author: CONNER, C. J.

text:
    CATTLEMEN’S TRUST CO. OF FT. WORTH v. TURNER.
    (No. 8287.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 11, 1915.
    On Motion for Rehearing, Jan. 15, 1916.)
    1. Corporations <&wkey;99 — Stock Subscription —‘ ‘Issue’’- — Statutes.
    Stock was subscribed for, and at the same time two notes given to the promoter for the corporation, one for part of the subscription price payable to the promoter and realized upon by him, and the other for the balance payable to the corporation and attached to which was an agreement that the stock subscribed for be held as collateral security for the note. At the same time it was agreed between the promoter and the subscriber that the stock and certificate were to be held until the notes should be paid, which was accordingly done, but in the meantime the stock was voted in the subscriber’s name under proxy contained in the subscription contract, dividends declared upon it and credited upon the note, and the subscriber notified by the corporation from time to time of its condition, meetings, etc. Held, in an action upon the note, that it was valid and given in a valid transaction, and that the stock was not delivered and did not “issue” within the meaning of Const, art. 12, § 6, and Vernon’s Sayles’ Ann. Giv. St. 1914, art. 1146, prohibiting corporations from issuing stock except for money paid, labor done, or property actually received, because the transaction constituted but a subscription to stock with a future promise to pay, which is not prohibited by the constitutional and statutory provisions stated.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig. &wkey;>99.
    For other definitions, see Words and Phrases, First and Second Series, Issue.]
    2. Corporations <&wkey;123 — Pledge op Stock.
    Such a transaction vests the subscriber with but a qualified right to the stock, not capable of being pledged.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-546, 569, 618; Dec. Dig. &wkey;123.]
    3. Chattel Mortgages <&wkey;17 — Corporate Stock.
    Such a transaction vests the subscriber with but a qualified right to the stock, not capable of being mortgaged.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 55-58; Dec. Dig. <&wkey;> 17.]
    4. Corporations <&wkey;77 — Stock Subscription —Construction.
    A stock subscription agreement, a note, and an agreement attached thereto to hypothecate the stock subscribed, all simultaneously executed and delivered, constitute but a single subscription contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 210-212, 219-243, 255; Dec. Dig. &wkey;77.]

      5. Corporations <&wkey;94 — Stock — “Certiei-oate oe Stock.”
    A “certificate of stock” is not the stock itself, but an acknowledgment of the interest of the shareholder in the corporate property, and operates to transfer nothing to the shareholder, but merely affords him evidence of his rights.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 435; Dec. Dig. <&wkey;>94.
    For other definitions; see Wbrds and Phrases, First and Second Series, Certificate of Stock.]
    6. Corporations <&wkey;99 — Stock Subscriptions — Statutes—Construoion.
    The purpose of Const, art. 12, § 6, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1146, prohibiting corporations from issuing stock except for money paid, labor done, or property actually received, is to insure for the protection of the purchasing public an equivalent in corporate property for such stocks or bonds of the corporation as are emitted or circulated, and thus made a commodity of purchase.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig.' &wkey;*99.]
    7. Appeal and Error <&wkey;1011 — Inferences From Facts.
    Mere conclusions or inferences from facts, ■which are not findings of fact upon conflicting evidence as contemplated by statute, will not be approved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. &wkey;1011J
    On Motion for Rehearing.
    8. Appeal and Error <&wkey;1095 — Oversight oe Undisputed Facts — Prejudicial Error.
    An oversight of undisputed facts in reviewing the evidence does not constitute prejudicial error, as such facts may be considered by the Supreme Court with or without a finding by the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4268, 4329, 4330; Dec. Dig. <&wkey;>1095.]
    Appeal from District Court, Tarrant County; J. W. S wayne, Judge.

    Action by the Cattlemen’s Trust Company of Ft. Worth against Robert Turner.
    Judgment for defendant, and plaintiff appeals. Reversed and rendered.
    A. H. Kirby, of Abilene, for appellant. Madden, Trulove, Ryburn & Pipkin and Kim-brough, Underwood & Jackson, all of Amarillo, for appellee.

      Application for writ of error pending in Supreme Court

   CONNER, C. J.

This suit was instituted by the appellant, the Cattlemen’s Trust Company, against the appellee, Robert Turner, upon a promissory note for the sum of $7,500, payable to the plaintiff on or before June 1, 1914, bearing interest at the rate of 8 per cent, per annum from its date, and containing, the usual provisions for 10 per cent, additional as attorney’s fees. Credits of $150 on December 13, 1913, and of $300 on December 31, 1914, were admitted in the petition. The defendant admitted the execution of the note, but, among other things, specially alleged that it had been given in payment for 500 shares of the capital stock of the plaintiff corporation then sold and delivered to him. It was charged that such transaction was illegal and void.

The plaintiff denied that the note had been executed and delivered as a part of an illegal and void contract or transaction, but charged that the defendant subscribed in writing for 500 shares of the capital stock of plaintiff company at and for the sum of $10,-000, which defendant promised to pay plaintiff for said stock; that to evidence the time when said sum of $10,000 was to be paid, and as a part of the same transaction by which the defendant subscribed for the stock, the note sued upon was given, as also another note for $2,500, which has since been paid; that the contract provided that the stock should be paid for at the time stated-in the notes, but that said stock was not to be delivered to, or become the property of, the defendant until it had been fully paid for in cash in accordance with the contract, and that it should then, and not before, be issued and delivered ; that pursuant to the contract no part of the stock had ever been issued or delivered to the defendant, nor to any one for him, and has never been in his possession, control, or custody, but has at all times since said contract of subscription been in the exclusive custody, control, and keeping of the plaintiff.

The case was tried before the court without a jury, resulting in a judgment denying plaintiff a recovery, etc. The court filed his conclusions of fact and law, and we now have the case before us for revision upon the assigned errors. The vital question presented on this appeal is: Did the appellant company issue to the defendant the stock contracted for by him, receiving in payment therefor the note in controversy, in violation of article 12, § 6, of our Constitution, which reads:

“No corporation shall issue stocks or bonds, except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void.”

We have a statute also of like effect. See article 1146, Vernon’s Sayles’ Texas Civil Statutes. The contention of appellant is that none of its stock was ever issued to ap-pellee. The reverse of this contention is urged by appellee, his insistence being that the stock mentioned in the pleadings was issued to him in consideration, in part at least, of the note sued on, and that therefore said note is void. The court adopted ap-pellee’s theory of the facts, and rendered judgment accordingly.

We think it may be safely said that there is no material conflict in the evidence. In all material respects we view the facts as substantially undisputed. As shown by the court’s findings and the undisputed evidence, appellant was a private corporation chartered and organized under the laws of Texas, with its domicile at Ft. Worth, where it has been engaged in business since about December 1, 1912; that on or about the 12th day of May, 1913, the plaintiff, through its authoriz-eel agent, J. B. Martin, solicited and procured from tlie defendant, Turner, a written subscription signed by Mm for 500 shares of capital stock of the plaintiff corporation of the par value of $10,000; said signed subscription containing, among other things, the following terms, to wit:

“Subscription for Stock.
“No. Shares, 500. Amount, $10,000.00.
“This is to certify that I hereby subscribe for five hundred shares of the capital stock of the Cattlemen’s Trust Company, Et. Worth, Texas, for which I agree to pay ten thousand dollars to said company.
“I further agree that this application and contract constitutes the sole and entire agreement, representation, and warranty between us, and that the said company reserves the right to reject this subscription within twenty days from receipt thereof and return to the subscriber the full amount paid said company, and further that 25 per cent, of the sale price of the stock herein purchased is to be and will be expended for organization and promotion expenses, to which I expressly agree and hereby authorize.
“I hereby make, constitute, and appoint A. L. Camp, of Et. Worth, Texas, as my true and lawful attorney to represent me and to vote my proxy, and I hereby ratify and confirm the acts of my said attorney until hereafter annulled by me in writing. This proxy is revocable at my pleasure.”

At this same time, and as a part of the same transaction, the defendant, Turner, executed and delivered to the said agent, Martin, for the plaintiff corporation, two promissory notes, one for the principal sum of $2,500, being one-fourth, of the subscription or sale price of said shares of stock payable to the said J. B. Martin, and which he after-wards collected as commission due him for obtaining the subscription. The other note was for the principal sum of $7,500, and is the note declared upon in this suit. Attached to said $7,500 note, and constituting a part thereof, was the following collateral agreement, viz.:

“As collateral security for the foregoing note, and other notes, if any, this day given for the stock hereinafter named, I have delivered to the said the Cattlemen’s Trust Company the following securities: 500 shares of the Cattlemen’s Trust Company of Et. Worth.
“In case of default in the payment of any of the foregoing and above described notes at maturity, I, we, or either of us authorize the holder of said notes to sell said securities, with or without notice, at public or private sale, at the option of the holder, applying the proceeds to the payment of the above notes, including interest and attorney’s fees, and the surplus, if any remaining, thereafter to be paid to the maker hereof on demand. Robert Turner.”

