text:
    WESTERN NAT. BANK OF FT. WORTH v. TEXAS CHRISTIAN UNIVERSITY et al.
    (No. 8126.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 3, 1915.
    Rehearing Denied May 8, 1915.)
    1. Garnishment <@=133 — Bringing in New Parties.
    ' The relation between depositor- and bank is that of debtor and creditor only; and hence, where a landowner- deposited in a bank funds to bé .used in paying a building, contractor, the fact that the bank debited the account with sums advanced to the contractor does not render it liable for a conversion. Hence, in an action where other creditors of the contractor garnished the funds in.the hands of the owner, the. bank might be impleaded and the garnishee’s rights against it adjudicated. •
    [Ed. Note. — For other cases,'see Garnishment, Cent. Dig. § 262; Dec. Dig. @=133.]
    2. Garnishment @=133 — Rights op Garnishee-Interpleader. " ;
    A garnishee or other stakeholder may im-. plead all persons having claims against the fuúdá’held by him. Hence the owner of a'buiíd; ing may, in 'a proceeding Ky creditors’of 'the contractor, implead all persons having cláimg' ■ ' 1 '. Q'. '. . ... !i) to funds deposited in a bank to be applied on tbe amount due the contractor.
    [Ed. Note. — For other cases, see Garnishment, ' Cent. Dig. § 262; Dec. Dig. <§=133.]
    3. Appeal and Error <@=1036, lOdO1 — Review — Harmless Error.
    Where appellant was in no way prejudiced ; by the misjoinder of parties and actions, the overruling of his exceptions and plea setting up misjoinder was not error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. "Dig. §§ 4074, 4089-4105; Dec. Dig. >@=1036, 1040.]
    4. Subrogation .@=23 — Right to Subrogation.
    Where a bank advanced to a contractor money used by Mm in discharging claims for labor and material on a building, but there was no agreement between the bank and the owner that such payments should be made or that the bank should be subrogated to any liens in favor of the holders of the claims, the bank is not subrogated to such liens.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. @=23.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by Mitehell-Gartner & Company and another against the Texas Building Company, in which the Texas Christian University was summoned as a garnishee. The garnishee interpleaded the Western National Bank of Ft. Worth and others. From a judgment against the bank, it appeals.
    Affirmed.
    Stephens & Miller, of Ft. Worth, for appellant. Flournoy, Smith & Storer, Capps, Can-tey, Hanger & Short, and David B. Tram-mell, all of Ft. Worth, for appellees.
   DUNKLIN, J.

The Texas Building Company erected a building for the Texas Christian University known as “Clark Hall,” under a written contract, by the terms of which the owner was to pay to the contractor $56,-200. After all of the contract price had been paid with the exception of $5,505.20, writs of garnishment were served upon the university by Mitehell-Gartner & Co. and J. W. Mitchell & Co., judgment creditors of the building company, to subject the balance owing by the university to the payment of the judgments. In its answer to the writ, the garnishee alleged the building contract, the balance due thereon shown above, and inter-pleaded the Western National Bank of Ft. Worth, together with numerous individuals and firms who held claims against the contractor for labor and material furnished in the construction of the building. Prior to the service of the writs of garnishment, the university had deposited in the bank named the sum of $4,561 for the purpose of applying the same to the payment of the unpaid balance of the contract price for the building whenever the building should be finished. As a basis for interpleading the bank, the garnishee alleged that $3,100 of the amount which they had so deposited had been wrongfully applied by the bank to the payment of a draft drawn by the building company upon the university, which draft the company had never accepted. It was further alleged that the university had never in any manner agreed to the appropriation so made by the bank, and garnishee prayed for a determination of the issue whether or not the act of the bank in so appropriating said credit was rightful. In effect, this plea was that, if the payment of $3,100 so made by the bank constituted a proper debit against the university under the building contract, then the garnishee was entitled to credit therefor as against the building company and all parties having-claims for labor and material used in the construction of the building; otherwise, the garnishee was entitled to a judgment against the bank for said sum for the purpose of discharging the unpaid claims for labor and material. The bank excepted to the Interpleader against it upon the ground of a misjoinder of parties and causes of action, and also filed a plea of misjoinder. It further pleaded that $3,100 of the amount to the credit of the university in the bank was appropriated to cover the pay roll of the building company for labor performed upon the building in controversy upon the advice of John L. Cassell, one of the building committee of the university with authority to act for the university in the premises; that but for such advancements work upon the building would have ceased and the building would not have been ready for occupancy at the time desired by the university — all of which facts were made known to Cassell before he agreed to such an appropriation and induced him to make such agreement. The other parties interpleaded filed pleas of intervention setting up their claims for labor and material furnished in the construction of the building, and a judgment was rendered in their favor against the university for the aggregate sum of $3,604.39, directing that the same be paid in full out of the amount due by the university, and that the balance remaining of $5,505.20, due on the contract for the building, should be .applied to the payment of the garnishing creditors. Judgment was also rendered in favor of the garnishee against the bank for the $3,100 which the bank had appropriated out of the deposit made by the university. From that portion of the judgment last mentioned the bank has appealed.

The trial was by the court without the aid of a jury, and the findings of fact filed by the trial judge have not been assailed. According to those findings, it appears that the building company also kept an account with appellant bank using the fictitious name of “Alvord Special,” for the purpose of concealing from its creditors any balance that might be due it. On October 6, 1913, the building company drew ,a draft on the university in favor of the bank for the sum of $4,000, which the bank accepted and credited to the Alvord Special account on the same day. On October 15, 1913, tbe bank charged $3,100 of tbe draft to tbe account of tbe university. Between October 6tb and October 28tb, tbe building company, by checks on tbe Alvord Special account, paid tbe sum of $1,288.46, for material and labor used upon tbe building in question. On October 25, 1913, tbe writs of garnishment were served upon tbe university.

Tbe following are additional findings by tbe trial judge:

“(8) At the time said draft for $4,000 was made up on October 6, 1913, the Texas Building Company owed no items'for labor for the construction of Olark Hall.
“(9) It was from this draft of $4,000, dated October 6, 1913, that the Western National Bank endeavored to appropriate the sum of $3,100, charging it to the account of the Texas Christian University on October 15, 1913.
“(10) The Western National Bank not only paid checks upon the Texas Christian University job, but also paid all checks indiscriminately given by the Texas Building Company on any job out of the account known as ‘Alvord Special.’
“(11) Said sum of $3,100 was neither appropriated nor used by the Western National Bank exclusively for the payment of pay rolls .or other debts arising out of the Texas Christian University contract after October 6, 1913, and the same was not appropriated by the Western National Bank for that purpose exclusively.
“(12) At the time of these transactions ■ the Texas Building Company owed the Western National Bank the sum of $50,000.
“(13) The Western National Bank agreed that when the work was first begun on the Texas Christian University contract that it would advance money to the Texas Building Company for the whole contract whenever that company needed money and that it would be loaned to said company.
“(14) No estimate of the architect accompanied the $4,000 draft given by the Texas Building Company to the Western National Bank and drawn on Texas Christian University October 6, 1913. The contract for the erection of said building provided that no payment should be made except on estimate furnished by the 'architect.”
“(17) There was no contract or agreement between the Texas Christian University and the Western National Bank, whereby the said Western National Bank was to be subrogated to any rights of the Texas Christian University in the sum of $3,100 appropriated out of said draft or any other sums represented by the same.”
“(21) On October 15, 1913, the Western National Bank appropriated to its own use $3,100 of said money of the Texas Christian University on deposit with said bank without authority or direction so to do by Texas Christian University, its treasurer, or any of its officers or agents, and without any right so to do, and said bank has no just valid claim to said $3,100, or any part thereof.
“(22) At the time Mr. Taylor for _the Texas Building Company agreed to give the draft for $4,000 to Western National Bank, drawn upon the Texas Christian University, Mr. Eddleman, president of the Western National Bank, agreed with Mr. Taylor that the draft would not be used unless Mr. Cassell agreed that the Texas Christian University would advance the money upon said draft, and that the draft would not be used for the purpose of paying the checks given by the Texas Building Company unless such agreement was made by the Texas Christian University through Mr. Cassell.
“(23) Mr. Cassell did not agree to pay this draft or any part of it on behalf of the building committee or on behalf of the Texas Christian University or personally, and did not agree to protect the Western National Bank or to accept on behalf of the building committee or on behalf of the Texas Christian University the draft for $4,000, or a portion of that amounting to $3,100.
“(24) Said draft for $4,000 by the Texas Building Company to the Western National Bank was not intended and did not constitute an assignment of the fund due and owing by the Texas Christian University to the Texas Building Company, neither for the entire amount of $4,000, nor for the sum of $3,100, for which the charge was entered on October 15, 1913.
“(25) There was no contract between the Texas Building Company and the Western National Bank that the- said bank, on the payment of any part of said $4,000 or $3,100 to any person or persons who had furnished labor or material in the construction of said Clark Hall, should be subrogated to the lien, or the right to fix any lien or liens, of such person or persons, against the building in question or against said university or its property or said fund.”

The first two assignments of error present the contention that the court erred, in overruling appellant’s exception to the petition and plea in abatement presenting the issue of misjoinder of parties defendant and causes of action. The proposition submitted under these two assignments reads as follows:

“A garnishee cannot join an action for conversion of his property with a suit in the nature of an interpleader, brought to determine the extent of lien indebtedness upon his property in order that he may know the amount of his indebtedness to the defendant in the action out of which the garnishment was issued, when there can be no joint liability between the persons charged with conversion and those claiming the liens and the plaintiff in garnishment.”

