text:
    GRAY v. STATE.
    (No. 4508.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.
    On Motion for Rehearing, Oct. 24, 1917.)
    1. Criminal Law <@=3369(6) — Evidence—Admissibility.
    It is not error to allow the district attorney to ask a witness, who testified that he bought liquor from defendant, when, where, and how many times he bought it, though the witness could not fix any specific dates, where the times fixed were in the three years next preceding filing of indictment for engaging in the business of selling liquors, as prescribed by Pen. Code, art. 591.
    2. Witnesses <@=>266% — Impeachment — , Cross-Examination.
    Though it may have been improper to permit accused to cross-examine a witness as to immaterial and irrelevant matters merely for the purpose of contradicting him later, accused was bound by the answers then given.
    3. Witnesses <@=3345(2) — Impeachment — Cross-Examination.
    Where accused had produced impeaching witnesses, the district attorney could cross-examine them as to whether they were not then under .indictment for illegal sale of liquor, or had not been convicted of such offense.
    4. Witnesses <@=3414(1) — Corroboration.
    Where accused, cross-examining a prosecuting witness, asked why he had not produced the whisky he testified he had bought from accused, and the witness answered that he had turned it over to another person, such person could testify that the witness did deliver him the whisky on the day alleged.
    5. Criminal Law <@=>507(1) — Accomplices— Corroboration.
    Testimony of prosecuting witness that he met accused, who had whisky, and asked accused to sell him some, that accused did so did not show that the witness was an accomplice so as to require that he be corroborated under Pen. Code, art. 602.
    6. Criminal Law <@=>720(5) — Trial—Argument oe Counsel.
    Where a witness had testified that he had been summoned, it was not error for the prosecuting attorney to comment upon the fact that he was not a voluntary witness.
    7. Criminal Law <@=3711 — Trial—Argument —Limits.
    Where the case had required less than two hours try, and the court stated that it was his opinion that 25 minutes was ample time for argument, it was not an abuse of court’s discretion to so limit the time.
    8. Criminal Law <@=31092(6) — Appeal—Record — Time to Pile.
    Statement of facts containing the testimony heard on a motion for new trial and a bill of exceptions based thereon, filed after the adjournment of the court, cannot be considered.
    On Motion for Rehearing.
    9. Intoxicating Liquors <@=>239(2) — Illegal Sale — Instructions.
    Where an indictment for engaging in the business of selling liquor alleged two sales of liquor to individuals named, and the evidence showed the sales alleged, an instruction that to convict the jury, must find that accused did make as many as two separate sales, as charged in the indictment, was proper.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    Bud Gray was convicted of unlawfully engaging in the occupation of selling intoxicating liquor where prohibition was in force, and he appeals.
    Affirmed. On motion for rehearing. Motion overruled.
    Ben L. Cox, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully engaging in the occupation or business of selling intoxicating liquors in Taylor county, where prohibition was in force, and assessed the lowest punishment.

The indictment alleges he pursued the said business and occupation on or about January 13, 1917, and on or about that date made two specific sales, one to W. M. Curry and the other to J. W. Tucker.

It was agreed by both the state and the defendant that prohibition was in full force and effect in Taylor county; that the election was held on June 7,1902, and that all orders pertaining thereto, as alleged in the indictment, were true.

The state proved by Mr. Kirk, who was the agent of the express company at Abilene, that his company always took affidavits, when delivering, whisky, of the parties to whom delivered, and he testified, and his book showed, and so did the affidavits of the appellant, that there were delivered to appellant by said express company two shipments of four quarts each on October 7, 1916; two deliveries of four quarts each on October 21; six quarts on November 16; four quarts on November 25; four quarts on December 2; one keg of beer on 'December 20; four quarts of whisky on December 25, and four quarts on January 13, 1917. Appellant admitted the receipt by him of the liquor above shown.

Appellant lived near the cemetery, some distance beyond the negro quarter in Abilene. J. W. Tucker testified, in substance, that on the morning of January 13 he saw appellant carrying home an express shipment of whis-ky ; that he caught up with him and wanted to buy from him a pint. Appellant admitted that he had that morning received a four-quart shipment of whisky by express, and as he was taking it home Tucker caught up with him and wanted some of it. He differed from Tucker somewhat in the details of where and how Tucker caught up with him. Tucker swore that he told him if he would go home with him he would sell him a pint of whisky; that he did go home with him. Appellant so admitted. Tucker swore that after he got to his home he bought a pint of whisky, and paid him $1.25 therefor; that the appellant, after they got to his house, went out somewhere and got 'a bottle, went into another room and washed it, and came in the room where the whisky and Tucker were, took one of his quart bottles and poured his pint bottle full. Appellant claimed that Tucker wanted a drink, and that he gave him two drinks of the liquor, and that, while he went out to get some coal to replenish the fire, the inference is, by his testimony, that Tucker then took a pint bottle .of the whisky out of the quart bottle. Tucker swore positively that appellant sold him the pint of whisky at the time, for which he paid him $1.25. Appellant swore he did not sell him any whisky at all at the time, but gave him the two or more drinks at the time.

Ourry swore that he had bought whisky from appellant. “I could not tell you the first time 1 bought whisky from him. I did not expect to get into anything like this, and to have to testify, and I never noticed.” He then testified that he first bought whisky from him in the latter part of 1915. “I bought from him during the fall of 1915, and during 1916.” He further swore that appellant “always kept two kinds of whisky. He had one kind and he told me it was very good, and then he had one kind that was just pretty good.” He then told about buying it from appellant in quantities of a pint, and then in quantities of a quart, and how much he paid for it. “The last time I bought from him was in the fall of 1916. Bud (appellant) had the whisky shipped to his — he had a shed at his place, and that is where I got it. I paid him the money for it.” He then stated he did not buy any whisky from him in the summer of 1916; that he was up in Jones county farming at that time, and stayed up there until he was done picking cotton, and that he went back to Abilene about September 15, “and I believe it was later than that when I came back to Abilene again. He did not always have a certain place where he sold me the whisky. He delivered most of the whisky that I got from him at his barn, at his own place. His place is out towards the graveyard. It is clear the other side of the colored part of town. He is away out towards the cemetery there.”

Appellant testified and swore that he never sold whisky to either Gurry or Tucker at any time or place. He admitted that he received the shipments of whisky from the express company as detailed by the exx>ress agent. He said: “I heard these records read here, which shows that a great deal of whis-ky was delivered to me.” He claimed that he and his wife and his mother, an old woman about 84 years of age, drank a great deal of this liquor, and that he gave some of it to his friends. Appellant introduced two or three witnesses who testified to his good reputation, and he introduced some witnesses who attempted to impeach the state’s .witness Tucker.

The court did not err in permitting the district attorney to ask the witness Ourry how many times he had bought whisky from appellant, nor in permitting him to answer that he did not know and could not proximate how many times, nor in permitting the district attorney to then ask the witness to state about how many times he had bought whisky from appellant, and then to testify thereto in substance as given above. The fact that the witness could not fix any specific date other than as shown was a matter of comment and criticism by appellant before the jury. The dates he did fix, as in the fall of 1915 and as at the time stated in 1916, would be within such a reasonable time as would be clearly admissible for the purpose of showing appellant engaged in the business, and also to show a specific sale to the witness as alleged. Cole v. State, 72 Tex. Cr. R. 283, 162 S. W. 880. The statute itself prescribes that the state shall prove that the defendant made at least two sales within three years next preceding the filing of the indictment. Art. 591, P. C.

While the witness Tucker was on the stand, on cross-examination, appellant, among other things, asked him, in substance, if he had not been drunk down in negro town, and if he had not been going down in negro town buying whisky from negroes and drinking with them, and that about January 1st if he was not down in negro town drunk, and walked up to a bunch of negroes and wanted to buy whisky from them, and if he did not tell them he was the law, but was a white man and had a .white heart, and if he had not been around Avant’s restaurant drunk. The witness denied each of these matters. Not a single one of them was in any way connected with the appellant, nor at or about the time, nor in any way any connection with the purchases of whisky from appellant by Tucker as testified to by him. All these questions to him were for the purpose .of introducing various witnesses, which he did, who disputed the witness as to these several matters.

It is very questionable whether appellant could be permitted to ask the witness such questions under the circumstances, but when he did so his answers were conclusive against appellant. This principle laid down by Mr. Branch, where he cites a large number of the decisions of this court exactly in point, is the law and applicable to this question, to wit:

“When a witness is cross-examined on. a matter collateral to the issue his answer cannot be subsequently contradicted' by the party putting the question.” 1 Branch’s Ann. P. 0. p. 98; also § 178, p. 108.

