUNDS OP REVIEW IN COURT Below.
    Objections to the argument of the district attorney, raised for the first time in the motion for new trial, cannot be considered, not being presented by an appropriate bill of exceptions taken at trial.
    [Ed. Note. — For other eases, see Criminal Law, Cent Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    2. Criminal Law (§ 1038) — Appeal—Presentation op Geounds op Review in Court below.
    Objections to a charge, which is not affirmatively erroneous, cannot, under Acts 33d Leg. c. 138, requiring the trial court to furnish counsel a copy of his charge to which any objection must be made in writing before it is read to the jury, be raised for the first time in the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    3.- Homicide (§ 311) — Instructions as to Punishment.
    The first indeterminate sentence law having been declared invalid, the court properly required the jury to assess the punishment in a prosecution for assault to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 662, 663; Dec. Dig. § 311.]
    4. Homicide (§ 257) — Trial — Evidence— SUFFICIENCY.
    In a prosecution for assault to murder, evidence held sufficient to support the conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    On. Motion for Rehearing.
    5. Criminal Law (§ 1090) — Appeal — Bill op Exceptions.
    A bill of exceptions to the overruling of accused’s motion for new trial will not answer in lieu of bills of exception to proceedings had upon trial, to which an exception should have been reserved during the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    6. Criminal Law (§ 991) — Trial—Verdict-Sentence.
    Under the second indeterminate sentence law, an accused, whose punishment was fixed by the jury at three years in the penitentiary, should be sentenced to imprisonment for a period of not less than two and not more than three years.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2525, 2528; Dec. Dig. § 991.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Conley Simmons was convicted of assault to murder, and he appeals.
    Sentence modified, and conviction affirmed.
    Forse & Wigley and J. M. Reagan, all of Newton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of assault to murder, and his punishment assessed at three years’ confinement in the state penitentiary.

No exceptions were reserved to the introduction or rejection of any testimony as shown by the record. The only bill of exceptions in the record is one reserved to the action of the court in overruling his motion for a new trial. This adds no verity to the motion for new trial, and only such questions can be considered which were authorized to be presented for the first time in the motion for a new trial.

It appears from the record that a singing convention and barbecue was being held on the 1st of last June, when two boys, D. Jones and Doody Smith, got into a fight. From this occurrence a difference arose between appellant and Ira Coleman, a deputy sheriff. Appellant approached the deputy and laid his hands on his shoulder, when the deputy shoved him off. Appellant started toward the deputy again, when the deputy kicked him, as did also Joe Thomas. Appellant then remarked, so some of the witnesses say, “he would go back in the house, get his gun, and kill the son of a b-h.” He did go in the house, get his pistol, come out, threw it down on Coleman, and snapped it, but it failed to fire. He then retreated back in the house.

Appellant contends that the court erred in letting the district attorney “waive the pistol before the jury during his argument.” That the district attorney did do this is not verified by any bill of exceptions. It is complained of for the first time in the motion for a new trial, and comes too late. To enable us to review the question, appellant should have objected at the time it occurred, if it did occur, -and presented a bill of exceptions. Not having done so, we cannot review this ground in the motion for new trial.

This case was tried on the 24th day of last September, three months after the law passed by the last Legislature in regard to complaints of the charge of the court went into effect. By that act it was provided that, before reading the charge to the jury, the court is required to submit the charge to counsel, and counsel then is required to submit any objections he has to the charge in writing. Appellant made no objections to the charge before it was read to the jury, and made no complaint of the charge, as shown by this record, until after verdict. This law was passed requiring counsel to make objections before the charge is read that the court may correct any errors, if errors there be, in the charge. Complaints can no longer be made for the first time in the motion for a new trial. We discussed this matter at length and cited the authorities recently in the case of James v. State, 163 S. W. 61, not yet officially reported, but which is here referred to.

The first indeterminate sentence law was declared invalid, and the court correctly required the jury to assess the punishment.

While the court’s charge in presenting the issue of aggravated assault may be subject to some criticism in that it did not as fully define “adequate cause” as applicable to the testimony as he should have done, yet, as hereinbefore stated, the charge in and of itself, as far as it went, is not erroneous; it may not be as full as appellant would have preferred; yet appellant asked no special charge, made no objection to the charge as given until after verdict, and it is just such matters as these that the Legislature has declared cannot be presented for the first time in the motion for a new trial.

The evidence, we think, is ample to support the verdict, for, if appellant’s pistol had not snapped, it is apparent that he would have killed the deputy sheriff, and after he- had snapped his pistol, if he had not been surrounded by his wife and children, the deputy would most likely have shot him. It is such scenes as this, going and arming one’s self and returning to the scene to engage in a fatal encounter, that the law intends to prevent and punish.

The judgment is affirmed.

On Motion for Rehearing.

Reserving a bill of exceptions to overruling a motion for new trial does not take the place, nor will it answer in lieu of a hill of exceptions to proceedings had upon the trial of a case, and those matters which appellant seeks to raise by reserving a bill of exceptions to overruling the motion for new trial, and to which an exception should have been reserved during the trial at the time they occurred, do not present the matter in a way we can review them.

Appellant, in his motion for a new trial, complained that the court erred in requiring the jury to assess the punishment. Since we called his attention to the fact that the first indeterminate sentence law was held invalid, he, in his motion for rehearing, insists that the court should have pronounced sentence in accordance with the terms of the indeterminate sentence law last passed, and in this he is correct. As the jury assessed his punishment at three years’ confinement in the state penitentiary, the court should have sentenced him to imprisonment in the penitentiary for a period of time not less than two nor more than three years, and the sentence is here now corrected and reformed to so read.

The motion for rehearing is overruled.


author: DAVIDSON, J.

text:
    TAYLOR v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.
    On Motion for Rehearing, March 4, 1914.)
    1. Criminal Law (§ 1099)—Appeal and Error-Statement of Facts.
    A purported statement of facts in the record on appeal, signed by the attorneys, but not approved by the judge, cannot be considered for want of such approval.
    [Ed. Note.—For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 1097)—Appeal and Error-Review in Absence of Statement of Facts.
    In the absence of a statement of facts, the ruling of the court in refusing a continuance cannot be revised.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    On Motion for Rehearing.
    3. Criminal Law (§ 596)—Continuance— Absence of Witness.
    In a homicide ease wherein defendant testified practically alone as to his claim of self-defense, it was error to refuse a continuance to procure the corroborative testimony of a disinterested witness for whom process was issued, and who was one of the parties immediately present.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Jim Taylor was convicted of manslaughter, and he appeals.
    Reversed.
    Futch & Tipps, of Henderson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, J.

Appellant was convicted of manslaughter; his punishment being assessed at five years’ confinement in the penitentiary.

There is a purported statement of facts in the record signed by the attorneys but not approved by the judge. The clerk certifies that it is a correct copy of the original statement of facts on file in his office. As the statement of facts is presented, it cannot be considered for want of the approval of the judge.

The other question raised in the motion for new trial is based on the failure of the court to grant an application for continuance. There was a bill of exceptions reserved to the ruling of the court refusing the continuance; but, in the absence of statement of facts, we are unable to revise the ruling of the court refusing to continue the case.