Both the notes last mentioned and the collateral agreement were executed, as stated, at the same time, and at the same time delivered by the defendant, Robert Turner, to the plaintiff’s agent, J. B. Martin, who thereafter duly delivered the same to the plaintiff corporation at its office in Ft. Worth. The subscription contract and collateral agreement were accepted by the plaintiff corporation, which thereupon made out and attached tó the note for $7,500 the following certificate, viz.:

“Incorporated under the .Laws of the State of Texas.
“No. 186. Shares, 500.
“The Cattlemen’s Trust Company of Ft. Worth.
“Authorized Capital Stock, $1,000,000.00.
“This certifies that Robt. Turner is the owner of five hundred shares of the capital stock of the Cattlemen’s Trust Company of Et. Worth, full-paid and none assessable, transferable only on the books of the corporation by the holder hereof in person or by attorney upon surrender of this certificate properly indorsed.
“In witness whereof the said corporation has caused this certificate to be signed by its duly authorized officers and to be sealed with the seal of the corporation this 12th day of May, A. D. 1913.
“J. W. Milner. A. H. Kirby,
“Asst. Secretary Vice President.
“[Seal.] ' Shares.
“$10.00.”

The certificate was indorsed upon the back with the following:

“Certificate for 500 shares of the capital stock of the Cattlemen’s Trust Company of Et. Worth.
“Issued to Robt. Turner.
“Dated May 12th, 1913.”

It was agreed between Turner and the plaintiff, through its said agent, Martin, at the time the subscription contract and the notes hereinbefore mentioned were signed and delivered, that the plaintiff corporation should have and retain the possession Of the stock to be issued to Turner as collateral security for the note sued upon, and Turner was informed at that time by said Martin that the certificate for stock would not be delivered to him until said note was paid. In accordance with this agreement and understanding, the physical custody of the certificate mentioned has been at all times, and still is, with the plaintiff corporation. It further appears that on September 2, 1913, at a meeting of the stockholders of plaintiff corporation, A. D. Camp, as proxy for the defendant, voted said 500 shares of plaintiff’s capital stock in accordance with the provision contained in the original subscription agreement. It also appears that yet later, in December, 1913, a dividend of $150 was declared by the plaintiff corporation on- said 500 shares of stock, and entered by plaintiff corporation as a credit upon the note sued upon. Yet later, in December, 1914, another dividend for $300 was declared by the plaintiff corporation upon said 500 shares of stock, and likewise entered by the plaintiff as a credit upon said note. It also appears that the plaintiff corporation entered upon its stock book or record of subscriptions the name and the address of defendant in connection with said certificate No. 186, for 500 shares, showing the date of the certificate to be May 12, 1913, the amount, $10,000, amount of cash paid, none, notes, one for $2,500, and one for $7,500, and salesman J. B. Martin; this being all that the books of the plaintiff corporation showed in the nature of an account with the defendant. It further appeared that the defendant from time to time, until about tbe time of the institution of this suit, received letters from the plaintiff corporation showing the condition of the company, receiving notices of stockholders’ meetings, and of the first dividend mentioned, etc.

The trial court further found, as differences evidently from the facts hereinbefore stated, that the certificate for stock had been “issued”; that at the time of the execution of the stock subscription contract and note mentioned it was the intention of Martin and the defendant that the plaintiff corporation “should hold such certificate as defendant’s property subject to plaintiff’s lien”; that the only consideration for the two notes mentioned “was the sale by the plaintiff to the defendant of 500 shares of capital stock of the plaintiff corporation; * * * that the defendant did not pay to the plaintiff, nor did the plaintiff receive from the defendant, either at the time of the transaction, between the plaintiff and the defendant, May 12, 1913, or at any subsequent time, any money paid, labor done, or property actually received.” The court further concluded “that it was the intention and agreement of the parties that the plaintiff should sell to the defendant, and that the defendant should buy from the plaintiff, the 500 shares of plaintiff’s capital stock, all on a credit, and that the plaintiff should accept in exchange or payment for said shares the two notes referred to, and that the defendant should become the present owner of the shares of stock, unless the plaintiff rejected the defendant’s subscription and returned the notes,” which was not done. There were other inferences and findings of like effect by the trial court, but nothing, we think, that substantially adds to or takes from the legal effect of the facts as we have found them; the court concluding, however, on the whole, that the transaction amounted to a sale of the stock upon a credit, it being held that the manual delivery of the certificate was not essential to the ownership of the shares or to the issuance of the stock. Judgment was accordingly entered in favor of the defendant, as stated in the beginning of the opinion.

We recur to the question: Did the plaintiff corporation “issue” to the defendant shares of its capital stock within the meaning of the constitutional and statutory provisions hereinbefore referred to, and receive as payment therefor the promissory note sued upon in this case? We think not. It is undoubtedly true that one may lawfully subscribe for shares of capital stock of a corporation and lawfully promise to pay therefor at a future date; the inhibition of our constitutional and statutory provisions being that the stock shall not be really issued by the corporation until it has been paid for. It is said in section 65, 1 Cook on Stock and Stockholders and Corporation Law (3d Ed.):

“Upon general common-law principles any one who is competent to enter into any ordinary contract may make a valid subscription for stock in an incorporated company. A subscription for stock is a contract; and, in general, any one who can contract may subscribe.”

Further authorities might be cited to the effect that the note in controversy in this suit in legal effect added nothing affecting the question under consideration to defendant’s promise to pay as contained in the subscription contract which is also declared upon in appellant’s pleadings. The subscription agreement, the notes, and attached collateral agreement were all executed and delivered at the same time, and severally constituted parts of a single whole, to wit, a subscription agreement, which, as already observed, may be lawfully made. The principal office of the notes under the circumstances was to fix the time of the payment of the sum promised in the subscription agreement. Under the circumstances, -too, what is designated in the record as a collateral agreement to hy-pothecate the stock was, in a legal sense, meaningless and of no effect now necessary to consider. Until after delivery to the defendant, or to some one capable of receiving it for him, the certificate, or stock, if it should be so classed, which was attached to the note declared upon, constituted no tangible right of the defendant capable of being the subject of a pledge or chattel mortgage. While appellee, Turner, may have had, and doubtless did have, for some purposes and as against some persons, a qualified interest in or right to the stock for which he subscribed, yet in truth, as we think, such stock has never been issued to him within the meaning of the constitutional provision quoted. True, appellee testified that he “understood the shares were to be issued at once and held as collateral” for the notes, and that he signed both the notes and the subscription contract upon that agreement, and, in effect, that he considered himself as the owner of the stock; yet he further testified that he never was a director or officer in the corporation, or sustained any relation thereto, save that arising from, his subscription contract and notes; that he never saw this certificate or stock until it was produced in court and. never had it in his possession; that it was a fact that “Capt. Martin stated the certificate would be delivered to me when I paid the notes in full”; that when he paid the $2,500 note he “never demanded of any one the delivery of the stock, or any part of it, as it was to be held as collateral for the notes, and it was my understanding the stock was not to be delivered until I had paid the notes in full.” He again testified:

“I never demanded delivery of this stock, because it was agreed from the start that they were to hold the stock until payment of the notes.”

Mr. Martin’s testimony was to the same effect. Mr. Camp testified without contradiction that;

The certificate of stock in question, “like all others, was written up at once as a matter of convenience and to save bookkeeping. Otherwise we would have had to keep an account with each stockholder; but by writing up the stock and attaching thereto the notes the notes were entered on the bills receivable, and, when the dividends were paid, it was only necessary to enter it on the backs of the note, and thus not keep a separate account with each stockholder, and the stock was ready to be delivered when the notes were paid in full. * * * This certificate was never out of the possession of the trust company until it was exhibited here in court this morning. The Cattlemen’s Trust Company never received any part of the $2,500 note, nor has it received payment of any part of the principal or interest of the $7,500 note.”

The trial court evidently concluded as an inference from the facts pleaded that the certificate of stock mentioned in the testimony was “stock” of the corporation, and that the signing thereof, tearing it out of the stock book, and attaching it to the defendant’s note was a “delivery” of such character as to constitute an issuance of the stock. Mr. Cook, the same author hereinbefore referred to, in the second edition of his work (section 10), says:

“A certificate of stock is from one point of view a mere muniment of title, like a title deed. It is not the stock itself, but evidence of the ownership of the stock; that is to say, it is a written acknowledgment by the corporation of the interest of the shareholder in the corporate property and franchises; it operates to transfer nothing from the corporation to the shareholder, but merely affords to the latter evidence of his rights. It should be clearly apprehended that the certificate is not the stock, but merely written evidence of the ownership of shares. Accordingly it follows that shares have no ‘earmarks,’ that one share cannot be distinguished from another share, but that it is only the certificates which are distinguishable one from the other by their number and in other ways. The certificate, therefore, has value in itself only as evidence, and, apart from the shares which it represents, it is utterly worthless. And even as evidence it is not in every ease essential; it is merely a convenient voucher, which the shareholder has a right to receive if he asks for it. One element of its value to the shareholder is that it is prima facie evidence of his title.”