Again, he says, citing many decisions in point:

“It is not proper to allow a witness to be cross-examined as to any matter which is collateral and immaterial to the issue, merely for the purpose of contradicting him by other evidence.”

These principles are so well established, and the authorities so uniform, that it is unnecessary to cite or quote the cases.

Appellant has a number of bills wherein it is shown that, when he put on several witnesses who disputed the state’s witness Tucker on the said several collateral matters, the state was then permitted, over his objections, in crossing them, to prove by each one, in substance, that he himself had been indicted in said district court and had pending therein an indictment against him for bootlegging; in one instance, that he had been convicted in said court on said charge. The appellant’s objections to this proof on cross-examination of his witness by the state were to the effect, because that was not the proper way to impeach the witness, that is, that you could not impeach him by merely showing that he had been indicted for such an offense, or, in the instance where he had been convicted, that he had appealed, and his conviction was not final on that account. There is no such technical offense as bootlegging, but the questions asked and the answers given would clearly show that the indictment against these several witnesses, and in one instance the conviction, was for a felony in the district court where this trial was being had. All the authorities are against appellant on this point. A witness can unquestionably be asked and made to answer, for the purpose of impeaching him, if he lias not then pending against him an indictment charging him with a felony, or has been convicted of a felony — the question of remoteness in no way appearing. This is so well established the cases need not be cited, but see 1 Branch’s Ann. P. 0. § 167, p. 101, where a large number of cases are collated. So that, even if appellant was not concluded by the witness Tucker’s answer denying the several collateral matters he was asked about, and the testimony by appellant attempting to impeach this witness was admissible, clearly each of his witnesses was properly asked and made to answer to the effect that they then had indictments pending against them in that court, and in one instance a conviction, on said felony charge. In no event does any of appellant’s bills on this subject show error.

On cross-examination by appellant of the witness Tucker, appellant asked him why he had not produced said pint of whis-ky he testified he bought from appellant. He answered that he had turned it over to Whaley. As stated, the appellant attacked said Tucker’s testimony as false, and in many ways attempted to impeach him. It was, therefore, admissible for the state to have Mr. Whaley testify that Tucker did deliver to him the said pint of whisky on the day and just after he claimed to have bought it from appellant.

The testimony in no way showed or tended to show that Tucker was an accomplice. Article 602, P. C.; Walker v. State, 72 S. W. 401; Marmer v. State, 47 Tex. Cr. R. 425, 84 S. W. 830; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370; Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661; Ray v. State, 60 Tex. Cr. R. 138, 131 S. W. 542; Fisher v. State, 197 S. W. 189 (from Taylor county, recently decided in an opinion by Judge Morrow, but not yet officially reported). So that the court did not err in refusing to submit whether or not said Tucker was an accomplice and had to be corroborated.

The court gave a full, clear, and apt charge iu this cause, submitting properly all the questions raised and just such a charge as has many times in all of its features been approved by this court. It is unnecessary to take up and discuss appellant’s several objections thereto, all embraced in one bill.

By appellant’s twelfth bill he complains of a brief argument of the district attorney. The greater part of what he claims the district attorney said was clearly in answer to appellant’s argument and criticism of the witness Curry. The concluding part of it is to the effect that Curry was not a voluntary witness, but the officers had heard that he had been buying whisky from appellant and summoned him with process out of the court, and that was how he came here and testified in the case. The court qualified the bill by stating that the said witness did testify that he had been summoned as a witness. Appellant was assessed the lowest punishment. This bill presents no reversible error.

Appellant has another hill complaining of the court limiting the argument to 20 minutes to the side. The bill shows, in substance, that the court allowed appellant’s attorney 25 minutes’ time to argue the case. The court explains this bill by stating:

“That it required less than two hours to try the case, and the counsel for defendant was allowed 20 minutes at first and was given 5 minutes additional; and in the opinion of the court 25 minutes was ample time to thoroughly discuss every phase of the case.”

As thus qualified, this bill shows no reversible error. The uniform holding of this court is that the time allowed for argument of a case is left to the sound discretion of the trial court. This must necessarily be the case. It occurs to us that 25 minutes was not an unreasonable time to limit the argument of appellant in this case. The testimony was by but few witnesses, and it was comparatively very short. As to the main facts, only two were in dispute. Appellant admitted that prohibition was in force at the time he was charged with this offense; that he received the very large shipments of liquor to him proven by the state. The only dispute was whether he made the one sale to Tucker, and one other sale to Curry. Even if the impeaching testimony of Tucker was admissible, it was brief and only as to a few matters. Tucker swore that the points on which they attempted to impeach him were untrue, and appellant’s impeaching witnesses said it was true.

This court, through Judge Davidson, in Bailey v. State, 37 Tex. Cr. R. 582, 40 S.W. 282, held:

“The statute vests in the judge presiding discretion with reference to the argument of a case, and, unless this discretion is shown to have been abused, the judgment will not be reversed. * * * In Scott v. State, 36 S. W. 276, this court said: ‘We have heretofore stated that it was within the province of the judge trying the case to limit the argument within reasonable bounds, and that this court will not revise a case where the limitation hhd been made, unless there should appear to be that clear abuse of discretion calculated to injure or impair the rights of the appellant. See Huntly v. State (Tex. Crim. App.) 34 S. W. 923, and authorities there cited. * * * ’ ”

Under the circumstances of this case, and the discretion which must be allowed to the trial judge, no reversible error is shown in this matter. •

In his motion for a new trial appellant claimed, in substance, that one of the jurors became so ill as to prevent him from properly considering the case, an'd that he and another in sympathy with him agreed to and found the verdict of guilty as they did because of that juror’s ill condition. In passing on the motion the court heard testimony on that issue, and after hearing it held against appellant. His bill No. 14 on this point, as well as the judgment of the court, shows that the court heard oral testimony on ’this subject, and after hearing it overruled his motion for a new trial. The bill 'does not state what this testimony was. There is appended to the statement of facts what purports to be a statement of this testimony, but both it and the said bill of appellant’s were filed long after the adjournment of the court. The uniform holding of this court precludes the consideration of this matter, as the bill and purported statement of facts were both filed long after adjournment. See 1 Branch’s Ann. P. C., where he collates some of the cases.

The judgment is affirmed.

On Motion for Rehearing.

This ease an’d the Robinson Case, 196 S. W. 186, and the Fisher Case, 197 S. W. 189, were all tried in the lower court at the same term, and were appealed and filed here about the same time. All three of them were submitted and orally argued by their respective attorneys on the same day in this court, and they were all under consultation and consideration by the court at the same time, though the opinions were handed 'down on different dates.

Appellant contends that as the Robinson and Fisher Cases were reversed because of the charge of the court, and as the charge on that point was substantially the same in this case, that this case should also be reversed. The Robinson and Fisher Oases were not reversed because of the charge within itself being wrong, but because it was misleading as applicable to the facts therein proven. As shown by the opinion in the Robinson Oase, the indictment therein charged that one sale was made to Alexander an'd another to Tucker. There was evidence tending to prove that appellant had made one sale to each of these parties named, but no evidence of more than one sale to either, and no evidence of any sale to any other party named or described in the indictment. With reference to the sale to Alexander, there was an issue of fact as to whether' there was a sale made to him by appellant or whether appellant was acting only as the agent of Alexander in procuring liquor for him. The charge of the court in the Robinson Oase on the point was quoted in the opinion therein. In it the court submitted the question of whether or not Robinson acted as the agent of Alexander in buying the whisky, and the charge was held to be misleading, in that, even, though no sale was proved to Alexander by appellant, he might nevertheless be guilty if the other sale alleged was proven, and some other sale was made to an unknown party other than to Alexander. The Robinson Oase was reversed because the charge authorized his conviction .if only one of the' alleged sales was proven, an'd the jury could infer from the facts that another sale to an unknown and unnamed party was made.

In the Fisher Case only two sales to Alexander on different dates were alleged. No other specific sale was alleged to any other person named. The charge of the court in that ease, on this point, is quoted in the opinion. There was evidence, in that case tending to show that two sales were made to Alexander as alleged, but there was also proof that another distinct an'd separate sale was made to one Walker. Walker was nortnamed in the indictment as one of the persons to whom appellant made a sale. It was held that the charge was misleading, in that it did not require the conviction to be based upon the two sales to Alexander alone, but that it authorized a conviction if one sale was made to Alexander and another sale made to Walker. Because of this state of fact and the charge authorizing the conviction in that case, if one sale was made to Alexander and another to Walker, and the refusal of a special charge clearly submitting the point, the charge was held misleading and the case reversed.

