source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    GOOLSBY v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    Appeal from Jones County Court; Joe C. Randel, Judge.
    I. L. Goolsby was convicted, and appeals.
    Reversed and dismissed.
    Chapman & Coombes, of Anson, for appellant. C. E. 'Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted, tried, and convicted under article 572, P. C., and fined $25. After full and thorough consideration in the ease of Robertson v. State, 159 S. W. 713, from McLennan county, recently decided but not yet officially reported, we held that article 559, P. C., which was one of the articles of the Acts of 1907, p. 108, clearly repealed said article 572 and also article 573, P. C. And in that opinion we expressly overruled the case of Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208.

Appellant, in the court below, made a motion to quash said indictment, among other grounds, because it does not charge an offense against the laws of Texas, which the court overruled. The indictment is not sufficient under said article 559, P. C., and the court erred in not sustaining said motion to quash. Under said article 559 the keeping by any person, for the purpose of gaming, any bank, table, alley, machine, wheel, or device whatsoever, or the keeping of a place where people resort to gamble, bet, or wager, upon anything whatever, and any place or device shall be considered as used for gaming or to gamble with or bet or wager if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming Or betting, is made a penitentiary offense. Also by said article if any one shall knowingly permit property or premises of which he is the owner, or which is under his control, to be used for any of said purposes, he is also guilty of a felony under said article 559; and as prescribed in said article, as stated above, any place or device shall be considered as used for gaming or to gamble with or for betting or wagering if any fees or money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting. Under this article, if any party shall keep a pool hall or pool table for the purpose of being used as a place to bet or wager or gamble, or as a place where people resort to gamble, bet, or wager thereon, or if he knowingly permits property or premises of which he is owner, or which is under his control, to be so used, he would be guilty of a felony and violate said article 559. And such place or device shall be considered as used for gaming or to gamble with, or for betting or wagering, if any fees, money, or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting. But the indictment in this case is insufficient to allege under any of the provisions of said article any of the offenses as prescribed thereby. It is unnecessary to discuss any other question raised in this ease.

Because of the insufficiency of the indictment, the judgment is reversed, and the cause dismissed.


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    WILLIAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    Gaming (§ 63) — Permitting Place to be Useb for Gambling — Statutes—Repeal— “Felony.”
    Acts 30th Leg. c. 49, Pen. Code 1911, art. 559, making the unlawful permitting of a person’s premises to be used for gambling a felony, repealed article 572 which made the offense a misdemeanor only.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. § 120; Dec. Dig. § 63.

    For other definitions, see Words and Phrases, vol. 3, pp. 2736-2744; vol. 8, p. 7662.]
    Appeal from District Court, Lavaca County ; M. Kennon, Judge.
    Lou Williams was convicted of unlawfully and knowingly permitting certain premises under his control to be used as a place to gamble with cards, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted under Pen. Code 1911, art. 559, for unlawfully and knowingly permitting premises under his control to be used as a place to bet and wager and gamble with cards, etc. His punishment was fixed at two years’ confinement in the penitentiary.

The indictment was under article 559, P. C. 1911, and correctly alleges the offense. The only question to be decided is appellant’s claim that he elected to be tried under article 572, P. C. 1911, which made the offense a misdemeanor only. This court has expressly held that the Acts of 1907, p. 108, making said offense a felony, repealed said article 572, in the case of Goolsby v. State, 159 S. W. 731, decided May 14, 1913, and Robertson v. State, 159 S. W. 713, from McLennan county, recently decided. The evidence clearly established appellant’s guilt.

Therefore the judgment will be affirmed.


author: DAVIDSON, P. J.

text:
    JACKSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    Rehearing Denied Oct. 15, 1913.)
    Appeal and Error (§ 706) — Motion for New Trial — Record.
    The denial of a motion for a new trial in a criminal case cannot be reviewed on appeal, where the record does not,contain the evidence, nor any bills of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 2944 — 2947; Dec. Digt § 706.]
    Appeal from District Court, Grayson County; W. J. Mathis, Special Judge.
    Will Jackson was convicted of an offense, and he appeals.
    Affirmed.
    0. Huggins, of Sherman, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   DAVIDSON, P. J.

The evidence is not before the court in this record, nor are there any bills of exceptions. Without these the matters set up in the motion for a new trial cannot be intelligently revised.

The judgment is affirmed.


author: HARPER, J.

text:
    SWANN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    Rehearing Denied Oct. 15, 1913.)
    Criminal Law (§ 1020*) — Appellate Jurisdiction-Extent of Penalty.
    Under Code Cr. Proc. 1911, art. 87, no appeal lies from a judgment of conviction in the county court on appeal from a municipal corporation court, where the punishment was a fine of $100.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2578-2580; Dec. Dig. § 1020.*]
    Appeal from McLennan County Court ,• Tom L. McCullough, Judge.
    E. M. Swann was convicted of vagrancy in the county' court upon appeal from a corporation court, and her punishment assessed at a fine of $100, and she appeals.
    Appeal dismissed.
    J. W. Taylor and Quitman Finlay, both of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

It is made to appear from the record that appellant was tried in the corporation court of the city of Waco, charged with vagrancy. She was convicted, and her punishment assessed at a fine of $100. From this conviction she appealed to the county court, was again tried, adjudged guilty, and her punishment assessed by the jury in the county court in the sum of $100. From this judgment she attempts to perfect an appeal to this court, but under article 87 of the Code of Criminal Procedure no appeal lies from such judgment, and this court has no jurisdiction.

The appeal is dismissed.


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    POTTER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    Rehearing Denied Oct. 15, 1913.)
    Criminal Law (§ 982*) — Suspension of Sentence — Power of Court.
    Where the questions involved in the suspended sentence law are submitted to the jury, who fail or refuse to recommend a suspension of the sentence, the court has no authority to suspend it.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.*]
    Appeal from District Court, Collin County; G. R. Smith, Special Judge.
    W. H. Potter was convicted of an offense, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This record is before us without a statement of facts or bill of exceptions. The questions involved in the suspended sentence law were submitted to the jury. They failed or refused to recommend suspension of the sentence. It is claimed that the court should have, despite the failure of the jury to so find, exercised the power of suspending the sentence. Under the authority of Roberts v. State, 158 S. W. 1003, decided at the present term of court, there was no error in this proceeding. The court is not authorized to suspend the sentence, except when the jury so find and recommend.

This judgment is therefore affirmed.


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    LONG v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Oct. 15, 1913.)
    Criminal Law (§ 1097*) — Appeal—Instructions — Review—Statement of Facts.
    Where there is no statement of facts, objections to instructions as not submitting the law called for by the facts, or as not properly submitting the law under the facts, cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dee. Dig. § 1097.*]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Ed. Long was convicted of murder in the first degree, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder in the first degree; his punishment being assessed at death.

There are quite a number of grounds set out in tlie motion for new trial. Most of these are criticisms of the court’s charge as not submitting the law properly as called for by the facts, or properly submitting the law under the facts detailed by the witnesses. The evidence is not before us. There is no statement of facts sent up with this transcript. These matters urged in the motion for new trial cannot he revised in the absence of the evidence.