As the matter is presented, the judgment will be affirmed.

On Motion for Rehearing.

Appellant was convicted of manslaughter, with the maximum punishment of five years assessed. On a former day of the term the conviction was affirmed without considering the evidence. On motion for rehearing this matter was cured, and as now presented the facts are before the court for consideration.

There is but one question presented, to wit, the refusal of the court to grant a continuance. Without going into a detailed statement of the facts, it is shown, in substance, that this difficulty occurred at Holly Spring in Rusk county. The people assembled were negroes, and was a gathering of what is termed the F. I. S. Society. This seems to have been a society among the negroes. The deceased came to the place drunk. He was a member of the society. He raised a disturbance and went away. He came back riding a mule, holloaing and disturbing the people. As he rode up, one of the negroes present took a knife from him which he had in his hand. He then remarked with an oath that he had another one, and obtained that from his pocket. This was also taken from him. He got down from his mule, and, after talking with the party awhile, his two knives were returned to him. While talking he remarked that some damn son of a bitch had stolen his whisky. Appellant asked if he meant him. He says, “Did you get it?” Appellant said, “No.” Deceased said, “You are á damned liar.” Appellant went down to a branch for some purpose. In the meantime John Johnson got hold of the deceased and was carrying him away, urging him to behave himself and not disturb the people; that he might get in trouble with legal proceedings. About this time, and while Johnson was talking with him and walking along, appellant came from the branch and approached Johnson and deceased. He asked deceased why he had accused him of stealing his whisky and talked to him in the manner he did. Deceased again accused him of stealing his whisky, and hot words ensued, which afterwards ended in the difficulty in which deceased received wounds from which he later died. The testimony seems to be practically without contradiction up to the immediate facts of the difficulty. It seems from the testimony that John Johnson, deceased, and appellant were the parties who were immediately present. The other witnesses, at least some of them, were not immediately present, but there about the schoolhouse and saw a part of the difficulty, and possibly all of it.

Appellant’s contention was self-defense. The state’s theory was that, when deceased in the second altercation told appellant he had stolen his whisky and used profane epithets towards him, appellant, using his knife, stabbed or cut him several times, and that deceased did not use his knife. Appellant’s testimony was that, when deceased accused him of stealing and called him a liar, he (deceased) started at him with a knife in his hand and cut his coat, and he (appellant) then began to use his knife. The coat was exhibited before the jury showing it had been cut, and a knife was found the next day at the place of the difficulty which was claimed by deceased to be his property. There was an issue as to whether deceased claimed it was his property or not, but there was evidence by Hamp Johnson that he did. Appellant himself testified to his self-defense theory.

When the case was called for trial, appellant wanted to continue for the testimony of John Johnson, by whom he expected to prove the same facts as testified by himself. It is useless to detail these facts further. Johnson had moved from Rusk to Navarro county. Immediately upon appellant’s arrest on the 3d of July, process was issued by appellant to Navarro county to secure the attendance of Johnson as a witness. The case went to trial about the 14th of July. Just after the trial process was returned not executed. The continuance was refused, and motion for a new trial overruled. This testimony was material. Defendant testified practically alone to his self-defense theory. He was an interested witness, and must have been so regarded by the jury. John Johnson was not an interested witness, and, if he had sworn as indicated by'appellant, it might have produced a much more favorable verdict for appellant even to an acquittal. That the testimony was material cannot be a question, and defendant asked for the only witness in his own behalf to testify to these facts. The jury may have regarded his (appellant’s) testimony dubiously; but if Johnson had sworn to the same facts, being an uninterested witness and in no way related to defendant, they might have believed him, and if they had they doubtless would have acquitted appellant on the ground of self-defense. As it was, he got manslaughter with the highest punishment for that offense. We are of the opinion defendant was entitled to his continuance, and it should have been granted, and, failing to grant it, in view of the record the motion for new trial ought to have been awarded.

Therefore the judgment is reversed, and the cause remanded.


text:
    CLAY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    Intoxicating Liquors (§ 236) — Offenses — Sufficiency of Evidence — Sale.
    Evidence, in a prosecution for an unlawful sale of intoxicating liquor, held insufficient ta sustain a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Appeal from San Augustine County Court; H. K. Polk, Judge.
    . Will Clay was convicted of an unlawful sale of liquor, and he appeals.
    Reversed and remanded.
    Foster & Davis, of San Augustine,(for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

The evidence is not sufficient to sustain this conviction. This is conceded by the Assistant Attorney General. The evidence for the state is from the witness Lane. He says that on the 26th day of July, 1913, he was at the depot in the town of San Augustine in the afternoon; it was about train time; he was standing on the east side of the depot, and walked up near where appellant was and asked him for some whisky. Appellant replied he did not have any, but pointed to an open case of whisky about 6 or 8 feet distant, which was on the ground, saying, “There is some.” The witness immediately went to the case, took a quart bottle of whisky out, leaving $1.50 on a goods box near where he got the whisky, and went away. He says: “I did not pay the defendant any money for the whisky, did not see him get it, and do not know whether he ever got the money. When I put the money on the goods box I turned around and walked away, and did not look back.” The balance of his testimony shows he got in a buggy in which Lige Johnson was sitting and drove away. Lige Johnson testifies that he went near the depot in a buggy with Lane; did not know anything about the whisky matter, except Lane went off towards the depot, and came back directly with a bottle of whisky. Defendant testified that; “Lane walked up to where I was standing and asked me for some whisky. I told- him I did not have any, but remarked to him, ‘There is some,’ pointing to an open case of whisky which was setting some 6 or 8 feet away. The whisky did not belong to me. It belonged to a white man who was standing some 12 or 14 feet from the whisky. The white man had the whisky for sale. I knew this because I had just bought a quart from him, and that is the reason I told Tobe Lane, ‘There is some.’ Tobe Lane walked up to the case of whisky and took out a quart, put $1.50 on a goods box near by the whisky, and walked away. I did not get the money. The money was not mine, and I had no interest in the sale of the whisky, and did nothing in the aid of the sale of the whisky. The white man got the money after Tobe Lane left, and I walked away with my whisky. I did not know the white man; but I think his name was Gaines.” He further shows that the white man referred to lived out in the country. It was about train time in the evening, broad daylight, and a good many people, moving around. This is the case. Lane does not testify he bought any whisky from appellant, or that appellant had anything to do with it, except point it out to him. The defendant testifies he did not own the whisky, and did not sell the whisky to Lane. Lane got it, and it belonged to a white man who, it is shown, was named Gaines. This is not controverted. The testimony is not sufficient.