In the cases of Stewart v. Gordon, 65 Tex. 345, Prey v. Railway Co., 86 Tex. 466, 25 S. W. 609, and Oak Cliff College v. Armstrong, 50 S. W. 610, as well as in other authorities cited in appellant’s brief, it was held that actions for debt cannot be joined with actions for tort when the causes of action were against different persons.

While the answer of the garnishee contained allegations, in effect, that the bank had wrongfully converted to its own use $3,-100 of the amount deposited in that bank to the credit of the garnishee, that allegation did not charge a tort committed, for it is well settled that the relation between a depositor and a bank is that of debtor and creditor only. See Baker v. Kennedy, 53 Tex. 200; Van Winkle Gin Co. v. Citizens’ Bank, 89 Tex. 147, 33 S. W. 862. Furthermore, it is a familiar rule that a garnishee, or other stakeholder, for his protection has a right to interplead all persons having claims against the fund held by him. Nixon v. Malone, 100 Tex. 250, 98 S. W. 380, 99 S. W. 403; Kelly Grain Co. v. English, 34 S. W. 651; Beilharz v. Illingsworth, 132 S. W. 106; Alamo Ice Co. v. Yancey & Fraser, 66 Tex. 187, 18 S. W. 499. Further still, it does not appear that appellant was in any manner prejudiced by the joinder of parties and causes of action, to iwhichi objection was made, and, even though it should be said that there was error in. overruling the exception and plea, the same would not present cause for a reversal of the judgment under the rule established in such cases as Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423; Texas Brewing Ho. v. Bisso, 50 Tex. Civ. App. 119, 109 S. W. 270; Thompson v. Griffin, 69 Tex. 139, 6 S. W. 410; G. C. & S. F. Ry. Co. v. Weddington, 31 Tex. Civ. App. 235, 71 S. W. 780.

By other assignments appellant insists that, as the $1,288.46 advanced by it to the building company was used in paying claims for labor and material in the construction of the building, it was subrogated to the rights of the holders of such claims to a lien upon the building, and. that, in any event, the court erred in rendering a judgment for more than $1,811.54; that amount being the difference between the $1,2S8.46 so advanced, and the amount of $3,100 for which judgment was rendered against the bank.

The findings of fact by the trial court show that the advancement by the bank of money used in the discharge of claims for labor and material were not upon any agreement between the bank, and the Texas Christian University that such payments should be made. Neither is there any finding of fact, nor are we cited to any evidence to support such a finding, that the cheeks so paid by the bank were paid under any agreement between the bank and the parties to whom such payments were made that the bank should be subrogated to any liens upon the building in favor of the holders of such claims. Under such circumstances, there is an absence of any showing of a right in the bank to claim a lien upon the building by reason of such payments under the doctrine of subrogation. Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273; Hatton v. Bodan Lbr. Co., 57 Tex. Civ. App. 478, 123 S. W. 163; Davidson v. Bodan Lbr. Co., 143 S. W. 700; Shappard v. Cage, 19 Tex. Civ. App. 206, 46 S. W. 839; Furche v. Mayer, 29 S. W. 1099.

For the reasons indicated, the judgment in favor of the garnishee against the bank is affirmed. In all other respects the judgment is undisturbed.
      <§=For other-oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      t@=For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    FIRST NAT. BANK OF GORMAN et al. v. MANGUM et al.
    (No. 8161.)
    (Court of Civil Appeal of Texas. Ft. Worth.
    April 17, 1915.)
    1. Action «=>47 — Misjoinder oe Causes.
    An. action against a bank for breach of a contract to advance money cannot be joined with a tort action against it and its cashier for injuring plaintiff’s credit.
    TEd. Note. — For other cases, see Action, Cent. Dig. §§ 469, 470, 472-489; Dec. Dig. «=>47.]
    2. Appeal and Error «=>1039 — Review — Harmless Error.
    While a misjoinder of causes of action is no ground for reversal if not prejudicial, it was prejudicial, in an action against a bank for breach of a contract to advance money, to join a tort action against the bank and its cashier for injuring plaintiff’s credit, where evidence of the cashier’s statement that plaintiff was a rascal was admitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. «=> 1039.J
    3. Action @=>50 — Parties—Misjoinder.
    Where a bank was sued for breach of a contract and also for wrongfully injuring plaintiff’s credit, it was improper to join third persons interested only in the contract.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. «=>50.]
    4. Set-Oee and Counterclaim: «=>34r — Matters Subject to Set-Oee.
    Under Vernon’s Say les Ann. Civ. St. 1914, arts. 1329, 1330, providing for set-offs and counterclaims, an action on a note cannot be set off against an. action for unliquidated damages founded on tort and breach of contract.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 56, 57; Dec. Dig. «=>34.]
    5. Evidence «=>408 — Parol Evidence to Vary Written Instrument.
    A certificate issued by a bank showing the deposit of drafts with bills of lading ■ attached being merely a receipt, it was not contrary to the parol evidence rule for plaintiff to testify as to the arrangement on which the drafts were received.
    [Ed-. Note. — For other cases, see Evidence, Cent. Dig. §§ 1829-1842; Dee. Dig. «=>408.]
    6. Banks and Banking «=>143 — Breach oe Contract — Defenses.
    Where a bank agreed to honor checks given by plaintiff for the price of peanuts, it was no defense to an action for breach that the cheeks were signed by plaintiff’s agent.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 414, 517; Dec. Dig. «=> 143.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Action by W. J. Mangum against the First National Bank of Gorman and another, in which others intervened. From a judgment for plaintiff and intervener, defendants appeal.
    Reversed and remanded.
    J. R. Stubblefield, of Eastland, and J. B. McEntire, of Gorman, for appellants. Scott & Brelsford, of Eastland, S. W. Bishop, of Gorman, and D. G. Hunt, of Eastland, and J. Rupert Jackson, of Baird, for appellees.
   DUNKLIN, J.

W. J. Mangum, residing in the town of Gorman and engaged in the business of buying and selling hogs, peanuts, grain, and other farm products, instituted this suit again-st the First National Bank of Gorman and B. F. Reed, and, from a judgment rendered against the bank in favor of plaintiff and also in favor of several inter-veners, the bank has appealed.

The cause of action alleged by the plaintiff against the bank consisted, substantially, of allegations that the bank entered into a contract with the plaintiff to honor his checks drawn in payment for peanuts which he might purchase, upon plaintiff’s agreement to deposit with the bank drafts which he would draw upon his customers to whom he intended to sell and ship the peanuts with bills of lading attached, and with the understanding that the proceeds of the drafts when collected by the bank would be used for reimbursing the bank for moneys paid out on such checks. This agreement was alleged to have been made on or about November 1, 1913. It was further alleged that on or about the 16th day of January, 1914, plaintiff bought peanuts in different amounts from several farmers residing in the community in which he lived, the amount of such purchases aggregating two car loads, and gave checks upon the defendant bank to cover the amount of such purchases, the checks being drawn upon the bank by plaintiff through W. H. Mullins, his authorized agent; that hills of lading for the two cars of peanuts with draft attached upon the Cleburne Peanut & Product Company, to whom plaintiff had sold the shipment, were deposited with the defendant bank on January 20, 1914, and at the same time a list of the outstanding checks given for the purchase of the peanuts was delivered to the bank with instructions to collect the drafts and to pay the checks so drawn, which the bank agreed to do; that the bank collected the drafts but refused to honor the checks, applying the proceeds of the two drafts in part upon an account owing by plaintiff and Godwin, his former partner, and in part upon plaintiff’s individual note to the bank. Plaintiff further alleged that in dishonoring the checks the officers of the bank acted maliciously and thereafter publicly stated to the holders of the checks that plaintiff had no authority to draw the same and made the same representation to other banks and persons in that vicinity. Damages were sought for the breach of said contract on the part of the hank, consisting of loss of profits plaintiff would have made in his business of buying and selling such produce if the bank had complied with its said contract to furnish him credit. Damages were also sought for injury to his credit and business standing resulting from the tort committed in falsely circulating the report that he had drawn said, checks knowing at the time that he had no funds or credit which would insure their payment.

The defendant B. F. Reed was alleged to be the cashier of the bank, and plaintiff prayed for judgment for both actual and exemplary damages against him and the bank by reason of the facts alleged and noted above.

According to the allegations of the petition, the contract and breach thereof were by the bank, while both the bank and Reed were responsible to plaintiff for making and circulating the false reports mentioned.

The case was submitted to a jury upon special issues. The verdict shows a finding that on or about November 1, 1913, the bank agreed with the plaintiff to furnish him a line of credit to enable him to buy products and to pay off and discharge any checks which might he drawn by the plaintiff in . making such purchases. The jury further1 found, in effect, that checks were given as alleged by the plaintiff for the purchase of the peanuts constituting the two car loads which he shipped to a customer in Cleburne, and that before said checks were presented he delivered to the bank bills of lading for such cars with drafts attached, and at the same time instructed the officials of the bank receiving such drafts to apply the proceeds thereof to the payment of the checks mentioned, which the bank agreed to do; that thereafter the bank refused to honor said checks, which refusal injured the plaintiff in his business; and that the sum of $1,500 would reasonably and fairly compensate the plaintiff for such damages. The jury further found that in refusing payment of the checks the officers of the bank did not act with malice.