The judgment is affirmed.


text:
    ANDERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied Oct. 15, 1913.)
    1. Criminal Law (§ 1169) — Appeal—Harmless Ebrob — Admission of Evidence.
    In a prosecution for the burning of a barn, evidence of the contents of the building, consisting of a quantity of hay and corn and 11 horses, was not prejudicial as calculated to arouse passion on the part of the jury, especially where the jury fixed the punishment at the minimum penalty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    2. Arson (§ 30) — Admissibility of Evidence —Contents of Building.
    The admission of such testimony was proper when it was shown that the defendant knew the contents of the building, and must have known what would be the consequence of setting fire to it, and not giving the alarm until too late to save the property.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. § 61; Dec. Dig. § 30.]
    3. Criminal Law (f 400) — Parol Evidence —Ownership of Building.
    In a prosecution for arson, it was proper to permit the prosecution to prove by oral evidence that the state owned the barn which was burned, without requiring the production of the deed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    4. Criminal Law ■(§ 478) — Opinion Evidence-Special Knowledge of Witness.
    Where an electrical engineer showed that he possessed sufficient information to give an opinion, and also testified that he had taught the persons later charged with arson that the effect of cutting the electric light wire would be to put out the lights, it was not error to allow him to testify that those charged with the crime would know the effect of cutting the wires.
    [Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 1065, 1066; Dec.Dig. § 478.]
    5. Arson (§ 37) — Prosecution—Sufficiency of Evidence.
    In a prosecution for arson, evidence, consisting of circumstances and a confession, held sufficient to authorize the jury to find that the defendant was a principal in the commission of the offense.
    [Ed. Note. — For other eases, see Arson, Cent. Dig. §§ 71-73; Dee. Dig. § 37.]
    6. Witnesses (§ 391) — Impeachment—In - consistent Statements — Accused as Witness.-
    Alter one accused of crime had testified in his own behalf, testimony of one who heard a conversation between the defendant and another before the defendant was charged with the crime is admissible to impeach the defendant’s testimony, even though the third person made notes of the conversation which were not signed by the defendant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1248; Dec. Dig. § 391.]
    7. Criminal Law (§ 814) — Instructions— Necessity — Confession.
    Where a written confession, which was introduced in evidence, contained no exculpatory statement, it was not necessary to charge the jury that the confession must be taken as a whole and that the state must disprove the exculpatory matters.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839.1860, 1865, 1883, 1890, 1924, 1979-1985, 198/; Dec. Dig. § 814.]
    8. Criminal Law (§ 784) — Instructions— Necessity — Circumstantial Evidence.
    Where there is. a confession of the crime by the defendant in evidence, it is not necessary for the court to give a charge upon circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Homer Anderson was convicted of arson, and he appeals.
    Affirmed.
    T. R. Mears, of Gatesville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of arson, and his punishment assessed at five years’ confinement in the penitentiary.

It appears that on the night of the 11th of last November a barn belonging to the state and used in connection with the state juvenile school or reformatory at Gatesville was burned. Tom Sanders, among other things, testified: “The barn that was burned was a barn about 100 feet long and about 50 or 60 feet wide. It was a frame building and the walls about 10 or 12 feet high. It had four walls, and the hall went through it, and a small hall commenced at the front and ran into the big hall. The barn was covered with shingles. There was about 5,000 bushels of oats and about that many bushels of corn and 30,000 or 40,000 bundles of oats and some baled hay and millet burned in the barn. I do not know just how many bales of hay and millet did burn. There was also 11 head of horses that burned in the barn.” The defendant objected to the witness being permitted to state the contents of the barn, on the ground that it was irrelevant, immaterial, prejudicial, and calculated to arouse the passions of the jury and prejudice them against the defendant. If, as contended by appellant, he did not participate in the burning, it would hardly prejudice the jury against defendant; but, as the jury found that appellant was guilty of the offense as charged, we turn to the verdict to see if passion or prejudice was in fact aroused, and, when we learn that the jury gave him the minimum punishment, it is apparent no passion or prejudice was aroused.

Again, we think, when one burns a house, its contents, which would necessarily be also consumed, can be .shown, when it is apparent, as in this case, that defendant knew the contents of the building, and must be held to have known that would be the natural result of setting fire to the building, and waiting to give an alarm until all chance of saving the property had passed.

The next objections urged relate to permitting the state to prove by oral testimony that the barn burned was the property of the state; the contention being that oral testimony was not admissible, but the state ought to have been required to produce the deed. This is not the law, and the court did not err in permitting oral testimony to be .introduced. Wilson v. State, 24 S. W. 649; Hester v. State, 51 S. W. 932.

The witness Bishell was permitted to testify that the persons charged with burning the barn would know the effect of cutting the electric wires would have upon the electric lights. This was objected to on the ground that it would be an opinion and in the nature of expert testimony, and the witness was not qualified as an expert. The court, in approving the bill, states that the witness was an electrical engineer, and the testimony further shows that he possessed the necessary information to give an opinion, and also shows that he had taught the persons charged with burning this building the effects of cutting the wires — it would cause the lights to cease to burn.

The testimony shows that one of those charged with the offense asked appellant about his plyers, secured the plyers before setting fire to the building, and the evidence was admissible to show tbat the offense was deliberately planned, with the knowledge and consent of appellant. And the further fact that the fire was plainly visible from the point he was situated, and he waited until the flames were burning through the roof before giving any alarm, with the other facts and circumstances in the case, his confession would authorize the jury to find that he was a principal in the commission of the offense. The confession introduced in evidence was shown to have been made under circumstances in full compliance governing the admissibility of voluntary confessions; it was reduced to writing, contained all the statutory requirements, and signed by appellant.

When appellant took the stand and testified in his own behalf, then the testimony of Earl Stone and the other witnesses became admissible in rebuttal. At the time of this conversation between appellant, State Eire Marshal Inglish, and Mr. Stone, appellant was not under arrest; it not being shown that he was even under suspicion. The fact that Mr. Inglish made a memorandum of what appellant stated, which was not signed by appellant, would not render the testimony of Mr. Stone, who heard the statements of appellant, inadmissible, and the testimony was admissible as tending to impeach appellant and affect his credibility as a witness. It may be here stated that appellant was not arrested for several days thereafter, and the confession introduced in evidence was not made at that time, and not made until after his arrest.

The confession introduced in evidence contained no exculpatory statements; therefore it was not necessary for the court to charge that the confession must be taken as a whole and the state disprove the exculpatory portion thereof. The confession being inculpatory, the state was introducing evidence corroborative of it and proved its truthfulness, and it appears the state did so to the satisfaction of the jury.