But, if the certificate in question should receive a more liberal construction and be considered as stock, it cannot be said that it was delivered to the defendant either actually or constructively. It never passed out of the hands of the appellant corporation. This is conceded. It is said by our Supreme Court in the case of Tyler Building & Loan Ass’n v. Biard & Scales (Sup.) 171 S. W. 1122, that a deed delivered by the grantor to his agent for delivery to the grantee in accordance with specific instructions is not in escrow while in the hands of the agent. In speaking of “delivery” in the law of sales, it is said in 85 Cye. pp. 188, 189:

“The word ‘delivery’ in the law of sales may signify either an actual or a constructive delivery. Actual delivery consists in giving' to the buyer or his servants or accredited agent the real possession of the goods sold. Constructive delivery comprehends all of those acts which, although not truly conferring real possession of the goods sold, have been held constructione juris equivalent to acts of real delivery, and in this sense includes symbolical or substituted delivery. Both actual and constructive delivery contemplate the absolute giving up of the control and custody of the goods on the part of the seller and the assumption of the same by the buyer.”

So that, as it seems to us, it cannot be said that the certificate for stock issued in the name of the defendant, even treating it as stock of the corporation, was delivered, in a legal sense, to the defendant so as to pass to him anything other than some contingent, qualified right. The certificate at all times, as shown by the undisputed testimony,' remained with the corporation, subject to its exclusive control, and could not have been effectively sold, transferred, or circulated in any way by the defendant. It certainly cannot, as we think, be said to have been “issued” within the terms of the inhibiting constitutional provision. The term “issue” is thus defined in Webster’s Unabridged Dictionary:

“To send forth or give out officially; delivered by authority; give to the public; as, to issue money, ammunition, or commands; to issue a journal; to bring to a conclusion or final issue; settle.”

A number of constructions of the term are also given in 4 Words and Phrases, 8778, 3779. We will refer to but a few of them to illustrate our conclusions. It is there said:

“The word ‘issued’ ordinarily means ‘emitted’ or ‘sent forth,’ and, in the absence of other definition, that must be taken to be the sense in which it was used in the legislation of Kansas.” Corning v. Meade County Com’rs, 102 Fed. 57, 60, 42 C. C. A. 154.
“The terms ‘issued’ or ‘put in circulation,’ ” in a statute providing that no banking association shall issue or put in circulation any bill or note, “have a restricted, special, and almost technical meaning relating exclusively to the money currency of the country, or, in the language of the general banking law, to ‘circulating notes in the similitude of banking notes.’ ” Curtiss v. Leavitt, 17 Barb. (N. Y.) 309.
“The term ‘issue,’ as used in the Negotiable Instruments Law, means the first delivery of the instrument, complete in form, to a person who takes it as a holder” — citing the statutes of Massachusetts, Ohio, Virginia, and North Dakota.
“In financial parlance the term ‘issue’ seems to have two phases of meaning. ‘Date of issue,’ when applied to notes, bonds, etc., of a series, usually means the arbitrary date fixed as the beginning of the term for which they run, without reference to the precise time when convenience or the state of the market may permit of their sale or delivery. * * * When the bonds are delivered to the purchaser, they will be ‘issued’ to him, which is the other meaning of the term.” Yesler v. City of Seattle, 1 Wash. 308, 25 Pac. 1014.
“The ordinary and commonly accepted meaning of ‘to issue’ is to send forth, to put into circulation, to emit, as to issue bank notes, bonds, etc. * * * To issue tax bills, then, as ordinarily understood, necessarily includes delivery to some one; just as municipal bonds may be written out or printed and signed, but they are not issued until sent out, delivered or put into circulation. And, where tax bills are to be given to a contractor for a public improvement, and are prepared for delivery to the contractor, they are issued when he takes the same and gives his receipt on the face of the register of the engineer, whose duty it is to register the same in his office.” Folks v. Yost, 54 Mo. App. 55.
“A county warrant or order is ‘issued’ when made out, and placed in the hands of a person authorized to receive it, or is actually delivered or taken away. So long as a county warrant or order is not delivered or put into circulation, it is not ‘issued.’ * * * If a warrant or order unlawfully directed to be issued by a board of county commissioners remains in the hands of the county clerk, and is not delivered, or sent out, or put into circulation, by the county clerk or any one else, the wrong attempted * * _ * does not succeed, because there is no actual issuance of the warrant.” State v. Pierce, 52 Kan. 521, 35 Pac. 19.

Other definitions -of like import are given by the authority referred to, but we have quoted sufficiently, we think, to illustrate the conclusion already stated that, in our opinion, the stock in the appellant corporation for which the appellee contracted was never, in fact, issued to him in violation of the constitutional and statutory provisions oti the subject. We think this conclusion /is also supported by a number of our own authorities. Thus, in the case of Cope v. Pitzer, by this court, 166 S. W. 447, Cope, among other things, subscribed for ten shares of the capital stock in the Wichita Southern Life Insurance Company, agreeing to pay therefor the sum of $2,500, evidenced by two promissory notes, one of which was payable to S. A. Pitzer, who solicited the subscription for and on behalf of the company. Pitzer instituted suit upon the note executed to him, and recovered judgment thereon. Among other findings of the trial court not necessary to state, was the following:

“The said company delivered no stock to the defendant on the execution of said contract and notes, and no stock has been delivered to defendant thereon, and said company has not agreed to deliver any stock thereon until said note for $2,000 is paid in full, and demands payment of said note as a prerequisite for issuing said ten shares of stock, or any part thereof, to defendant, but said company stands ready to deliver to the defendant said ten shares of stock on payment of said note for $2,000.”

We held, as did the lower court, that the subscription contract was valid and the notes enforceable.

In Horn Bros. v. Baker, 173 S. W. 474, it appears by the opinion of the Galveston Court of Civil Appeals that the defendants subscribed for stock in a proposed corporation, and in evidence of their agreement thereof• executed a note secured by a chattel mortgage, but there was no agreement on behalf of the corporation to sell and deliver the stock on their promise to pay therefor, and the stock was not, in fact, delivered. The court upheld the validity of the note, saying:

“We shall not discuss-appellants’ assignments cf error in detail. The evidence, when analyzed, shows that no agreement was made with Horn Bros., at the time they subscribed or afterwards, to sell and deliver to them the stock upon their promise to pay for it. No fraud was practiced to induce their subscription. They, just as the other subscribers, subscribed for so much of the capital stock of the proposed corporation. When the charter was issued and the corporation accepted the promise of Horn Bros, to pay for the five shares, their liability evidenced by the subscription was complete. The execution of the note was only another expression or admission of liability, and was of no greater dignity than the contract of subscription would have been had the note not been given, in so far as it affects the liability of the corporation’s subsequent creditors; for, having been executed as a part of the same transaction, the note and subscription contract evidenced one contract only, and that was to take and pay for the stock. That such a transaction does not contravene section 6 of article 12 of the Constitution we think clear, and are sustained in this conclusion, we think, by the following authorities: Street Railway v. Adams, 87 Tex. 125, 26 S. W. 1040; McCarthy v. Texas Loan & Guaranty Co., 142 S. W. 96; Houston Eire & Marine, Ins. Co. v. Swain, 114 S. W. 154.”

The name court, in the case of F. & M. State Bank v. Falvey, 175 S. W. 833, upheld the validity of a subscription and notes by Ealvey very similar in character to those here under consideration, notwithstanding the fact that in that case the note there under consideration had actually passed out of the hands of the corporation into the possession of the bank. It is true that another one of ‘the same series of notes involved in the consideration of the case last above referred to was declared to be invalid by the Court of Civil Appeals at El Paso in the case of Sturdevant v. Ealvey, 176 S. W. 908, on the ground that the transaction was vio-lative of the constitutional provisions and statute here under consideration. The El Paso court referred without disapproval to the cases upholding a mere subscription contract between the parties where there had not been an issuance and delivery of the stock, and distinguished the decision by the Galveston court above referred to on the ground evidently that in the El Paso court case then under consideration the agreed facts of that case showed “that the stock for which the note was given was issued and delivered to F'alvey.”

By the common law of the land owners of stock in corporations are entitled to a ratable share in its assets, and the evident purpose of the constitutional and statutory provisions under consideration was to protect the purchasing public in the acquisition of stock or bonds of corporations that was not represented by an equivalent in the way of assets belonging to the corporation issuing the stock, and it is not easy to apprehend in what way, jmder the circumstances of this case, the stock market of the country can be demoralized or a purchaser therein injured. It is clear that what is designated as the stock in the case before us was .not “emitted,” circulated, or issued, so as to become the subject of a commodity on the market, nor was it in the power either of the corporation or of the defendant, Turner, to so place the stock in circulation. The substance of the transaction, as we have before indicated, seems rather to have been a mere contract for the acquisition of stock by the defendant, Turner, which, for aught that appears in the record, was of value to him; it not appearing that the appellant corporation was insolvent, or that its stock was worth less than its face value. It was a contract which, upon payment, or tender of payment by him, he would have been entitled to enforce, and likewise a contract, which in turn may, as we think, be enforced by the corporation.