No such state of fact was proven in this case as that which was proven in either the Robinson, or the Fisher Cases on this point. In this case sales were alleged to have been made, one to Tucker and another to Curry. The evidence was clearly sufficient to show that separate and distinct sales were made to each of these persons, Tucker and Curry, and there was no other evidence shewing, or tending to show, that any other sale was ma’de to any other person. It is true the indictment herein, as in the Fisher and Robinson Cases, and as is customary in such indictments, alleged that other sales were made to other persous to the grand jurors unknown, but, as stated, no proof whatever was offered of any other sale to any other person than to the persons alleged in the indictment. In submitting this issue to the jury for a finding, the court required the jury to believe beyond a reasonable doubt that appellant engaged in the business or occupation of the sale of intoxicating liquors in Taylor county, Tex., where prohibition was in force, and he, within three years before the indictment was found, “did make as many as two separate sales of intoxicating liquors in Taylor county, Tex., if he did so, as charged in the indictment.” The distinction therefore between this and the Fisher and Robinson Cases is marked, and is clear and distinct. The charge objected to in the Fisher and Robinson Cases was misleading and held error therein because of the state of facts proven in each case, but the charge in this case was not and could not have been misleading, and was in accordance with the law, the allegations, and the proof herein.

No other questions need be discussed, as they were all properly decided in the original opinion.

The motion is overruled.
      <fo=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDBRGAST, J.

license: Public Domain

text:
    THOMPSON v. STATE.
    (No. 4572.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.
    On Motion for Rehearing, Oct. 31, 1917.)
    On Motion for Rehearing.
    Intoxica tino Liquoks <&wkey;236(l) — Illegal Sale — Evidencií—Sufficiency.
    Evidence held sufficient to sustain conviction for illegal sale of intoxicating liquors in prohibition territory.
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.
    Buddy Thompson was convicted of illegal sale of intoxicating liquors in prohibition territory, and he appeals.
    Affirmed. On motion for rehearing. Motion overruled.
    C. F. Richards and O. Ellis, Jr., both of Lockhart, for appellant. El B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDBRGAST, J.

This is an appeal from a conviction for making an illegal sale of intoxicating liquor iu prohibition territory.

The evidence by the state’s witness is positive and clear, showing that on the date alleged, after the prohibition law was in force making it a felony, appellant sold to him a quart of whisky. Appellant did not himself testify. The evidence was clearly sufficient to sustain the conviction.

Appellant has no bills of exceptions, made no objection to the charge of the court, and asked no special charges. In his motion for a new trial he claims the evidence is insufficient to sustain the conviction, and contends that the state’s witness to whom the sale was made was an accomplice, and a conviction could not be had upon his testimony alone. 1-Ie did not ask that this question be in any way submitted by the charge of the court. His contention cannot be sustained. The evidence does not show, or tend to show, that the state’s witness to whom the sale was alleged to have been made was an accomplice in the sale to him by appellant.

The judgment is affirmed.

On Motion for Rehearing.

Appellant, in his motion for rehearing, contends that the court erred in holding that the evidence was sufficient to sustain the conviction, claiming that the evidence showed that the state’s witness did not buy whisky from appellant, but that he acted as the witness’ agent in ordering it for him. The reverse of appellant’s contention is true. Lee Wootton, the party to whom appellant is alleged to have made the sale of liquor, on his direct examination testified:

“My name is Lee Wootton, and I live here in the town of Lockhart. I know the defendant, Buddy Thompson. I do not know what kind of business he has been in; I think he runs a domino room. I recently bought some intoxicating liquor from Buddy Thompson. It was on last Saturday night, the 24th day of March, 1917.-. I bought it from him down at the domino room. I bought a quart of whisky from him, and paid him $2 for it. This was in Caldwell county, state of Texas.”

This is the whole of his testimony under direct examination. In crossing him, appellant attempted to have him swear that he did not buy the liquor from appellant, but that he merely had appellant to order it for him. The witness persisted in his testimony that he bought it directly from him, and did not have appellant to order it for him. He swore:

“It is not a fact that I went to see Buddy Thompson on Thursday before the Saturday I got the whisky, and got him to order a quart of whisky for me. I just asked him if he was going to have any whisky, and if he did to save me a quart.”

He then tried to get the witness to swear that he had told Ben Frost that he had had the appellant order this whisky for him; hut he denied that he had so told Frost. He introduced Frost, who swore he did not know whetner the witness Lee Wootton had appellant to order the whisky for him or not; that he was not present when they had anything to say about it before the actual delivery of the whisky. His testimony, we think, cannot be considered to mean that said witness Wootton ever told him that he had had appellant order this whisky for him. But, if he had, that would be mere impeachment of the witness, and not establishing as a fact that the witness had had appellant to order the whisky for him.

It is also stated by appellant, in his motion, that the court was in error in saying that he requested no special charge. He says one was requested on agency straight out, and was given as requested on that phase. If such was the fact on the trial, this record shows nothing of it. But even if, as contended by appellant, he requested such a charge, by his own motion he shows that the court gave it, and if he is correct in this matter it would be against him and not for him; for, if the court submitted the issue at his request, the verdict of the jury clearly shows they did not believe that the witness had appellant order the whisky for him as is contended; but they believed the state’s witness that he did not have appellant order it for him, but that he bought it outright, as he positively testified.

The motion is overruled.
      «SorsFor otb«r cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    JOHNSON v. STATE.
    (No. 4497.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.
    On Motion for Rehearing, Oct. 31, 1917.)
    1. Criminal Law &wkey;>302(l) — Nolle Pros of CODEFENDANT — RIGHT OF DEFENDANT SUBJECT TO TRIAL.
    Where two men were indicted for arson, but the county attorney sought dismissal as to the codefendant, defendant could not complain that the failure to try the codefendant without immunity resulted in depriving him of his code-fendant’s testimony.
    2. Criminal Law ■ <&wkey;517(l) — Evidence—Admissibility — Confessions.
    A confession, to be admissible, must have been freely and voluntarily made, without compulsion or persuasion, or promise of immunity, or other improper influence.
    3. Criminal Law <&wkey;1207 — Sentence — Amendment of Statutes — Effect.
    Whore the conviction was had, and the appeal taken, prior to an amendment of the statute by Acts 35th Leg. c. 145, so as to reduce the minimum penalty for arson from five to two years, the fact,that the appeal was heard after the statute became effective did not entitle accused to a reversal.
    4. Arson <&wkey;15 — Burning by Agent — Criminal Responsibility of Agent.
    If the owner of a house in a town or city employs another to burn it for him, the agent is guilty of arson under Pen. Code 1911, art. 1208.
    On Motion for Rehearing.
    5. Criminal Law <&wkey;814(17) — Instructions —Circumstantial Evidence.
    Where an undisputed confession of defendant was ,in evidence, and his objections thereto on the ground that it was secured by improper methods were overruled, refusing a charge on circumstantial evidence was proper.
    Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.
    Milton Johnson was convicted' of arson and he appeals.
    Affirmed. On motion for rehearing. Motion overruled.
    Dan Moody, of Taylor, for appellant. E. B. Plendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant has appealed from a conviction of arson with a penalty of five years assessed against him, which was the lowest prescribed by law at the time he was tried and convicted.

He has a large number of bills to the admission and exclusion of testimony, and other matters. It is unnecessary to state or discuss but few of them. Appellant’s attorney conceded upon argument of the case upon submission that most of them ¿resented no error, and he did not rely upon them. The questions he relied upon, as we remember them, will be discussed. While he made an oral argument, he has no brief on file.

The indictment was against D. W. Stephens and appellant, and alleged that in Williamson county, Tex., they unlawfully and willfully set fire to and burned a house of said Stephens, which was at the time situated in the city of Georgetown in said county and state. It seems that said Stephens was also indicted in a separate indictment for said offense. At the trial appellant sought a severance,- and asked that said Stephens be first- tried. The state, with the permission of the court, dismissed the prosecutions against Stephens on the ground made by the state that there was not sufficient evidence to convict him, but the court declined to permit the district attorney at the time to grant said Stephens immunity against subsequent prosecution. Appellant opposed the dismissal of the prosecutions against Stephens, and insisted that the state, if it dismissed, should grant immunity to Stephens, and on the trial insisted that the state should piit Stephens on the stand and have him testify so he could cross-examine him. The court refused this. Neither side offered Stephens as a witness. The court’s action in all these matters was correct and presents no error, as has been repeatedly and expressly held by this court. Hobbs v. State, 53 Tex. Cr. R. 73, 112 S. W. 308; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742. The Hobbs Case expressly overruled the Puryear Case in 50 Tex. Cr. R. 454, 98 S. W. 258, which was cited and relied upon by appellant.