Neither was it necessary or proper for the court to charge on circumstantial evidence. The confession of defendant rendered this unnecessary. Mr. Branch, in his work on Criminal Law, states the rule to be: “If defendant admits he did the killing in a murder case, or the taking in theft, or that he did the act which constitutes the factum probandum, whatever be the offense charged, it is not necessary to charge on circumstantial evidence” — citing Barnes v. State, 53 Tex. Cr. R. 629, 111 S. W. 943; High v. State, 54 Tex. Cr. R. 337, 112 S. W. 939; Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; and a number of other cases. In this case the confession of defendant would render him a principal in the commission of the offense.

Being of the opinion that the grounds in the motion for a new trial present no error, the judgment is affirmed.


text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    On Motion for Rehearing, Oct. 15, 1913.)
    1. Criminal Law (§§ 1092, 1099) — -Appeal-Bill op Exceptions — Time for Filing.
    Where the trial court adjourned on December 21, 1912, and the statement of facts and bill of exceptions in a criminal prosecution were not filed until May 8th following, they were too ¡ate and cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    On Motion for Rehearing.
    2. Criminal Law (§§ 1092, 1099) — Appeal— Bill of Exceptions and Statement of Facts — Effect of Failure to Procure.
    Where a convicted person used due diligence to obtain a bill of exceptions or statement of facts in time, but failed through no fault of his own, the judgment should be reversed.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    3. Criminal Law (§§ 1092, 1099)—Appeal-Bill of Exceptions and Statement op Facts—Eppect op Delay in Filins.
    Where one convicted of a crime did not file his bill of exceptions or statement of facts within the time required by statute, through no fault of his own or of his attorneys, and thereafter the judge received and certified the bill and statement to be correct, the Court of Criminal Appeals may consider them.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. |§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    4. Criminal Law (§ 1133)—Appeal—Bill op Exceptions and Statement op Facts—Delay in Filing—Excuse.
    Where a motion for rehearing, filed after a judgment of conviction had been affirmed for want of a bill of exceptions and statement of facts in the record, charged that the delay was due to the fault of the trial judge, and that affidavits of the attorneys in support thereof would be filed, but no such affidavits were ever filed, there was no sufficient showing that the appellant was deprived of his bill of exceptions or statement of facts without fault on his part, and the rehearing will be denied.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. § 1133.]
    Appeal from Shelby County Court; Edgar W. Hooker, Judge.
    Sam Johnson was convicted of an aggravated assault, and he appeals.
    Judgment affirmed, and motion for rehearing overruled.
    Thomas O. Davis and J. P. Anderson, both of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

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

The county court adjourned on the 21st of December, 1912. The statement of facts and bills of exception were filed on the Sth of the following May. This was too late. These matters cannot be considered. With the evidence and bills of exception eliminated there is no reviewable question.

The judgment is affirmed.

On Motion for Rehearing.

The judgment herein was affirmed in June last just before the final adjournment of court. None of the questions suggested were revised because of the fact the statement of facts and bill of exceptions were filed too late to be considered, court having adjourned on 21st of December, 1912, and these papers were not filed until the 8th of the following May.

Appellant moves for a rehearing on the ground that the statement of facts and bills of exception were made up and prepared within the time agreed to by the county attorney, and by appellant’s counsel turned over to the county judge in ample time for his approval, but he failed to do this, but on the contrary held them. He says this delay is not chargeable to the appellant, and he should not therefore be deprived of the benefit of his statement of facts and his bills of exception. In this motion it is stated that the affidavit of the attorneys and the county attorney would later be filed with this motion and in support- of it, but this has not been done, and the motion is before us simply on the allegations set forth and above mentioned.

If the appellant had used such diligence as is required by law to obtain a statement of facts or bills of exception, and had been deprived through no fault of his of securing either or both, the judgment ought to be reversed in order that he may present his case to the court as it occurred.

There is another rule, also, that if the statement of facts or bills of exception are not filed within the time required by the statute, through no fault of appellant or his counsel, yet the court does approve and file them, and certifies them to be correct, this court may then consider the same, although not filed in time. This grows out of the provision of the statute which says appellant shall have these matters considered, although not filed in accordance with the statute, if this failure to so file arose through no fault of appellant or his counsel.

But neither rule has been complied with here. If appellant had filed his affidavit showing no want of diligence on his part, but that he was deprived of a statement of facts and bills of exception through no fault of his, but of the county judge, then he would present a question which would require serious thought, and, if he was without fault, then a reversal.

But the matter is not thus presented, therefore the motion for rehearing is overruled.


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    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    Rehearing Denied Oct. 15, 1913.)
    1. Embezzlement (§ 2)—What Constitutes —Conversion by “Bailee.”
    The word “bailee” as used in the embezzlement statute, which punishes the fraudulent conversion by a bailee, does not include all bailments, but only those for the sole benefit of the bailor, where there is a fiduciary relation between the parties; hence as there must be a fraudulent taking to constitute the crime of theft denounced by Pen. Code 1911, art. 1329, the conversion of property by a bailee, where the bailment is for mutual benefit, falls within the purview of article 1348, making such conversion an offense, being neither theft nor embezzlement.
    [Ed. Note.—For other cases, see Embezzlement, Cent. Dig. § 2; Dec. Dig. § 2.

    For other definitions, see Words and Phrases, vol. 1, p. 672.]

      2. Embezzlement (§ 16) — Offenses—What Constitutes — “Fiduciary Relation. ’’
    A boarding house keeper, who fraudulently misappropriates money deposited with him for safe-keeping by a boarder, to be returned on demand, is guilty of embezzlement, for there are contractual relations between the parties, as Rev. Civ. St. 1911, art. 5663, gives the keeper a lien thereon for the payment of his board bill, and there is a fiduciary relation between the parties because the keeper would not be responsible for the money if it was left in the boarder’s room, so that the bailment is for the boarder’s benefit (citing 3 Words & Phrases, 2761).
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 17, 18, 21; Dec. Dig. § 16.

    For other definitions, see Words and Phrases, vol. 3, p. 2761.]
    Appeal from District Court, Orange County ; W. B. Powell, Judge.
    Shelby Johnson was convicted of embezzlement, and he appeals.
    Affirmed.
    Bisland & Adams, of Orange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of embezzlement, and his punishment assessed at two years’ confinement in the penitentiary.

The indictment in this case is in strict conformity with the forms prescribed in White’s Annotated Penal Code, § 1629, and approved by this court in Golden v. State, 22 Tex. App. 1, 2 S. W. 531, and Brown v. State, 23 Tex. App. 214, 4 S. W. 588.