We are of the opinion that the court erred in overruling a special exception urged by defendant bank to plaintiff’s petition, presenting the contention that there was a misjoinder of causes of action in that plaintiff seeks to recover damages for a breach of contract and also damages for libel and slander. One of the causes of action so alleged is founded upon a contract pure and simple,, and the other is for tort, and the tort is alleged to have been committed both by the bank and by Reed individually, with no allegation even tending to show that Reed was liable in any manner upon the contract made with the bank to extend credit to the plaintiff. Stewart v. Gordon, 65 Tex. 344; Frey v. F. W. & R. G. Ry. Co., 86 Tex. 465, 25 S. W. 609; Hammer v. Garrett, 133 S. W. 1058.

It is a familiar rule that a misjoinder of causes of action will not be cause for a reversal of a judgment upon appeal if the erroneous action of the court in allowing such misjoinder resulted in no injury to appellant. Thompson v. Griffin, 69 Tex. 139, 6 S. W. 410; T. & P. Ry. Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; G. & B. V. Ry. Co. v. Weddington, 31 Tex. Civ. App. 235, 71 S. W. 780; Western Nat. Bank v. Tex. Christian University, No. 8126, 176 S. W. 1194, by this court and not yet published. But such cannot be said in the present case in view of the testimony introduced by plaintiff, in effect, that defendant Reed made a statement to the holder of one of the cheeks that plaintiff Mangum was a rascal; that he expected to sue him and show him up in court as such; that he was indebted to the bank and seemed to be trying to act the rascal with it. It does not appear that the bank objected to this testimony, but a part of it, at least, clearly was not admissible against any one' except Reed, and doubtless objection would have been made to it if Reed had not been a party defendant. The issue whether or not the plaintiff’s business or business standing was injured by reason of the alleged libelous reports was not submitted, and a judgment was rendered in favor of Reed. But notwithstanding those facts we are of the opinion that evidence of the character referred to above was reasonably calculated to prejudice the jury in favor of plaintiff and to increase his chances for a favorable finding upon the issues that were submitted. If the cause of action alleged by the plaintiff had been confined to the issues determined by the jury, clearly it could not be argued that such evidence was admissible in plaintiff’s behalf, nor that the same would not be reversible error.

The interveners were the holders of nine separate checks which plaintiff gave in payment for the peanuts purchased. One of these cheeks was for more than $600, while the rest of them were for sums less than $300. Those interventions were upon the theory that, as the bank agreed with plaintiff to honor the cheeks out of the funds to be collected from the drafts drawn by plaintiff with bills of lading attached, the holders of the checks had an interest in the contract. A special exception was presented by the bank to these interventions upon the contention that to allow them would be to permit a misjoinder of parties and of causes of action, and we are of the opinion that the court erred in overruling that exception. Interveners had no interest in the contract which the jury found the bank made with plaintiff on or about November 1, 1913. Even though it should be said that they had an interest in the contract which the jury found the bank made with Mangum to pay the cheeks, which had then been issued in favor of interveners, out of the proceeds of the drafts drawn with bills of lading attached, and that they would have the right to assert their claims in a suit by the bank for a breach of that contract, still the objection that they would not have a right to also join their suits with plaintiff’s demand against Reed and the bank for the tort committed by reason of the libel and slander alleged would not be avoided.

There was no error in sustaining plaintiff’s special exception to the cross-action of the bank against Mangum, since that demand was based upon a promissory note executed by Mangum in favor of the bank, while the cause of action asserted by plaintiff against the bank was for unliquidated damages founded on tort and breach of covenant, and the counterclaim asserted by the bank, neither arose out of, nor was incident to, nor connected with, the cause of action asserted by the plaintiff. Vernon’s Sayles’ Tex Oiv. Stat. arts. 1329, 1330.

We are of the opinion further that there was no error in refusing appellant’s request for an instruction to exclude the testimony of Mangum relative to conversations between himself and the assistant cashier of the bank at the time the drafts were deposited, upon the theory that the certificate of deposit given to Mangum at the time constituted a written contract, the terms of which would be varied by such parol testimony. The deposit slip or certificate so issued by the bank constituted nothing more than a receipt and furnished no basis for the application of the rule invoked by appellant which forbids the terms of a written contract to be varied by parol testimony.

If at the time plaintiff deposited the two drafts the bank agreed to pay the checks which had theretofore been drawn for the purpose of paying for the peanuts, as testified to by plaintiff, then it was immaterial whether the checks had been signed ¡by plaintiff, himself, or by his agent, Mullins, and for this reason we hold that there is no merit in the contention presented by appellant that the court erred in submitting that issue to the jury in the absence of a specific agreement to pay checks drawn by Mullins as agent, rather than by plaintiff himself.

We are cited to no evidence sufficient to support the contention that plaintiff was able to pay the checks himself, and that he should have done so in order to avoid the damage to his credit for which he sues, even though it should be held, but which we do not wish to be understood as holding, that the legal duty rested upon him to thus avoid such damage, and the failure to do which would preclude a recovery.

For the errors indicated, the judgments in favor of plaintiff and interveners against the bank are reversed, and the suit as between those parties is remanded for another trial. And for the guidance of the trial court upon another trial we deem it proper to add that as interveners, together, with plaintiff, were beneficiaries of the alleged contract by the bank, made at the time of the deposit of the two drafts, to pay the checks held by the interveners, the joinder in the suit by the interveners for the purpose of collecting those checks will not be improper, provided plaintiff’s suit shall be limited to a demand for damages resulting from a breach of that contract. As no complaint is made of the judgment rendered in favor of the defendant Reed, that judgment is undisturbed.
      «=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    AVEN v. STATE.
    (No. 3544.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.
    Rehearing Denied June 2, 1915.)
    1. Criminal Law <@=^80 — Trial of Accomplice-Evidence op Principal's Guilt.
    Under Pen. Code 1911, art. 89, requiring the evidence on the trial of an accomplice to be such as would have convicted the principal, any competent evidence to show the guilt of the principal is admissible as if he were on trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 103-111, 1384; Dee. Dig. <@=>80.]
    2. Criminal Law <@=o-695 — Trial — Objections to Evidence.
    Overruling objection to the whole of certain evidence, part of which is admissible, is not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. 695.]
    3. Criminal Law <§^>80 — Trial op Accomplice— Concession op Principal.
    Confession of the principal is admissible on trial of an accomplice, but only to prove the principal’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 103-111, 1384; Dee. Dig. >@^»80.]
    Appeal from District Court, Goliad County; John M. Green, Judge.
    A. M. Aven was convicted of crime, and appeals.
    Affirmed.
    Dupree & Pool, of Victoria, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of accomplice to arson, and assessed the lowest punishment. The evidence is amply sufficient to sustain the verdict. The indictment is in the usual form, and avers that Mai Reeves was the principal, and set fire to and burned a certain house, and that the appellant was an accomplice.

In the trial of an accomplice the statute requires that the evidence must Be such as would have convicted the principal. In other words, the evidence must show the guilt of the principal. P. 0. art. 89. All the authorities hold that any competent evidence to show the guilt of the principal is admissible, the same as if the principal was on trial. There are many decisions down to this date to that effect, and the decisions are uniform. We cite only a few of them. Simms v. State, 10 Tex. App. 131; Crook v. State, 27 Tex. App. 198, 11 S. W. 444; Arnold v. State, 9 Tex. App. 435; Poston v. State, 12 Tex. App. 408.

The record' shows that said principal had been convicted some time before the trial of appellant, and that in Ms case he testified, admitting that he had set fire to the house, and showing his guilt as principal. The state, over appellant’s objections, introduced the whole of said principal’s testimony on his trial in the trial of this case. Appellant objected to the whole of that evidence. Unquestionably part of it was admissible. It may be that part of it which would tend to show that appellant himself was an accomplice was inadmissible, if the proper objections had been made thereto,' but no such objections were made. The rule on that subject is well established in this state, to the effect that, where objections are interposed to the whole of certain testimony, a part of which is admissible and a part of which is not admissible, the action of the court in overruling such objections does not present error. Ortiz v. State, 68 Tex. Cr. R. 525, 151 S. W. 1056; Pinkerton v. State, 71 Tex. Cr. R. 203, 160 S. W. 87, and authorities therein cited.

Appellant’s contention in the lower court and in this is that said testimony was inadmissible on the theory that the confession of a co-conspirator, made after the conspiracy had ended, and not in furtherance of the common design, was not admissible. He announces a correct principle of law, and cites authorities to support it, but it is wholly inapplicable in this case. The court properly declared, both orally at the time the evidence was introduced and in his written charge to the jury, that said testimony of Reeves was admissible solely for the purpose of tending to prove, if it did, the guilt of the principal, and the jury could consider it for that purpose alone.

The only other assignment appellant makes is to the overruling of his motion for new trial. Nothing is presented thereby showing any error in the court overruling it.