There are a number of what purport to be findings of fact which are attacked by appellant, and which seem to be at variance with the facts as we have stated them, but, as before indicated, we think them mere conclusions or inferences from facts not to be classed as findings of fact upon conflicting evidence, as contemplated by our statutes on the subject, and therefore they are not approved. The fact that appellee understood that the stock was owned by him, and that in some respects he was so treated by appellant, cannot alter the undisputed fact that the stock was not issued or delivered to him, nor was it so agreed. No amount of verbal manipulation can disguise or alter the legal effect of the undisputed facts in this case, and upon such facts we think the judgment below must be reversed, and here rendered for appellant, for the reasons hereinbefore given.

Reversed and rendered for appellant.

On Motion for Rehearing.

Counsel for appellee have presented a lengthy motion for rehearing which we have endeavored to consider with all of the care such a painstaking and able presentation merits. We, however, believe that in our original opinion we made a fair statement of the substantial facts upon which the rights of the parties in the case depend, and therefrom drew the proper legal conclusions. It is well settled that we need not set out the evidence upon which our conclusions of fact are based, and if by inadvertence we overlooked any “undisputed fact,” it will not operate to appellee’s prejudice before the higher reviewing tribunal, inasmuch as our Supreme Court may consider “undisputed” facts with or without finding on our part. See Biano Co. v. Hollingsworth, 91 Tex. 49; Stewart v. Robbins, 27 Tex. Civ. App. 188, 65 S. W. 899; Rountree v. Thompson, 30 Tex. Civ. App. 595, 71 S. W. 574, 72 S. W. 69; Vansickle v. Watson, 103 Tex. 37, 123 S. W. 114.

The motion for rehearing and the additional findings is accordingly overruled.
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text:
    J. M. GUFFEY PETROLEUM CO. v. DINWIDDIE.
    (No. 8276.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 27, 1915.
    Rehearing Denied Jan. 8, 1916.)
    1.Master and Servant &wkey;>276 — Action for Injury — NegligenciA-Sufficiency of Evidence.
    Evidence in a servant’s action for injury from falling from a ladder on the side of an oil derrick, held to sustain the jury’s findings that the defendant’s negligence in affixing a step to the ladder and in allowing it to become and remain loose and unsafe, was the proximate cause of plaintiff’s injury.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. <&wkey;>276.]
    2.Master and Servant &wkey;>297 — Action for Inj cry — Findings—Judgment.
    Findings that defendant was guilty of negligence in the construction of a ladder, which negligence was the proximate cause of plaintiff’s injury, would support a judgment for plaintiff.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. ,&wkey;297.]
    3.Appeal and Error &wkey;>1071 — Review-Finding of Immaterial Pact.
    'iL'he finding of immaterial facts cannot be made ground for reversal if the judgment is not in conflict with the findings upon material issues.
    [Ed. Note! — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. <&wkey; 1071.]
    4. Trial <&wkey;35D-IssuES — Invitation.
    In a servant’s -action for injury from falling from a ladder on-, defendant’s oil derrick, defendant’s requested issue as to its negligence in the construction and maintenance of the steps of the ladder was an invitation to the court to submit issues as to defendant’s negligence in the manner in which a step was fastened to the ladder and in allowing the step to become loose and unsafe.
    [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 829, 834-839; Dec, Dig. &wkey;351.]
    5. Trial i&wkey;352 — Special Interrogatories— Statute. v
    Special issues as to the -defendant’s negligence in fastening a step to the ladder, and in allowing the step to become loose, sufficiently presented the question suggested by the requested charge as to -whether defendant was negligent in the construction and, maintenance of the steps of the ladder, and in a form more in accordance with Vernon’s Sasdes’ Ann. Civ. St. 1914, art. 1984a, providing- that the court on the request of either party shall submit a cause upon special issues, stated distinctly and separately, so as to be answered separately.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]
    6. Evidence <&wkey;>587 — Sufficiency—Circumstantial Evidence.
    A material fact or issue may be established as well by circumstantial evidence as by direct evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2436; Dee. Dig. &wkey;>587J
    7. Damages &wkey;>208 — Action for Injury — Impairment of Earning Capacity.
    In a servant’s action for personal injury by falling from a ladder on defendant’s oil derrick, striking upon his back with his head on some iron tubing, evidence held to warrant a submission of plaintiff’s impaired ability to earn money in the future.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. &wkey;208.]
    8. Triad <&wkey;>232 — In struction s — Error.
    Where a servant’s action for personal injury was submitted to the jury on special issues, instructions informing the jury of the facts to be found to entitle plaintiff to recover were not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. &wkey;232J
    9. Tbial &wkey;>351 — Requested Instructions— ■Given Instructions.
    In a servant’s action for personal injury, the refusal of special issues requested by defendant was not error, where the special issues submitted by the court sufficiently comprehended all of the materia] issues in the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. &wkey;351.]
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    Action by T. B. Dinwiddie against the J. M. Guffey Petroleum Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 168 S. W. 439.
    Carrigan, Montgomery & Brittain, of Wichita Falls, for appellant. E. W. Nicholson and J. M. Blankenship, both of Wichita Falls, for appellee.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

The appellant company appeals from a judgment in appellee’s favor in the sum of $4,225. The judgment was awarded as damages for personal injuries suffered by appellee in a fall from a ladder affixed to an oil derrick owned and operated by the Petroleum Company. In his petition appellee alleged that the ladder had been improperly and negligently constructed and maintained. To appellee’s petition the appellant answered by a general denial, pleas of contributory negligence, and assumed risk. Appellant also pleaded a legal settlement with the appellee. The case was submitted to a jury upon special issues, which, having been answered in appellee’s favor, and the judgment as above stated, followed.

The majority of questions presented by appellant’s assignments of error are dependent upon the state of the evidence. Complaint is made of the refusal of the court to give an instructed verdict, of the court's charge in submitting the issue of negligence alleged, and of the verdict of the jury, all upon the ground, substantially, that there was no affirmative proof of the negligence alleged and upon which appellee’s case was based. But a careful examination of the evidence has resulted in the conclusion on our part that all such assignments of error must be overruled. Briefly and substantially stated, the evidence sufficiently shows that appellee was one of the appellant’s employés on January 23, 1913, and that as such it was at times necessary in the performance of his duty to ascend and descend a ladder affixed to an oil derrick over a well designated in the testimony as “Mailer Well No. 5.” The derrick was in the shape of a pyramid 80 or 90 feet high, about 22 feet wide at the bottom, and about 6 feet wide at the top; the ladder was constructed from the bottom to the top by two plane 2x4 pieces of timber or “runners” spiked to the outside of the derrick, with steps made of plank 1% inches thick fastened to the runners or upright timbers of the ladder with eightpenny nails driven, one at each comer of the step, through the step and into the runner. On the day of the accident appellee ascended the ladder to a platform erected within the frame of the derrick about 60 feet from the bottom, for the purpose of pulling, as was his duty, some tubing out of the well. The appellee himself was unable to detail how his fall occurred, the injury, as his testimony tends to show, having destroyed his recollection, and no witness saw appellee at the moment his downward course began. Another employe, however, immediately before saw the appellee walking on the girders of the derrick on about a level with the platform just mentioned towards the ladder; immediately afterward the witness heard an exclamation, “Oh!” on appellee’s part, and looked up and saw appellee falling, with a step from the ladder immediately following him. Appellee, as the evidence tends to show, fell upon his back with his head on some iron tubing, and was seriously injured in his head and shoulders. It was found that the step was from the ladder some 55 or 60 feet from the bottom of the derrick; that the top nails on each side of the step had been pulled out unbent; that the bottom nails on each side were bent back almost double across the edge of the plank or step. The witness Henery Ammann testified, in substance, that he had followed the vocation of contracting and building for a livelihood some 27 or 28 years, and as a contractor had built ladders as high as 70 feet. He examined the step mentioned and the nails with which it had been attached to the runners, and he pronounced the nails common eightpenny nails; and gave it as his opinion that:

“A ladder 52 feet high constructed with steps of 1% inches, using one common eightpenny nail in each corner, is not a safe and propel construction of that ladder. An eightpenny common nail is generally about 2% inches long, and when that nail passes through that 1% inch step there is about 1% inches left to go into the upright to hold it.”

There was testimony on the part of other witnesses that the derrick in question had been built in August, 1912, that the dripping of oil, etc., had a tendency to loosen the steps of the ladder, and that it was proper to make frequent examinations thereof in order to insure safety in its use, and several witnesses testified that they had not noticed any inspection or examination of the ladder in question during the period of their 6 or 8 months’ service.

The jury in answer to special issue 10, submitted by the court, specifically found that the defendant company had been “guilty of negligence in the manner in which the step was affixed to the ladder.” And in answer to special issue 11 found that the defendant company was “negligent in allowing such a step to become and remain loose or out of repair and unsafe.” The jury also gave an affirmative answer to issue No. 12, which was in the following form:

“If you have answered either issue No. 10 or 11 in the affirmative, then was such negligence the proximate cause of plaintiff’s injury?”