It is insisted, that the offense in this case, if any committed, constitutes theft by bailee and not embezzlement. The facts would show that R. L. Norman came from Louisiana to Texas in search of work, and in Orange met appellant’s daughter, whom he had known, and stated to her he was in search of work; that he asked about her father, and was informed by the daughter that her father, appellant, was running a boarding house at Lemonville; that Norman went with the daughter and stopped at appellant’s boarding house, and inquired of him about work, and appellant assisted Norman in getting work. Further, it is shown by the evidence that appellant and Norman were acquaintances of long standing, and after getting work he went to boarding with appellant at his boarding house, and deposited with him for safe-keeping $70 in money. We do not think these facts bring the case within the definition of theft by bailee, but it is clearly' embraced within the embezzlement statute. In the case of Reed v. State, 16 Tex. App. 586, what constitutes embezzlement by bailee was thoroughly discussed by this court) and the authorities fully reviewed, and it is there held': “The connection in which the term ‘bailee’ is found in the statute under consideration indicates very- clearly that it is not used in its largest sense— that it was not intended to comprehend every species of bailment, and all who might stand to the owner of money, property or effects in the relation of a bailee. It is limited and confined to bailees of a particular class, those having possession wholly and exclusively for the benefit of the bailor — bail-ments where the owner parts with the actual possession, not with the right of property, general or special, and is not without right to resume possession. The hirer of chattels for a term is a bailee, doubtless, but of a particular class or kind. The trust created is not exclusively for the benefit of the bailor, but rather for his own benefit. * * * It is not a bailment of this character the statute refers to, but to bailments in which the bailor and bailee stand in a fiduciary relation, in which the bailee acts for and on account of the bailor, and not for himself.” In theft, as denounced by article 1329, Pen. Code 1911, it has been held that there must have been a fraudulent taking; and, when the court construed the embezzlement statute as above stated in the Reed Case, that before a bailee could be guilty of embezzlement there must have been some fiduciary or trust relation existing between the bailor and bailee, this permitted many to go unpunished who obtained possession of money or property without fraud, such as hiring or borrowing a horse, and then converting it to his own use. The court held, there being no fraudulent taking, it was not theft; and, there being no fiduciary or trust relations existing between the parties by which the property came into his hands, such facts did not constitute embezzlement. Had the court in the Reed Case given the word “bailee” as used in the embezzlement statute its largest and broadest meaning or sense, there would have been no necessity for the passage of article 1348, making conversion by bailee an offense. But after the rendition of the opinion in the Reed Case by the court giving the word “bailee” a limited meaning, and holding that a fiduciary or trust relation must exist between the parties to constitute embezzlement, the Legislature at its next session passed this article, and punished conversion by bailee as for theft. The law was passed to fill in this “hiatus” existing between theft and embezzlement under our decisions that no person converting another’s property to his own use would escape punishment. In each case we must look to see whether or not a trust or fiduciary relation exists between the parties, and if it does exist, then the conversion by bailee constitutes embezzlement. If there is no such relation existing, then the offense is conversion or theft by bailee.

In this case appellant, being the keeper of a boarding house, and one of his boarders depositing money with him -for safe-keeping, to be returned on demand, would establish such relations between the parties as would constitute the appropriation of the money to his own use embezzlement. There are necessarily implied contractual relations between tliem. The law gives the landlord a lien on all the property of his boarders deposited with him to secure him in the payment of his board bill. Article 5663, Rev. Stat. The custom and usage of all hotels and boarding houses are well known, not to be responsible for valuables carried to the rooms by the boarders or guests, but to be responsible if the valuables are deposited with the owner or clerk of the boarding house. In Words & Phrases, vol. 3, p. 2761, will be found a list of authorities defining the legal meaning of “fiduciary relations,” and it will be seen that it clearly embraces those relations existing between the boarding house and hotel keeper and his boarder or guest. As this relation under the facts of this case existed between the parties, the offense constituted embezzlement, and the court did not err in so holding.

The other matters complained of present no error, and the judgment is affirmed.


author: HALL, J.

text:
    HILGERS et al. v. HILGERS et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 28, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Wills (§ 222) — Peobate anb Annulment-Statute.
    Under Rev. Civ. St. 1911, art. 3358, providing that, when a will has been probated, its provision shall be executed unless annulled by order of the court probating the same in a proceeding instituted for that purpose, a proceeding to annul a will must be commenced as a separate proceeding after the probate of the will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 542-544; Dec. Dig. § 222.]
    2. Wi£ls (§ 257) — Peobate and Annulment —JURISDICTION.
    Under Rev. Civ. St. 1911, § 3358, providing that, when a will has been probated, its provisions shall be executed unless annulled by order of the court probating the same, and under the Constitution, the district court has no jurisdiction of an original proceeding to annul the probate of a will by a county court; its jurisdiction in such cases being acquired by appeal or certiorari to the county court.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 592, 593; Dec. Dig. § 257.]
    Appeal from District Court, Denton County; Clem B. Potter, Judge.
    Suit by John Hilgers and others against Joseph Hilgers and others to annul a certain will of M. Hilgers, deceased, and for other relief. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    W. W. Ballew, of Corsicana, for appellants. Alex W. Robertson and Alvin O. Owsley, both of Denton, for appellees.

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

   HALL, J.

Appellants, who were plaintiffs in the court below, filed this suit in the district court of ‘Denton county on the 26th day of June, 1911; the original petition alleging in substance as follows: Plaintiffs for cause of action represent that each and all of the plaintiffs and defendants, except the defendant Ann Hilgers, are the children of M. Hilgers, deceased, and that Ann Hilgers is the surviving wife of M. Hilgers, deceased. That M. Hilgers departed this life about the 10th day of October, 1909, and left plaintiffs and defendants as his surviving heirs. At the time of his death he was possessed of real and personal estate of the probable value of $40,000. That defendants are attempting to claim all of said property under an alleged or purported will, alleged to have been probated at the January term, 1910. That said will is void and does not attempt to convey any part of said estate save and except a life interest in the homestead to his surviving wife, Ann Hilgers, and in so far as it affects the said Ann Hilgers is void in this: That under the law of Texas she is entitled to the homestead and all exempt property during her lifetime without limitation or condition, and that said alleged will did not attempt to convey to her any property that she was not entitled to in law without the will, and that said will further attempted to place limitations and restrictions upon the remarriage of said Ann Hilgers, and no other part of said estate was devised by said will except in the event of the remarriage of the said Ann Hilgers; and said will is absolutely void upon its face in that it makes no disposition of said estate except the homestead for life but provides for reversion of the same in the event of remarriage, and said remarriage must occur within six months after the death of M. Hilgers, if the remaining legatees become affected and the said Ann Hilgers has not remarried and said legacies are void. That at the death of the said M. Hilgers he owned 335 acres of the John Burns survey, situated in Denton county, Tex., which was the separate estate of the said M. Hilgers, of the reasonable value of $20,000. The petition describes other lands by metes and bounds and proceeds as follows: “Personal property, consisting of farming implements, engine and separator, household goods, 26 head of cattle, 12 mules and horses, 15 hogs, one share in the Continental Bank of Krum, 5 Vbo shares of the Farmers’ Gin Company at Denton, Tex., also a large amount of money, notes, and accounts, all of which property is situated in Denton county, Tex., and is in the possession of the defendants herein, who are claiming and asserting to be the sole and exclusive owners thereof.” It is further alleged that John A. Burns survey of 335 acres was the separate property of the said M. Hilgers and was acquired long before his marriage to the said Ann Hilgers, and that upon his death it descended to plaintiffs and defendants, save and except Ann Hilgers, jointly, she being entitled under the laws of Texas to a life interest in one-third therein to a homestead interest to 200 acres, and plaintiffs alleged that said 335 acres was the homestead of the said M. Hilgers at the time of his death and had been for many years prior thereto. That the defendant A. M. Hilgers is entitled to the use and possession of the 200 acres thereof, to be selected by her during the period of her natural life or so long as she cares to use and occupy the same as a homestead. That plaintiffs and defendants are jointly entitled to the remainder of said 335 acres and to the use and possession and full management thereof at the present time, and, after the termination of the homestead and life interest of the said Ann Hilgers in said 200 acres, plaintiffs and defendants are jointly entitled to said 200 acres; and under the laws of Texas the said Ann Hil-gers is further entitled to two mules or horses, five cows and their calves, the household goods, farming implements, etc., and to one-half interest in all community property of herself and the said M. Hilgers. Plaintiff admits that all personal property, including the bank stock, stock in the gin company, horses, mules, cows, notes, and money were the community property of M. Hilgers, deceased, and his . surviving wife, and she is entitled to a half interest therein ; and further that, upon the face of the deeds, the title to the remaining real estate is vested in the community, but that plaintiffs are informed and believe that said real estate was acquired with the proceeds arising from the sale of 305 acres of the John A. Burns survey, which was the separate estate of said M. Hilgers; that Ann Hilgers is entitled to a life interest therein to the extent of one-third. But, if it should be determined upon the trial that said real estate is community property, then plaintiffs and defendants would be jointly entitled to one-half. It is further alleged: That Joseph Hilgers and Ann Hilgers are assuming to control and hold all of the property as executors of the will of M. Hilgers, deceased, and they are informed and believe that M. Hilgers left more property at his death than has been inventoried by the executors. That the real estate is subject to partition and distribution. That all personal property, except such as is exempt to Ann Hilgers, is subject to partition and distribution. There is a prayer for partition of the real and personal property according to the laws of descent and distribution. That the homestead and exempt property be set apart to Ann Hilgers during her lifetime. That her interest in the community estate be determined and established. That all the remainder of said estate be set apart and partitioned between plaintiffs and the remaining defendants as the surviving heirs of M. Hil-gers, and that their interest in the homestead and exempt property be fixed and determined by the decree, and that it be declared subject to partition on the death of the said Ann Hilgers, and that the court enter an order declaring to be void and of no effect the alleged will of M. Hilgers, deceased, under which the defendants are asserting title against these plaintiffs, and that the will be canceled as a cloud upon plaintiffs’ title. There is a prayer for the appointment of commissioners to make the partition, and for all legal and equitable relief.