The judgment is reversed, and the cause is remanded.


text:
    BOWMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    1. DISORDERLY HOUSE (§ 20) — INSTRUCTIONS —Conformity to Indictment.
    On a trial under an indictment charging that accused owned and kept a house as a house of prostitution, instruction to find her guilty if she owned, kept, was concerned in -keeping-, or knowingly permitted such house to be kept as a house of prostitution, was erroneous, as it authorized a conviction on matters not set up in the indictment.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 31; Dec. Dig. § 20.]
    2. Disorderly House (§ 20) — Instructions-—Elements of Offense.
    On a trial for keeping a house of prostitution where prostitutes were permitted to resort and reside for the purpose of plying their vocation, where no witness testified that the inmates of such house were prostitutes or that they committed any act of prostitution, accused was entitled to an instruction to acquit unless they were prostitutes and resided in, or resorted to, such house to ply the vocation of a prostitute.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. § 31; Dec. Dig. § 20.]
    3. Disorderly House (§ 15) — Burden of Proof.
    On a trial for keeping a house of prostitution where prostitutes were permitted to resort and reside for the purpose of plying their vocation, it was necessary for the state to show that the inmates were prostitutes plying their vocation in such house or resorting to it for that purposd.
    [Ed. Note. — Eor other cases, see Disorderly House, Dec. Dig. § 15.]
    4. Criminal Law (§ 400) — Best and Secondary Evidence — Conviction of Crime.
    That a person charged with keeping a disorderly house had pleaded guilty to a charge of vagrancy should have been proved by the court papers and dockets.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    5. Criminal Law (§ 369) — Admissibility — Conviction of Crime.
    On a trial for keeping a disorderly house, evidence that accused had pleaded guilty to a charge of vagrancy was not admissible unless the section of the vagrancy statute under which she was prosecuted was first shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    6. Witnesses (§ 345) — Impeachment of Accused in Criminal Prosecution.
    On a trial for keeping a disorderly house, a statement by accused in the grand jury room, while the grand jury was investigating the. case, that she had paid two fines for being “vag,” was not admissible to impeach her testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    Appeal from Nolan County Court; John H. Cochran, Jr., Judge.
    Clara B. Bowman was convicted of keeping a disorderly house, and she appeals.
    Reversed and remanded.
    Woodruff, Christian & Woodruff, of Sweet-water, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted for keeping a disorderly house.

The indictment charges she was the owner of a certain house then and there situated in said county, which said house she, the said Clara B. Bowman, did then and there unlawfully keep as a house for purposes of prostitution and where prostitutes were permitted to resort and reside for the purpose of plying their vocation. The state introduced a written statement made by appellant before the grand jury. The statement recites the fact that she was warned that any statement she might make could be used against her. She stated, in substance, that she had bought what was known as the Kate Morse property and owned it. Coming down to the facts, she stated: That she lived in Sweet-water and had been doing her own work, and the first girl she had after coming to Sweetwater was named Ethyl; the remainder of her name was unknown. That she assisted her with her work and for which she paid her $1 per day. She stayed about three weeks. Then she had another girl, whose name she did riot know, otherwise than they called her “Bee.” And another girl subsequently, named “May,” who remained with her three weeks. Then she had another girl who stayed about two days. These are all the girls mentioned as having been at her house. They seemed to have been there at different times. She says men had been at her house, but they never informed her for what they came, but that they had taken the girls to their rooms. She did not know for what purpose they went to the rooms. That she had paid two fines for being a “vag”; did not know what'part of the “vag” statute under which she was charged. She did not fight the complaints because she had no money to waste. She says: “The officers have never mentioned anything to me. Have never warned me against keeping lewd women about my house in Sweetwater. They have never named women to me.” Johnson testified he was city marshal at Sweetwater and knew the reputation of the house mentioned, and that the reputation was there were whores who stayed there. He also, testified to appellant pleading guilty to charges of vagrancy. Beall testified the general reputation of the house was that of a bawdy-house, and that the general reputation of the women who were there were prostitutes; but he knew nothing of it of his own knowledge, and did not know there was ever a lewd woman in the house during the time defendant had been living at the house, and did not know whether there had ever been an act of prostitution in the house occupied by defendant. All he knew about it was what he had heard. Johnson also testified that he had been in the house two or three times, but had never seen any men there at any time when he was there, and of his own knowledge he knew of no act of intercourse ever having taken place in defendant’s house. This is the substance of the testimony.

The court charged the jury if they should find from the evidence beyond a reasonable doubt, etc., 'that Clara B. Bowman in the county of Nolan and state of Texas was the owner of a house, and did keep, was concerned in keeping, or did knowingly permit to be kept, such house as a house of prostitution, or as a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation, they should find the defendant guilty. It is contended that this charge is error in that it authorized the conviction of the defendant on matters not set up in the indictment. The indictment, as before stated, charged that appellant was the owner of the house and kept it for the purpose of prostitution. The charge authorized a conviction as owner and as keeping the house-; also, as being concerned in keeping or knowingly permitting it to be kept. That part of the charge which authorized a conviction, which read as follows, “was concerned in keeping or did knowingly permit to be kept,” is not charged in the indictment, and authorized the conviction of appellant on the basis of averments not set forth in the indictment. Upon another trial the charge should be in conformity to allegations in the indictment. Appellant could not be convicted under this indictment for being concerned in keeping the house or permitting it to be run as a bawdyhouse. She was charged with being the owner and keeper, and as such she must be convicted, if at all.

Appellant asked this charge, which was refused, and error is assigned: “Unless you believe from the evidence in this case that the inmates of defendant’s house on or about the 9th day of August, 1913, were prostitutes and were residing in said house or resorting to said house for the purpose of plying the vocation of a prostitute, you will find the defendant not guilty.” We are of the opinion, under the facts already stated, this charge ought to have been given. No witness swore the women who were there were prostitutes. The ■ nearest approach to it was defendant’s, statement, taken before grand jury, that she had seen men go to the rooms with the women. No one shows that these were prostitutes, as a matter of fact, or that they committed any act of prostitution. If the jury was authorized to find such to be the case, it was from the written statement of the appellant that she had known these women to go to the rooms with men. It was necessary for the state to show that these were prostitutes plying their vocation in that house, or resorting to it for that purpose; otherwise the jury should have acquitted.

Another bill of exceptions recites that the state introduced the following testimony, to wit, a statement made by the defendant ■Clara B. Bowman in the grand jury room, while the grand jury was investigating the facts relative to this case, which statement is as follows: “I have paid two fines for being ‘vag.’ I don’t know what part of the ‘vag’ statute I pleaded guilty on. I have paid two ‘vag’ fines in Sweetwater.” Objection was urged that this testimony was irrelevant and immaterial to any issue in ¡the ease, and was highly prejudicial to the rights of defendant, and because it was not the best evidence. If appellant had pleaded •guilty to a charge of vagrancy, the court papers and dockets should be used to show that fact; and, further, the duty was upon the state to first show under what section of the vagrancy statute, if this was what was intended the defendant had been charged, and had pleaded guilty, before such plea, if admissible at all, could have been admissible in this case. The court overruled the objection, and the testimony went before the jury. We think this was error. It was not and could not have been admitted for the purpose of impeaching the defendant’s testimony, because it was her written statement and known to the state, and it could not be used as original testimony, unless she had pleaded guilty under this phase of the vagrancy statute. This testimony should not have been permitted to go to the jury.

There is a bill of exceptions and some testimony to the effect that the jury discussed the fact that the defendant did not testify in the case. This will not arise upon another trial, and it is unnecessary to discuss it.