The state proved by several witnesses that the appellant, on the night after the fire, made a written confession expressly stating and confessing that he had burned said house. He did not testify. He, and no other for him, testified that he did not make the confession. The confession is strictly in accordance with the statute and, after being proven up, was introduced in evidence. Appellant sought to prove that improper influences or promises were made to him at the time to induce him to make said confession. We think the evidence hardly raises such an issue. The overwhelming proof was the reverse of this. But if the question was raised at all, the court gave, in substance, in full, his specially requested charge on that question, submitting it to the jury, and refused his charge on that subject expressly, because it was covered by the court’s charge. The court’s charge is as follows:

“A confession, in order to be admissible against a defendant in a case, must be shown by the evidence to have been freely and voluntarily made, without compulsion or persuasion; and in regard to .the alleged confession of the defendant offered in evidence by the state in this case, the, jury are charged that if they believe such confession was not freely and voluntarily made, or if they believe the same was induced by threats, coercion, or by persuasion, or by promise of immunity, or any other improper influence, or if the jury have a reasonable doubt as to whether such alleged confession was freely and voluntarily made, then they should wholly disregard it, and they should acquit the defendant, unless they believe from the other evidence in this case beyond a reasonable doubt that the defendant’s guilt has been established of the offense charged in the indictment.”

The court committed no error on this point.

Appellant’s defense was insanity. The court properly submitted this question to the jury and, upon ample evidence sustaining the state, the jury found against him.

The indictment alleges, and the unconl radiated proof shows, that the offense was committed on or about August 17, 1916, and that the burned house was in the city of Georgetown, in Williamson county. This trial and conviction herein was had on January 11, 1917. The case was appealed at the January term, 1917, and the record filed in this court on May 4, 1917. The 35th Legislature, by an act approved March 30, 1917, page 352, changed the penalty for arson from the minimum of five, to two, years in the penitentiary. The act did not go into effect until 90 days after adjournment. The Legislature adjourned March 21, 1917. The act went into effect June 19, 1917. Appellant contends that because this act prescribing a less minimum penalty was in effect on June 20th, when this case was submitted in this court, and that it must necessarily be decided after that date by this court, he is entitled to a reversal because of said statute. His contention cannot be sustained. The statutes and decisions of this court are directly the reverse of his contention. Article 15, P. G.; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595; Simms v. State, 8 Tex. App. 246; Myers v. State, 8 Tex. App. 328; Monroe v. State, 70 Tex. Cr. R. 245, 157 S. W. 154. There is no necessity for discussion of this question. It is fully discussed in said decisions.

The uncontradicted testimony shows said burned house was in Georgetown, in Williamson county. Some of the witnesses speak of it as “in Georgetown,” others in “the town of Georgetown,” and the deed to Stephens describes the lot on which the house was situated as “in the city of Georgetown,” in said county. There was no possible doubt as to the identity of the house, or that it was situated in Georgetown, whether Georgetown be termed a city or town. The statute (P. O. art. 1208) states the owner is guilty of arson if he bum his house situated in a “town or city,” when it (article 1207) gives him the right to burn it if situated elsewhere. He could not legally employ an agent to burn it when he himself could not. If the agent burned it, he, the agent, would be guilty.

The judgment is affirmed.

On Motion for Rehearing.

Appellant now contends that the court, in connection with the charge given submitting to the jury whether or not they could consider the confession of appellant proven up and introduced in evidence, should have charged on circumstantial testimony, in the event the jury should disregard and not consider the confession. The charge the court gave on the subject is copied in*the original opinion. This charge of the court is substantially a copy of the charge on the subject requested by appellant, and evidently was copied by the judge as a part of his main charge, and was then marked refused by the judge because it was covered by the general charge of the court. In our opinion the case did not require a charge on circumstantial evidence.

The motion is overruled.
      «g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    BURRAGE v. STATE.
    (No. 4609.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    Criminal Law &wkey;>1182 — Appeal — Record —Review.
    Where the record contains no statement of facts proved and no evidence, and the bills of exception reserved to the court’s charge cannot be revised, and grounds for motion for a new trial cannot be intelligently revised without the testimony, a conviction will be affirmed.
    Appeal from District Court, Collin County; C. T. Freeman, Judge.
    R. W. Burrage was convicted of crime, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convict-

ed of assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

The record does not contain a statement of the facts proved on the trial. The bills of exception reserved to the charge given by the court cannot be intelligently revised in the absence of the testimony. The grounds of the motion for new trial, without the evidence before us, cannot be revised, and the judgment will be affirmed.


author: MORROW, J.

text:
    Ex parte JONES.
    (No. 4709.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    On Motion for Rehearing, Oct. 31, 1917.)
    Habeas Corpus <&wkey;85(l) — tRefusal oij Bail —Burden of Proof.
    In habeas corpus to review order denying bail to accused, the burden is upon the state to show by “proof evident” the commission of a capital crime, and that accused was the guilty agent.
    Appeal from District Court, El Paso County ; AV. D. Howe, Judge.
    Habeas corpus on the relation of Felix R. Jones. Order denying bail reversed. On motion for rehearing.
    Motion overruled.
    Marvin B. Simpson, of Ft. Worth, M. Scarborough and O. L. Vow ell, both of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Relator is charged with murder, and complains of the order of the trial court denying him bail.

A perusal of the facts constrains us to hold that the court was in error in rendering the judgment. It is ordered reversed, and relator is granted bail in the sum of $10,000.

On Motion for Rehearing.

The state insists that the court was in error in granting bail to relator. In deference to this contention'we have reviewed the record, in the light of the decisions of this court giving weight to the conclusions of the trial judge, and, granting the correctness of his findings on conflicting evidence (Vernon’s C. C. P. p. 910, and cases cited), we adhere to the opinion that the burden rests upon the state to show, by “proof evident,” that a capital crime was committed, and that relator was the guilty agent. Branch's Criminal Law, p. 49, and cases cited. Observing the established practice in this court, we omit a discussion of the evidence. Sharp v. State, 1 Tex. App. 299; Ex parte Lawrence, 137 S. W. 697; Vernon’s O. O. P. p. 910, and cases cited.

The state’s motion for rehearing is overruled.


text:
    PARSONS v. STATE.
    (No. 4626.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    Criminal Law <&wkey;1056(l) — Appeal—Savins Objections — Instructions. .
    Where the evidence as to insanity was very meager in a prosecution for assault with intent to murder, and no exception was taken to the omission to charge on that phase of the case, there was no reversible error; it being usually necessary to reserve exceptions to errors in instructions either of commission or omission.
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    J. J. Parsons was convicted of crime, and he appeals.
    Affirmed.
    Hill Stewart, of Atlanta, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault with intent to murder, and was allotted the minimum punishment of two years’ confinement in the penitentiary.

The only question briefed by appellant is the failure of the court to charge upon the issue of insanity. There was no exception reserved to the court’s failure to charge this phase of the law. The evidence, if any, on this subject is very meager indeed. Under the present statute it is usually necessary to reserve an exception to supposed errors in the court’s charge, whether they be of commission or omission. This was one of omission. We are of opinion that there is no reversible error in this, especially in view of the fact that an exception was not reserved.

The motion for a new trial assigns as error that the verdict of the jury and the judgment of the court are contrary to the law and the evidence, as well as the failure to charge the issue of the mental status of the defendant. We are of opinion that the evidence is ample to sustain the finding of the jury.

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


text:
    CARRILLO v. STATE.
    (No. 4613.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. INDICTMENT AND INFORMATION &wkey;>25 — Formal Defects — Sufficiency.
    An indictment alleging, “The grand jury of Cameron county, Tex., upon their oaths, present in the district court thereof, at the March term, A. D. 1917,” sufficiently shows that the grand jury; was duly organized at a court then in session.
    2. Criminal Law &wkey;>1128(2) — Appeal—Matters Review able — Record.
    An affidavit to the effect that defendant, a Mexican in a Mexican locality, was tried and indicted only by Americans, there being many qualified Mexicans, a discrimination in violation of Const. U- S. Amends. 14 and 15, in the absence of any showing that it was presented to the court, .or that evidence was received, no statement of facts having been filed, cannot be noticed on appeal.
    Appeal from District Court, Cameron. County; W. B.-Hopkins, Judge.
    . Felipe Carrillo was convicted of crime, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The record is before us without a statement of facts. A motion was made to quash the indictment because it did not sufficiently allege that the grand jury which returned the bill was duly organized at a court then in session. While the indictment is rather brief in this respect, yet we think it is sufficient. That part of it complained of reads as follows:

“The grand jury of Cameron County, Tex., upon their oaths, present in the district court thereof, at the March term, A. D. 1917.”