The judgment is therefore affirmed.


author: PBENDEKGAST, P. J.

text:
    TAYLOR v. STATE.
    (No. 3550.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.)
    1. Telegraphs and Telephones <®^79 — Obscene Language Over Telephone — Complaint and Information.
    In a prosecution under Pen. Code 1911, art. 471, for using obscene language over a telephone, a complaint and information sufficiently allege that the offense was committed before they were filed by the use of the word “heretofore.”
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. 79.]
    2. Telegraphs and Telephones cg^79 — Obscene Language Over Telephone — Complaint and Information.
    A complaint and information under Pen. Code 1911, art. 471, alleging the use of obscene language over a telephone belonging to the Southwestern Telegraph & Telephone Company, is sufficient without alleging that such company was a copartnership, corporation, joint-stock company, or individual firm.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <©=» 79.]
    3. Telegraphs and Telephones <@=»79 — Obscene Language Over Telephone — Complaint and Information.
    A complaint and information under Pen. Code 1911, art. 471, alleging that defendant used obscene language over a telephone describing it by number and giving the ownership thereof, is sufficient though not specifically alleging that it was in operation and capable of being actually used.
    [Ed. Note. — For other cases, see 'Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <§=> 79.]
    4. Indictment and Infobmation <@=>110 — Obscene Language Ovee Telephone — Complaint and Infoemation — Language of Statute.
    Under Pen. Code 1911, art. 471, making it a misdemeanor to use obscene, profane, etc., language over or through any telephone in the state, a complaint and information following the language of the statute is sufficient, though there is no allegation that the language was heard by any one or that it disturbed any one.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. <&=>110.]
    5. Telegbaphs and Telephones <@=379 — Obscene Language Ovee Telephone — Time of Offense — Evidence.
    Where a complaint and information under Pen. Code 1911, art. 471, alleged the use of obscene language over a telephone on the 16th day of March, the testimony of the sole witness for the state, on a trial had on the 24th day of March, that defendant used the language charged on the former’ date, did not show that the pí-fense was not committed before the complaint and information was filed.
    [Ed. Note. — Dor other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <@=> 79.]
    6. Telegeaphs and Telephones <@=>79 — Ob-, scene Language Ovee Telephone — Defenses.
    Under Pen. Code 1911, art. 471, making it a misdemeanor to use obscene language over a telephone, it is no defense that prosecuting witness could have disconnected the phone and thereby refused to listen to more than one single utterance by defendant.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. <S=>79.]
    7. Ckiminal Law <@=>1090 — Appeal and Ee-boe — Exceptions in Lowee Couei>-Abgument of Counsel.
    Objection to argument of counsel cannot be reviewed in absence of exception to such language at the time and a bill of exceptions thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@=>1090.]
    8. Cbiminal Law <@=>721 — Aegument of Counsel — Refebence to Failube of Defendant to Testify.
    Statement of a prosecuting attorney that complaining witness “has testified to all these facts, which have not been denied,” is not a reference to the failure of accused to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. <@=721.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Mary Taylor was convicted, of using obscene language over a telephone, and she appeals.
    Affirmed.
    Peden & Lipscomb, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PBENDEKGAST, P. J.

Appellant was prosecuted, convicted, and fined $10 for using vulgar, profane, obscene, and indecent language over and through a telephone.

The statute is:

“If any person shall use any vulgar, profane, obscene or indecent language over or through any telephone in this state, he shall be guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than five dollars nor more than one hundred dollars.” Article 471, P. C.

The prosecution was by complaint and information. They both follow the statute. After the proper formal parts, the complaint and information each charge that:

Mary Taylor, the appellant, “heretofore, on the 16th day of March, A. D. 1915, in the county of Tarrant and state aforesaid, did then and there unlawfully and willfully use vulgar, profane, obscene, and indecent language over and through a telephone, to wit, Lamar 6733, same belonging to the Southwestern Telegraph & Telephone Company, of Ft. Worth, Tarrant county, Texas.”

Appellant made two motions, one to quash the complaint and the other the information, on many grounds. We state only such of them as she urges in her brief. Her first is that said pleadings were insufficient in that the offense is not alleged to have been committed before they were filed. The reverse of this is true. They each allege that “heretofore.” Wilson v. State, 15 Tex. App. 155; Williams v. State, 17 Tex. App. 524.

Second, she claims they were insufficient because they fail to allege that said telephone company was a copartnership, corporation, joint-stock company, or individual firm. This was not necessary in this case. Steiner v. State, 33 Tex. Cr. R. 293, 26 S. W. 214. This is not like where a party is charged with theft or embezzlement, and the theft or embezzlement is alleged to be the property of a company.

Third, she claims that said pleadings failed to allege that said telephone was in operation and capable of use at the time. No such allegation was necessary. The allegation that was made clearly showed that the telephone was in operation and not only capable of being, but actually, used by appellant and that she used over and through it vulgar, etc., language.

Fourth, she claims that said pleadings fail to allege that in the use of said telephone she used vulgar, etc., language which was heard by any one or more persons, or it disturbed or was calculated to disturb any one or more persons. This was unnecessary. The allegations in both pleadings followed the statute and were clearly sufficient.

Appellant next complains that the court erred in refusing to give his special charge, to the effect that the state, having wholly failed to prove that she used any vulgar, etc., language as charged, on said date, at any time prior to the filing of the complaint to acquit her. Only one witness, a woman, testified. She testified that on the evening of March 16, 1915, appellant called her up over the phone; that she knew her voice, having seen and talked with her before and having talked with her repeatedly over the phone before; and that she used to her, giving the language. It is too indecent, vulgar, and profane to here copy. There is nothing in appellant’s contention that the testimony of this witness' did not show that this offense was committed before the complaint and information were filed. The case was tried on March 24, 1915.

Appellant next complains that the court refused to give her charge No. 2 to the effect that the prosecuting witness to whom appellant used, over the phone, the vulgar, etc., language, had it in her power to prevent appellant from committing the offense, because she could have disengaged her telephone from that alleged to have been used by appellant and thereby refused to listen to more than one single utterance by appellant, and this entitled her to an acquittal. The mere statement of' such a proposition is all that is necessary to show that there is no merit whatever in it.

The only other complaint appellant has is she alleges in her motion for new' trial that the county attorney in his argument to the jury said that the complaining witness “has testified to all of these facts which have not been denied.” She did not except to any such language, if used, at the time, and has no bill of exceptions thereto. This question cannot be reviewed in the absence of a bill of exceptions to the language at the time used, and the refusal of the court to give a charge excluding it. Besides, this was no reference to the failure of the appellant to testify.

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

      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    CLARK v. STATE.
    (No. 3553.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.)
    1. Criminal Law t@^S57 — Trial—Conduct or Jury — Failure of Accused to Testify.
    Whore the evidence in a prosecution for assault with intent to murder was conflicting as to whether accused or the prosecutor was the aggressor, a conviction cannot stand, where the jury discussed and considered accused’s failure to take the stand and explain why he was armed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. S57.]
    2. Homicide <®=^96 — Evidence—Admissibility.
    In a prosecution for assault to murder, the reason why accused was armed at the time of the shooting is immaterial, where prosecutor committed the first overt act, and accused shot in what he believed was self-defense.
    [Ed. Note. — For other cases, see Homicide. Cent. Dig. §§ 124-127; Dec. Dig. <@=>96.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Allie Clark was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    Poston & Dotson, of Groveton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

The state’s case, as testified to by Mr. and Mrs. George Bethard and their daughter, Miss Berta, is that they were in a wagon on their way home. They admit that Mr. Beth-ard had a gun in the wagon, but deiiy that he at'any time attempted to use it. They say that appellant passed them in the road, and at that time a former difficulty was agreed to be dropped, and Mr. Bethard and appellant would be friends and speak when they met; that appellant rode on, and the next they saw of him he was behind a pine tree, and had a shotgun in his hands and as they came up Mr. Bethard says he heard some one say, “Get out of the way,” and as he looked around appellant threw his gun on him, when Mrs. Bethard requested him not to shoot, but nevertheless appellant shot, saying, “I will kill the God-damned grey-headed son of a bitch.” The daughter jumped, and prevented appellant from shooting again.

It is thus seen the state’s testimony would amply support the verdict. However, Charlie' Smothers, Tom McFarland, Omer Chessner, and John Chessner were present, and they testify to a different state of facts. In substance they say that appellant was standing near the store, and the prosecuting witness, his wife, and daughter came driving up ; that as they drove up Mr. Bethard reached for his gun, and as he did so appellant called to Mr. Bethard three times, “Don’t draw that gun;” that appellant made no attempt to shoot until Mr. Bethard drew his gun.

It is thus seen that a sharp issue was raised as to who made the first demonstration. The court fairly submitted that issue, and the jury finds against the contention of appellant ; but no one could have criticized them, under the testimony, if they had found appellant acted in self-defense. With the issue thus drawn by the testimony, appellant not testifying, it appears the jury discussed appellant’s failure to testify, and why he did not take the stand and explain why he had the gun with him. The jury even went so far as to send to the court the following question, while considering the case:

“We want to know what Allie Clark was doing down there with the gun.”

Of course, the court did not attempt to answer the question. Each juryman placed on the stand says that the failure of the defendant to testify w>as discussed before the jury arrived at a verdict. Some say the discussion did not influence them, while others in-tímate it might have done so. W. H. McClen-don testified:

“I was one of the jurors in the trial of the case of State of Texas v. Allie Clark. After the jury had retired to consider of their verdict, the fact that Allie Clark failed to testify for himself in this case was discussed. That had some influence upon me. I thought that it influenced the other jurors. That was before we arrived at a verdict in the case.”