For the reasons indicated, the judgment is reversed, and the cause remanded.


author: PRENDERGAST, P. J.

text:
    MISTROT v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    Licenses (§ 40) — Subjects of License — Itinerant Merchants.
    Under Rev. St. 1911, art. 7355, § 1, providing that from every merchant removing from place to place and offering for sale bankrupt stocks of goods, or advertising fire sales or water and fire damaged stocks for sale, for a limited period, there shall be collected a certain license, and providing that if such merchants remain in one place for 12 months, they shall be required to pay an additional sum according to class and amount of goods sold in a year, the tax is imposed only on merchants pursuing such occupation temporarily, and an indictment for engaging in such business without license, which did not allege that accused pursued such occupation for a limited period, was fatally defective.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 79-83; Dec. Dig. § 40.]
    Appeal from Baylor County Court; T. J. North, Judge.
    C. L. Mistrot was convicted of an offense, and he appeals.
    Reversed, and cause dismissed.
    See, also, 162 S. W. 833.
    J. A. Wheat, of Seymour, and Gregory, Batts & Brooks, of Austin, for appellant. C. E. Lane, Asst.-Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Our statute (R. S. art. 7355) is:

“There shall be levied on and collected from every person, firm, company or association of persons pursuing any of the occupations named in the following numbered subdivisions of this article, an annual occupation tax, which shall be paid annually in advance, except where herein otherwise provided, on every such occupation or separate establishment, as follows:
“Section 1. From every merchant who may remove from place to place and offer for sale ‘bankrupt stocks’ of goods, or advertising ‘fire sales,’ or ‘water and fire damaged stocks for sale,’ for a limited period of time, there shall be collected one hundred dollars per month for the first month, or less than a month, for each and every place where such business is located; and for each additional month that such sales are continued, at any given place, said merchant * * f shall pay an additional sum of ten dollars per month; and provided, further, that, if they remain in one place for the period of twelve months, they shall be required to pay, in addition to the one hundred dollars for the first month, the sum fixed in the preceding paragraph, according to class and amount of goods sold in one year.”

Article ISO of our Penal Code is: “Any person who shall pursue or follow any occupation, calling or profession, or do any act taxed by. law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of the taxes due, and not more than double that sum.”

Under these articles appellant was prosecuted and convicted for pursuing the said business of an itinerant merchant without paying the tax and procuring a license therefor.

The appellant, both in his motion for new trial, and in arrest of judgment, attacked the sufficiency of the complaint and information herein. It is unnecessary to give either in full. The charging part of both is, in substance, that appellant, on or about January 30, 1913, in Baylor county, Tex., “did unlawfully engage in, pursue and follow the occupation and business of an itinerant merchant, that is, a merchant who travels from place to place and advertises ‘Bankrupt Sales,’ or ‘Fire Damaged Sales,’ or ‘Water and Fire Damaged Stock for Sale,’ which said occupation was then and there made taxable and was taxed by law, without first having paid the taxes due said state and county, and without obtaining a license to pursue said occupation.” And then alleges the amount of tax, both due the state and county. It will be noticed that the information does not charge that appellant pursued said •occupation “for a limited period of time,” The statute making such merchant liable for a tax expressly states that he is liable only in case he pursues such occupation “for a limited period of time.” In other words, the fact that he pursues such business only for a limited time is the gist of the law requiring him to pay a tax, and he is liable only for a tax when he pursues that occupation for a limited time. Formerly every merchant was liable for an occupation tax, but the Legislature changed that, and made only those liable for it who pursued the occupation shown by said article 7355, § 1, supra, for a limited period of time. Doubtless some confusion is occasioned by this, as is evident by the latter part of said section 1 of article 7355. If a merchant pursues the occupation designated by said section 1 of article 7355, supra, permanently, or practical!y permanently — not temporarily — then, as we understand the law, he would not be liable for any such tax any more than any other merchant would be. It is the temporary character of his occupation which makes him liable for the tax.

It is unnecessary to pass on any other question attempted to be raised in this case. Of course, if appellant has pursued the business above for a limited period of time, upon proper complaint and information or indictment he could be convicted therefor. This complaint and information, in our opinion, is fatally defective only on the one point raised; that is, that it did not charge that appellant pursued said business for a limited period of time.

For this error the judgment is reversed and the cause ordered dismissed.


text:
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.)
    Criminal Law (§ 1206) — Indeterminate' Sentence — Validity.
    The Indeterminate Sentence Law (Acts 33d Leg. c. 132) is invalid.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279; Dec. Dig. § 1206.]
    Appeal from District Court, Grayson County; J. C. Wall, Special Judge.
    Lonnie Davis was convicted of selling intoxicants in violation of the prohibition law, and appeals.
    Reversed and remanded.
    McReynolds & Hay, of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the • State.

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

   PRENDERGAST, P. J.

Appellant was indicted for making an unlawful sale of intoxicating liquors in Grayson county, after the law prohibiting such sale was in force therein, making it a felony.

In submitting the case, the court told the jury if they believed the necessary facts, beyond a reasonable doubt, “then you will find defendant guilty as charged, but you shall not assess the punishment, leaving that to be assessed by the court as the law directs.” The jury, in response to this charge, merely found the appellant guilty as charged, but fixed no punishment. The court afterwards sentenced the appellant under the Indeterminate Sentence Law for not less than one, nor more than three, years’ confinement in the state penitentiary. Appellant saved the point in every way and contended then, and contends now, that the court’s said charge was erroneous, that the jury must affix the punishment, and that the court was not authorized to do so. In justice to the lower court, it must be said that he assumed that the first purported Indeterminate Sentence Law, passed by the regular session of the Thirty-Third Legislature (page 262) was a valid act, and if it had been so, his charge, the verdict of the jury, and the judgment and sentence would have been correct; but, upon full consideration, this court in the case of Ex parte Marshall, 161 S. W. 112, held said act invalid and void. So that, in accordance with said case, the charge, verdict, judgment, and sentence in this case are clearly erroneous and necessitate the reversal of this case.

It is unnecessary to pass upon any other question raised or attempted to be raised.

The judgment is reversed, and the cause remanded.


text:
    CAMPBELL v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    1. Criminal Law (§ 1090) — Bill of Exceptions — Matters Reviewable.
    Complaint, in a motion for new trial, of the exclusion of evidence and of the overruling of a challenge to a juror, not verified by a bill of exceptions, could not be reviewed by the Court of Criminal Appeals.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 822) — Appeal—Instructions.
    When the court’s whole charge fairly and fully presented every issue raised, isolated parts of the charge presented no error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1990,1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    3. Criminal Law (§ 829) — Requested Instructions — Given Instructions.
    Requested charges were properly refused, where any matter therein necessary and proper to be submitted was correctly submitted in the main charge.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    4. Intoxicating Liquors (§ 141) — Offenses —Business of Unlawful Selling — “Oc-cupatio n” — “Business.”
    Pursuit of the business or occupation of unlawfully selling intoxicating liquor in prohibition territory does not require that it be the principal business of the defendant; since the terms “occupation” and “business,” as used in the statute, require only that he follow such business when an opportunity presents itself.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141. Eor other definitions, see Words and Phrases, vol. 6, pp. 4907, 4908; vol. 1, pp. 915-926; vol. 8, pp. 7593, 7594.]
    5. Criminal Law (§ 829) — Instructions— Suspended Sentence.
    Where the court directed the form of verdict which the jury were to render if they convicted and recommended suspension of sentence, there was no error in- refusing special charges thereon requested by defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    6. Criminal Law (§ 982) — Suspended Sentence — “General Reputation of Defendant.”
    Under the Suspended Sentence Law, allowing such sentences on a finding that the general reputation of defendant theretofore was good, and that he had never been convicted of a felony, the “general reputation of defendant” is such reputation for a peaceable, law-abiding man.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    P. B. Campbell was convicted of pursuing the occupation or business of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

This is an appeal from a conviction for pursuing the occupation or business of selling intoxicating liquors in prohibition territory. The verdict of the jury affixed the lowest penalty therefor.