The particular items of the will objected to are as follows: “Second. I bequeath to my wife, Ann Hilgers, the use and income of our homestead on the John A. Burns survey, during her lifetime but in case of remarriage said realty to revert to my heirs as herein stated, as follows: Third. To my daughter, Margareatta, $250.00, to be paid to her or her heirs six months after my death. Fourth. To my son Joseph, $500.00, to be paid six months after my death. Fifth. To my son John, $1.00, love and affection. Sixth. To my son William, $1.00, love and affection. Seventh. To my son Peter, $1.00, love and affection. Eighth. To my daughter, Anna, $1.00, love and affection. To my daughter Katherina, $1.00, love and affection; to my daughter Christina, $1.00, love and affection. Ninth. To my sons Henry Lee, Edy Lipscomb, Ben Frank, George Robert, Math Alexander, and to my daughters, Rosie and Maybell, to each of the last named children, seven in all, all my real estate and personal property by me possessed after my death and if any of my children shall not be satisfied with the provision of this instrument and shall or should attempt to set aside the same by the courts óf the country, then in such a ease, it is declared that such one shall have no benefits of the provision thereof, and no part of the distribution of my estate whatever.” The will further appoints the wife and son Joseph as executrix and executor.

The defendants filed a general demurrer to the petition and specially excepted because it appeared that the matter in controversy was the validity of the will of Mathew Hilgers; that the said will had been probated; that the estate was in the hands of the executrix and executor; and that the district court had no jurisdiction. A second special exception on the part of Ann Hilgers is upon the ground that she is improperly joined as a defendant with certain sons and married daughters of M. Hilgers, deceased, because the said defendants are attempting to claim all of the property of M. Hilgers under the alleged will and declaring that the will is void; that the only issue which can be submitted in a suit to construe .or annul a will or any of its provisions is a direct suit for that purpose, and no rights of property can be decided in such proceedings; that there is therefore also a misjoinder of causes of action in that plaintiffs are attempting in one suit to construe and annul the will to partition property, to recover in trepass to try title, and for an accounting, settlement, and distribution of the estate. All of the exceptions were sustained, and from this judgment of the trial court the appeal has been perfected and the questions brought here for review.

Article S358, Revised Statutes 1911, is: “When a will has been probated, its provisions and directions shall be executed, unless the same are annulled or suspended by order of the court probating the same in a proceeding instituted for that purpose by some person interested in the estate.”

In Prather v. McClelland, 76 Tex. 574, 13 S. W. 543, it is held that proceedings to annul a will in whole or in part, provided for by this statute, must be commenced and conducted as a separate and distinct proceeding after the will has been probated and cannot be injected into the proceedings to probate.

Stayton, justice, decided In the ease of Franks v. Chapman, 60 Tex. 46, that district courts, under the Constitution now in force, have no jurisdiction to annul by an original proceeding the action of a county court probating a will, and that the jurisdiction of the district court in such matters is acquired by appeal or certiorari from the county court. To the same effect is Fisher v. Wood, 65 Tex. 204; Dew v. Dew, 23 Tex. Civ. App. 676, 57 S. W. 926; Heath v. Layne, 62 Tex. 686; Franks v. Chapman, 61 Tex. 579. These authorities uphold the trial judge in sustaining the exception urged to the jurisdiction of the district court. Holding that he was correct in his ruling renders it unnecessary for us to consider the remaining assignments.

The judgment is therefore affirmed.