We feel no hesitation in saying that in our opinion the evidence not only authorizes the submission of these issues, but is fully sufficient to support the findings of the jury thereon. Or, if it be conceded, as is insisted by appellant, that the evidence failed to support the finding in answer to issue No. 11, it cannot materially affect the result. There yet remains the finding undoubtedly supported by the testimony that the appellant company was guilty of negligence in the construction of the ladder, and this finding, with the finding in answer to issue No. 12, as undoubtedly supports the judgment. As said in Kelley v. Ward, 94 Tex. 289, loc. cit. 294, 60 S. W. 311:

“The finding of immaterial facts cannot he made ground for reversal, if the judgment is not in conflict with the findings upon material issues.”

See, also, to the same effect, Sears v. Sears, 45 Tex. 557; Gibson v. Moore, 22 Tex. 616; O’Farrell v. O’Farrell, 56 Tex. Civ. App. 51, 119 S. W. 901.

Moreover, appellant requested the submission of the following issue:

“State whether or not the defendant was negligent in the construction and maintenance of the steps of the ladder on the derrick on Miller well No. 5, as described in the plaintiff’s petition.”

By numerous decisions this amounted to an Invitation on appellant’s part to the court to submit both issues enbodied in the special instruction.

And to the further contention of error on the part of the court in refusing this special instruction, it is to be observed that special issues 10 and 11, as submitted by the court, sufficiently presented the question suggested in the special charge and in a form, too, more in accordance with article 1984a of the Revised Statutes, which, among other things, specially provides that the court, upon the request of either party, is required to submit a cause upon special issues raised by the pleadings and the evidence in the case, and which particularly declares that:

“Such special issues shall be submitted distinctly and separately, and without being intermingled with each other, so that each issue may be answered by the jury separately.”

See General Laws 1913, p. 113.

In connection with this branch of the case we might further add that while it is true no witness was able to testify that he saw the appellee, after starting towards the ladder as stated in the beginning, actually get thereon and saw appellee as he grasped the step of the ladder that gave way and saw the step as it pulled loose from its fas'tenings, yet no other theory of appellee’s fall seems consistent with the circumstances, and it is unquestionably true that a material fact or facts may be established as well by circumstantial as by direct evidence. The condition of the nails in the step as found immediately after appellee’s fall, the fact that the step was above him and not below in its descent, the fact that appellee fell backward upon his head and one shoulder, the fact that the ladder extended — particularly at the point where the step gave way — almost, if not quite, perpendicularly, the fact that the evidence tends to show that he had completed the performance of his duty on the platform in the derrick some 60 feet high and had started toward the ladder with the evident purpose of descending, all tend to negative the idea that the step of the ladder was displaced by a kick or by appellee’s body coming in contact therewith as he descended, but on the contrary, as stated, tends to show that appellee as he got upon the ladder, or soon thereafter, stepped upon or grasped the step which gave way because of its original insecure construction, or because it had, by reason of a failure to inspect, been allowed to become weakened and insufficient to support appellee’s body.

Without reciting what it is, we fail to discover in the evidence any reasonable basis for the contention that appellee ratified the release of the damages executed by him at a time when the evidence shows he was undoubtedly of an uncomprehending mind. Nor do we find a suggestion in the evidence, as appellant urges, that it was appellee’s duty to inspect the ladder from which he fell, or that in the performance of his duty such defects were obvious, or must necessarily have been discovered.

There is a contention in several forms that there was no evidence of an impaired ability on appellee’s part to earn money in the future, and hence that a special instruction to that effect should have been given, and that the court erred in permitting a consideration of this element in the measurement of the damages. But, in view of the small verdict that was rendered and of the evidence relating to the subject, we feel but little patience with the contention. The good faith of appellee’s testimony that his recollection of the transaction had been destroyed by his fall was substantially admitted on the submission of the case before us. Chas. Boone testified:

That he did oil field work for the defendant, and had known the plaintiff for 7 or 8 months; had social intercourse with him off and on before Ms injuries and since, and worked with him; that there was a difference in his mind; that before the plaintiff’s injury “he seemed to be a very bright, ambitious young’ man, and since then he never seems to have the same ambition. * * * He seems to forget his work. He would leave his stops open, he would lose oil from the tanks.”

Arvin Anderson testified;

“It seems to me that Dinwiddie’s mind is impaired to a certain extent; that is my opinion, and my opinion is formed from my association with him. * * * He gets lost in what he is talking about. He cannot eariw on a conversation now as he did before his fall. He is complaining of his hip and his head considerably.”

O. D. Baker testified:

“I have seen Dinwiddie at work after he fell. He switched water at the time I noticed him, and he would tell you that a tank was open or closed and it was right to the contrary. Sometimes he was right and sometimes he was wrong. He was firing a boiler and I relieved him. I relieved him because I was instructed to do so.”

The plaintiff himself testified:

“My head has never quit hurting me up until to-day. I have a dull ache right over my eyes seemingly. My head since the injury has felt thick-headed, feels dull, have a dull headache most all the time; I do not know it seems like it is hard for me to comprehend anything. I do not learn, and it is hard to understand anything with much meaning' to it, and that condition exists now. That condition did not exist before I got hurt. I was 21 years old at the time of my injury on the 23d of January, 1913.”

And it was agreed in open court that the plaintiff had a life expectancy of 40 years. Dr. J. E. Daniels testified:

“I have examined his head. * * * I would consider it a permanent injury. It will affect his memory, cause inability to collect himself, quick or rapid, and lack of interest in things. * * * It is my opinion that Dinwiddie has a lacerated brain. * * * It would be a permanent injury. The probable results from a lacerated brain are the lowered vitality of the brain cells, subject to epilepsy, paralysis, and all of the diseases that go with an affected brain. !S * * A man who has received injuries of this kind is more susceptible of disease.”

The effect of this evidence is not destroyed by the fact that after appellee was able to leave the hospital the appellant company furnished him with employment (but of a different grade, as there is evidence to suggest) at substantially the same wages appel-lee had received before his injury. Appel-lee’s impaired mentality, as shown by the evidence, according to all human experiences must necessarily result in an impairment of his earning capacity; at least the evidence is such as to authorize the court to submit an element of damages for the consideration of the jury.

As introductory to the special issues the court in his charge, in general terms, defined the duty of the master to use ordinary care to furnish the plaintiff as its servant with reasonably safe appliances for the purpose for which they were to be used, and to exercise such care to keep such appliances in reasonbly safe condition. Also in general terms he defined the term “negligence,” and gave the rule of law relating to the issue of assumed risk wMch had been pleaded by the appellant company; also the rules of law by which the jury should be governed in determining the issues relating to the release of damages pleaded by the appellant company. Error is assigned to these charges on the ground, substantially, that the charges indicated to the jury the effect of their special findings contrary to the real purpose and intention of the law. The precise point seems to have been presented in the case of T. & F. S. Ry. Co. v. Casey, 172 S. W. 729. It was urged by the appellant in that case:

“That by informing the jury that under a certain state of facts the plaintiff in the suit would recover a judgment, and that under a certain other state of facts she could not recover, the court thereby influenced the jury to find the facts which required a judgment in the plaintiff’s favor.”

In disposing of this contention the court, speaking through Justice Hodge, there said:

“This argument is based upon the assumption that the jury would take into consideration the character and conditions of the parties to the suit, and would be moved by a feeling of sympathy for the plaintiff. It may be that in controversies of this character such emotions do sometimes control the verdicts of juries; but, in the absence of some evidence to that effect, we cannot assume that such bias and sympathy existed. The mere finding of facts favorable to the plaintiff is not sufficient when the evidence is of that character which warranted such finding. To gratuitously assume that a jury which has been properly tested and selected yielded to such sympathy, or was probably controlled by such emotions under such conditions, is to impeach the system of trial by jury for being fundamentally unreliable. Where a general verdict is to be rendered, the jury are necessarily informed of what is required to be found in order to entitle either party to a judgment. Evidently the law does not contemplate that such information should be concealed from juries in order to insure absolute impartiality.”

The statute hereinbefore cited (General Laws 1913, p. 113), among other things, further specifically prescribes that:

“In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.”

In appellant’s proposition and statement under the assignment raising the question indicated no inaccuracy in the court’s general instruction is pointed out, and we approve as applicable here what we have quoted from the opinion in the ease of Railway v. Casey, supra.

By several assignments, error is assigned to the action of the court in refusing to submit a number of special issues requested by appellant. We think it sufficient to say, without extending our opinion by a particular analysis of these several assignments, that the special issues submitted by the court sufficiently comprehended all of the material issues of the case, and we conclude that all assignments of error should be overruled, and the judgment affirmed.

Affirmed.
      &wkey;sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. MUHLEMANN.
    (No. 5573.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Master and Servant <©=5278 — Injuries to Servant — Liability oe Master — Evidence —SUEEICIENCY. . , .
    . , . Evidence held insufficient to show liability of a railway company for injuries to a cax inspector received when inspecting a locomotive on a turntable, when the turntable was moved without warning, in spite of the custom to give warning when the turntable operator could see that any ono was about the engine, where the evidence also showed that the injured servant could not have been seen had the operator looked.
    [Ed. Note. — For other cases, seo Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. <®^27S.]
    2. Master and Servant <@=>293 — Injuries to Servant — Liability oe Master — Actions— Instructions.
    Where a car inspector was injured while inspecting a locomotive on a turntable which was moved without warning in spite of custom to give warning if any one could be seen about the engine, it was error to refuse to instruct that the employé could not recover if, had the turntable operator looked, ho could not have seen the employé.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <@=>293.]
    Appeal from District Court, Bexar County; R, B. Minor, Judge.
    Action by Fred Mulilemann against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Pious-ton, and Templeton, Brooks,' Napier & Ogden and Ed W. Smith, all of San Antonio, for appellant. Engelking & James, of San Antonio, for appellee.
   MOURSUND, J.