The evidence clearly shows that appellant received, during the several months charged in the indictment, large quantities of intoxicating liquors, and that he made, during the same time, many sales thereof; some by the drink, some by the half pint, and greater quantities. The charge of the court submitted every issue raised under the indictment and the law and evidence.

There are no bills of exceptions in the record. By several grounds of the motion for new trial appellant complains of the refusal of the court to permit certain testimony, and to the refusal of the court to sustain his challenge to one juror. None of these matters are verified by bill of exceptions, in the absence of which they cannot be reviewed by this court.

Appellant has several complaints to isolated portions of the court’s charge, but these present no error. When the court's whole charge is taken into consideration, as stated above, it fairly and fully presents every issue that was raised, and is in accordance with the statute, as has many times been held by the decisions of this court. It is needless to cite them.

All of appellant’s special charges were correctly refused by the court. Where they raised any question necessary and proper to be submitted the court submitted it in the main charge, correctly.

The court’s charge on what is meant by pursuing the business or occupation of unlawfully selling intoxicating liquors in prohibition territory was in accordance with the statute and the many decisions of this court. It is needless to collate them, but see Wilson v. State, 154 S. W. 572, Creech v. State, 158 S. W. 282, and cases therein cited.

The appellant by proper sworn plea filed in time sought to have his sentence suspended in the event of his conviction. The court submitted this to the jury in the following charge: “The defendant having filed herein his sworn statement and plea, alleging bis good, reputation heretofore, and asking for a suspension of bis sentence in tbe event you find him guilty, therefore you are instructed that, if from the evidence you find that the general reputation of the defendant heretofore has been good, and that he has never been convicted of a felony in this or any other state, then, and in that event, if it be by you determined to recommend the suspension of sentence, you may do so in the event you find the defendant guilty; otherwise you will not do so.” The jury found appellant guilty as charged in the indictment, and assessed his punishment at two years in the penitentiary, and did not recommend the suspension of sentence. The court on this question gave to the jury the form of verdict they were to render in case they desired to recommend the suspension of the sentence. The jury, by its verdict, clearly intended not to recommend the suspension of sentence. In view of the court’s charge on the subject, there was no error in refusing the two special charges requested by appellant on that subject.

We think it is clear, taking in view the whole of the Suspended Sentence Law, that what is meant by “the general reputation of defendant” is such reputation for a peaceable, law-abiding man.

Finding no error in the record, the judgment will be affirmed.


text:
    BURLESON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    Assault and Battery (§ 92)— Sufficiency of Evidence — Dangerous or Deadly Weapon.
    In a prosecution for assault, where the only evidence as to the character of knife used by defendant was that “it was a hawk-bill knife, large at the point, and a good-sized knife,” it was insufficient to show that the knife was a deadly weapon.
    [Ed. Note. — For other cases, see Assault and Battery, Gent. Dig. §§ 137-139; Dee. Dig. § 92.]
    Appeal from San Augustine County Court; Wm. McDonald, Special Judge.
    J. M. Burleson, Jr., was convicted of an aggravated assault, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

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

It is contended the evidence is not sufficient. This is presented by bill of exceptions and motion for new trial. The main contention is that the state failed to show that the weapon used was a deadly weapon as charged in the information and complaint. We are of opinion this error is well assigned. The only evidence in regard to this matter is that the weapon used was a knife. The knife is thus described by the witness: “It was a hawk-bill' knife, large at the point, and a good-sized knife.” There was no injury inflicted during the fight or trouble between the parties. The contention is that appellant cut at the alleged injured party, and cut a hole in his coat. There is an issue as to whether appellant did this before the injured party threw a bottle at him or afterward. No one undertakes to swear that the knife was a deadly weapon, and the above description is all that is given of the knife. Under the decisions of this state that is not sufficient evidence to show that the knife was a deadly weapon.

The judgment will be reversed, and the cause remanded.


text:
    JASPER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    1. Insurance (§ 30*) — Soliciting of Insurance — Indictment.
    Under Pen. Code 1911, art. 689, making it a misdemeanor for any person for direct or indirect compensation to solicit insurance without a certificate of authority to act as an insurance agent, an information, failing to allege that the solicitor was to receive compensation, either directly or indirectly, charges no offense.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 35; Dec. Dig. § 30.*]
    2. Indictment and Information (§ 196*) —
    Motion to Quash — Waiver.
    A conviction under such information cannot be sustained, though no motion was made to quash it before trial, as the defect was of substance, and not of form, and might be raised at any time.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 628-635; Dec. Dig. § 196.*]
    Appeal from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    G. C. Jasper was convicted of wrongfully soliciting insurance, and he appeals.
    Reversed.
    Wilson & Wilson, of Sweetwater, for appellant. R. N. Grisham, of Sweetwater, and C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

This prosecution was brought under article 689 of the Code, which provides that if “any person who, for direct or incti-reet compensation, solicits insurance,” etc., he shall be adjudged guilty of a misdemean- or, and his punishment assessed in any sum not less than $100.

The information alleges all the elements of the offense, except to allege that solicitor was to receive compensation, either directly or indirectly. It was essential that this fact be proven, otherwise a conviction could not be sustained; and, while there was no motion made to quash the information before trial, yet it is a defect of substance and not of form, and may be raised at any time, for without this allegation being in the information, it charges no offense against the laws of this state.

There are a number of other questions raised, and we have considered each of them. None of them present error, and the evidence would amply support a conviction for a violation of this provision of the Code, but because the information does not charge . an offense under this provision of the law, we must- necessarily quash the information and complaint, and reverse and dismiss the case.

The judgment is reversed, and the appeal is dismissed.


text:
    POWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    1. Criminal Law (§ 1099) — Appeal—Statement of Facts — Time foe Filing.
    On appeal from the county court, a statement of facts filed within 20 days after adjournment could not be considered, where no order was entered allowing the filing after adjournment.
    [Ed. Note. — For other cases, see Crimnial Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Ceiminal Law (§ 1097) — Appeaj>-Record —Matters Presented for Review.
    The overruling of a motion for a new trial on the ground that the verdict and judgment were not sustained by, and were contrary to, the evidence was not reviewable in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 293S. 2939, 2941, 2942, 2947; Dee. Dig. § 1097.]
    3. Criminal Law (§ 1090) — Appeal—Reservation of Grounds of Review — Exceptions.
    Alleged errors in excluding and admitting evidence could not be reviewed, where no bills of exception were reserved to the court’s rulings.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822 '2S25-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 3090.]
    Appeal from Freestone County Court; R. L. Williford, Judge.
    J. W. Powell was convicted of unlawfully obstructing a public road, and he appeals.
    Affirmed.
    C. E. Lane, ASst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted Of unlawfully obstructing a public road; his punishment being assessed at a fine of $25.