Blr. Sowell testified in regard to the question propounded to the court: ^

“I do not know whether my verdict would have been different, had I had that statement or not. I think the biggest part of us, if not all of us, would rather have had his statement, and some of them suggested, and it wasn’t me that suggested it, that we get it. Some of the men that were in favor of conviction used that argument of his failure to testify as showing his guilt. I couldn’t say which one it was, but there was several.”

By the testimony of all the jurors who testified it is made plain that the fact that defendant had not testified was discussed; that he should have taken the stand and explained why he had the gun, and the fact he did not do so influenced at least some of them in their action. The jury thought he should do so, and even went so far as to request the court to have him explain this. Under our law it would be immaterial why he had the gun down there, if the prosecuting witness first reached for his gun, as testified to by appellant’s witnesses, and led appellant, by his acts and conduct, to believe his life was in danger.

It being made clearly to appear that the jury, before arriving at a verdict, did discuss appellant’s failure to testify, and the failure to explain why he had the gun with him, and that such discussion had its influence on at least a part of the jury, the judgment is reversed, and the cause remanded.
      <®=5For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.-

text:
    Ex parte RICHIE.
    (No. 3509.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.
    Rehearing Denied June 9, 1915.)
    1. Habeas Corpus ®=»113 — Appeal — Discharge from Custody Pending Appeal.
    In a habeas corpus proceeding by a prisoner who was temporarily released and subsequently rearrested, he could not be released from custody pending an appeal from a judgment remanding him to custody by entering into a recognizance or appeal bond.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. <S^113.]
    2. Habeas Corpus <§=^113 — Appeal—Statement of Facts — Time for Filing.
    On appeal in a habeas corpus proceeding, a statement of facts filed over 100 days after the adjournment of court could not be considered, there being no showing that the failure to get the statement of facts was not due to the relator’s fault.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. <@=3 113.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Habeas corpus proceeding by R. R. Richie. From a judgment remanding the relator to custody, he appeals.
    Appeal dismissed.
    T. B. Ridgell, of Rockwall, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.-

Relator was convicted in the county court, his punishment being assessed at a fine of ?100 and imprisonment in the county jail for 30 days. This occurred in February, 1914. Subsequently he was placed in jail and served part of his imprisonment, and was then permitted to go home for the purpose of attending to his crop for fear of loss of his crop, and also on account of sickness in his family. Later the sheriff arrested him, and placed relator in jail to finish out the 30 days’ imprisonment. A writ of habeas corpus was resorted to, and he was remanded to custody. This judgment was rendered in the district court on November 23, 1914. Relator gave an appeal bond pending his appeal to this court, and on the appeal bond supposedly was discharged from custody pending appeal.

In habeas corpus cases similar to this the relator cannot be released from custody pending his appeal by entering into a recognizance or appeal bond. Snyder v. State, 39 Tex. Cr. R. 120; Talbutt v. State, 39 Tex. Cr. R. 12.

Again, if the jurisdiction of this court had attached, still we could not revise the action of the court intelligently because the statement of facts was not filed until something over 100 days after adjournment of court. This comes too late. There is no showing made that the failure to get the statement of facts arose from no fault of the relator. The court adjourned on the 28th of November, 1914, and the statement of facts was approved and filed on Blarch 18, 1915. In case we could entertain jurisdiction of the appeal, still we could not revise the action of the trial court for want of statement of facts.

The appeal will therefore be dismissed.


text:
    ANDERSON v. STATE.
    (No. 3545.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.
    Rehearing Denied June 2, 1915.)
    1. False Pretenses — “Swindling” — Nature of Pretense.
    To constitute “swindling” by false pretense or representation, the statement must be of some pretended existing fact or past events; and a statement of anything to take place in the future, as a promise to do something, is insufficient.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 5-12, 25; Dec. Dig.
    For other definitions, see Words and Phrases, First and Second Series, Swindling.]
    2. Larceny <@=^13 — Possession with Owner’s Consent.
    One to whom the owner gave possession of property, on his false pretense that he would send back the money therefor, cannot be convicted of theft under Pen. Code 1911, art. 1329, including in its definition thereof a taking from the owner’s possession “without his consent.”
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 32, 3.3; Dec. Dig. <@=-13.11
    3. Larceny @=>13 — False Pretext.
    Under Pen. Code 1911, art. 1332, providing that “if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and to appropriate it to his own use and benefit, and the same is so appropriated, the offense will be theft,” one who negotiates for purchase of hogs, and obtains possession of them on his promise to send back the money, not intending to do so, but to appropriate to his own use, which he does, is guilty of larceny, though but for his fraud the title would have passed.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 32, 33; Dec. Dig. @¿=>13.]
    4. Criminal Law @=>29 — Dieeebent Oeeens-es in Same Transaction — Larceny — Swindling.
    Even if the facts constitute swindling, yet if they also constitute theft by fraudulent pretext, the guilty person may by provision of Pen. Code 1911, art. 1425, be prosecuted for the latter offense.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. @=>29.]
    Appeal from District Court, Rockwall County; Kenneth Foree, Judge.
    Henry Anderson was convicted of theft, and appeals.
    Affirmed.
    H. M. Wade, of Rockwall, and A. H. Mount, of Royse City, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of hogs, and his punishment assessed at two years’ confinement in the state penitentiary.

There is but one serious question raised for consideration, and that is, if the evidence is true, does it render appellant guilty of theft? Allen Sims testified:

“My name is Allen Sims. I live in Royse, Rockwall county, Tex. On March 5, 1915, the defendant, Henry Anderson, came to my house wanting to buy some hogs. I had two hogs for sale. 1 was in debt and needed the money. We went out to the lot, and I showed him the hogs, and he said they were just the kind he wanted. I told him I would take $7 a piece for them, and he replied that he didn’t mind paying that much for hogs like mine. We made the trade. He said he would give $7.50 if I would deliver the hogs at his home. I told him I had no way to haul the hogs over there. I told him that Lige Kellum had a team, and he said that he would go and see Kellum; that he would give Kellum $1 to haul them over. I told him I didn’t know what Kellum would charge, but he could go see. I went as far as the station, and he went on down to Kellum’s. Anderson made the trade with Kellum to haul the hogs, agreeing to pay Kellum $1.50 to do so. Lige Kellum carried the hogs over there for him. I did not go with them when they took the hogs from my house to Anderson’s. Q. What was the agreement about the money? A. tie said as soon as he got home he would pay for the hogs. He said he had the money at home to pay for them; and his partner says: ‘Yes; he has got the money right there to pay for the hogs.’ And I remarked to him, ‘Well, I have got a note to meet, and I would be glad for you to pay for them, and if you are not going to, I would rather keep them here because I can sell them.’ And he says, ‘The money is right there, and there is nothing to do but get the money and give it to this fellow as soon as he comes there.’ I never received any money for the hog's. Lige never gave me any money. I then went over to Anderson’s next day to see about getting the money. As soon as I got there I asked for Mr. Anderson. He was there at his house. I asked him what was the trouble. I did not get my money, and X wanted to get my money or the ■hogs. And he told me that he sent a fellow over on the train that morning to pay me. I told him he didn’t come. He didn’t get off the train. I understood the other fellow’s name was Mc-Cormack; he was with him at the time he bought the hogs. McCormack seemed to be his partner. I told him that if he would let me have my hogs, I would take them, and if the money was there when I got back, I would return the hogs at my expense. He said: ‘No; I won’t do that; if I let you carry the hogs off, I won’t have any hogs.’ I told him I must have the hogs or the money; that if I did not get the hogs or the money, I would get the law. And he said, ‘You nor the law either can get those hogs; I am going to give you trouble for those hogs.’
“Cross-examination: Q. You sold them to him for $14? A. Yes sir. Q. Was he to pay you then? A. He was to pay me as soon as he got home. Q. You were willing for him to take the hogs away, were you? A. Yes; if he was going to give me my money. Q. You were willing for him to take the hogs away at the time he took them? A. Yes, sir. I don’t know whether Anderson sent the $14 to me by Mc-Cormack or not. I sold him the hogs for $14, and he has not paid me the $14.”

lige Kellum testified that appellant employed him to haul the hogs to his home, agreeing to pay $1.50 to do so; that he was to bring to Sims $14 for the hogs; that when-he got to Anderson’s home Anderson said he had forgotten about loaning his money out, and for him to tell Sims he would get the money and bring it over- next morning. He also testified that McCormack came over next morning and did not bring any money, but said appellant (Anderson) was at home sick in bed. In this statement he is corroborated by his wife, Dora Kellum.

Clyde Yeager testified he went to Anderson’s with Sims when Sims went after the hogs or the money; that appellant would not let Sims have the hogs, claiming that he had sent the money to him by McCormack.

This is all the testimony, appellant calling no witnesses, claiming that if all the testimony introduced by the state was true, he was not guilty of theft, and he so contends in this court, and while asserting he is guilty of no offense, yet if guilty of any offense he is guilty of swindling and not theft.