It does not recite that the grand jury of Cameron county, upon their oaths, present in the district court thereof, that is Cameron county, at its March term. While not very explicit, we think it is a sufficient compliance with the second and third requisites of the statute prescribing the necessary ingredients of an indictment. However, we would suggest to parties drawing indictments to take sufficient time and be more explicit in their allegations. It is unnecessary to present matters of this sort to this court when a little time, patience, and caution would avoid all such questions and the discussion of them. The bills of exception largely present questions of supposed errors in the 'giving or refusing of charges. Without the statement of facts, we are unable to review any of those matters.

Appellant files what he terms a special plea, to the effect that he is of Mexican birth, and that approximately 75 per cent, of the qualified voters of Cameron county are of Mexican origin; that among the 75 per cent, there are hundreds of Mexicans who are qualified jurors, who can read and write and understand the English language, and that this case is particularly a case in which the manner and customs of the Mexican people will be determinative of his punishment, if he be guilty of the offense with which he is charged, yet in spite of the great preponderance in number of the qualified Mexican jurors over the American qualified jurors in the county, there was not a member of the grand jury which found the indictment in this cause a man of Mexican birth, and in the special venire summoned from the jury list to try this cause, there appears only one name of a man of Mexican birth, to wit, Julian Villareal, and that the failure on the part of the jury commissioners to duly select qualified persons of Mexican birth, to serve as grand and petit jurors, is a discrimination in drawing the special venire and in the selection of the grand jury, in violation of constitutional amendments 14 and 15 of the Constitution of the United States, and is an injury by reason of which he has been deprived of his constitutional rights. It is not shown that the question was ever presented to the court, otherwise than as stated by this affidavit of the defendant, and it is uot shown that any evidence was offered or received by the court, and therefore the matter cannot be reviewed by this court. As the question is presented we are unable to revise it, and therefore the question is not further noticed.

As the record presents the ease, we are of opinion that the judgment should be affirmed?, and it is accordingly so ordered.


text:
    GUSTAMENTE v. STATE.
    (No. 4604.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. Criminal Law <&wkey;369(6) — Evidence—Other Offenses.
    Where defendant was charged with a sale of intoxicating liquor in violation of the Local Option Law, in October, proof of sales in November, December, and January was inadmissible.
    2. Criminal Law &wkey;>678(l) — Election by Prosecution.
    Where defendant was charged with a sale of liquor in October and sales were also shown in November, December, and January, a motion to require the state to elect on which sale it would rely should have been granted, and if the sale in October was selected, the evidence of the other sales should have been withdrawn from the jury.
    3. Criminal Law <&wkey;763, 764(17) — Instructions — Weight of Evidence — Other Offenses.
    Where state relied for conviction on a sale of intoxicating liquor in October, an instruction that evidence of sales by defendant in November, December, and January could be considered as tending to show system was erroneous, as being on the weight of the evidence.
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.
    Toribio Guatamente was convicted of crime, and he appeals.
    Reversed.
    E. B. Hendriclrs, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, and his punishment assessed at two years’ confinement in the penitentiary.

There are quite a number of bills of exception reserved, setting out many reasons why the trial was illegal, and the judgment should be reversed. The ease, briefly stated, is: Appellant was charged with selling intoxicants to Felipe Benetez on the 20th day of October, 1916. The alleged purchaser testified that on that day he bought whisky from appellant, for which he. paid him 75 cents. The state proved by the same witness and other Mexicans other sales, in November, in December, aná in January, 1917. The evidence of the purchasing witness was positive that he bought the whisky on the 20th of October,

1916, and there was no contradiction of his testimony in this respect, except to prove by a witness that he was working at the gin on that day. But the testimony was very little in conflict, if any, with the state’s witness’ testimony, because the hour which he quit, work'and the hour of the sale might not interfere with the testimony of the two witnesses. When the evidence of the other sales was offered appellant objected. The court overruled these objections, and the witnesses testified to the subsequent sales. Appellant then asked the court to require the state to elect the sale upon which the state would rely. All these sales occurred before the presentation, of the indictment in March,

1917. This was refused by the court. Appellant then asked a special charge, in effect, withdrawing the testimony of all of the sales except the one upon which the state relied, which seems to have been that occurring on the 20th of October. This was declined, and the court corrected and amended his charge, and instructed the jury that they might consider these sales on the question of system. Objection was urged to this instruction also. In addition, objection was urged to the language of the charge as given, which is as follows:

“The jury are instructed that there has been evidence introduced in this case tending to connect the defendant, Toribio Gustamente, with other sales of intoxicating liquor than the one alleged in the indictment in this case, in Atas-cosa county, Tex. You are instructed that said evidence is only permitted to be introduced in this case for the purpose of tending to show system, if any, on the part of defendant, and you will not consider same for any other purpose.”

The court also instructed the jury that the defendant could not be convicted for any other sale of intoxicating liquor than that alleged in the indictment to have been made to Felipe Benetez. Exception was reserved to all of this. We are of opinion that the testimony of other sales, under the facts of this case, was inadmissible. In Wallace v. State, 66 S. W. 1102, it was held that an instruction in a prosecution for cattle theft that a certain brand was only admitted in evidence as proving ownership of the cow claimed to be the mother of the stolen calf, and that the brands placed on the calf by the owner after its recovery can only be considered, in connection with all the other evidence, for the purpose of identifying the calf, is a charge on the weight of the evidence, and erroneous. And in Brown v. State, 76 S. W. 475, it was held that, in a prosecution for violating the local option law, an instruction that all advertisements and cards of defendant published in a newspaper, the occupation license issued to defendant, together with the tax collector’s record of the occupation tax paid by the defendant in L. county, introduced in evidence, could be considered by the jury for no other purpose than to show whether the defendant at the time of the sale was engaged or interested in the sale of intoxicating liquors in L. county was erroneous, as a charge on the weight of evidence. There is quite a line of decisions which hold that, where the court assumes and states in his charge that there was evidence introduced tending to prove the commission of a crime, or facts connected therewith, it is erroneous as being on the weight of the evidence. See 2 Vernon’s Criminal Procedure, p. 476, § 117, where quite a number of cases are collated holding such charge to be erroneous. Santee v. 'State, 37 S. W. 436; Reese v. State, 44 Tex. Cr. R. 34, 68 S. W. 283; Reese v. State, 70 S. W. 424; Hollar v. State, 73 S. W. 961; Cortez v. State, 74 S. W. 907; Cavaness v. State, 45 Tex. Or. R. 209, 74 S. W. 908. We hold, therefore: First, that 'the court was in error in permitting, under the facts of this case, evidence of other sales; and, second, that when these sales developed, the court should have required the state to elect upon which transaction it would rely, and if it was sufficiently done by submitting the sale of the 20th of October, then it was error not to instruct the jury to disregard all evidence of the other sales and withdrawing them from the consideration of the jury; and, third, that the court’s charge, above quoted and mentioned, was on the weight of the testimony.

The judgment will be reversed, and the cause remanded.
      <§£s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    HOLLOMAN v. BISHOP et al.
    (No. 1220.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1917.)
    1. Crops <@=>5 — Growing Crops — Sale oe Land — Effect.
    As a rule, growing crops are part of the soil, and pass with the land.
    2. Vendor and Purchaser ®=19íL-Rights— Growing Crops.
    Where the vendor instructed his agents to sell, but said nothing of reserving the crops, and the agents sold, telling the purchasers that nothing had been said, and the crops would go to them, the crops, unsevered at the time the sale was consummated, passed to the purchasers.
    Appeal from Armstrong County Court; H. L. Mobely, Judge.
    Conversion by Ira J. Holloman against F. N. Bishop and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    W. A. Wilson, of Claude, for appellant. J. S. Stallings, of Claude, and L. C. Barrett, of Amarillo, for appellees.
   HUFF, C. J.

The appellant Holloman sued the appellees Bishop for the conversion of 142 bushels of wheat, the suit having been brought in the county court of Armstrong county and upon trial before the court without a jury judgment was given for appellees, defendants therein.