The statement of facts contained in the record was filed within 20 days after adjournment of the court; but the record does not contain an order allowing the filing of the evidence after the term of court adjourned. The certificate of the clerk shows that there was no order entered at all allowing the filing of the statement of facts after adjournment of court. Therefore, under numerous decisions, the evidence cannot be considered. In the absence of a statement of facts, there is nothing that can be considered. The motion for new trial alleges that the verdict and judgment are not sustained by the evidence, but contrary to it. Of course, without the evidence, we cannot review this question. Grounds Nos. 1 and 2 allege that the court erred in overruling objections to the testimony of certain witnesses. These matters cannot be considered, because bills of exception are not reserved, at least are not found in the transcript. Another ground alleges the court erred in refusing to permit the defendant to prove certain facts by the witness Bailey. This is not verified by bill of exceptions, and cannot be considered. The fourth ground alleges that the court erred in refusing to permit the defendant to prove by another witness, who was road overseer, certain facts. This matter is in the same condition as the others, and cannot be considered, because bill of exceptions is not presented.

As the record is presented to us, the judgment must be affirmed.


author: HODGES, J.

text:
    NATIONAL LIVE STOCK INS. CO. v. HENDERSON.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 6, 1914.
    Rehearing Denied Feb. 19, 1914.)
    1. Insurance (§ 538*) — Contemplated Loss —Notice.
    Where an animal insurance policy provided for notice forthwith by registered mail or telegraph to the main office of the insurer in case of illness or accident to the animal insured, a notice to the insurer’s local agent was sufficient; it appearing .that the same was immediately forwarded to and received by the insurer.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1327; Dee. Dig. § 538.*]
    2. Insurance (§ 539*) — Animals—Illness-Notice — Report.
    Where an animal insurance policy required notice of sickness or accident forthwith to the insurer with the name of the veterinarian employed, it being impossible for the assured to procure a veterinarian between the time of the serious sickness of the animal and its death, notice of death immediately thereafter was a compliance with the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dee. Dig. § 539.*]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by J. L. Henderson against the National Livestock Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Young & Stinehcomb, of Longview, for appellant. P. M. Young, of Marshall, for ap-pellee.
   HODGES, J.

The appellee, J. L. Henderson, sued the appellant in the justice court of Harrison county on a policy of insurance theretofore issued on the life of a certain animal on which the appellee held a mortgage. He recovered a judgment for $75 in the justice court and in the district court, to which an appeal was prosecuted.

The appellee has filed a motion in this court to dismiss the appeal for want of jurisdiction, but we think there is no merit in the motion, and it is accordingly overruled. It is conceded that the appellee was entitled to recover unless his claim was defeated by a failure to comply with certain provisions of the policy and a stipulation in the application for insurance. The following are the provisions of the policy referred to: “(1) This company will not be liable for losses occurring if the assured, in ease of sickness or accident to the’animal or animals hereby insured, shall fail to report forthwith by registered mail or telegraph notice to the company at its home office, 706 Majestic Building, Indianapolis, Indiana, such sickness or. accident together with the name and address of the veterinarian employed. (2) This policy shall be void unless in case of loss by death under this policy the assured shall forthwith, by registered mail or telegraph, give notice thereof to the secretary of the company at its home office, 706 Majestic Building, Indianapolis, Indiana.” The application contained the following question: “Do you agree that the said animals (and each of them) shall be well cared for and not neglected or abandoned or exposed to danger, and in case of sickness or accident that the same shall receive the care of a veterinary surgeon?” To this question the applicant answered, “Yes.” The appellee testified, in substance, that the mule had been in charge of a negro, Isom Cater; that about a month prior to its death Cater brought the mule to him and told him that it did not seem to be doing well; that the mule did not seem to him to be sick at the time,'but had no appetite. Appellee gave the animal some condition powders and administered such treatment as he thought was proper, and also notified appellant’s local agent at Marshall who had issued the policy. On the 29th of June the mule seemed to get suddenly worse. Appellee immediately notified appellant’s local agent, and both the agent and appellee endeavored to procure the services of a veterinarian, but were unable to do so on account of the absence of the only two veterinarians residing in that vicinity. The mule died the next day. It had been kept in the appellee’s pasture about five miles from the city of Marshall.

Immediately upon the death of the animal, notice was given the appellant’s local agent at Marshall, and the agent immediately forwarded the proofs of loss, which the evidence shows were received at the home office of the appellant. No question is raised about this notice having been promptly received at the home office. It is immaterial therefore that the notice was transmitted by the agent of the appellant instead of by the assured. There is nothing in the evidence to indicate that the animal was not properly cared for daring its illness, or that a veterinarian was not called for as soon as its condition became sufficiently serious to require such attention.

The question, then, is: Should a recovery be denied because of the failure of the assured to report forthwith by registered mail or telegraph notice of the company at its home office of the illness of the animal before its death? Clauses in contracts which provide for forfeitures should be strictly construed against the party in whose favor they are intended to operate. • The notice here provided for may be given as well after the death of the animal as before, provided it is done “forthwith” after the injury or after the sickness assumes a form which may reasonably be regarded as sufficiently serious to require medical .treatment or the attention of a skilled veterinarian. It is easy to conceive of instances in which there could be neither time nor opportunity for employing a veterinarian, or for giving the notice here provided for, before death. The trial court had a right to conclude that as soon as the animal’s condition indicated the need of skilled attention the appellee endeavored to procure the services of a veterinarian, and failed through no fault of his own, and that the animal’s death so soon thereafter prevented the transmission of the notice before it died. Under such circumstances, the notice which was thereafter sent of the death of the animal by the agent might well be regarded as a sufficient compliance with this clause of the policy.

We do not think it can be said as a matter of law that the judgment of the court is not supported by the evidence, and it is, accordingly, affirmed.


author: McMEANS, J.

text:
    ADAMS v. GALVESTON, H. & S. A. RY. CO.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1914.
    Rehearing Denied March 12, 1914.)
    1. Negligence (§ 136) — Province of Court and Jury — Contributory Negligence.
    Contributory negligence is for the jury, unless the act done is in violation of law, or the facts admit of but one inference.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    2. Railroads (§ 350) — Crossing Accidents —Actions—Jury Question.
    In an action for injuries in a collision between an automobile and a train at a highway crossing, evidence held sufficient to take the question of contributory negligence to the jury.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]:
    3. Trial (§ 296) — Instructions—Curing Error.
    The fact that the court left it to the jury whether contributory negligence in driving'.onto a railroad track in plaintiff’s automobile was the proximate cause of his injury did not cure the error in charging that plaintiff was negligent, when that was a jury’question, where any negli-genee by plaintiff was necessarily a proximate cause; nor was such error cured by submitting the question of plaintiff’s negligence in stopping upon the track after going there.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; -Dec. Dig. § 296.]
    4. Railroads (§ 312) — Injuries on Track-Lookout.
    The court instructed, in an action for injuries by the collision of plaintiff’s automobile with a train at a highway crossing, that if those in charge of the engine failed to exercise ordinary care to keep a lookout ahead to prevent injury to persons crossing the track at the crossing, and such negligence, if any, was the proximate cause of plaintiff’s injury, and he was not guilty of negligence contributing to his injury, the jury should find for plaintiff. Held, that the instruction was a proper statement of the law.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 988-1001, 1003-1005; Dec. Dig. § 312.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Action by Ad Adams against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Ring, Carotkers & Brown, of Houston, and A. J. Wirtz, of Eagle Lake, for appellant. Townsend, Quin & Townsend, of Columbus, and Baker, Botts, Parker & Garwood and John T. Garrison, all of Houston, for ap-pellee.