In the first place we will say that under the evidence appellant would not be guilty of swindling. To constitute swindling by false pretense or representation, the pretense or representation must consist of a statement of s'ome pretended existing fact or past events, made for the purpose of inducing the prosecutor to part with his property; no statement of anything to take place in future will be a pretense within the provisions of the Code. Mere false promises or false professions of future intention are insufficient. Johnson v. State, 41 Tex. 65; Allen v. State, 16 Tex. App. 150; Blum v. State, 20 Tex. App. 592, 54 Am. Rep. 530; Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573; Mathews v. State, 10 Tex. App. 285. In this case the pretense relied on was that appellant represented he had the money at home and would send the ?14 back by Lige Kellum. This he did not do. This was a pretense to do a thing upon the delivery of the hogs at his home — a promise to do something in the future — to send the money back by Kellum.

It is also true that the evidence would not sustain a conviction for theft under article 1329, wherein theft is defined to be:

“The fraudulent taking of corporeal personal property belonging to another from his possession, * * * without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.”

The evidence, and all the evidence, shows that appellant got possession of the hogs with the consent of Sims. Sims delivered the hogs to appellant’s agent, Kellum, to be carried to his, appellant’s house, relying on appellant’s promise that he would send the money back by Kellum.

The only question remaining is, Would the evidence show appellant guilty of theft under article 1332, which provides that:

“If the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate” it to his own “use and benefit * * * and the same is so appropriated, the offense” will be theft.

The trial court recognized that if appellant was guilty of theft, it was by virtue of this provision of the Code, and instructed the jury:

“You are instructed that the taking must be wrongful, so that if the property came into the possession of the person accused of the theft by lawful means, the subsequent appropriation is not theft; but if the taking so originally lawful was obtained under false pretext, or with the intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense is complete. Hence, if you find from the evidence beyond a reasonable doubt that the defendant obtained possession of the said hogs from the said Allen Sims by a false pretext, such as pretending to buy the same and with the intent on the part of the defendant to deprive the owner of the value thereof and to appropriate the hogs to his own use and benefit, and the defendant did so appropriate the same, then the offense of theft is complete; but in order to convict the defendant of the offense charged in the indictment, the jury must believe beyond a reasonable doubt that the defendant had the intent, at the very time he obtained the hogs, if he did obtain them from the said Allen Sims, to so deprive the owner of the value thereof and appropriate them to the use and benefit of the defendant, and that he did so appropriate it. On the other hand, you are instructed that if he did not have the intent at the time that he obtained the possession of the hogs to appropriate them to his own use and benefit, or did not use a false pretext at the time to obtain said hogs, or that he did not appropriate the same to his own use and benefit, or if you have a reasonable doubt as to whether this is true, you will acquit the defendant.”

This instruction, is in accordance with the decisions of this court construing article 1332. Porter v. State, 23 Tex. App. 295, 4 S. W. 889; Stokely v. State, 24 Tex. App. 509, 6 S. W. 538; Boyd v. State, 24 Tex. App. 570, 6 S. W. 853, 5 Am. St. Rep. 908; Cunningham v. State, 27 Tex. App. 480, 11 S. W. 485; Williams v. State, 30 Tex. App. 153, 16 S. W. 760; Givens v. State, 32 Tex. Cr. R. 457, 24 S. W. 287; Hawkins v. State, 58 Tex. Cr. R. 407, 126 S. W. 268, 137 Am. St. Rep. 970; Lewis v. State, 48 Tex. Cr. R. 310, 87 S. W. 831.

Our decisions in passing on theft by fraudulent pretense, theft by bailee, and swindling have, at times, used some loose expressions, such as, if it was intended that the title should pass, the person could not be guilty of theft under any of the provisions of the Code, yet in other cases affirm the cases where the defendants had been adjudged guilty of theft, where it was intended the title should pass and the title would have passed but for the fraudulent pretense in obtaining possession of the property. In a case where it is a question of whether a person is guilty of theft by bailee or swindling, it would be correct to say that one could not. be guilty of theft where it was intended that the title should pass in delivering possession of the property, for in that character of case there could be no question of bailment where it was intended the title should pass, for in that instance he would not be bailee but owner, and therefore could not be guilty of theft by conversion as bailee, and if guilty of any offense, it would necessarily be swindling, and in nearly all the cases where it is said that the question of whether or not it was intended that the title should pass is the dividing line between theft and swindling is in that character of case. And in a case where the title would in law pass, unless defeated by the fraudulent representation, it would necessarily also be swindling, if any offense. But where the possession is obtained under such circumstances, the title did not pass by reason of the fraud practiced, as in this case.

But this ease aptly illustrates a case where but for the fraudulent representation the title to the hogs would have passed, yet the appellant would not be guilty of swindling, because the fraudulent representation relied on was as to something thereafter to occur. And also aptly illustrates a case where a person obtains possession of property by fraudulent pretext, and under circumstances where the title would pass but for the fraud practiced, and is, in our opinion, the very character of case which article 1332 was intended to reach and punish. The owner of the hogs tells the prospective purchaser he will sell the hogs for $14 but he must have the money, as he had a note to meet; that if the purchaser could not pay the cash he would keep the hogs, for lie could sell them for cash to some one else. Appellant replies he has the money at home, and will send it right back by Kel-lum. His companion vouches for the statements ; and, while it may be true he had the money at home, yet under the facts and circumstances it was never his intention to send the money back by Kellum, and although it may be said that the possession of the hogs was obtained by Anderson with the consent of the owner, yet the evidence would authorize the jury to find that appellant intended, at the time he obtained possession, to fraudulently appropriate them to his own use, and did so appropriate them. There is no question of a sale on credit to Anderson. Sims positively said he would not do so.

If, however, the facts in this case should be held to constitute swindling under article 1421, yet it cannot be gainsaid that the facts would authorize a jury to find that the possession of the hogs was obtained by fraudulent pretext, with the intent to deprive the owner of their value, and with the intent to appropriate the property to his own use and benefit, and under such circumstances he would also be guilty of theft by fraudulent pretext, and article 1425 of the Code provides:

“Where property, money or other articles of value enumerated in the definition of swindling are obtained in such manner as to come within the meaning of theft [as defined by the Code] the rules herein prescribed * * * shall not be understood to take any such case out of the operation of the law which defines * * * such other offense.”

As this court held in Lewis v. State, 48 Tex. Cr. R. 311, 87 S. W. 831, in an opinion by Judge Henderson:

“The fact that this prosecution might have been maintained under” one article of the Code “does not establish that the prosecution could not also be maintained under” the article of the Code under which he was prosecuted, “if the facts bring it within the latter article.”

The other questions in the record present no error, and we' are of the opinion the judgment should be affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALLEN v. STATE.
    (No. 3551.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.)
    Rape <®^53 — Assault with Intent to Rape —Sufficiency oe Evidence.
    • Evidence held to sustain a conviction of assault with intent to rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 78-81; Dec. Dig. <®=»53.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    M. Allen was convicted of assault with intent to rape, and appeals.
    Affirmed.
    Aubrey Fuller, of Galveston, for appellant. Chas. H. Theobald, Co. Atty., and M. J. Levy and Walter E. Cranford, Asst. Co. Attys., all of Galveston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction of an assault with intent to rape with a penalty of 50 years’ confinement in the penitentiary assessed, this appeal is prosecuted.

Appellant contends that the evidence is insufficient to justify the jury to find him guilty of the offense they did, and that the court erred in submitting that offense to the jury; he claiming that he was guilty of no offense higher than aggravated assault.

The facts are undisputed. There ' is no question as to the identity of the appellant as the party who committed the assault. Appellant testified and claimed that he was drunk on the occasion, and he did not know what he said and did, if anything. The assaulted party was a young white woman who worked for the telephone company in the city of Galveston. She lived with her mother and young sister some distance from the telephone office. Just about 9 o’clock Christmas night of 1914, she telephoned to her mother and sister that she was starting home and told them the car line she would go on. Her mother and sister, thus apprised, were expecting her arrival. The appellant was a negro man. The assaulted woman testified that she went to a certain location, on the street car, nearest her home, got off the car, and started to her mother’s telling the streets where she alighted and along which she had to walk. After getting off of the car and starting home, she said:

“I walked north on the west side of the street, and this Monroe Allen was on the corner, and as I approached him I noticed he had his clothes unfastened and his person exposed. Of course, it kind of frightened me. I was going to my mother’s at 817 Thirty-Second street, and I tried to walk around him as he was coming towards me. He was standing just on the corner and he was looking direct at me. I never said anything. He just made the remarks to me, ‘Here is a nice big prick for you,’ and grabbed for me. After he said that, he just grabbed at me, and, coming towards me, caught the end of my coat. He got hold of my coat; he just caught the end of it, and I jerked and ran from him. How I got away from him, I jerked away; I was watching him all the time. By my pulling I got away from him, of course — by the pulling away.”

She then, shows that she ran to her mother’s very greatly frightened. Her mother and sister heard her coming, opened the door, and let her in. She informed them of the- assault upon her. Two men were not far distant on the street, and her mother and sister watched the appellant, called these men, told them of the assault, and had them arrest and hold the appellant until the officers arrived, which they did very quickly after-wards. The young assaulted woman’s testimony was corroborated by that of her mother and sister and one of the men who seized the appellant and held him till the officers arrived.

In our opinion the evidence was amply sufficient to sustain the verdict, and the court did not err in submitting tbe question to tbe jury for a finding.

Tbe court gave a very full, complete, and apt charge, guarding and safeguarding appellant’s rights in every particular. Appellant makes no complaint of tbe court’s charge whatever as failing in any of these respects. The sole complaint of it is that the court submitted tbe offense of assault with intent to rape, as stated.