text:
    CHICAGO, R. I. & G. RY. CO. v. OLIVER.
    (Court of Civil Appeals of Texas. Amarillo.
    June 21, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Appeal and Error (§ 1040) — Trial (§ 191*) — Review—Harmless Error.
    The improper overruling of an exception to the petition is harmless, where the issue raised by the part excepted to was not submitted to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040; Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    2. Railroads (§ 276) — Injuries to Licensees — Who Are Licensees.
    Where a foreman in charge of railroad work, who lived in a bunk car, obtained the permission of the railroad superintendent to take his two sons with him, the superintendent issuing them passes, the sons were licensees, even though the superintendent had specific orders not to allow the children to be taken.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 878-886; Dec. Dig. § 276.]
    3. Railroads (§ 276) — Injuries to Persons on Tracks — Licensees.
    The son of the foreman in charge of construction work was a licensee upon a bunk car, even though express orders had been given against allowing him to accompany his father, where the superintendent of the railroad company, with actual knowledge that he was accompanying him, acquiesced in the arrangement.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 878-886; Dec. Dig. § 276.]
    4. Railroads (§ 282) — Injury to Persons on Track — Licensees.
    The mere fact that plaintiff knew that the superintendent did not have authority to allow him to take his wife to live with him in railroad construction cars will not support an inference that plaintiff knew the superintendent was without authority to allow his young sons to accompany him.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.]
    5. Railroads (§ 282) — Injuries to Persons on Tracks — Actions—Evidence.
    In an action for the death of a licensee who was killed by the moving of a bunk car, the question of the manner in which the coupling was made onto the car which was driven against the bunk car is immaterial.
    [Ed. Noté. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.]
    6. Appeal and Error (§ 1058) — Review-Harmless Error.
    . The exclusion of testimony is harmless where the witness was subsequently allowed to testify to the same facts, or they were brought out in the testimony of another witness, without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.]
    7. Appeal and Error (§ 664) — Record— What Governs.
    The statement of a witness’ testimony in the statement of facts controls in case of conflict between it and the bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. § 664.]
    8. Trial (§ 296) — Instructions—Cure by Others.
    In an action for the death of a licensee, killed when a bunk car was moved without warning, the error in a charge to find for plaintiff, if the car was stationed on a spur track, with proper signals and flags thereon, and, while plaintiff’s minor son was using ordinary care in and about the car, defendant’s servants in charge of the switch engine backed other cars against such car, was cured by other charges which did not assume the placing of the signal flag upon the car, or the child’s exercise of ordinary care, but submitted those questions to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    9. Railroads (§ 282) — Injuries to Persons on Track — Licensees.
    In an action for the wrongful death of plaintiff’s minor son, who, while a licensee upon a bunk car, was killed by the moving of such car, a charge instructing the jury to find for plaintiff, if defendant’s servants backed the switch engine onto the spur track where the car was standing without sounding any alarm, or if they failed to observe the blue flag, is not improper; as a matter of law, on the ground that deceased was at best a licensee assuming the risk; it appearing that the question of warning and the presence of the flag, as well as the right of plaintiff to have his son with him, were presented by conflicting evidence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.]
    10. Trial (§ 253) — Instructions—Refusal.
    A requested charge which ignored one of the issues, and assumed, as matter of law, negligence from a contested fact, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    11. Appeal and Eeeoe (§ 187) — Presentation op Questions oe Review in Court Below — Necessity.
    A defect in parties plaintiff may be taken advantage of on appeal, even though the non-joinder was not pleaded or the question raised in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1184-1189; Dec. Dig. § 187.]
    12. Death (§ 42) — Actions por Wrongful Death — Necessary Parties.
    As Rev. Civ. St. 1911, art. 4699, provides that an action for wrongful death may be brought by all of the parties entitled or by any one or more of them for the benefit of all, a wife is not a necessary party to an action by her husband for the wrongful death of their minor child, for, as the proceeds of the action would-be community property, and the husband as such could dispose of it, his action must be construed for her benefit.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 58; Dec. Dig. § 42.] .
    13. Husband and Wipe (§ 249) — Community Property — What Constitutes.
    Damages recovered by either or both parents for the death of their minor child is community property.
    [Ed. Note.- — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892; Dec. Dig. § 249.]
    Appeal from District Court, Gray County; F. P. Greever, Judge.
    Action by W. L. Oliver against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Gustavus & Jackson, of Amarillo, and Las-siter & Harrison, of Ft. Worth, for appellant. R. E. Underwood and Turner & Wharton, all of Amarillo, for appellee.

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

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

   HALL, J.

We adopt the following statement of the nature and result of the suit from appellant’s brief: .

“This suit was filed in the district court of Gray county on April 7, 1911, by W. L. Oliver against the Chicago, Rock Island & Gulf Railway Company to recover damages on the allegations that on April 18, 1909, he was employed by the defendant company as foreman of its water service along the line of 'its road from Texola, Tex., to Vega, Tex., and that he had a crew of men under charge, who occupied as their living quarters certain cars furnished for that purpose, and for the transportation of tools and materials over the defendant’s line of road, and that these cars on April 15, 1909, were set in the defendant company’s yard at Amarillo on á track known as the Veches Spur; that the plaintiff had prior to this date been keeping with him in these ears his minor son, Johnnie Oliver, aged 14 years, and that this was with the knowledge and consent of the defendant company, and its employés, and its superintendent, Allen, who had authority to give this consent to the plaintiff; that on April 18th, Johnnie Oliver was seated on the ends of the cross-ties of this spur track between two of the cars, and that the defendant’s em-ployés carelessly and negligently backed an engine against these cars so that Johnnie Oliver was run over, and killed, to plaintiff’s damage in the sum of $10,000. It was alleged that the cars were negligently backed in onto the spur without giving any warning or signal of the approach of the cars by ringing the bell and blowing the whistle on the engine propelling them.

“The defendant answered by certain special exceptions, general denial, and specially that the deceased was a boy of intelligence, capable of understanding the danger of the position he occupied at the time of the accident, and that, even if he was a licensee, he assumed the danger of the position occupied by him at the time of the accident, and the plaintiff was on that account barred from recovery ; that the plaintiff, who had control of the cars in question, was the father of deceased, and was guilty of contributory negligence, proximately contributing to the accident, and he was thereby barred from a recovery.

“Defendant further by trial amendment pleaded that at the time of the accident it had promulgated and had in force a rule that cars or trains should be protected from being coupled to or moved by placing a blue flag by day and a blue light by night, and that it was the plaintiff’s duty to so protect the cars under his charge, if they were not to be moved, and that he failed to do this, which failure was negligence, proximately contributing to cause the accident; that the defendant had refused to give the plaintiff permission to have the deceased on or about the cars, and on the date of the accident plaintiff had left his son on or about the cars and in a place of, danger, and had failed to take any action to protect his son from injury, which was negligence, proximately contributing to cause the accident. Plaintiff filed a supplemental petition, setting up that he had instructed one MeElroy, who was working for the defendant, to put up a blue flag to protect the cars in question, which had been done; but notwithstanding this the employés in charge of the engine negligently failed to observe the flag, and backed into the cars, regardless of it. There was a ver-diet and judgment for plaintiff in tlie sum of $2,500.”

Appellee lias filed objections to the consideration of a number of appellant’s assignments of error as being violative of rules 24 and 25 (142 S. W. xii) for this court. While the assignments do not in all things comply with the rules, we have decided to disregard the objections and consider the matters submitted.

The first assignment of error is to the ruling of the court upon the eighth special exception urged by appellant to the plaintiff’s amended petition. The ground of the exception is plaintiff’s cause of action is not based upon an injury to an employé or a failure to discharge any duty toward an employé, and that the allegations in the ninth paragraph of the petition present the plaintiff’s cause of action as one prosecuted by an employé. We are not able to agree with this contention, and in our opinion the paragraph of the pleading objected to could not have been so understood by the court or the jury. The pleading was not evidence. None of the testimony offered by plaintiff tended to present the case to the jury upon that theory, nor did the court submit such an issue for the consideration of the jury in the charge. Where a case is submitted to the jury on a single issue, errors in ruling on exceptions to allegations in the pleadings, touching other issues, are harmless. G., H. & S. A. Ry. Co. v. Johnson, 24 Tex. Civ. App; 180, 58 S. W. 622. Error in overruling exceptions to a pleading becomes immaterial where the issues raised by such pleading are not submitted to the jury. 1 Ehc. Dig. Texas Eeports, 784, and authorities there cited.