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

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

   McMEANS, J.

Ad Adams brought this suit against the Galveston, Harrisburg & San Antonio Railway Company to recover damages sustained by him in a collision on a public road crossing between one of defendant’s passenger trains and an automobile in which he was riding. Defendant answered by general denial, and specially pleaded other defenses, among which was the contributory negligence of plaintiff. A trial in the court below, before a jury, resulted in a verdict and judgment for the defendant, and plaintiff has appealed.

Upon the issue of contributory negligence of plaintiff in going upon the railroad track at the time of the collision, the court charged the jury as follows: “It is shown by the un-controverted evidence, and by the plaintiff himself, that he was familiar with the crossing in question, that he knew about the .schedule time of the passenger train that struck his car, that he could have seen the approach of the train for a long distance before it reached the crossing by looking, and that he did not look to see whether a train was approaching before he drove upon the crossing, because he did not hear the whistle blow or the bell ring for the crossing. Then, as to his driving upon the crossing under such circumstances, he was guilty of contributory negligence as a matter of law, and if this negligence was the proximate cause of the accident, you will find for the defendant on this issue.”

The giving of this charge is assailed by appellant’s first assignment of error, his contention being that the charge was not warranted by the facts. The track of the Galveston, Harrisburg & San Antonio Railway Company runs east from Eagle Lake to Lis-sie, and the public road runs parallel with, the track and at a distance of about 50 or 60 feet south of the track. In going home from Eagle Lake, Adams traveled about 4 miles east on the Eagle Lake-Lissie road, and then turned into another public road running north across the track past his home on the north side of the track. At about 4 p. m. on August 10, 1911, appellant was driving his automobile, and as he approached this crossing he overtook and passed Follette and his team at the whistling point. Fol-lette’s team became frightened at the automobile. Just as appellant turned to leave .the Lissie road and go across the crossing, he noticed Mr. Sehrafft’s team approaching the crossing from the opposite side, and saw that the mules were becoming frightened. Sehrafft’s team was “scarey,” and Sehrafft and his boy were in the wagon. Without stopping his engine, appellant shifted the clutch out of high speed and put on his brakes, and the car rolled gradually up to the track, coming to a standstill on top of the rails. It was appellant’s intention to back out the same way he came in and let Schrafft’s team through the crossing; but just as the car stopped on the track appellant heard the whistle of the east-bound Galveston, Harrisburg & San Antonio passenger train, then, according to his testimony, 50 or 60 feet away. He attempted to get out of the car; but the engine struck the car, completely demolishing it, and just as appellant jumped the side of the engine struck him, injuring his hip and ankle.

Adams, Follette, and Sehrafft all testified that the train failed to whistle or ring for the crossing. The appellant, Adams, testified that he listened for this train, and if it had whistled for the crossing, as the law required, he would not have gone onto the crossing, and would not have been injured. Appellant admitted that he did not look up and down the track as he turned to go onto the crossing, but he testified as follows : “I didn’t turn my head, I was centered on that team. If the train had whistled at the board, I wouldn’t have gone onto the crossing at all. I supposed the whistling board was there for the purpose of warning me. I was not depending on it, and that is not the reason I didn’t look — because I didn’t hear it If I hadn’t been bothered with that team, perhaps I might have looked; passing one team that scared and meeting the other, it drawed a man’s attention.” There were two other men in the car, and appellant did not know whether these men looked or not. Appellant testified that the train gave no warning until Ms car stopped on tlie track, and in tMs lie was corroborated by Sehrafft and Follette.

Appellant further testified as follows:

“When I turned into the crossing I was running I suppose at the rate of about 8 or 10 miles an hour. I did not keep up that speed, for as soon as I made the turn I began to slow up. I don’t know how fast I was running from the corner to the crossing. Going at the rate of speed I was going, I could have stopped the car before I reached the railroad track. If I had looked up the track and seen the train coming, I could have either stopped the car or went on across. If Mr. Schrafft’s team had not been on the other side of the crossing, I would have cleared the crossing. It was just the other side of the right of way a little ways.” He further testified:
“I ran along on the south side of the Galveston, Harrisburg & San Antonio track, and parallel to it. The road is about 50 or 60 feet from the track. I was going east. I know where the whistling board is on the Galveston, Harrisburg & San Antonio track before reaching the crossing. I should judge that it is somewhere about a quarter of a mile west of the crossing where the accident occurred. About that place I passed some one in a wagon. I passed Mr, Follette in the wagon. He was going toward Lissie, in the same direction that I was going. I passed him on the left-hand side. I went to the north of him. His team got frightened, and jumped in the road, and tried to run. I did not stop my car, but passed on by him, and do not know whether his team ran after that or not. After I passed him and got out of his way, I went on. I did not look back to see what Ms team was doing. There was a whistling post right near there. I do not know whether the railroad company’s trains always whistle at the whistling post. In going down, after I passed the whistling board, and just as I turned in to go upon the track, I didn’t hear any whistle. I knew that the train ought to whistle at the board, and I was depending on the train whistling at that board to warn me of its approach. I knew it ought to whistle there.”
“Q. You knew they ought to whistle there, and because you didn’t hear any, you were then depending on the train to give that alarm, and that is the reason you went upon the track, because you didn’t hear them give that alarm? A. I suppose so. Q. So you were listening for the train to give you warning? A. I naturally would. Q. So, then, you were depending, you were listemng for the train to whistle if there was a train coming ;• so you didn’t hear any, and you knew there was no train coming? A. I suppose not, after none whistled. Q. So that was your idea; you were depending on the train whistling at the sounding board for your safety? A. If it had whistled, I wouldn’t have gone in there.”
“Just as I turned to go on the crossing there was a sign, ‘Look out for the Gars!’ In going up, as I made the turn going north, I did not look up and down the track. There was nothing to obstruct my view up and down the track. The sun was shining, and it was a bright, clear day. I did not stop' my car as I made the turn, and look east and west up and down the railroad track, to see whether there was any ears or trains approaching. I did not look in either direction, and did not look for the cars. A man could have seen the train" coming a mile or a mile and a half from either.direction. The track was straight along there for several miles. I suppose a fellow would have to turn Ms head half way to the left to see the train approaching two miles away, after he made the turn to cross that crossing. I did not turn my head. I supposed the whistling board was there for the purpose of warning me. If I hadn’t been bothered with the team, perhaps I might have looked. I was depending on the warning that they would give me at the whistling board, and that is the reason I did not look. I didn’t look back at any time, coming along from Eagle Lake, before reaching the crossing, that I know of. I didn’t look up and down this crossing to see whether or not there was a train coming. I could have seen the train coming »if I had looked. There was nothing to keep me from it, and my eyes are good. Going at the rate of speed I was going, I could have stopped the car before I reached the railroad track. If I had looked up the track and seen the train coming, I could either have stopped the car or went on across.. If Mr. Schrafft’s team had not been on the other side of the crossing, I would have cleared the crossing. I can’t say how far the team was from the crossing.”