Tbe case of Washington v. State, 51 Tex. Cr. R. 542, 103 S. W. 879, was quite similar to this. In that case, both on the original bearing and motion for rehearing, it was contended that the evidence was insufficient to show that appellant was guilty of an assault with intent to rape of which be was found. Judge Henderson says: A summary of the facts show that tbe assaulted party in that case was a young white girl about 17 years old, who lived at Houston Heights, a suburb of tbe city of Houston; that on the occasion in question, March 7, 1907, late in the evening, she took a car to her home some two or three miles distant. After alighting from tbe car, she had several blocks to walk before getting to her home. Night had set in, and it was quite dark. When about a block short of her home, just as she turned tbe corner of the street near tbe cotton mill, some one came up and took hold of her arm. She at first thought it was some friend, but immediately turned and saw that it was not, and began to scream. Appellant therein grabbed hold of her, and told her not to make a noise, and then began to beat and choke her, knocked her down twice; she in the meantime screaming. Persons ran up and her assailant fled. It was also contended in that case that the evidence did not authorize the jury to believe that his intent was to rape her, but equally tended to show that he intended to rob her. Judge Henderson said:

“We do not agree with this contention. The evidence shows that appellant seized hold of the prosecutrix; made no demand of her to surrender her property; he knew she was a woman, and there is no testimony tending to show that he had any reason to believe she had valuables; she attempted to scream, and he merely told her to hush, and then persisted in choking her down, evidently to make her hush; if he had wanted to take her valuables, he had ample opportunity to do so. If appellant had any other purpose than to have carnal intercourse with prosecutrix, there is no manifestation of it in this record, and the circumstances furnished him ample opportunity to have taken her pocketbook, which was. in her hand at the time of the assault, or to have taken her breastpin from her neck, if he had so desired. His setting upon a young girl in the nighttime, under the circumstances, and his violence, and, when she attempted to scream, telling her to hush, would strongly indicate his intent. In our opinion the facts are amply sufficient to show his purpose, and but for the fact of her screams, and of assistance rushing to her rescue, he would, no doubt, have accomplished his design.”

In Taff v. State, 69 Tex. Cr. R. 528, 155 S. W. 214, it was shown that the assaulted girl, a white woman, in that case was living with her mother. On the night of the assault, she testified, some one appeared at their home and knocked at the door, and then tried to push the door open. When she would not admit him, he left, but shortly returned and went to the window, and asked her to come out, offering her from 85 to $10 to do so. She asked him to leave, and he agreed to do so if she would give him some bread and butter, which she did. He left, but again came back and asked for water, and when she gave it to him, and he drank it, he undertook to raise the window. As he did so, she endeavored to prevent the window being raised, when appellant caught her by the wrist and pulled her towards him. She then discovered, for the first time, that her assailant was a negro, when she screamed, jerking away from him. He left, and shortly after she screamed some men came, when she told them what had occurred. In that case the appellant therein contended that that evidence was insufficient to show an assault with intent to rape. This court held otherwise. See, also, Ross v. State, 60 Tex. Cr. R. 547, 182 S. W. 793; White v. State, 60 Tex. Cr. R. 559, 132 S. W. 790; Stewart v. State, 61 Tex. Cr. R. 90, 133 S. W. 1051.

We think it unnecessary to discuss the evidence in this case. There can be no doubt but that the only intent appellant had when he assaulted the young woman in this case was to rape her. What he said, what he did, and the exposure of his person would indicate nothing else.

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


text:
    Ex parte WILLIAMSON.
    (No. 3571.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.)
    Criminal Law <@=>273 — Plea of G-uilty — Entry by Defendant’s Father.
    A plea of guilty entered in a justice’s court by a father for his 17 year old son, when not authorized by the son, was void, and could not authorize the son’s imprisonment for nonpayment of the fine imposed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634; Dec. Dig. <@=>273.]
    Appeal from Hopkins County Court; Dan R. Junell, Judge.
    Habeas corpus by R. T. Williamson. From an adverse judgment, relator appeals.
    Reversed, and relator ordered discharged.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was arrested on ca-pias pro fine issued out of the justice court of precinct No. 8, Hopkins county, Tex. When arrested, W. E. Williamson, acting for relator, sued out a writ of habeas corpus before Hon. Dan R. Junell, county judge. Upon hearing the application the relator was remanded to the custody of the officer making the arrest, and from which judgment he prosecutes an appeal to this court.

The evidence adduced on the trial would show that relator is only 17 years of age, and, there being a complaint pending against him in Justice McKinney’s court, his father appeared before the justice of the peace and entered a plea of guilty. A fine of $1 was entered, and relator’s father was given until next court day to pay the fine and costs, amounting to about $11. Relator’s father did not pay the amount, and, as before stated, he was arrested and placed in jail in default of payment of the fine. Relator’s contention is, that his father had no authority to enter a plea of guilty for him, even though he was but 17 years of age.

Justice McKinney testified:

“All of the proceedings had are shown by the papers and the docket entry. The defendant was never arrested, and his case was never called in court. But when we were having court, after the court of inquiry, the first case which was called on the 3d of April, A. D'. 1915, was a civil case, in which Mr. Dial was one of the attorneys, and I think it was during a lull in business that Mr. Williamson, the father of the defendant, came to me and said, T understand you have two cases against Radford, one for destroying some cups and the other for fighting,’ and that I told him there hadn’t been but one filed, but we were going to file another case for destroying the cups, and his father said if they would throw out or wouldn’t file the other case that he would pay off with $1 fine the fighting case. I never did call the defendant’s case in open court and ask him if he wanted to plead in his case and if he wanted to waive a jury. The defendant was never arrested. I never talked to the defendant about his case, and only talked to his father. I don’t know what the defendant wanted to do with his case.”

Cross-examination by Mr. Pharr:

“The defendant’s father told me and Mr. Pharr that he would pay off the fighting ease if we wouldn’t file the other case against him. This was during a lull in the court while we were trying a civil case, and I told the defendant’s father it would bo all right with me if it was with Mr. Pharr, and the defendant’s father said it was all right with Mr. Pharr, and then I told the defendant’s father that I would give a fine of $1 and let him pay it next court day; that at the time he was talking with defendant’s father the defendant was not in court, but after he had entered on the docket a fine of $1 at the suggestion of defendant’s father, that the defendant, he thinks, came into court, and he heard his father tell defendant that he was going to have to pay a fine for him, and that he wanted him to behave, and that the defendant’s father and defendant talked some, but he did not hear what they were talking about; that he did not advise defendant of what his father had said, or that he was going to fine him $1.”

The defendant, Radford or R. T. Williamson, being placed on the witness stand, and interrogated by Mr. Dial, after being duly sworn, says:

“My name is Radford or R. T. Williamson; that I never entered a plea of guilty in Judge McKinney’s court to any charge, and never authorized my father, or any one else, to enter a plea of guilty for me. I told my father that I was not guilty, and would not plead guilty to the offense I heard they had me charged with. I was never arrested by any officer on a warrant for any offense in Justice McKinney’s court. On the 2d of April, the day before court met at Birthright, precinct 8, Hopkins county, Tex., the constable came to my house and said he had a subpcena for me to be at justice court the next day. The next day I went over to the justice court, and the justice of the peace and county attorney had me privately, after being placed under oath, to testify about a fight they had heard I had, and also about some drinking cups being destroyed. I told them that I didn’t do either, and they did not warn me before swearing me that I did not have to testify against myself, and they did not serve any warrant on me or place me under arrest. When the court opened out there at Birthright they did not call my case, nor ask me to plead in the case, nor notify me of any fine. I did not waive any right of arrest, of the time in which to prepare for trial, or a jury, or consent to plead guilty to any charge, or authorize anybody to plead guilty for me, because I had told the court in his private inquiry and my father that I was not guilty, and would not plead guilty, and if anybody pleaded guilty for me, it was without my authority; that if I am charged with any offense of fighting or destroying cups, I wanted a trial, and still want one. I am 17 years of age, and know that no .case was called against me, and no warrant was served, no jury was waived, and no plea of guilty entered by me, nor did I authorize or request anybody to enter a plea of guilty for me.”

Dave Parker, offered by the state and examined by Mr. Pharr, after having been duly sworn, says:

“I am deputy constable of precinct No. 8, Hopkins county', Tex. X heard the justice of the peace, Mr. IJharr, and Mr. Walter E. Williamson talking about Radford or R. T. Williamson’s case in the justice court, and something was said by Mr. Walter E. Williamson about paying a fine if they threw one of the cases out, and the justice of the peace said all right, he would give Walter E. Williamson until the next court day in which to pay it. He did not see the defendant R. T. Williamson or Radford Williamson about when this conversation was going on.”

It is thus seen that relator did not himself enter a plea of guilty, and had never been called to plead to the complaint. His father entered a plea of guilty for him when he was not present, and the sole question is, Can he be bound by the action of his father in doing so? The justice says that after the plea of guilty was entered, relator came into the court, and he heard relator’s father tell him that he was going to have to pay a fine for him; that he did not hear relator’s reply, but saw them talking. Relator says he told his father he was not guilty, and would not enter a plea of guilty; that he never entered a plea of guilty, and did not authorize his father, or any one else, to do so for him.