The appellant owned a section of land in Armstrong county, and authorized Moore & Moore as his agents to sell the land. The authority given was by letters and telegrams, in which nothing was said about selling the growing crop or reserving it in the sale. The agents, on the 3d day of July, entered into a written contract of sale with the appellees, whereby the appellant agreed to execute a deed thereto in 30 days. This contract we interpret as the sale of the land as of that date. The wheat at the time of the contract was growing or standing on the land. It had been grown by the tenant of appellant, and the 142 bushels of wheat was the rent due from the tenant on the land. At the time of making the trade with the agents the appel-lees asked them if the crops on the land went with the land or in the trade. The agents testified they told the appellees that nothing was said by Holloman about reserving the rents, and that as a matter of law it would pass. One of the appellees testified that he asked the agents if the crop went with the land, and the agents said it did. The other appellee stated that the agents told them that they would get the crops, “as it was part of the sovereignty of the soil.” After the wheat was threshed, but before the deed was delivered, appellant directed the tenant to sell his part of the crop. The tenant notified him by letter that appellees were claiming the wheat, as did also the agents, the appellant then wired the bank not to de-

liver the deed to appellees, but it appears from the record the bank had done so before receiving the wire. The appellees, in the meantime, took the wheat and sold it, and this suit was instituted to recover its value.

The trial court evidently found the agent sold the wheat to appellees in the trade. The facts in the record will authorize such finding. The appellant said nothing to the agents about reserving the crop. As a rule, growing crops are part of the soil, and pass with the land. The crops in this case had not been severed at the time of the sale either actually or in law. It is said in Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284:

“The weight of authority, however, is to the effect that such crops will pass by sale of the land if they belong to the owner of the land at the time of the sale.” Evans v. Guaranty State Bank, 195 S. W. 1171; Farthing v. Williams, 194 S. W. 453.

There was no reservation made of the growing crop in the contract or deed. The appellees dealt with the agents who assured them they would get tne crop, and this evidently was an inducement to the trade. As we understand and read the contract, the sale was made when the contract was executed and part of the purchase price paid, and entitled appellees to the land and the growing crops thereon. Armstrong v. Gifford, 196 S. W. 723.

We believe the judgment should be affirmed.


author: FLY, C. J.

text:
    MOUSER v. FIRST NAT. BANK OF EL CAMPO.
    (No. 5881.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 10, 1917.)
    1. Judgment <@=>335(1) — Mistake — Correction.
    Under Rev. St. art. 2016, a suit will lie for correction of a mistake in a judgment.'
    2. Judgment <©=>315 — Mistake—Correction.
    In an action wherein writ of garnishment was procured against a party who answered that he was indebted to defendant in a sum secured by a lien on two lots, and the judgment was rendered against the garnishee, but by mistake the lien was not foreclosed, the garnishee’s answer furnished a sufficient basis for the correction of the judgment to foreclose the lien.
    3. Judgment <©=>297 — Mistake—Correction.
    The trial court has inherent power to correct an evident mistake in its judgment.
    ■ Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Action by the First National Bank of El Campo against S. P. Smiley and wife, wherein D.- N. Mouser was garnished. Judgment against the garnishee and he appeals.
    Affirmed.
    George P. Willis, of El Campo, for appellant. Cappel & Rowan, of El Campo, for ap-pellee.
   FLY, C. J.

In 1915, appellee recovered judgment against S. P. Smiley and Levina Smiley for the sum of $2,289.45, in the district court of Wharton county, of which sum $1,822.60 is still unpaid, and afterwards procured a writ of garnishment against appellant, who answered; that he was indebted to the Smileys in the sum of $380, which was secured by a lien for material on two certain lots of land in El Campo, Wharton county. Judgment was rendered against appellant, upon his answer, for $380, but by mistake the lien for material was not foreclosed against the lots. On February 10,1916, appellee filed an application to correct the judgment, which was rendered on November 22, 1915, so as to foreclose the lien, and on May 15, 1916, the court rendered judgment in favor of appellee against appellant for $380, and foreclosed the lien for material.

If the suit be one for the correction of a mistake in the judgment, it is sustained by the statute. Rev. St. art. 2016. No evidence aliunde the record in the case was necessary, or was permitted, but the answer of appellant in the garnishment suit furnished a sufficient basis for the amendment or correction of the judgment. Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; Yarbrough v. Etheredge (Tex. Civ. App.) 163 S.#W. 998. As said by the Supreme Court in Coleman v. Zapp, the trial court had the inherent power to correct an evident mistake in its judgment. The court found that a mistake of omission had occurred in the failure to fore-, close the lien. Appellant admitted he owed the debt and that it was secured by a lien, and it is equitable and just that he should be compelled to pay the debt, even though a foreclosure is required to accomplish this object.

The case can be viewed as an original suit on a judgment, and the judgment rendered can be justified under that class of case.

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


author: LANE, J.

text:
    SWILLEY v. J. I. CASE THRESHING MACH. CO. et al.
    (No. 7372.)
    (Court of Civil Appeals of Texas. Galveston.
    June 28, 1917.
    Rehearing Denied Oct. 4, 1917.)
    Municipal Corporations @^671(4) — Obstruction op Streets — -Damages.
    In a suit to have a strip of land declared a public street by prescription, and for $400 damages, caused plaintiff by reason of its obstruction, where the evidence showed that the owner of the fee conveyed a strip 12% feet wide to the city for street purposes, and that the adjoining owner conveyed a strip of similar width, making a street 25 feet wide leading to the street on which plaintiff’s property abutted and giving him ingress to and egress from his property, a finding that he suffered no such damages as alleged was warranted.
    Error from District Court, Harris County ; W. L. Cook, Special Judge.
    Suit by W. S. Swilley against the J. I. Case Threshing Machine Company' and another. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    Tharp & Tharp, of Houston, for plaintiff in error. A. B. Wilson and J. C. Hutche-son, Jr., both of -Houston, for defendants in error.
   LANE, J.

This suit was brought by W. S. Swilley, hereinafter called plaintiff, against J. I. Case Threshing Machine Company and the city of Houston, to have a strip of land 68 feet wide and 260 feet long, extending from Commerce street to Magnolia street of said city of Houston, declared a public street by prescription.

Plaintiff in substance alleges that he is the owner of a part of block 35, which fronts south on Magnolia street, and that he has been such owner ever since 1S99, and that the strip of land in question has, at all times since 1899, been open and unfenced and not otherwise occupied by any one since said date, until the 15th day of June, 1912, at which time the defendant Case Threshing Machine Company fenced 43 feet thereof off the east side; that said vacant strip was known as Broadway street at the time he purchased his property and has been so known for a great number of years; that said strip was a part of blocks 43 and 44 of the Williams survey; • that the same had been continually used as a public street since 1861; that the city of Houston conspired with said Case Threshing Machine Company to deprive plaintiff and the public of the use of said strip as a street; that it consented that said Case Threshing Machine Company might fence said 43 feet off the east side of said strip, or street, and by deed conveyed to said company said 43 feet. His prayer was for $400 damages by reason of the construction of the fence inclosing said 43 feet off the east side of said strip, for a decree of the court adjudging the whole of said strip to be a publio street, and for a mandatory injunction requiring defendants to remove said fence therefrom and restraining the further obstruction thereof.

Defendant Threshing Machine Company demurred generally and specially, and pleaded two-year statute of limitation, and entered a general denial, and alleged that the use of part of block 43 by the public was indiscriminate as to any specific portion of said block, and that no certain portion thereof was used as a street; that it owns 97 by 262 feet off the west half of block 43, and that Downey owns the east half of block 44 adjoining; that its property was vacant, unused, and unimproved, but had been used by the public indiscriminately, as was the custom in the city of , Houston. It denies that a street had previously existed, but says that Downey and the Threshing Machine Company dedicated a strip 25 feet wide extending from Commerce street north the length- of blocks 43 and 44, and the city of Houston quitclaimed to the Threshing Machine Company all the west half of block 43, except 12Vz feet by 260 feet (the east half of the 25-foot street dedicated). Said defendant also alleges that plaintiff did not acquire the property owned by him in block 35 from the owners of block 43 or 44, and is not the owner of any fee in the street alleged to have been established by prescription. City of Houston filed demurrers^ plea of limitation and adopted the answers óf its codefendant.

The case was tried before the court without a jury. Judgment was rendered for defendants, and from this judgment plaintiff has appealed.