The court is never warranted in charging the jury that the plaintiff is guilty of contributory negligence as a matter of law unless “when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question ; in other words, to authorize the courts to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.” Lee v. Railway, 89 Tex. 588, 36 S. W. 65. Plaintiff’s evidence shows that he was familiar with the crossing in question, that he knew about the schedule time of the train that struck his automobile, that, had he looked, he could have seen the train approaching a long distance before it reached the crossing, and that he did not look for a train before he drove upon the crossing because he did not hear the whistle blow, or the bell ring for the crossing. If his testimony went no further than this, we think that, in going upon the track under such circumstances, plaintiff was guilty of contributory negligence as a matter of law;' that is, that such act was so opposed to the dictates of common prudence that ordinary minds could not differ as to the conclusion to be drawn from it. Railway v. Edwards, 100 Tex. 23, 93 S. W. 106.

But do the facts of this case, considered as a whole, fill the requirements of the law in order to constitute contributory negligence as a matter of law? Plaintiff had been traveling along a public road parallel with the railroad and about 60 feet distant from it for some 3 or 4 miles. . There was a whistling board on the railroad about a quarter of a mile before the crossing was reached, placed there by defendant to admonish its train operatives to sound the whistle at that point and to ring the bell from there to the road crossing, as required by law, to warn persons using or about to use the crossing of the approach of the train. Plaintiff says that these warnings were not given, and that, had, they been given, he would have discovered the approach of the train and would not have gone upon the track, or he would have crossed it before the train reached that point. It is also shown by his testimony that about the time he passed the whistling board he passed a man in a wagon, and that the team became frightened at his automobile and tried to run away; that just as he made the turn into th^ road approaching the crossing he discovered on the opposite side of the track, and meeting him, a team of mules driven by Mr. Schrafft accompanied by his small son, and that this team also became frightened at his automobile and began to “cut up sand”; and that, seeing' this, he lowered his speed and came to a Stop on the track, his intention being to back his automobile off the track and let Mr. Schrafft and his team pass by ,on that side; that he did not shut off his engine, but threw the clutch out, just as he ■went on the track. He further says that his attention was “centered” on the frightened team of Mr. Schrafft. “If I hadn’t been bothered with that team, perhaps I might have looked; passing one team that scared and meeting the other, it drawed a man’s attention. It is the nature of a man who sees he is scaring a team to make an effort to get by it without making them run away.” Again he says: “If Mr. Schrafft’s team had not been on the other side of the crossing I would have cleared the crossing.”

The testimony was conflicting as to whether the whistle was sounded at the whistling board and whether the bell was rung; but all the witnesses agree that two short blasts of the whistle were given when the train was a very short distance from the crossing, but that the train was then too close for appellant to clear the track. These facts indicate negligence on the part of the plaintiff, but in our judgment they are not so conclusive as to exclude a difference of opinion among ordinary men as to whether plaintiff, in going upon the track, did what a man of ordinary prudence would have done at the time and under like circumstances, and therefore did not warrant the holding that the plaintiff was guilty of contributory negligence as a matter of law. According to his testimony he was listening, but accounts for his failure to look by stating that his gaze was “centered” on the frightened team across the tracks. This and the necessary attention he had to give to his automobile in slowing it down and bringing it to a stop necessarily diverted his mind to some extent from the danger of collision from the oncoming train, and was the probable cause of his failure to observe it. It was at least such an excuse for his acts and omissions on the occasion as to entitle him to have the jury to pass upon the question of his contributory negligence.

Railway v. Edwards, 100 Tex. 23, 93 S. W. 106, relied upon by appellee, is a case in which it appeared that the injured person neither looked nor listened for the train before he stepped upon the track, although he was familiar with the crossing and knew of the frequent passing of trains, and he could have seen and heard it, had he done so; that he walked upon the track' at night immediately in front of the moving locomotive, which was visible by its electric headlight for some distance, and the noise of its motion was plainly audible. He offered no excuse to justify him in the failure to use his senses of sight and hearing, or for taking no precaution whatever for his own safety, but relied alone upon the fact that the whistle was not blown nor the bell rung as required by the statute, claiming that he was listening for those signals, and, because he did not hear them, did not look for the train nor pay any attention to the noise it made. It was held that he was guilty of contributory negligence as a matter of law. The correctness of that decision cannot be doubted; but we think that the facts of that case are so dissimilar to the facts of this, in the particulars tending to excuse plaintiff for not looking for the train before going upon the track, as not to be authority for, or justify the court in, instructing a verdict against him. Railway v. Adkins, 56 Tex. Civ. App. 202, 120 S. W. 218; Frugia v. Railway, 36 Tex. Civ. App. 648, 82 S. W. 814; Chambers v. Railway, 56 Tex. Civ. App. 309, 120 S. W. 582.

We do not mean to hold or intimate that the jury ought to find from the evidence that plaintiff was not guilty of contributory negligence; but we think that the evidence presents an issue of fact upon this question to be decided by the jury, and that the trial court erred in instructing the jury that plaintiff was guilty of contributory negligence as a matter of law in going upon the track. The fact that the court left it to the jury to determine whether such contributory negligence was a proximate cause of the injury did not cure the error, for it is clear that, if plaintiff was guilty of contributory negligence as a matter of law, such contributory negligence was tbe proximate cause of tbe damages sustained. Nor was tbe error cured by the court submitting to tbe jury tbe question of plaintiff’s negligence in stopping upon tbe track after be bad gone upon it.

Tbe second assignment of error is predicated upon tbe refusal of tbe court to give tbe following special charge requested by plaintiff: “You are instructed that if those in charge of tbe engine which struck plaintiff’s automobile failed to exercise ordinary care to keep a lookout in tbe direction tbe engine was moving to prevent injury to persons going along tbe public road and onto its said crossing at which plaintiff’s vehicle was struck, and that tbe same was negligence on their part, and such negligence, if any, was the proximate cause of the accident and injury, if any, to plaintiff and his vehicle, and that tbe plaintiff was not guilty of negligence on bis own part contributing to such injury, you will find for plaintiff against tbe defendant.”

This charge was a correct presentation of tbe law under tbe facts proven, and its substance was not contained in tbe main charge. It should therefore have been given.

Tbe remaining assignments of error presented by appellant have been carefully considered by us, and we are of tbe opinion that neither of them presents ■ grounds for reversal.

For the errors indicated, tbe judgment of the court below is reversed, and tbe cause remanded.

Reversed and remanded.