This is an appeal from a judgment for $4,500 on account of injuries to appellee’s foot sustained on April 21, 1913, while he was in appellant’s employ in the capacity of engine inspector. Appellee alleged that he was at the time inspecting an engine on appellant’s turntable near its roundhouse in San Antonio, and was under the end of the tender at the edge of the turntable; that the omployés in charge of the turntable knew, or by the exercise of due diligence were bound to know, of his situation ; that while he was so situated the table was turned without notice or warning to him; that it was the custom not to turn the table without giving such notice or warning; that when the table was turned his foot was caught and injured. The material allegations of the petition were traversed by defendant, and the existence of the alleged custom specially denied. The facts were pleaded with groat particularity, it being averred (among other things) that it was not plaintiff’s duty to inspect engines on the turntable ; that it was his duty to govern his work and movements by the work and movements of those operating the table; that the table was liable to be turned at any time without notice, and plaintiff knew that fact; that he could have easily protected himself against injury incident to the turning of the table without notice.

Appellee was an engine inspector. Scott was engine “hostler,” whose duty it was to take engines upon the turntable and thence into the roundhouse. He had a helper by the name of Smith. Appellee testified: That when he got to the engine neither Scott nor Smith was there. That he had not seen them up to that time, and did not know who put the engine on the turntable. When he looked out of the roundhouse and saw the Katy engine on the turntable, he said: “Here’s a strange Katy. I am going out to inspect her.” That he was “suspicious” that she would be turned and get out right away. The engine was headed west and was long enough to nearly cover the turntable. The end of her tender was within a few feet of the edge of the turntable. He went to the north side and then came around on the south sine; inspected the cab; then the tender ; then inspected the head of the engine; then went along the south side inspecting the south side of the engine and tender until he got to the rear of the tender and the east end; during all of which time he did not see Scott or Smith, or any one else, around there. He went around to the east side of the tender and near the east edge of the turntable, where it joined the pit wall. He took the height of the coupler, and then inspected the coupler springs and coupler. He testified that in order to do this “he had to stoop down under the end of the tender and go right under.” Up to this time he had not seen anybody about the engine at all. Just before he started to go under the tender he stepped around the corner and looked to see if there was any one in the motor house. He testified:

“That is the custom. If there was a man in the power house I would not have gone under, and it was his time to look after I went under.”

1-Ie knew the engine might be moved in a minute; but that the employé moving it must look out from the power house before moving it. His testimony as to what occurred next, as given in his direct examination, is as follows:

“I went under her and inspected the back coupler, and I went underneath like this (indicating), and I was away under and looked up under the frame (indicating by lying down). I saw the coupler was all right, and I came out. As I turned to get out, my foot got catched between the rails. The turntable was running, and it took mj foot down between the table, and while the engine was right even with the edge it threw me on the edge, and I put my arm this way (indicating) on the coupler and kept pulling on my foot, and my foot went down.”

On cross-examination lie testified further:

“X could see the power house from where I was under the coupler when I went under. Then after I turned I looked up and saw the coupler, I didn’t look at the house any more, I went to inspecting. When I stooped under the tender, I looked up under the tank towards the power house to see if I could see the power house, and I could see the power house, and there was nobody in there. I looked to see about that, because it was my duty. I was under there about a minute. I don’t remember what I testified to on the other trial, but it may have 'been less than a half a minute or more than half a minute that I was under there. A man at the power house could see under the tender and see a man at the back end of the tender. When the turntable started, I was just getting ou.t from under the engine. Just as the turntable got started, I was on the turntable. The moment I got up, I was like this (indicating by leaning in a slanting position), and that foot was back there (indicating). I straightened; the table caught my foot at the same time it started. When the table started, I had both my feet on the table, and when the table moved around in some way my left foot caught, and the table went about two stalls, about twelve feet, something like that, before X got my foot out. My entire foot was down between the edge of the turntable and the pit wall, down to the ankle. The toes were backward towards the east and the heel towards the west. I had inspected the front end and the south side of the engine and had inspected the east end before the accident happened. The north side was still to be inspected, and after the accident happened I inspected die north side, then I went around to where my helper, Brown, was, and told him I had gotten hurt.”

He testified he afterwards saw Scott; that he came out of the power house and went along the north side of the engine and came around the head of the engine, and appellee met him on the hack of the tender; that he came hack there to see if the track was all lined up, and that appellee said: “Scott, you have got me,” to which he replied:

“I can’t help it, you know I wouldn’t hurt you, but I haven’t got no helper this morning, and I haven’t got time to look around.”

Scott denied that any such conversation took place.

Appellee’s version of the custom pleaded by him is as follows:

“It is always the rule for the man who is moving the turntable to look out before moving it, and if he sees anything or anybody at work on the turntable he would call out or holler at you before moving it. That was the rule. There was standing orders same as an engineer when he moves an engine either to blow the whistle or ring a bell. When the operator gets read;? to move the table, he always looks out, and if he saw me or any one on the table he would call out or holler at me. He would holler : ‘Look out there! Get off of there! I am going to move the table.’ He would look out, and if he saw me or any one on the table he would holler at me that way. Whoever operated the table was to look out before they started the table, give a warning to get out. When the table is safe, then he would move the table, and if he saw no one he would naturally not holler.”

The motor house is situated about 4 or S feet from the track on the turntable and about the same distance from the edge of the table. It is about four feet square. The lower part is formed by a wooden frame with a door next to the track. The upper part is formed by glass windows the size of the house. In order to move the turntable, the employs steps into the motor house and pulls a lever, which causes the turntable to be moved. It is impossible for any one on the turntable to be injured by moving the same unless he gets some part of his person between the edge of it and the pit wall, there being an opening, estimated by appellant at from 2y2 to 3 inches, and by Cavanaugh, who measured it, at from % of an inch to an inch. The head of the engine was towards the motor house. It was about 75 or 80 feet across the turntable. There was no rule requiring any signal to be given when the turntable was moved. The testimony supports a finding that it was customary for inspectors to sometimes inspect engines while on the turntable. Appellant had the same engine run onto the turntable and experiments made by three disinterested witnesses for the purpose of ascertaining whether a person in ap-pellee’s position, as testified to by him, could be seen from the motor house. One of these, Lehr, testified that on account of the angle, the tank and trucks, in fact all the lower part, obstructed the view so that he could not, from any part of the motor house, see back of the tender; that a person would have to leave the motor house and walk around the engine to see whether there is any one behind the tender at the edge of the turntable. It is true that Horan, one of the three, placed himself a little further back than appellee was. They all testified to being unable to see any one behind the tender. Lehr testified that when he went behind the tender he stooped under where the coupling was; that he was in a squatting position underneath the coupling. Photographs were taken from the motor house which show that the angle was such that the line of vision would be greatly obstructed by the wheels and the portions of the tender which hang low. Scott testified it was impossible for a man in the motor house to see a man crouched under the rear end of the tank on the other side of the turntable; that even where the drawhead is you could not see him. As the angle of vision would be downward, and the floor of the tank being about 4 feet from the ground, the wheels 36 or 38 inches high, making the axles half that height, and the brake shoes and beam as well as the sand board still lower, it is evident that it would be difficult to see any one behind the rear axle. In addition, one looking from a point 4 or 5 feet from the engine, to the rear of the tender, a distance of about 75 feet, would .have an angle which would bring the wheels and all the other obstructions almost in a continuous line, to say the least. Upon the former trial of this case appellee was asked the following question:

“But when you stepped back from' the southeast comer around to the east end and stooped down under the head of the engine,. you were not in sight of anybody up at the power house on the west end of the engine on the south side of it?” He answered: “There was nobody there.”

He was then asked:

“But if there had been, you would not have been in sight of anybody there, would you?” His reply was: “I don’t think they could see me.”

Appellee in his brief contends this testimony was not inconsistent with that on this trial, because the question referred to “head of the engine,” instead of the tender. This excuse is worse than none, for it is apparent, when the whole question is read, that it related to the very time when appellee had stooped under the coupler after stepping from the southeast comer of the tender, from which he looked to the motor house. This is also shown by his previous testimony, appearing on the preceding page of the transcript of the former testimony. On the former trial he testified, also, that the table was standing still while he was down, and just as he got up his foot caught; that just as he got up the table was turned; that he had raised himself; that he looked under there about ten seconds; that when he started to get out he said, “Let’s go before it starts”; that he knew it was liable to be turned at any time.