Appellant’s second assignment of error is the court erred in permitting the appellee to testify to the conversation had with appellant’s superintendent, H. E. Allen. While on the witness stand, plaintiff was asked by his counsel if he had any conversation with any employés of the defendant in reference to permitting his two boys, one being deceased, staying with him on his outfit cars, and the witness answered that he had a conversation with H. E. Allen about three weeks prior to the accident, resulting in the death of Johnnie Oliver, and over the objections of the defendant that such a matter was not within the scope of Allen’s authority, because plaintiff’s boys were not employés, defendant company would not be bound by any statement of Allen in reference to such matters. The court permitted said witness to testify that plaintiff had secured from Allen transportation for himself, wife, and two smaller children to Ft. Worth, Tex., and that plaintiff told Allen he was not going to send the other two children (referring to the deceased, Johnnie Oliver, and a younger son), for the reason that his wife had to go to the hospital and that he did not want to burden their grandmother with their care, and that Mr. Allen told him-that it was perfectly all right to keep the said two older boys with him on the outfit ears. It was further made to appear that plaintiff had previously sought permission of the company through superintendent Allen to have his wife with him on these cars, and was advised by Allen that this would have to be taken up with the management of the road at Ft. Worth, and that this was done and the request was denied by the management. In the case of H. & T. C. Ry. Co. v. Bulger, 35 Tex. Civ. App. 478, 80 S. W. 557, it is said: “Had it been proven that Hood had specific orders from the company not to allow any one to come on the premises, his disobedience of such orders, in inviting and allowing appellee there, would be no defense to this action. M., K. & T. Ry. Co. v. Rodgers, 89 Tex. 675 [36 S. W. 243]; Cook v. Nav. Co., 76 Tex. 353 [13 S. W. 475, 18 Am. St. Rep. 52].” In the Bulger Case, the plaintiff, a 13 year old boy, was injured by steam turned upon him at a pumping station, and Hood had charge of the station, and had received express orders from the company to prevent persons from coming on the premises. A writ of error was denied by the Supreme Court in this case, and it seems to be conclusive of appellant’s contention under this assignment.

The statement of facts clearly shows that, even if express orders prohibiting plaintiff’s deceased son from accompanying his father on the cars in question had been issued, yet Allen had actual notice upon more than one occasion that the boy was with the outfit, and had himself issued plaintiff passes for both of his boys to come to him and the outfit from their home in a distant town. Besides, it has not been affirmatively shown that Allen did not have authority to permit the children to be on the cars, and we cannot infer his want of authority from the fact that plaintiff’s wife had been denied the right to remain thereon.

By its third assignment of error appellant insists that the court erred in refusing to permit the witness Harmon, who. was fireman on the engine which backed into the cars at the time of the accident, to answer this question, “I will ask you to state whether or not the coupling made into the caboose was an easy or violent coupling.” The bill of exceptions states that, if the witness had been permitted to answer the question, he would have stated that the coupling was an ordinary one, and made in the usual and ordinary manner, and that the rate of speed at which his engine was moving was just sufficient to cause the coupling devices on the end of the train they were handling and on the caboose to connect up properly, and that there was no violent bumping of the caboose or shoving forward as would have been the case if the engine had been moving rapidly, and that the brakeman attending to the coupling into the said caboose was on the ground walking along beside and keeping up with the car they were coupling into the caboose.

Appellant insists that it is clear that the question was only another method of ascertaining whether the car on which the coupling was made was moving slowly or rapidly. “All statements concerning the speed of a train, except where the witness observed the time actually occupied in traversing a known space, are necessarily expressions of opinion, and therefore subject to the infirmities that attach to all opinion evidence.” Borneman v. Chicago, etc., Ry. Co., 19 S. D. 459, 104 N. W. 208; Williams v. K. C., etc., Ry. Co., 96 Mo. 275, 9 S. W. 573. “In a case where a ear was kicked from a switch onto the main track, and collided with the cars standing thereon, a witness who was sweeping the floor of one of the stationary cars stated that the force of the collision shook down a stovepipe, and broke the glass in the door and lamp, and he estimated the speed of the colliding car, which he did not see, at 20 miles an. hour. ‘Stress was laid upon this statement by plaintiff’s counsel,’ said the court, ‘but, while it may be conceded that the moving car struck with sufficient force to jar the stovepipe so that it fell down, that a window light was broken, and the lamp disarranged, the opinion that it was moving at the rate of 20 miles an hour is absurd. If this had been so, the force of the collision must have broken more substantial portions of the stationary car than a lamp and window glass. * * * All estimates of distance [speed?] must, under such circumstances, be regarded as of doubtful value at best, and when given in such haphazard and conjectural way amount to nothing more than a mere guess, and ought not to be made the basis of judgment by a court or jury.’ ” Moore on Facts, § 456; Setterstrom v. Brainerd, etc., R. R. Co., 89 Minn. 262, 94 N. W. 882.

It is not necessary for us to decide whether this testimony, if admitted, was a conclusion of the witness, and, in our opinion, its admission was not of great importance. The fact that the engine backed in and struck the dead cars with sufficient force to propel them far enough to cause the death of plaintiff’s son was established, .and it occurs to us to be an immaterial inquiry whether the act of coupling was done in an easy or violent manner.

It is shown in the statement of facts that this witness testified, “Coupling made to the outfit cars was an ordinary coupling, easy coupling.” And Burroughs, witness for appellant, testified on direct examination as follows: “We made an easy coupling. Of course we knocked the slack out of the caboose. We stopped when we made that coupling, and then went down and made a coupling with the other cars, and that coupling was made easy — just enough to knock the slack out of the cars.” The statement of Harmon’s evidence in the statement of facts controls, if there is a conflict between it and the bill of exceptions and the admission of the testimony of the witness Burroughs, without objection, cures the error, if there was one.