The father of relator is not in jail — it is relator who has been placed behind the bars, and seeks his liberty — and while only a boy 17 years of age, yet he is entitled to a hearing and to be discharged if the plea of guilty was entered without his knowledge and consent. No one could enter this character of plea for him without his authority. Our laws hold a person only 17 years of age amenable to their provisions, and when a plea of guilty is entered, it must be shown that the person to be punished under the judgment of conviction, authorized such a plea to be entered. No one testifies that relator gave his father authority to enter the plea. On the other hand, the evidence we have before us is that he not only did not authorize his father to do so, but he swears that he told his father he was not guilty, and would not plead guilty.

Under such a state of facts we think the relator is entitled to a discharge, but this will be without prejudice to the state to arrest and prosecute him under the complaint, if it is desired to do so.

The judgment is reversed, and relator is ordered discharged.
      <§xr?Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    McQUEEN v. STATE.
    (No. 3555.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.
    Rehearing Denied June 9, 1915.)
    1. 'Weapons @=»7 — Carrying Weapons — Privileged Occasions.
    Where accused had unsuccessfully attempted to compel a person to leave his residence, he had a right to go to his store and obtain a pistol which he had there, and carry it back to the house to defend himself in case he should be attacked while forcing such party to leave the house, especially where such person had knocked him down when he first attempted to compel him to leave.
    (Ed. Note. — For other cases, see Weapons, Cent. Dig.. § 6; Dec. Dig. <@=>7.'j
    2. Weapons <@=>17 — Carrying Weapons — Criminal Prosecutions — Instructions.
    On a trial for unlawfully carrying a pistol, it appeared that accused ordered a person to leave his residence; that in a scuffle which ensued he was knocked down; that he then went to a store where he had a pistol, obtained it, and as he started back was intercepted by persons who told him that B. wanted to see him; that he went upon the sidewalk with the pistol in his hand; and that such persons then took him across the street. The court refused to charge that it was not unlawful for him to have a pistol at his place of business or at his residence or to carry it from the one place to the other, and that, if he went to the store and secured the pistol, and had it for the purpose of returning to his residence, but- was informed that B. desired to see him, and went into the street with a view to seeing B., the carrying of the pistol would not be unlawful. Held, that such instruction should have been given.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. @=>17.]
    3. Weapons @=>17 — Carrying Weapons — Criminal Prosecutions — Instructions.
    In a prosecution for carrying such pistol the court should have charged with reference to accused’s intent in carrying it.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. @=>17.]
    4. Weapons @=>7 — Carrying Weapons — Criminal Prosecutions — Instructions.
    The court should also have charged that, if accused was carried across the street with the pistol in his hand by the persons who intercepted him, this would not be a violation of law, as only a voluntary act on his part in traveling about the streets with the pistol would make him responsible.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 6; Dec. Dig. @=>7.]
    Appeal from Coleman County Court; W. M. Weatherred, Judge.
    Dan McQueen was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    Strong & Ragsdale and Woodward & Baker, all of Coleman, for appellant. Garland Woodward, Co. Atty., of Coleman, C. 0.'Mc-Donald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of carrying a pistol in violation of the law.

It is unnecessary to go into a detailed statement of the facts. It is sufficient, we think, for the disposition of this case, to state that prior to the time appellant had the pistol, at the instance of a friend he took another party to his house who had been up the previous night and complained of want of sleep. He went with the party to his residence and placed the party in a room where he could get the required rest. The party had a grip in which was some whisky, from which he got a bottle, and they all took a drink. Appellant went back to the store. Later he returned to his house on account of some disturbance by another party who was at his house. This was some two or three hours after the first visit to his house. They then took another drink, and appellant asked the party who was creating the disturbance to leave, that a female relative was sick in an adjoining room, and he did not want her disturbed. The party insisted on going into the room to see the lady, and became a little obstreperous, when appellant got an iron, which seems to have been a smoothing iron, weighing six or seven pounds, and went to where they were and demanded that they leave his place. He and the party went upon the gallery, each one holding to the iron as they went out, and when upon the gallery the other party jerked the smoothing iron from appellant and struck him on the back of the head near the base of the brain and knocked him down. Appellant immediately went to his store a short distance away and got his pistol and said he was coming back and make them leave his premises. As he started back he was intercepted, and a statement was made to him that a Mr. Brown wanted to see him. He went then to the front of the store or on the sidewalk just out of the store with the pistol in his hand. They took him across the street to a bank. There is some evidence going to show he was waiving his pistol and cursing the parties at the house. The state’s contention was that appellant was drunk. It seems from the testimony that he had taken two drinks something like two or three hours apart, and much of the testimony indicates he was not drunk, and that he was in a dazed mental condition by reason of the blow on the back of his head with this smoothing iron, the weight of which was shown to have been six or seven pounds, and there was evidence that he was in a dazed and unconscious condition to the extent that he did not know what occurred in the meantime until alter 5 o’clock in the evening. This, we think, is a sufficient general statement oí the case to bring in review the questions suggested for revision.

The court charged .the jury that, if appellant had a reasonable ground for fearing an unlawful attack upon his person, or upon his family, and that the danger was so imminent and threatening as not to admit of the arrest of the person about to make such attack upon legal process, then he would not be guilty, leaving it to the jury to find from the evidence whether the fear of such an unlawful attack was reasonable and whether the danger was imminent and threatening as not to admit of the arrest of the party about to make the attack upon legal process. He also charged, if by reason of the blow struck on the head his reason was dethroned so as to render him unconscious and irresponsible, and that while in that condition he had the pistol, he would not be guilty.

Appellant asked charges the substance of which was that appellant had a right to expel the offending party, whose name was Bledsoe, from his residence, using all necessary force to accomplish that purpose, and that he had a right to go to his store and get his pistol and go back to his house and compel the party to leave, and that, if in going back with the pistol he had a reasonable apprehension of his life or serious bodily injury, then he would have a right to go to his store and get his pistol as a means of protecting himself in forcing the offending party to leave his house. This charge ought to have been given. The pistol was at the store, the offending party was in his (appellant’s) residence, and appellant had sought to make him leave, and obtained a smoothing iron, but this was taken from him and he knocked down with it. He had a right to have his pistol at the house, and had a right to go to the store and get it and carry it to his house for any legitimate purpose, and especially, under the circumstances of this case, to make Bledsoe leave the premises, and to use it in defense of himself in case Bledsoe should make another attack upon him.

He also asked a charge to the effect that it was not a violation of the law for a man to have a pistol at his place of business or at his residence, either or both, and it was not a violation of the law to carry it from his residence to his place of business, or from his place of business to his residence, and if under the evidence defendant had gone from his home to the store, and there secured the'pistol in question, and had same on his person for the purpose of returning to his residence, and had started to his residence, and was informed that one J. O. Brown desired to see him at the front of the store, and went on the street in front of his store I with the view of seeing said Brown, arid was there seen and found with the pistol in question, the carrying of the pistol under such circumstances would not be unlawful, and if from the evidence the jury so believed, they should acquit him. This charge, under the facts of this case, should also have been given. A charge was also asked with reference to the intent in carrying the pistol. Under the authorities this charge should have been given. The jury should also have been instructed,' as contended by appellant, that if he was carried across the street to a bank with the pistol in his hand by the parties who had charge of him, his carrying the pistol from his store to that point would not be a violation of the law. It would have to be a voluntary act on his part in traveling about the streets with the pistol to make him responsible. The writer does not believe the state has sufficient evidence here to justify this conviction.

The judgment is reversed, and the cause remanded.
      <§r=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    STEPHENS v. STATE.
    (No. 3589.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.)
    Criminal Law <®=;1098 — Appeal — Statement of Pacts — Stenographic Report.
    The stenographic report of proceedings at a criminal trial, including the testimony in question and answer form, cannot be considered on appeal as a statement of facts.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2865; Dec. Dig. 1098.1
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Sherman Stephens was convicted of nighttime burglary, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of nighttime burglary and assessed the lowest punishment.

Appellant has but one bill of exceptions, which is to the refusal of the court to give his special charge, telling the jury the evidence was insufficient to convict, and to peremptorily acquit him. In fact, the only question in the case that can be considered is the sufficiency of the evidence to sustain the verdict. There is with the record the stenographic report of the proceedings, and testimony taken on the trial in question and answer form, and there is no statement of facts otherwise. This statement cannot be considered as a statement of facts under the uniform holding in many decisions of this court and the statute. See Criner v. State, 71 Tex. Cr. R. 369, 159 S. W. 1059, where some of the cases to this effect are collated. However, we have read this stenograpihic report; and, if we could consider it as a statement of facts, we think it is clear that the evidence is amply sufficient to sustain the verdict.

The judgment is affirmed.
      <@=jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PARISH v. STATE.
    (No. 3558.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.)
    Criminal Law &wkey;>lQS7 — Afpeaí—Dismissal —F'ailure to Give notice.
    Where the record, on an appeal from a conviction, does not show that notice of appeal was given in open court, or that it was entered of record, the appeal must be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2770-2781, 2794; Dec. Dig. &wkey;10S7.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    Bill Parish was convicted of unlawfully carrying a pistol, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen.,, for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

The record before us does not disclose that notice of appeal was given in open court, and, if given, that it was ever entered of record; therefore the motion of the Assistant Attorney General must be sustained.

However, we will state we have carefully read the record; and, if this court had jurisdiction to pass thereon, nothing is presented that would call for a reversal of the case.

The appeal is dismissed.