It is apparent that no theory of liability could be based upon the failure of appellant to send an employé to see that no one was behind the tender before moving the turntable, for the danger was very slight and easily guarded against. Nor did appellee ask that any such theory of liability be submitted. The evidence wholly fails to show that Scott had knowledge that appellee was inspecting the engine and tender, so we come down to the proposition whether the evidence warrants a finding that Scott, by the exercise of ordinary care, would have known of appellee’s situation. What care should have been exercised, and did the failure to exercise it proximately cause appellee’s injuries? He contends that appellant owed him the duty, pursuant to a custom to which he testified and which was supposed by appellant’s witness Nuhn to exist, of having Scott look out of the glass-topped motor house, and, if he saw any one on the turntable, give warning by calling. Scott did not call, and it does not appear that he looked out. He does not testify that he did so, and his statement to appellee indicated he did not look. There is, however, an issue raised by appellant as to whether Scott could have seen appellee had he looked, and this became the vital issue in the case; for, if the failure to look was not the proximate cause of appellee’s injury, he cannot recover. Ap-pellee testified that a man at the power house could see under the tender and see a man at the back end of the tender. He does not explain whether he ever made the experiment, or whether he is testifying to an opinion arrived at from the fact, as testified to by him, that when he went under the coupler he could see the power house and there was no one in it, so he turned, looked up, and saw the coupler. 1-Ie was getting out from under the engine just as the turntable started; that he was standing in a slanting position. If his testimony can be taken to mean that in such position he was visible from the motor house, it is certainly, to say the least, flatly contradicted by that of Lehr and other witnesses. As the testimony shows that the turntable can be instantly moved by moving a lever, and as he himself testified Scott was not in the motor house within less than a minute previous to its being moved, it is evident that had Scott looked he would not have seen appellee unless he could see him as he was rising to his feet behind the tender. In view of the contradiction in ap-pellee’s own testimony, for which no explanation at all has been offered, and of the overwhelming preponderance of the testimony to the effect that he could not have seen, the verdict should not be permitted to stand. It also appears that appellee did not rely upon the custom, for he took no pains at all to see whether any one looking from the motor house would by the exercise of ordinary care be able to see him. If his statement on this trial is correct, he was relying on his being able to watch the motor house from under the tender, which he might do through a very narrow opening, and one through which it would be practically impossible to see him from the motor house.

The appellant asked the court to instruct the jury that if they believed from the evidence that plaintiff, at the time of the happening of the alleged accident, was at such place and in such position that the operator of the turntable could not see him from the motor house, then he would not be entitled to recover. As the court had overruled appellant’s request for a peremptory instruction, this charge should have been given. There was no evidence from which a jury could find that Scott in the exercise of ordinary care would have known that appellee was inspecting the engine, unless it be deduced from the fact that if he had looked according to custom, when he started to turn the lever, he would have seen appellee.

The judgment is reversed, and the cause remanded.
      ®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    SMITH v. STATE.
    (No. 3903.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    Rehearing Denied Feb. 9, 1916.)
    Criminal Law <&wkey;608 — Continuance — Illness oe Defendant — Evidence.
    Where, on an application for a continuance on the ground that defendant, charged with violating the local option law, was sick and unable to go to trial, the court sent a physician to examine defendant, who swore that he could not find anything wrong with defendant, and that, though defendant complained of pains in his back, he had a normal pulse, no fever, and no visible or ascertainable signs of any disease, and was able to go to trial, and no other evidence was offered, the overruling of the application was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. &wkey;608.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    I. N. Smith, Jr., was convicted of violating the local option law, and he appeals.
    Affirmed.
    A. T. McKinney, of Huntsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at one year’s confinement in the state penitentiary.

The only ground presented claiming error is that the court erred in overruling his application for a continuance. An application was presented alleging that appellant was sick and unable to go to trial. The court sent a physician to the residence of appellant. The physician examined appellant and swears he could not find anything wrong with him; that, while appellant complained of pains in his back, yet he had a normal pulse, no fever, and no visible or ascertainable signs of any disease; that he was able to go to trial. No other evidence was offered. There was no error in overruling the application on this ground. He also contends that the attorneys of the Walker county bar would defend no man charged with bootlegging, and he desired further time to secure an attorney. The record before us discloses that he was defended by a very able member of the Walker county bar, Hon. A. T. McKinney.

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


author: DAVIDSON, J.

text:
    MORGAN v. STATE.
    (No. 3905.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Criminal Law <&wkey;1092 — Appeal—Bill oic Exceptions — Approval.
    The court on appeal from a conviction cannot consider a bill of exceptions from which the judge’s signature is omitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S03, 2829, 2834r-2S61, 2919; Dec. Dig. <&wkey;>1092: Judges, Cent. Dig. § 157.]
    2. Criminal Law <&wkey;1099 — Appeai>-Record —Statement op Facts — Time por Filing.
    A statement of facts filed on October 23d on appeal from a conviction at a term adjourned September 25th cannot be considered; more than 20 days having elapsed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. &wkey;> 1099.]
    3. Criminal Law <&wkey;1099 — Appeal—Record on Appeal — Statement op Facts — Approval.
    A statement of facts not approved by the trial judge or signed by the prosecuting attorney cannot be considered.
    [Ed. Note. — For other cases, see Criminal Lot, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey;>
    Appeal from Baylor County Court; T. J. North, Judge.
    C. A. Morgan was convicted of wife desertion, and he appeals.
    Affirmed.
    Payne & Gamble, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted, of wife desertion, his punishment being assessed at a fine of $200 and 90 days’ imprisonment in the county jail.

There are several interesting questions presented. The record contains a bill of exceptions which is not approved by the judge. His signature does not appear to it in any form. This bill of exceptions, had it been approved, was filed on the 8th day of September, and was never, apparently at least, presented to the judge, because his name does not appear to it either approving or disapproving it. It therefore cannot be considered.

There is what purports to be a statement of facts which was filed on October 23d. The court adjourned on 25th day of September. The statement of facts was not filed within the 20 days required by the statute, even had it been approved by the trial judge, which was not done. The statement of facts is signed by the attorneys for the defendant, but not by the state’s counsel nor approved by the judge; therefore it cannot be considered. In the absence of the statement of facts and bill of exceptions there is nothing re viewable, as it would be necessary to have the evidence in order to consider the matters urged.

The judgment is affirmed.


text:
    LANIER v. STATE.
    (No. 3911.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Burglary &wkey;ri5 — Trial—Questions por Jury.
    On a trial for burglary it appeared that a house was burglarized, and that a few days after the burglary defendant sold a pistol taken from the burglarized house. He testified that F. gave him the pistol and requested him to sell it, and that he did so. F. denied this. On the ex
      amining trial P. testified that he saw F. deliver a gun to defendant, and this testimony was introduced on the trial. Held, that this was a matter for the jury, and its verdict of guilty would not be disturbed.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 110; Dec. Dig. &wkey;?45.]
    2. Burglary <&wkey;42, — Burden of Pkoof — Explanation of Possession of Stolen Property.
    Where a burglary is shown, and defendant is found in possession shortly afterwards of some of the stolen property, and gives an explanation which would exonerate him, the state must show this statement to be false in order to obtain a conviction.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 80, 104-107; Dec. Dig. &wkey;42.]
    3. Criminal Law <&wkey;1159 — Review—Sufficiency of Evidence — Incompetency of Witness.
    Where no objection was raised to the competency of a witness for the state during a trial, the mere fact that it appeared on his cross-examination that he had once been convicted of lunacy did not require a reversal as for insufficiency of the evidence, since, while lunacy is presumed to continue, and the testimony must show to the contrary, this can be shown in various ways by any legitimate testimony which would show restoration to proper mental status.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-30S3; Dec. Dig. <s&wkey; 1159.]
    4 Criminal Law &wkey;>959 — New Trial — Motions — Postponement of Hearing.
    On a trial for burglary it was shown that defendant shortly after the burglary sold a pistol taken from the burglarized house, and he testified that F. gave him the pistol and requested him to sell it, but this was denied by F. When a motion for a new trial was taken up on November 27th defendant’s counsel stated that on November 23d he received information that two boys had been informed that F. made statements to various parties that he stole the pistol, and that defendant was not guilty. He further stated that he had been in attendance on the Court of Criminal Appeals, and in an examining trial, and had not received the affidavits, but had an appointment with the witnesses that morning to secure them. Held, that the refusal to postpone the hearing of the motion was not error, as diligence was not shown, and the evidence would have been impeaching and apparently hearsay, especially as it appeared that the court was still in session, so that an additional motion could have been made if the testimony was material.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2406-2411; Dec. Dig. <3&wkey; 959.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Bob Lanier was convicted of burglary, and he appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. John H. Crooker, Crim. Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The verdict of the jury gave appellant, five years in the penitentiary for burglary. The case is one of circumstantial evidence. That the house was burglarized by some one is not questioned. The state introduced evidence of recent posses-. sion by appellant of a pistol taken from the burglarized house, which he sold to the witness Pappas a few days after the burglary, receiving $3 as compensation.