The effect of all of the assignments of error is that the court erred in finding that plaintiff and the public had not acquired an easement over the full width of the strip of land in controversy, because the undisputed evidence conclusively shows that an easement or public street, known as Broadway, extending north from Commerce street 68 feet wide and 260 feet long, embracing the strip of land in controversy was acquired by the public as a public street, and that the same still exists as such.

There is evidence to show that J. I. Case Threshing Machine Company (one of defendants in error) purchased the west one-half-of block 43 of the S. M. Williams survey in the city of Houston, Harris county, Tex., in 1910; that plaintiff in error was the owner at that time of a part of block 35 of the S. M. Williams survey, located and situated north of block 44 of said survey and separated therefrom by Magnolia street, and resided on the property; that defendant in error, learning of the contention that plaintiff in error claimed a part of the property purchased by defendant in error, was a street by way of prescription, and defendant in error, desiring a street or passageway on the west side of the property, adjoining Downey’s property in block 44 of said survey, and the said Downey desiring a street or passageway, defendant in error and said Downey entered into an agreement with the city of Houston, by which defendant in error and Downey each conveyed to the city of Houston for ' street purposes 12% by 260 feet off of the west side of block 43 and the east side of block 44 of said survey, which runs directly from Commerce avenue to Magnolia street, situated south of plaintiff in error’s property in block 35; said conveyance to the city of Houston being made by the J. I. Case Threshing Machine Company (defendant in error), and the said Downey to afford them means ■ of ingress and egress to their property and which was accepted by the city of Houston, .-as shown by a city ordinance passed July 14, ■ 1911, for the purpose of definitely acquiring an undisputed street or roadway.

The undisputed evidence shows that the Case Company owned the fee to the 43 feet of the land fenced by it and 12% feet which it conveyed to the city of Houston for street purposes, and that Downey owned the fee to the other 12% feet of said land on the west side thereof which he conveyed to said city for street purposes, and that there is now, by reason of said conveyances, a street 25 feet in width dividing block 43 and 44, which extends from Commerce street to Magnolia street on which plaintiff’s property abuts, and which gives him ingress and egress to and from his property. This evidence was sufficient to warrant the trial court in finding that plaintiff suffered no such damages as alleged by him. The evidence also shows that plaintiff neither has or claims any title to the fee in any portion of the strip of land in controversy. It also shows that Magnolia street lies between plaintiff’s property, and said land, and that his property therefore does not abut on said land:

The evidence as a whole is sufficient to warrant the trial court in finding that only a part of the land in controversy less than 25 feet in width was used by the public as a thoroughfare, and that said part so used lies on the western side of said strip of land and is now embraced in said 25-foot street, and that there has been no such use of that part of said strip of land fenced by the Case Company as would establish it as any part of a street.

We think the evidence as a whole supports the judgment of the trial court, and therefore the same is in all things affirmed.

Affirmed.
      <Sc»For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


author: ELY, C. J.

text:
    LAAS-JERSIG CO. v. SAN ANTONIO & A. P. RY. CO.
    (No. 5884.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 10, 1917.)
    Appeal and Error <S=^>1040(1) — Harmless Error.
    The sustaining of an exception to a part of a petition relating to measure of damages will not be considered, where plaintiff is not entitled to damages.
    Appeal from De Witt County Court; R. J. Waldeck, Judge.
    Suit by the Laas-Jersig Company against the San Antonio- & Aransas Pass Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Schleicher & Harris, of Cuero, for appellant. Proctor, Yandenberge, Crain & Mitchell, of Victoria, Crain & Hartman, of Cuero, and Boyle, Storey, Ezell & Grover, of San Antonio, for appellee.
   ELY, C. J.

This is a -suit for damages instituted by appellant against appellee, alleged to Lave accrued by reason of the failure of a connecting carrier witli appellant to permit the firm of Lepman & Haggie, of Chicago, to inspect a certain carload of eggs sold by appellant to said firm, although the bill of lading provided that inspection should be allowed. It was also alleged that it was provided in the bill of lading that any loss or damage should be computed on the basis of the value of the property “being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid,” at the place and time of shipment. It was alleged that the eggs were to be delivered by appellant to Lepman & Haggie, f. o. b. Xorktown, for $7.80 per crate, freight to be paid by Lep-man & Haggie, and they were to be allowed to inspect the eggs before accepting and paying for them. It was alleged that Lepman & Haggie refused to accept and pay for the eggs because they were not permitted by the connecting carrier to inspect them, and that appellant thereby was damaged in the sum of $649.72. A trial by the court resulted in a judgment in favor of appellee.

It will be noted that the only ground of negligence was the refusal to permit inspection of the eggs and the court concluded, and the evidence sustains the conclusion, that inspection was not refused, but was permitted, arid an inspection had by Lepman & Haggie on the morning on which they demanded it. There was some conflict in the evidence which was resolved in favor of appellee’s witnesses, and the action of the court in sustaining an exception to that part of the petition which sought to make the value of the property at the initial point of shipment the measure of damages can be of no practical importance. If appellant was not entitled to any damages, a measure of damages is not of any practical use. This disposes of the first and second assignments of error.

The evidence failed to show that appellee had any knowledge of the terms of the contract between appellant and the Chicago firm, but if such matter had been proved it could not avail anything, because the court found, and there is evidence to sustain the finding, that the terminal carrier did not refuse an inspection, but granted it on the morning when demanded. The only negligence charged was the refusal to permit inspection.

There is no error in the judgment and it is affirmed.
      <S=aFor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    SOUTHERN PAC. CO. v. ECKENFELS.
    (No. 7420.)
    (Court of Civil Appeals of Texas. Galveston.
    June 7, 1917.
    Rehearing Denied Oct. 4, 1917.)
    1. MASTER AND SERVANT &wkey;>276(3) — ACTIONS eor Injuries — Sufficiency of Evidence.
    In an action by a steamship employé for injuries claimed to have been sustained by falling from an insecurely fastened ladder in the hold of the steamship, evidence as to whether the accident was so caused held sufficient to support a verdict for plaintiff.
    2. Negligence <&wkey; 14.1 (12) — Instructions— Comparative Negligence.
    Under the Employers' Liability Act (Acts 33d Leg. c. 179), providing that in an action for personal injuries sustained by an employé it shall not be defense that the employé was guilty of contributory negligence, but that the damages shall be diminished in proportion to the amount of negligence attributable to him, where facts were admitted showing that defendant was within the purview of such statute, an instruction that if the jury found for plaintiff, but also found that he was guilty of contributory negligence proximately causing or contributing to his injury, the jury must diminish his damages in the proportion such negligence bore to the entire negligence of defendant was correct.
    3. Appeal and Error <&wkey;1068(4) — Harmless Error — Instructions—Cure by Verdict.
    Where the court correctly instructed the jury to diminish the damages if an employé suing for injuries was guilty of contributory negligence and to specify the amount of such diminution in their verdict and the jury found for the employé without diminishing the dainasr es, the error in also charging that if plaintiff could have avoided the injuries by the exercise of ordinary care the jury should return a verdict for defendant was harmless.
    4. Appeal and Error <&wkey;882(12) — Right to Allege Error — Invited Error.
    In an employe’s action for injuries the employer may not complain of an instruction requested by it, directing the jury to find for it if the employé was negligent, another instruction having told the jury to diminish the damages if the employé was negligent.
    5. Damages <&wkey; 132(1) — Excessive Damages— Personal Injury.
    A steamship employé in good health and earning $70 a month was injured by falling from a ladder^ striking his face on some iron pipe. He was m the hospital for two weeks, in bed for six weeks, and it was two months before he was able to go out. His left side was paralyzed for three months. For six weeks he suffered pain in his nose and face, and obtained sleep by hypodermic injections. He had to use a cane for several months, and it was a year before he was able to work. He had two operations, both of which were painful and confined him to his bed. At the time of the tidal he was not able to breathe through both nostrils, and he was permanently injured and disfigured. Meld, that a verdict for $6,000 was not excessive, and did not indicate passion, prejudice, or sympathy.
    6. Evidence <&wkey;359(2) — Photographs — Admissibility to Show Extent of Injury.
    In an action for injuries in which a physician testified that an operation made plaintiff “infinitely better,” a photograph, taken after the injury and before the operation, was admissible to show the extent of his injuries.
    7. Damages <&wkey;168(2) — Admissibility of Evidence — Personal Injuries.
    In an action for injuries, evidence that the purpose of an operation performed on plaintiff was to restore the dividing plane between the two sides of his nose as nearly as possible to its original condition and by doing so permit air to pass through, and the nose on the outside to resume its normal position, was admissible and competent on the question of the nature and extent of plaintiff’s injuries and the pain and suffering endured by him.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

      Action by Henry Eckenfels against tbe Southern Pacific Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and W. T. Armstrong and Eugene A. Wilson, both of Galveston, for appellant. Frank S. Anderson, of Galveston, for appellee.
   GRAVES, J.