The fourth assignment attacks the fifth paragraph of the court’s charge. The objections to this paragraph of the charge are not clearly defined by the propositions; but we glean that the first objection to this part of the paragraph is, “And you further find that, while said work cars so used by plaintiff were stationed on the spur track of defendant company at Amarillo, and with proper signals and flags placed thereon, and while plaintiff’s said minor son Johnnie was in and about said cars, hising ordinary ewe for his own safety and protection, and that defendant’s agents, servants, and employés in charge of a switch engine and other cars came in off of the main track onto said spur track and against said work cars,” etc., assumes that a proper signal flag was placed on the cars, and that the deceased, Johnnie Oliver, was using ordinary care for his own safety and protection. The charge is not subject to the criticism, because in the same paragraph the court uses this language: “Or failed to observe the signal flag on said work cars, if there was a flag thereon.” In the sixth paragraph of the court’s charge there is the following language: “Yet, if the jury should also find and believe from the evidence that either plaintiff or his son Johnnie was also guilty of negligence which caused or contributed to cause the injury and death of plaintiff’s said son, then in such event plaintiff could not recover,” etc. Appellant’s special charge No. 10 submitted the issue of Johnnie Oliver’s negligence squarely to the jury, and its special charge No. 13 instructed the jury that if appellee failed to exercise ordinary care in handling and managing the cars, or in preventing or protecting his son from being injured, to find for appellant. The general charge, when construed in connection with these two special charges, exempts it from the error claimed under this assignment. In City of Austin v. Forbis, 99 S. W. 132, this language is used: “If it be conceded that isolated sentences or paragraphs are ambiguous or inaccurate, following the recent decision of the Supreme Court in Railway Co. v. Trump [100 Tex. 208] 97 S. W. 464, we hold that such defects were corrected by other portions of the charge;” and, further, “Where instructions taken as a whole contain a correct statement of the law so expressed as to be clearly understood by men of plain common sense, and there is nothing to mislead the jury from the application of the correct principles to the facts of the case, the instructions will not be condemned, though isolated sections may be susceptible of a construction that possibly, if so considered, may mislead the jury.” Kirby Lumber Co. v. Dickerson, 42 Tex. Civ. App. 504, 94 S. W. 153; Industrial Lumber Co. v. Bivens, 47 Tex. Civ. App. 396, 105 S. W. 831.

The second proposition under this assignment insists that there is error in this paragraph of the charge, because the defendant company did not owe a duty to the plaintiff to give a warning of the approach of the engine onto the spur track, because the deceased was at best a licensee, and in such capacity assumed the risk incident to his presence there. This paragraph of the charge instructed the jury that if appellee had secured from appellant company permission to take his said son with him on the cars, and have him with him and around the cars, etc., if appellant’s servants backed the switch engine in onto the spur track without sounding the alarm, or if they failed to observe the blue flag, then to find for appellee, unless they found for appellant on . other issues. The Question of alarm by bell and whistle and the further question of the presence of the flag were presented by conflicting evidence. There was also the issue of plaintiff’s right to have his son with him, and we think the court correctly submitted all such issues to the jury. The third contention under this assignment is without merit by reason of the fact that appellant’s special charge No. 11 instructed the jury that in assessing the appellee’s damages, if any, the jury would take into consideration as bearing upon the amount of damages the cost and expenses of rearing and maintaining the child during minority, and appellant’s special charge No. 12, given by the court, further limited the recovery to the pecuniary value of the services lost, and no error has been shown. What is here said also disposes of appellant’s fifth assignment of error. The excerpt from the charge quoted under the fifth assignment might be considered prejudicial error if taken alone, but when considered in connection with the entire charge is rendered harmless.

Under the sixth assignment of error appellant complains of the refusal of the court to give special charge No. 3. This special charge ignores the question of alarms by bell and whistle from the engine, and for that reason was an incorrect charge, and it further assumes that the failure to have the flag on the cars at the time of the accident would be negligence, as a matter of law, and the fourth special charge, upon which the seventh assignment of error is predicated, was likewise defective.

The eighth assignment of error contains no reference to the record when quoting facts to show the applicability of the special charge refused; but, admitting that the record shows the facts claimed in the statement, it is undisputed that as long as the blue flag was on the cars in question under the rule they should not be.moved until the party who placed the flag had removed it. With such testimony before the jury, in our opinion, the charge announced an incorrect rule of law.

Appellant’s ninth, tenth, eleventh, and twelfth assignments of error insist that the verdict and judgment are contrary to the law and the evidence, and unsupported by the evidence. In our opinion there is sufficient evidence to sustain the judgment.

Under the thirteenth assignment it is insisted that the verdict is excessive. We think the evidence is sufficient to support the judgment for the amount shown in the record.

By supplemental brief the appellant insists that, because the record shows the mother of the deceased boy, Johnnie Oliver, was alive at the time of the trial, the failure to make her a party plaintiff is fundamental. We are cited to the leading case of Oar v. Davis (Sup.) 151 S. W. 794, which seems to be the last word by the Supreme Court on this much mooted question. It is held in the case of Hanner v. Summerhill, 7 Tex. Civ. App. 235, 26 S. W. 906, in which writ of error was refused by the Supreme Court, that a defect in parties plaintiff may be taken advantage of on appeal, even though the nonjoinder has not been pleaded or the question raised in the court below. We do not .agree, however, that Mrs. Oliver was a necessary party to the action. Article 4699 is, “The action may be brought by all of the parties entitled thereto, or by any one or more of them for the benefit of all,” and the contention is that, because W. L. Oliver, the father, does not state in his pleadings that the suit is for the benefit of himself and wife, the wife is not interested in the recovery, and therefore not a party to the suit. In our opinion the statute does not require that the wife be made a party plaintiff with her husband to this sort of an action. Damages recovered for the death of a child in a suit filed by either or both parents has been held frequently in this state to be community property. In San Antonio Street Railway Co. v. Mechler et ux., 29 S. W. 202, it is said: “When, however, as in this case, no persons were interested save the parents, and all the damages recoverable would be community property, it would seem there could be no reason, so long as the verdict considered the interest of both, for finding a separate amount for each. Being community property, the husband was entitled to receive and appropriate it, and we do not think the verdict should be set aside as contrary to the statute. It was not intended to apply where such union of interests existed.” In Southwestern Telegraph & Telephone Co. v. Dale, 27 S. W. 1059, Finley, Justice, used this language: “The first assignment of error presented by appellant questions the correctness of the action of the court in overruling a special demurrer to plaintiff’s petition. The special demurrer is as follows: ‘Defendant excepts to so much of plaintiff's petition as seeks to recover damages for himself in his own individual right, because it is joined with a cause that seeks to recover for the damages to the feelings and for mental distress of his wife, F. T. Dale. It is a misjoinder of causes of action, and seeks to recover damages twice for the same injury or wrong, and because the damages, if any, as alleged in said petition, are too remote to entitle him to recover for himself in this form of action.’ The petition alleged that the message was delivered to appellant for the benefit of the husband and wife; that they each desired the presence of Mrs. Lowe at the last illness and death of their child, and both suffered mental distress by being deprived of her assistance and consolation. It is proper for the husband to sue for damages sustained by the wife, and, where damages to both husband and wife arise upon the same acts or transactions, recovery of damages sustained by each of them may be had in the same suit.” In Houston City Street Railway v. Sciacca, 80 Tex. 354, 16 S. W. 31, the Commission of Appeals, in an opinion approved by Stayton, Chief Justice, expressly holds that the recovery in such a case is community property, and this rule is announced by Fly, Justice, in G., H. & S. A. Ry. Co. v. Hughes, 22 Tex. Civ. App. 134, 54 S. W. 264. It cannot be denied that as a general rule a husband has the right to sue in his own name for the recovery of damages or property which belongs to the community, and appellant’s contention is therefore overruled.

Finding no reversible error, the judgment is affirmed.