Appellant sought a continuance on account of the absence of Peters. A bill of exceptions was not reserved to the action of the court overruling the application. Peters was expected to testify that the pistol in question was received by appellant from Franks. Franks testified that he did not have the pistol; that he never saw it until he saw it during the trial, and did not deliver the pistol or any other pistol to appellant with the request that he sell it. Appellant testified he received the pistol from Franks, and also introduced the evidence delivered by Peters, his alleged absent witness, at the examining trial. Peters testified substantially at the examining trial that he saw Franks deliver “a gun” to appellant, but did not hear the conversation. It is claimed that Peters was in Galveston, but no further effort was made to get him. This is substantially the case.

Summarized, the evidence shows conclusively that the house was burglarized by some one, and that a few days subsequent to the burglary appellant sold the pistol taken from the burglarized house. His explanation given on the trial was that he had obtained the pistol from Franks for the purpose of selling it. The authorities in Texas are to the effect that, where a burglary is shown, and the accused is found in possession shortly afterwards of some of the stolen property, and gave an explanation which would exonerate him, the state must show the statement to be false in order to obtain a conviction. Peters’ testimony was to the effect that Franks delivered to appellant a pistol. Appellant testified that he obtained the pistol from Franks with the request that he sell it, and that, in accordance with this request, he did sell it. Franks denied this. This was a matter for the jury, and for this reason we do not feel justified in disturbing the verdict.

Appellant contends the evidence is not sufficient to convict, as Franks testified he had once been convicted of lunacy. This was brought out by appellant on cross-examination. When this occurred, or where it occurred, or whether it was of a permanent nature, or whether he had been subsequently discharged as being restored, is not shown or attempted to be shown by the evidence. The statute provides that insane people are not competent witnesses. No objection was raised to Frank’s competency as a witness during the trial, and appellant developed the fact that he had been at one time charged with and convicted of lunacy. This is the substance of the case on this phase of it. It is true that, where a party has been once convicted of lunacy, the general rule is that tliis mental condition will be presumed to continue, and the testimony must show to the contrary. This can be shown in various ways by any legitimate testimony which would show restoration to proper mental status. There is nothing in the record with reference to this question one way or the other, except the general statement that at one time he had been convicted of lunacy. In this view of the case, and without any exception to the competency of the witness, or sufficient facts to show that he was not of proper mental condition to testify, it would not justify the court in reversing on this record as the evidence is stated. It is evident that the witness had been discharged from custody as a lunatic at some time, but when and why is not shown. Only the fact is stated on cross-examination that he had been at one time so convicted. We do not think this matter is so presented as to require this court to reverse on insufficiency of the evidence.

A bill of exceptions shows that a formal motion for new trial had been filed on the 18th of November, the conviction having occurred on the 17th, or a day prior to the filing of the motion; that on the 27th of November the court announced he would take up the motion at or about 8:30 on the morning of said day. Counsel for defendant came into court, the motion was called, and appellant’s counsel, addressing the court, stated he was not ready to proceed, for the reason that on last Tuesday, the 23d of November, he received information of a boy named Murphey, and a boy by the name of George Burns, that they had been informed that the state’s witness Clifford Pranks had made statements to various and different parties that he stole the pistol and burglarized Dr. Smith’s office, and that Bob Lanier, defendant, was not guilty of the-offense, and that-he was glad that he was convicted and got five years in the penitentiary. The attorney further stated when he received this information he had to go to Austin on Tuesday night to attend the Court of Criminal Appeals in two cases in which he was counsel; that he returned on Wednesday night, and on Thursday, being Thanksgiving Day, he was not in his office. On Friday he was engaged in defending a homicide case in an examining trial, and that up to the time of speaking to the court with reference to this matter he had not received the affidavits, but that he had an appointment with the mentioned witnesses at 10 o’clock that morning to secure necessary affidavits, and that such evidence, if true, would be newly discovered, and would be set up in amended motion for a new trial, and that he expected on that day to get these affidavits together, setting up these facts, and that they would be sufficient to authorize the granting of the motion for a new trial, and asked a postponement for that purpose. The court refused this, and appellant sets these matters up in a bill of exceptions. We do not believe this is a sufficient showing. The affidavit of these two parties giving the information with reference to the statement of Clifford Pranks would not state that they had heard Clifford Pranks make the statement, but they had been informed he had made these statements to different parties; but in any event it would be impeaching testimony, and as presented in this statement would be but hearsay. No effort had been made to obtain any of the parties to whom Pranks made these statements, if he made any, and their names are not set out. Several days had elapsed after receiving the information; in other words, diligence is wanting. Por this reason we are of opinion the case should not be reversed. It may be further stated that all this occurred about the 27th of November. The caption shows that the court is still in session, and has been since appellant’s conviction, and it will not adjourn until the 31st of January, 1916. If testimony of the character indicated should be obtained, and it could be shown that Clifford Pranks was the guilty party, and not appellant, there was sufficient time to secure the affidavit, even after the motion for new trial had been overruled. An additional motion could have been made, and, had there been merit in the affidavits of any substantial nature, doubtless the court would have granted the motion, to the end that, if appellant was not guilty, a new trial would be awarded, or, if the testimony was material, going to show that he was not guilty, the same order should have obtained on the part of the court. The transcript was certified by the clerk on the 23d day of December, nearly a month after the occurrences mentioned above. No attempt was made to secure these affidavits.

As the record is presented, we are of opinion that there is no sufficient reason shown why the judgment should be reversed, and it is therefore affirmed.
      cg&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRAHAM v. STATE.
    (No. 3921.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.)
    1. Cbiminal Law <&wkey;372 — Evidence — Sale or Gift of Liquor — Other Sale.
    On the issue of whether defendant gave away whisky, as he claimed, or sold it, as claimed by those receiving it, testimony that an hour later he sold liquor to others is admissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372.]
    2. Indictment and Information <&wkey;180 — Indictment — Variance—Names.
    There is no fatal variance between an indictment charging sale to “Chandoin” and proof that his name was spelled “Chaudoin,” he being generally known and called by the former name.
    [Ed. Note. — Por other cases, see Indictment and Information, Cent. Dig. §§ 551-556; Dec. Dig. &wkey;>180.]

      Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Ed Graham was convicted, and appeals.
    Affirmed.
    Marvin B. Simpson and John W. Estes, both of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged with unlawfully selling to one L. E. Chandoin intoxicating spirituous liquors, in quantities less than a gallon, without first having obtained a license to sell such liquors. It was admitted on the trial that prohibition was not in force in the territory where the liquor was sold, if sold, and also admitted that appellant had no license to sell such liquors.

The facts would show that appellant was a porter at the Siebold Hotel, and the state’s witnesses testify that they went to the Sie-bold Hotel and asked appellant if he would get them some whisky, and he said he could. Chandoin, or Chaudoin, testified he purchased a bottle of whisky and paid appellant $1 for it; that Officer Brothers was with him, and he also purchased a bottle of whisky from appellant. Appellant denies making any sale of whisky to Chandoin or Chaudoin, but admits that Chandoin did come and ask him for a drink of whisky, and he gave him the bottle to get a drink out of it, when Chandoin kept the entire bottle, but appellant most • emphatically denies that he made any sale of the whisky, or that he received any money for it; that it was a gift. The state also proved by its witnesses that about an hour after they say they purchased the whis-ky they, together with Officer Elliott, went back and Brothers purchased four pints of beer from appellant, paying him 75 cents for it. Appellant admits also letting Brothers have the beer, but says it also was a gift, and that Brothers paid him no money for it.

Appellant objected to the testimony of the purchase of the beer on various grounds. There was no error in admitting the testimony. Appellant was contending that he made a gift and not a sale of the whisky, and other contemporaneous transactions would be admissible to aid the jury in passing on that issue. Craig v. State, 23 S. W. 1108; Stovall v. State, 97 S. W. 93. The court properly limited this testimony in his charge, and instructed the jury he could not be convicted for any sale other than a sale to Chandoin, if he made such sale.

The information charged appellant with making a sale to L. E. Chandoin. On the trial of the case this witness was asked how he spelled his name, and he spelled it Ohaudoin. Appellant then asked for an instructed verdict of not guilty, the sale not having been proven to have been made to the person alleged. The court, in approving the bill, states:

“Witness swore that while his name was Chaudoin he was as well known by the name Chandoin as by the name Chaudoin.”

The statement of facts supports this qualification, he testifying:

. “I am generally known and called by the name of Chandoin. I receive letters addressed to me as Chandoin.” Perez v. State, 50 Tex. Cr. R. 37, 94 S. W. 1036; Owen v. State, 7 Tex. App. 335; Young v. State, 30 Tex. App. 308, 17 S. W. 413; Carter v. State, 39 Tex. Cr. R. 350, 46 S. W. 236, 48 S. W. 508; Addison v. State, 44 Tex. Cr. R. 80, 68 S. W. 679, 100 Am. St. Rep. 841.

The above are the only two questions presented in appellant’s brief. While there are some others raised in the motion for a new trial, we do not deem it necessary to discuss them. We have read the entire record, and no error is presented.

The judgment is affirmed '

DAVIDSON, J., absent.
      <®=>Eor other cases see same topic and KEY-NUMBER, in all Key -Numbered Digests and Indexes