This appeal is from a $6,000 judgment, upon a jury’s verdict, in favor of appellee and against appellant, whose employe he was when injured; the amount was awarded for damages alleged to have been sustained as a result of his falling from an insecurely fastened ladder in the hold of the steamship El Sol, owned by appellant. It was alleged that appellant was within the purview of the Texas Employers’ Liability Act, and was not insured under its provisions.

The first assignment of error contends that the verdict in favor of appellee is contrary to the obvious weight of the evidence,. which is such that ordinary minds would be led to but one conclusion, which is opposite to that found by the jury.

The testimony of appellee himself as to how he was injured is practically undisputed, as no one else was present, or saw the accident.

It was conceded by all the witnesses called by appellant that the ladder was loose at the bottom, and in that respect they corroborated appellee and all of his witnesses; there was some conflict in the testimony as to the distance the ladder would swing at the bottom, but all agreed that it was loose at the bottom, and one of the witnesses for appellee testified that its only fastening was by one bolt at the top.

Appellee testified that, under orders from his superiors, he went into the hold of the ship as described by him for the purpose of obtaining a tag, and that he did obtain it, and that it was in his pocket after he sustained his injuries, though the employes under whom he worked denied giving him such orders. Appellee further testified: •

“After receiving those instructions from Mr. Picture and Mr. McGivney, I proceeded to go down and get the tag. I went down in the hold through the manhole; that is the only entrance to this hold. The descent is by means of a ladder, which was constructed straight .up and down in a half circle. * * * When I got into the hold I was able to see sufficiently to find the tags. * * * That hatch cover (referring to the one on the upper ’tween-deck) wasn’t off. The hatch cover was off on the lower ’tween-deck. There was about two foot of space each way between the foot of the ladder and the cargo, that is, around the front and the back. About the side there was about four inches of space from the stanchion on just one side. The other side was clear. That is, it wasn’t up against anything, or nothing against it. This cargo of iron was piled about two feet from the bottom hold. I found the tag was right in the end of the pipe. * * * On going down this ladder, I did not observe anything- as to whether it was loose or not. After I started up the ladder, I got to about the third rung from the top of the ladder that goes from the shelf to the hold. She tilted, gave me a lurch, and threw me off. My face hit on the iron. I fell down in the bottom of the ship on the iron pipe, about 10 feet. I struck my face here, and my back and on my nose. I don’t know how long I laid there; when I came to I was in a dazed condition. Tho first that I recall as to where I was I was on the lower ’tween-deck.”

Opposing this direct statement by appellee as to bow be was injured, appellant constructed and presented to tbe jury its theory that tbe accident could not have bappiened in that way, but must have resulted from bis walking off of and falling directly from tbe orlop deck to tbe bottom of tbe ship, or upon the iron pipe stored there. It bad an examination made of tbe ship and the ladder by its agents and officers, including its captain, almost immediately after appellee was hurt, and very fully developed, and offered evidence in substantiation of this theory upon tbe trial. At most it was but a theory, a mental conception of bow tbe accident and injury may have occurred, and did not commend itself to the jury. They beard both sides from the mouths of witnesses who thoroughly examined tbe premises, so quickly after the injury that fresh blood was found on tbe floor of tbe vessel, on tbe iron pipe, and near tbe foot of tbe ladder.

Nor does the evidence offered by appellant in support of this theory, in our opinion, present any such situation as that ordinary minds could only reach an opposite conclusion to that arrived at by the jury. Upon tbe contrary, we think tbe jury’s finding bad ample support in tbe evidence, and tbe assignment is accordingly overruled. White v. Peters, 185 S. W. 659-661, and cases cited; Willingham v. Geitzenauer, 161 S. W. 376-378.

Tbe second assignment of error contends that the court erred in its instructions to tbe jury, because tbe portions of the charge relating to contributory negligence were irreconcilable and confusing to tbe jury, furnishing them no proper and consistent guide and directions on tbe subject of contributory negligence.

In bis general charge, after defining contributory negligence as a failure to use and exercise ordinary care, the court instructed the jury, in event they found for appellee, but also believed from the evidence that be was guilty of contributory negligence proximately causing, or contributing to bis injury, they must diminish bis damages in the proportion such negligence upon bis part bore to tbe entire negligence, if any, of appellant, and directed that tbe amount of tbe diminution found be specified in the verdict. In addition, and at the request of appellant, he gave tbe following special charge:

“If you believe from tbe evidence that the plaintiff, by the exercise of ordinary care at the time he received his injuries, could have avoided falling, you will return a verdict for the defendants.”

Facts had been admitted upon tbe trial . which showed that appellant was within tbe I purview of chapter 179, Acts 33d Leg., known as the Employers’ liability Act; and since contributory negligence, under the provisions of that act, was not a defense to appellee’s cause of action, but it required that, in the event the jury found appellee guilty of contributory negligence, his damages should be diminished in proportion to- the amount of negligence attributable to him, we think the general charge was correct.

While the special charge was error, we think, under the circumstances here shown, it was not only a harmless one, but was invited by appellant through its request that it be given, and that it is consequently in no position to complain.

If the jury were misled or confused by the charge, it could only have been so in the event they had first found appellee guilty of contributory negligence, in which case there might have been some misapprehension as to whether the verdict should be for appellant straight, or the damages dimlinished; but undoubtedly they did not find appellee guilty of contributory negligence, since they found a verdict for him, and did not diminish the damages, as directed by the court. It follows that this assignment is without merit.

The verdict for $6,000 is complained of as excessive under the third assignment, the contention being that this award was so palpably unwarranted by the evidence as to indicate that the jury were actuated by passion, prejudice, or sympathy in according it. But after a careful review of the testimony, we have not only been unable to find any indication of such "improper motive, but cannot say that the sum awarded was any more than just compensation for the injury shown. The following facts are practically undisputed: Prior to the accident appellee was earning $70 per month. He was in good health, and had never had any injury to his face or nose, which were then in normal condition. He was confined to the hospital for two weeks, and confined to- his bed at home for about six weeks. It was two months after the injury before he was able to get around and get out. His left side was paralyzed for a period of about three months. For about six weeks he suffered pains in his nose and face continuously and was unable to sleep. He obtained sleep by hypodermic injections. After getting out, he used a cane for about five or six months, and it was one year after he was injured before he was able to work. He suffered pain during that time. Dr. Ha-den performed two operations on appellee’s nose and face, the first of which took about 3y2 hours to perform. The operations were painful. After the first operation, appellee was at the hospital about one week and was confined to his bed at home for about one week. After the second operation he was confined at home one week in bed. He suffered pain all of that time and while the operation was being performed. He was not at the time of the trial able to breathe through both nostrils, and was shown to be permanently injured and disfigured. The assignment cannot be sustained.

By its fourth assignment of error appellant contends that the court erred in permitting the plaintiff to introduce a photograph of himself, taken after his injury and before he was operated on the first time, on the ground that it was immaterial and prejudicial. We think there was no error in admitting the photograph in evidence, and that it was competent for the purpose of showing the extent of the injuries to appellee’s face and' nose. Hd was present at the trial, and the jury had opportunity of observing the condition of his nose and face at that time, and if the operation performed by Dr. Haden had made him “infinitely better,” as the doctor testified, the jury observed that fact, and his improved appearance might have had the effect of reducing the verdict instead of increasing it.

Under its fifth and last assignment, appellant insists that the court erred in permitting Dr. Haden to- testify as to the general nature of the first operation performed by him on appellee’s nose, the question and answer being as follows:

“Q. You may state first, the purpose of the operation, and its general nature. A. The purpose of the operation was to restore this dividing plane between the two sides of the nose, as near as possible, to its original condition, and subsequently, by doing so, permit air to pass through, and the nose on the outside to resume its normal position. This was accomplished by a very severe and radical operation, not without danger.”

While the last sentence was not properly responsive to nor called for by, the question, appellant made no motion to strike it out; the balance of the answer was unobjectionable, and we think was clearly admissible, and competent upon the question of the nature and extent of appellee’s injuries and the pain and suffering endured by him.

We conclude that no error has been shown, and it is ordered that the judgment be affirmed.

Affirmed.
      ¿JxmFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes