author: BROOKE, J.

text:
    HOUSTON E. & W. T. RY. CO. v. THORN et al.
    (No. 266.)
    (Court of Civil Appeals of Texas. Beaumont.
    July 14, 1917.
    Rehearing Denied Oct. 17, 1917.)
    1. Carriers &wkey;>276(3) — Carrying Passenger Past Station — Negligence—Evidence.
    In an action for damages for being carried past a station, evidence held sufficient to support a finding that defendant carrier was negligent.
    2. Cabbiees <&wkey;278(3) — Breach oe Contract —Issues—Bindings—Construction.
    In an action against a carrier for damages caused by having to walk back after being carried past a station, a finding under an issue, “If you find the damages sustained by the plaintiff were caused by her walk and exertion you will so say, and your answer will be, ‘Yes,’ ” to which the jury answered, “No,” is a finding that plaintiff would have suffered the same damage if she had not walked, the instruction being under that part of the charge covering contributory negligence, it being contended by defendant that plaintiff should have hired a livery team to get back to her station.
    3. Trial &wkey;>351(5)-^IssuES Covered by Other Instructions.
    A requested issue, “Did the employés stop the train for the length of time and usual manner for stopping passenger trains, did they blow the whistle, and was that station called out so that a pers.on situated as was the plaintiff, could’ hear the call of the station,” was sufficiently covered by the issue: “If you believe that the agents blew the whistle, called the station sufficiently loud for a person of ordinary hearing to have heard and understood said call, and that the train in its accustomed manner did stop at said station, then you could not find defendant negligent.”
    4. Carriers &wkey;>272 — Carrying Passengers Past Stations — Contributory Negligence.
    A passenger had the right to rely on a statement of a train porter that a train was taking water, and is not guilty of contributory negligence in being carried past the station, although the train was in fact at the station at the time.
    5. Carriers &wkey;>276(3) — Carrying Passenger Past Station — Damages—Amount.
    In an action against a carrier for being carried past a station about a mile, evidence held to support a finding of $79 damages.
    Error from Shelby County Court; T. H. Posttell, Judge.
    Action by Mary E. Thorn and J. H. Thorn against the Houston East & West Texas Railway Company. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    MeMeans, Garrison & Pollard, of Houston, for plaintiff in error. Sanders & San'ders, of Center, for defendants in error.
   BROOKE, J.

This suit was begun in the justice court, precinct No. 4, Shelby county. As shown by the citation, the plaintiffs’ demand was as follows:

“Plaintiffs would show to the court that the defendant is a railway corporation, and carrying passengers from one portion of this state to another for pay, and on the 10th day of February, A. D. 1915, Mrs. Mary E. Thorn, one of the plaintiffs herein, went to the depot agent at Joaquin, Tex., and called for a ticket for herself and little girl to Haslam, Tex., and paid for the same the amount charged by the agent, and hoarded the train for Haslam. Plaintiff shows that it is the cxistom of the trains to stop for water just before getting to the station at Haslam, and Mrs. Mary E.- Thorn while a passenger on train of defendant asked the agent tit defendant, the porter, if they would take on water this time while she was on the train, and he told her they would, but which was not done, and she was not notified by call or otherwise that she had reached Haslam, and by the carelessness, negligence, and inattention to their duties, the said Mrs. Mary E. Thom was carried beyond her destination to Logans-poi't, La., a station in another state, and she was forced to walk back to her home at Haslam, to which. place she had called for a ticket to, and by reason of the carelessness and negligence on part of defendant by carrying her beyond her destination, and by reason of her haying to walk back to her home at Haslam, she was taken sick and confined to her bed for two weeks, and for two weeks more she was unable to do her housework, and plaintiffs allege that by the carelessness and negligence of defendant they suffered on account of sickness and have been damaged in the sum of $170. Plaintiffs say that Mrs. Mary E. Thorn is a woman 50 years of age, and refined and cultured. She says that more than 30 days ago she made demand for this damage, which was refused by defendant, and she pi-ays judgment as above, for $170, costs of suit, and general relief.”

The statement of plaintiffs’ cause of action in the county court was as follows:

“This suit was instituted by the plaintiffs to recover damages against the Houston East & West Texas Railway Company in the sum of $170, plaintiffs alleging that on or about the 10th day of February, A. D. 1915, Mary E. Thom, one of the plaintiffs, purchased from the agent of the Houston East & West Texas railway company at Joaquin a ticket for Has-lam ; that the agent in place of selling her a ticket for Haslam sold her a ticket for Logans-port which was about one mile beyond Haslam. Plaintiff alleges that the train did not stop at Haslam, nor was the station called, or the plaintiff, Mary E. Thorn, notified when the train arrived at Haslam, and that she was taken by her station to Logansport; that she had to walk from Logansport back to Haslam, a distance of one mile cai-rying her grip; that the walk made her sick and she was confined to her bed for some 10 or 12 days and she had not yet recovered from her illness caused by the walk; that the defendant company was negligent in carrying her by her station, in that it did not announce the station or notify her when she arrived at the station of Haslam.
“The defendant answered by .general denial and further alleged that the station of Haslam was called in the coach in which the plaintiff was riding; that the train stopped at.Haslam for a reasonable length of time to allow plaintiff to safely alight and that a number of passengers got on and off the train at Haslam; that, the plaintiff was well acquainted with the station, and remained on the train and did not get off the train when it stopped at Haslam. That plaintiff claimed that the reason she did. not get off at Haslam was for the reason that she believed that when the train came to a stop it was at a water tank some 100 yards or more from the town. The defendant also pled that the plaintiff, Mrs. Thorn, was guilty of contributory negligence in walking from Logansport to Haslam carrying her grip; that Logansport was a good sized town where she could have procured a conveyance at a nominal cost which would have carried her from Logansport back to her destination.”

The court submitted the following charge:

“The plaintiff, Mary E. Thorn, joined by her husband, J. H. Thorn, has filed suit against the defendant, the East and West Texas Railway Company alleging that on or about Februai-y 10, 1915, the plaintiff, Mary E. Thorn, while_ a passenger on the train of defendant, running from Joaquin in Shelby county, Tex., to Has-lam, also in Shelby county, Tex., by the carelessness, negligence, and inattention of the employes of the defendant, the said Mary E. Thorn was carried beyond her destination to the town of Logansport, La.; that she was forced to walk back to her home at Haslam, by reason of which she was taken sick and confined to her bed for two weeks, and for two weeks she was unable to do her housework; that on account of such carelessness and negligence plaintiff sustained damages in the sum of $170.
“Defendant answers that they did sell plaintiff á ticket at the time alleged, and that plaintiff was a passenger on its train from Joaquin to Haslam, that its agents called out the name of the station, Haslam, before stopping at Has-lam, and did stop at Haslam sufficiently long for defendant to have alighted; that its trains are provided with windows and that plaintiff might have seen and known when said train stopped at Haslam; that said defendant was not negligent in running its train.
“Now you are instructed to find on the following special issues: (1) Was the defendant negligent in allowing plaintiff, Mary E. Thorn, to remain on said train on said date and in carrying her beyond her destination?
“If you believe that the agents and employés of said defendant blew the whistle, called the station sufficiently loud for a person of ordinary hearing to have heard and understood said call, and that the train in its accustomed manner did stop at said station, Haslam, then you could not find defendant negligent, unless there were some apparent reason for defendant not exercising more than ordinary diligence, such as would be necessary and required were its passengers asleep, deaf, or blind.
“But if from the evidence you find the defendant negligent you will so say, and write your answer ‘Yes’; but if you find from the evidence that defendant was not negligent you will so say and let your answer be, ‘No.’ ” (To this question the jury answered, “Yes.”)
“If your answer to No. 1, should be, ‘No,’ then you will not consider the remaining issues, as there could be no liability; but should you answer special issue No. 1 by, ‘Yes,’ then you will consider this proposition as issue No. 2.
“And were the damages complained of by plaintiff, to wit, confinement to her bed and inability to do her housework, the result of defendant’s negligence, if any? If fi-om the evidence you find that the damages sustained, if any, were the result of defendant’s negligence, if .any, you will so say and your answer will be, ‘Yes.’ But if you find tlie damages sustained, if any, were not the result of defendant’s negligence, if any, you will ‘so say and your answer will be, ‘No.’ In arriving at your conclusions in answer to special issue No. 2, consideration may be given to plaintiff’s failure to secure some mode of conveyance from the point to which she was conveyed back to •the point of her original destination.” (To this question the jury answered, “Yes.”)
“Considering the age and condition of plaintiff, Mary E. Thorn, if a reasonably prudent person would have secured some mode of transportation and not attempted to return with luggage afoot, then you will consider whether or not the plaintiff, Mary E. Thorn, should be charged with contributory negligence in not providing some means of return, therefore (3) Were the damages, if any, caused by the fatigue and exertion of the walk and plaintiff’s failure to provide some means of returning?
“If you find the damages sustained by the plaintiff Mary E. Thorn, were caused by her walk and exertion you will so say and your answer will be, ‘Yes.’ ” (To this question the jury answered, “No.”)
“If your answer to special issue No. 3 should be, ‘Yes,’ then you will not assess any amount of damages against 'defendant in answer to special issue No. 4 following; but if your answer to special issue No. 3 is, ‘No,’ then you will be required to find the amount of damages actually sustained by plaintiff, and whatever amount you so find you will state in your answer to special issue No. 4 what amount of damages has plaintiff sustained.” (To this question the jury answered “$79.”)
“You are the sole judges of the credibility of the witnesses and the weight to the evidence. The burden of proof is on the plaintiffs to establish their case by a preponderance of the testimony.”

Judgment was rendered against the railroad company for $79, from which this appeal has been perfected.

Tlie first assignment of error is as follows:

“The court erred in refusing to give defendant’s special charge No. 1, instructing the jury to return a verdict for the defendant company, no evidence being introduced showing that the defendant company was negligent, or that any negligence of the defendant company was the proximate cause of plaintiff’s injury.”

The jury found, as a matter of fact, that the defendant company was negligent, and, in our judgment, there was evidence to support this finding. Mrs. Thorn testified that she asked the porter just before or at the time the train stopped for Haslam If the engine was taking water, and the porter replied to her “taking water.” W. A. Turpin testified that up to the time he saw the end of the switch he had thought that the train was taking water. The charge of the court sufficiently covered the ground, and the jury found that there was negligence. Counsel for plaintiffs urged that since Mrs. Thorn got off the train without objection, and without asking the conductor to run the train back to Haslam, she would not be entitled to recover by reason of having to walk back from Logansport to Haslam. The cases cited by plaintiff in error are not in point with this case, and, as a matter of fact, the evidence shows that Mrs. Thorn did object, and stated to the conductor, when the train stopped at Logansport that he had carried her past her station; that she did not see the conductor until they reached the bridge near Logansport; that she asked him why it was he had carried her by Haslam, and that he said her ticket called for Logansport; and that the conductor spoke rather short to her. There is no merit in the contention of plaintiff in error and it is, therefore, overruled.

The second assignment of error complains that the defendant in error could recover, if at all, only such damages as Mary E. Thorn sustained by reason of having to walk from Logansport to Haslam; and the jury having found that she did not sustain any damages by reason of having to walk from Logansport to Haslam, the defendant was entitled to have judgment entered in its favor, and the court erred in refusing to enter judgment for the defendant upon the findings of the jury.

The court submitted, as has been above set out, special issue No. 3, to which the jury answered, “No.” The jury, in answering said question, had determined that the railway company was negligent In allowing Mrs. Thorn to go by her station of Haslam and to Logansport, one mile beyond her destination.

The contention had been made that Mrs. Thom was guilty of contributory negligence in not providing a carriage or other conveyance and riding back to Haslam. This part of the charge of the court covered the issue of contributory negligence, and the answer of the jury, “No,” indicates that they found, as a matter of fact, that the damages to Mrs. Thorn were not caused by her failure to provide some means of conveyance to Haslam. The finding of the jury in said matter is equivalent to a finding that the damage would have been caused just the same, even though Mrs. Thorn had provided transportation back to Haslam. Finding no error in the action of the court in this matter, the assignment is overruled.

The third assignment challenges the action of the lower court in refusing to submit plaintiff’s special issue No. 1, a.s follows:

“At the time complained of by plaintiff, when the passenger train of the Houston East & West Texas Railway Company reached Haslam, did the servants, agents or employés of the company-stop the train for the length of time and usual manner for stopping passenger trains; did they blow the whistle; and was that station, ilas-lam, called out so that a person situated as was the plaintiff could hear the call of the station?”

As will appear from the reading of the charge of the court, as above, the court in its charge substantially covered this ground. The charge of the court was:

“If you believe that the agents and employes of said defendant blew the whistle, called the station sufficiently loud for a person of ordinary hearing to have heard and understood said call, and that the train in its accustomed manner did stop at said station, Haslam, then you could not find defendant negligent.”

This, in our judgment, sufficiently covered the requested cEarge, a,nd. is the same', in substance, as that requested by plaintiff in error. The jury found from the evidence that the train did not stop as usual, and that they were negligent in carrying Mrs. Thorn past her destination.

In our opinion, Mrs. Thorn had a right to rely upon the statement of the employe of the railroad company, to wit, the porter, that the train was taking water, and the jury having found that Mrs. Thorn was not guilty of contributory negligence, this court will not set aside the findings of the jury under the charge as above given.

The testimony of Mrs. Thorn is, practically, as follows:

“There is a water tank right near the depot in Haslam, Tex., and some one standing around the depot in Joaquin, Tex., told me, before I left that the train, would be apt to stop at the water tank first and then pull up to the station. While en route on the train, either just before or at the time the train stopped for Has-lam, I asked the porter, ‘Taking water?’ and he replied, ‘Taking water.’ I had been to the town of Haslam before and knew the place; I knew that Haslam was the only station between Joaquin and Logansport. I never looked out nor made any inquiry as to whether we were at the station or not. Soon after the train started I discovered that we had passed the depot. Mr. Turpin, a resident citizen of Joaquin, who was also on that train, remarked to me, ‘They are carrying you by Haslam;’ and I said, ‘Yes, that is all right.’ I didn’t think we had reached Haslam. I did not ask him or any one else to stop the train. I did not see the conductor until we reached the bridge near Logansport and he liad called out the station, Logansport. I asked him why it was that he carried me by Haslam and he said my ticket called for Logans-port. I told him I called for ticket for Haslam. The distance from Joaquin to Logansport is three miles. Ticket from Joaquin to Haslam and from Joaquin to Logansport cosh the same price, 10 cents. The conductor talked rather short to me, that is, he spoke in a quick, short way. I got off at Logansport with my little girl, about 13 years old, and a large grip, and then started on my journey back toward Haslam. I only knew one person in Logansport. I knew that they run a livery stable and hired teams, but I only had 35 cents in money, and I did not try to hire a team; it was only a mile and I decided to walk back. They were doing some work on the wagon bridge which crosses the river and I did not go there to try to cross, but decided to walk the river bridge; this bridge is from 50 to 60 feet above the water, and when I had gotten out on this bridge I became very much frightened at the thoughts of a train coming along while I was on there, and a train did pass soon after I' had gotten off of the bridge and on the ground. . I continued my journey until I met my son about half way between Haslam and Logansport; he came to meet me and relieve me of the grip I ’ was carrying. I reached home very much fatigued and frightened, and was compelled to take my bed, and was sick and confined to my bed, more or less, for a period of 11 days; I suffered very much at times. I never had a doctor with me at any time during my sickness. My health had always been good up to this time, and I had never walked this distance before in my life.”

We have gone over this record carefully. We find that it reflects tha.t Mrs. Thorn had purchased and paid for a ticket; that she knew the station of Haslam, and knew there was a water tank near the station; and that she had attempted to acquaint herself with the stopping of the train, by asking the porter, before the train reached Haslam, if the train would stop to take water, and was advised by the porter that the train was taking water. The porter having misinformed Mrs. Thorn as to the stopping of the train, and by this act of the porter, a servant of the company, Mrs. Thorn was carried beyond her destination. The jury found negligence on the part of the railroad company.

We have arrived at the conclusion that there is no such error in this case as would warrant this court in reversing this cause. Defendants in error disclaimed that they do not contend in this court that Mrs. Thorn was entitled to any damage by reason of having become frightened while crossing the railroad bridge at Logansport.

Under the testimony, however, which the jury were warranted in believing, having said that the railroad company was negligent in carrying Mrs. Thorn beyond her destination, and she being compelled by reason thereof to walk back, under the circumstances and by reason thereof, we cannot say that they were in error in arriving at the Conclusion and estimate of the damage sustained. The record reflects that a fair trial was had.

Finding no error in the action of the lower court, the cause is in all things affirmed.
      <§£5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASRURY, J.

license: Public Domain

text:
    FARMERS’ NAT. BANK v. COLLIS et al.
    (No. 7715.)
    (Court of Civil Appeals of Texas. Dallas.
    June 16, 1917.
    Rehearing Denied Oct. 13, 1917.)
    1. Attachment &wkey;>323 — Lien—Priority.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6858, declares that an officer levying a writ of attachment shall immediately file with the county clerk of the county in which the real estate levied upon is situated a copy of the writ, .and so much of his return as relates to the land in the county; that the county clerk shall enter in his hook kept for that purpose the names of the plaintiffs and defendants in the attachment, the amount of the debt, and the officer’s return; that, if the land levied upon is situated in a county other than where the suit is pending, the failure to make the record shall render the attachment lien invalid as against subsequent purchasers for value and without notice; and that the county clerk shall also keep a direct and reverse index to the record, in which shall be entered the names of all of the plaintiffs and defendants to the various attachments to be recorded. Land located in a county other than that in which suit was pending was attached, the sheriff’s return reciting that he had attached the interest of one of the named defendants. Thereafter he certified a copy of the original writ and filed it with the county clerk of the county in which the land was located. The county clerk entered on the records a record of the attachment proceedings, the record reciting that the action was by N. B. C. and others against B. L. O. and others. The defendant named was the owner of the land attached. The clerk also made an index reciting the names of the several parties defendants and plaintiffs. Held that, as the index is the important thing and as the original writ was recorded, the notice was sufficient, so that the attaching creditor took priority over a subsequent mortgage by defendant, though the names of all of the parties were not recited under the heading made when the writ was filed.
    2. Attachment <&wkey;323 — Recording—Certified Copy op.
    Though not directly authorizing it, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6S58, impliedly authorizes the sheriff to certify a copy of the writ of attachment levied in a county other than the county in which suit was pending.
    3. Appeal a-nd Error &wkey;>1050(2) — Review-Harmless Error.
    Where there was no question of the correctness of an original copy of a writ under which land was attached in a county other than that in which suit was pending, the admission of the certificate of the sheriff attached to the copy of the writ was immaterial. •
    Appeal from District Court, I-Iill County; Horton B. Porter, Judge.
    Action -by the Farmers’ National Bank against B. L. Collis and another, and D. Price who imlpleaded others. From a judgment against the first-named defendants and in favor of the last-named defendants, plaintiff appeals.
    Affirmed.
    Wear & Frazier, of Hillsboro, for appellant. G. D. Tarlton and Morrow & Morrow, all of Hillsboro, for appellees.
   RASRURY, J.

Appellant sued appellee Ben L. Collis on his promissory note for $3,500, payment of which was secured by a lien upon lots- 5, 6, 7, and 8, in block 7 in

Plillsboro, Tex., and lot 12 in block 1 of said town, evidenced by the usual form of deed of trust. W. H. Francis, trustee in bankruptcy proceedings then pending against appellee, was made a party defendant. D. Price was also made a party defendant under the allegation that he claimed title to the land. Price answered, asserting title to the lots and by cross-action vouched N. B. Chenault and John Lynd, his vendors, into the suit for appropriate relief. The issues presented in the respective briefs reflect and are supported by the pleading and for that reason a detailed statement of the pleading is unnecessary. There was trial -before jury. The court peremptorily instructed the jury to return verdict for appellant against appellee Collis for the amount of its debt, and for foreclosure of its lien against Collis and his trustee in bankruptcy as to said lot 12, but .as to said lots 5, 6, 7, and 8 to return verdict for appel-lee Price, and to also return verdict for Che-nault and Lynd, and other minor parties. Verdict was so returned and judgment entered in accordance therewith, from which this appeal is taken.

Because of the view we take of the controlling issue presented by appellant it will be necessary to state only the following undisputed facts; Prior to March 25, 1914, suit No. 4866, styled N. B. Chenault et al. v. Ben L. Collis et al., was filed in the district court of Wichita county. The actual parties to said suit were N. B. Chenault and John Lynd, plaintiffs, and B. L. Collis and C. W. Brooks, defendants. On said March 25, 1914,. writ of attachment was issued in said suit directed to the sheriff of Hill county, commanding him to attach property of B. L. Col-lis and C. W. Brooks, sufficient to make $3,-122, to satisfy the demands of N. B. Chenault and John Lynd. The writ was in form and substance in compliance with the statutes. The sheriff’s return thereon was:

“Came to hand on this, the 28th day of March, 1914, at 10 o’clock a. m., and executed on the-30th day of March, 1914, at 3 o’clock p. m., by levying upon and taking into my possession, as the property -of the within named defendant, B. L. Collis, his interest in all of the following described real estate property situated in Hill county, Tex., to wit: Part of lots 5, 6, 7, and 8 in block 7 of the original town plat of Hillsboro, Tex.”

On March 30, 1914, the officer certified on a copy of the original writ that it was a correct copy of the original and his return thereon, and on March 31, 1914, filed same with the county clerk of Hill county. Thereafter the clerk entered upon the records of attachment liens of Hill county a record of said attachment proceedings. Under the heading, “Names of Plaintiffs and Defendants in. Attachment,” he entered: “#4866, N. B. Chenault et al. v. B. L. Collis et al.” Under the heading, “From what Court and County Issued,” he entered: “District Court, Wichita county, Tex.” Under the heading, “When Filed,” he entered: “March 31, 1914, 8:30 a. m.” Under the heading, “Amount of Debt,” he entered: “$3,122.” Under the heading, “Description of Land and Officer’s Return,” he entered the return we have copied above, containing description of the land levied upon. The deed of trust creating the lien upon the lots in controversy to secure payment of appellant’s debt was dated, acknowledged, and filed for record May 9, 1914. On July 22, 1914, in Chenault et al. v. Oollis et al., plaintiffs were awarded judgment for their debt, together with decree foreclosing the attachment lien on the Hillsboro lots and ordering same sold in the statutory manner. Thereafter order of sale was issued and the lots sold by the sheriff of Hill county to N. B. Chenault and John Lynd, to whom the sheriff executed and delivered deed dated October 6r 1914, which was filed for record October 14, 1914. By general warranty deed dated February 18, 1915, and filed for record April 15, 1915, Chenault and Lynd conveyed the lots to appellee D. Price. On July 30, 1915, this proceeding for the purposes we have stated was commenced. The officer of appellant who secured the deed of trust from Collis had no actual knowledge of the levy of the writ of attachment. He was informed by Collis that the lots were unincumbered. He made no examination of the records of Hill county for the purpose of discovering liens or other matters affecting the title to the land.

The contention of appellant is, in substance, that the attachment lien is invalid because the steps necessary by law to preserve the same after levy were not observed, and, being invalid, the matter of priority in reference to the levy and recordation of the writ and the registration of appellant’s deed of trust is immaterial. That issue is raised in various ways by the first, second, third, fourth, fifth, and seventh assignments of error, all of which will be considered together. Bearing on the point so made, article 6858, Vernon’s Sayles’ Civil Statutes, the only statute we have regulating the point at issue, provides, among other matters, in substance (a) that the officer levying a writ of attachment shall immediately file with county clerk of the county in which the real estate levied upon is situated a copy of the writ, and so mlueh of his return as relates to the land in such county; (b) the county clerk shall enter in a book kept for that purpose the names of the plaintiffs and defendants in attachment, the amount of the debt, and the officer’s return in full; (e) if the real estate levied upon is situated in a county other than where the suit is pending, a failure to make the record aforesaid shall render the attachment lien invalid as against subsequent purchasers for value and without notice, and subsequent lienholders in good faith; (d) county clerks shall also keep a direct and reverse index to the said record in which shall be entered the names of all the plaintiffs and defendants in the various attaehménts required to be recorded by him. The land levied upon being in a county other than where the suit was pending the inquiry is, did the officers charged with the duty imposed by article 6858 comply therewith? The sheriff did file with the county clerk of Hill county, a copy of the writ and that portion of his return relating to the land levied on in that county, as appears from the file mark of the clerk and the sheriff’s certificate attached to the filed copy, as well as by a comparison of the filed writ with the original contained in the record. The performance of the remaining acts required by the statute is made the duty of the clerk, and by way of elimination it may be said that the clerk did keep the direct and reverse index required thereby, since he did index the attachment proceedings in the direct index or plaintiff column in the name of both Chenault and Lynd, and in the reverse index or defendant column in the name of both Col-lis and Brooks. There was not, however, a literal compliance by the clerk with the duties imposed by the statute in reference to keeping the record of the attachment, for which he did on that record show the amount of the debt claimed in the writ, the court from whence the writ was issued, as well as the return in full of the officer levying the same; he did not record thereon literally the names of the “plaintiffs and defendants.” What he did do, as we have shown in our statement of the cáse, was to record thereon: “#4866 N. B. Chenault et al. v. B. L. Collis et al.” Accordingly, the real issue is, did the omission indicated invalidate the lien acquired by the levy of the attachment? We have been unable to find nor do counsel cite us to any case construing article 6858 of the registration statutes. We are, however, cited by counsel for appellant to the case of Gullett Gin Co. v. Oliver & Griggs, 78 Tex. 182, 14 S. W. 451, which follows Nye v. Moody, 70 Tex. 434, 8 S. W. 606, construing the statute in reference to judgment liens. In Gullett’s Case the issue wasi the sufficiency of the index as kept, while in the instant ease the issue is the sufficiency of the record. It is, however, urged with reason, we think, that the principle is applicable and controlling in both cases, for it is said in the case cited that the purpose of requiring the names of all parties to the judgment to be separately indexed is to afford persons searching the judgment records “the mieans of ascertaining with promptness and certainty whether such liens exist or not.” In like manner it may be said that the record and index required in ease of attachments is for the same purpose. We can imagine no other purpose, and apprehend the Legislature contemplated no other. Such, then, being the rule, did the index and record before us meet the requirements thereof? The index obviously did, because a bare inspection of it under tiie name of any one of the- plaintiffs or defendants would have disclosed- that, in a suit against Collis and Brooks, attachment had been levied, and would have given the page where same was recorded in the lien record. An inspection of the record indicated by the index would have disclosed that on a particular date a writ of attachment had been levied upon land of Ool-lis in 1-Iill county, together with the amount of the debt sued for, and where the suit was pending. It is true it would have disclosed the name of only one of the plaintiffs and the name of only one of the defendants (which happens in this ease to be the defendant upon whose lands the writ was levied); but it also would have disclosed the officer’s return in 'full, showing the levy was on the lands of Collis and his alone. Thus actual notice would have been afforded that the only defendant in attachment was Collis, and a description of the land levied upon furnished. The index, which we know as a matter of common knowledge and practical experience is the key to the information desired to be furnished by the Legislature, satisfies the requirements and meets the purpose of the statute, which is to direct the searcher to the record of the attachment; and as we have shown that record, at least so far as relates to Collis, upon whose land alone the levy was made, furnishes the searcher all the notice necessary to protect him against dealing with the land of Collis. In L. &. H. Blum v. Keyser, 8 Tex. Civ. App. 675, 28 S. W. 561, ir was said that, when judgment records were correctly indexed as to some of the parties and incorrectly as to others, the lien was effective against those whose names are correctly indexed. It occurs to us, in view of the much greater importance of the index, the rule should by analogy apply to the record of the judgment or the attachment. Accordingly, we conclude that the attachment lien was not rendered invalid be-<fs, cause of defects in recording same.

The sixth assignment of error complains of the admission in evidence of a certificate of the sheriff of Hill county attached to the copy of the writ of attachment filed by him with the county clerk of Hill county, on grounds raising issues already discussed and on the ground that the certificate is neither required nor authorized by law. Article 6858 does not require such certificate, but does,., we believe, by implication, authorize it, since it requires the sheriff to file with the clerk a copy of the writ and that portion of his return already referred to. It may be if the issue of whether the copy filed was a true copy of the original, the certificate of the sheriff would not be conclusive, since a resort to comparison would more accurately establish the fact sought to be proven; but at the same time when it appears that the writs are similar in fact, the admission of the certificate is at most immaterial.

Appellees’ have presented a cross-assignment of error which, in view of the conclusion we have reached that the attachment lien was a valid one and charged appellant constructively with notice of the attachment, will not be discussed.

The judgment is affirmed.
      ®c=>For other ease* see sarnie topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    RAMSEY v. STATE.
    (No. 4582.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Ceiminax, Law <&wkey;1114(3) — Appeal—Record —Absence op Evidence and Bill op Exceptions.
    The motion for a new trial having raised the questions of insufficiency of the evidence and refusal of requested instructions, there is. nothing to review, where the evidence is not in the record, and no bill of exceptions was reserved.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Lawrence Ramsey was convicted of carrying a pistol, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant was convicted of carrying a pistol; his punishment being assessed at 30 days’ imprisonment in the county jail.

The motion for a new trial raises the insufficiency of the evidence and the refusal of the court to give requested instructions. The evidence is not in the record, nor was any bill of exceptions reserved. There is nothing, therefore, presented that can be revised.

The judgment will be affirmed.


author: PRENDERGAST, J.

text:
    HENDERSON v. STATE.
    (No. 4601.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Criminal Law <&wkey;784(l) — Instructions— Circumstantial Evidence.
    Where on a trial for theft there was no testimony other than circumstantial evidence to show a taking by defendant, the court’s failure to charge and its refusal of a requested charge on the subject of circumstantial evidence was error.
    Appeal from Fayette County Court; George Willrich, Judge.
    Ella Henderson was convicted of theft, and she appeals.
    Reversed and remanded.
    John T. Duncan, of La Grange, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted' of the theft of a turkey or some turkeys. She contends that the evidence is insufficient to sustain a conviction. We are inclined to think that her contention is correct. However, as the case must be reversed on another ground, it is unnecessary to decide this point. And as the case is to be reversed, we will not discuss the testimony, though we have carefully read it.

Even if the evidence could be held sufficient to sustain the conviction, then there is no testimony whatever, other than circumstantial, to show a taking by appellant. Where this is the case, it is always necessary for the court to charge on circumstantial evidence. The court did not so charge, although proper objection at the proper time was made to his charge for that reason, and a special charge on the subject was requested and refused. This was error for which, of course, the judgment must be reversed. This principle is so well settled by so many cases it is unnecessary to cite them, but see 2 Branch’s Ann. P. O. § 2478, where he collates a large number of the cases.

Reversed and remanded.


author: MORROW, J.

text:
    WALLACE v. STATE.
    (No. 4581.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Criminal Law &wkey;>1090(l) — «Review—Necessity oe Bill of Exceptions and Statement of Facts.
    In the absence of a statement of facts or bill of exceptions, the judgment will be affirmed, where no errors are disclosed in the record.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    John Wallace was convicted of forgery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted of forgery, and punishment assessed at two years’ confinement in the penitentiary. Therq are no errors disclosed in the record, and ihere is an absence of statement of facts and bill of exceptions.

The judgment is affirmed.


text:
    HENSLEY v. STATE.
    (No. 4587.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Criminal Law i&wkey;419, 420(12) — Evidence —Hearsay.
    Where defendant contended that he left the county where an offense was committed and went to F. county in company with G. prior to the date of the alleged commission of the offense, a letter from G. to his father, stating that defendant had stayed in F. county until a certain date and then started home, was hearsay, and properly excluded.
    2. Criminal Law &wkey;>1169(l) — Harmless' Error-Admission of Evidence.
    On a criminal trial, a witness who fixed the date on which defendant left the county where the offense was committed as after February 20th by reference to a conversation with M., who told him that he was going to town the next day as a juror, further testified that in such conversation M. told him that defendant had a fight on the previous day. The court told the jury to disregard the statement -regarding the fight, but the witness was cross-examined about the fight, and various facts about it brought out. The state was permitted to prove that M. was a juror on February 27th. Held that, the fact of the fight having been withdrawn by the court and replaced by the cross-examination, there was no error, or at least no harmful error, regarding this; nor was there any harmful error in admitting the evidence of the date of M.’s service as a juror.
    3. Criminal Law <&wkey;939(3, 4) — Motion for New Trial — Diligence.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 837, subd. 6, authorizing new trials for newly discovered evidence, and providing that the motion shall be governed by the same rules as those which regulate civil suits, where a witness fixed the date when defendant left the county where the offense was claimed to have been committed by reference to a fight between defendant and S., a motion for a new trial, supported by 'the affidavit of F. that the fight took place a month earlier than such witness testified, was properly denied, where defendant did not account for his alleged want of knowledge of F.’s presence at the fight, or account for his failure to call S. or his brother, who separated the fighters, or to seek a postponement to obtain their testimony and that of others on the question of the date of the fight.
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    T. Hensley was convicted of selling intoxicating liquors in prohibited territory, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for the sale of intoxicating liquors in territory where its sale was prohibited, and his punishment was fixed at confinement in the penitentiary for one year.

The date of the offense, as laid in the indictment, was February 12, 1916, and there was positive evidence of the sale by appellant on that day. An alibi, based upon the idea that appellant, about January 20, 1916, left Grayson county, and went in company with Ambrus Golden to Ford county, and remained there until about February 26th, was urged. The state’s contention was that appellant remained in Grayson county, near a village called Preston, during the month of February, 1916, until about the 26th day of that month. There was a marked conflict .of evidence on this issue. The witness Golden testified that he and appellant went together from Grayson county to Ford county in the latter part of January, and that appellant remained there until after the 20th of February, and in connection with his testimony identified a letter, dated February 24th, written by him to his father; and appellant complains of the refusal of the court to allow the introduction in evidence of a part of this letter, in which Golden wrote his father that appellant had stayed in Ford county until February 23d and then started home. This communication from Ambrus Golden to his father is hearsay. There is no impeachment of Golden, or other fact or circumstance disclosed, which would bring the evidence offered within any of the exceptions to the rule excluding hearsay. Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 19120, 126; Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1094; Tripp v. State, 72 Tex. Cr. R. 97, 160 S. W. 1191; Jones v. State, 74 Tex. Cr. R. 205, 167 S. W. 1110; Vernon’s C. C. P. p. 647.

A witness by the name of Dishner testified that appellant was in Grayson county during January, 1916, and up to the latter part of February of that year, and that during this time witness had often seen appellant at Preston and in that neighborhood, and he fixed the date at which appellant left Preston as after February 20th by the circumstance of a conversation with one Mitchell, who on that date told witness he was going to town next day as a juror in court. Dishner, in relating this conversation, testified that in the conversation Mitchell had told him that appellant and one Steel had had a fight on the day previous. The court, on objection, told the jury to disregard the statement that Dishner was told appellant had a fight. Proof was made that Mitchell was a juror in the district court on February 27th. Dishner was cross-examined about the fight, and various facts brought out, showing that appellant and Steel did have a fight in a certain store in the village of Preston, in Grayson county. These phases of the evidence are made the basis of complaint, on the theory that the reference to the fight was hearsay, and that admission of proof of Mitchell’s jury service was error. The matter amounts only to the fact that Dishner fixed the date on which he asserted that appellant was last in Grayson county by the conversation with Mitchell, and the record of the date of the service on the jury. The fact of the fight, developed on direct examination, was withdrawn by the court, but was replaced by the cross-examination by appellant, and these matters, as presented in the record, disclose no error, at least none that was harmful.

On hearing of motion for new trial, appellant presented the affidavit of a witness, who resides in the state of Oklahoma, in which he says he was present at the time Tobe Hensley and Otis Steel had a fight at Preston, Tex., in Eli Goodale’s store, and that it took place in January, 1916, and on this basis the contention that he should have been awarded a new trial under the statute relating to newly discovered evidence. No evidence was introduced in the trial to rebut the state’s suggestion that the fight with Steel took place in the latter part of February. It occurred in a store in a village, and the failure to produce the testimony of the persons in the store, his adversary in the fight, or any other witness, is not accounted for, except that he says that Burt Steel, the brother of Otis Steel, is in Missouri temporarily, and that he did not know that Fowler, the maker of the affidavit mentioned, knew of the facts. Burt Steel, as declared in the motion, separated his brother and appellant at the time of the fight, and no explanation of his absence at the time of the trial is made, though at the time the motion was heard he is alleged to have been out of the state.

The failure to account for appellant’s alleged want of knowledge of Eowler’s presence at the fight, and the failure to account for the absence of Burt Steel and Otis Steel, and to seek a postponement to obtain their testimony and that of others on the question of the date of the fight, is not explained in a manner that meets the requirements of the law. Article 837, Vernon’s C. C. P., subd. 6, and cases listed vol. 2, p. 779, note 4; Wilson v. State, 37 Tex. Cr. R. 156, 38 S. W. 1013; O’Hara v. State, 57 Tex. Cr. R. 577, 124 S. W. 95; Cooper v. State, 58 Tex. Cr. R. 598, 126 S. W. 862.

Finding no reversible error in the record, it is ordered that the judgment of the lower court be affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: DAVIDSON, P. J;

text:
    MUNOZ v. STATE.
    (No. 4571.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Indictment and Information <&wkey;192 — Conviction fob Lessee Offense — Assault with Intent to Muedee.
    Accused may be convicted of aggravated assault, although the evidence would sustain a conviction for assault with intent to murder.
    2. Criminal Law &wkey;>193% — Former Jeopardy — Assault.
    Accused’s conviction for aggravated assault might be pleaded in bar of a subsequent prosecution for assault with intent to murder, if such higher offense was complete when the lower offense was committed.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Santiago Munoz was convicted of aggravated assault, and appeals.
    Affirmed.
    E. B. Etendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J;

Appellant was convicted of aggravated assault; his punishment being assessed at one year and six months imprisonment in the county jail.

The contention mainly relied upon for reversal is that the court should have instructed the jury to acquit, because the evidence showed an assault with intent to murder, instead of aggravated assault, and that the facts showed only an assault with intent to commit murder. This is presented in several ways. We cannot agree with appellant’s contention on this proposition. The prosecuting officers had all the facts before them, and took the affidavit as a basis for the information charging aggravated assault. The evidence doubtless would justify a verdict for assault to murder, had appellant been tried upon that theory; but it occurs to us, under the authorities and law as understood, that, while the facts might have justified a higher conviction, it would not be reversible error for the state to carve out an inferior degree of an offense, if it was included within the possible higher offense, and that the conviction for the offense carved could be pleaded in bar of a prescution for the higher offense, if the higher offense was complete at the time. The authorities sustain this proposition. Among other cases, we refer to Butler v. State, 48 Tex. Cr. R. 529, 89 S. W. 647. This is practically the only question in the case.

The judgment will be affirmed.


text:
    DAVIS v. STATE.
    (No. 4593.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Ceiminal Law i&wkey;>396(2) — Evidence—Showing Whole of Statement oe CONVERSATION — Statute.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 811, providing that, when part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, etc., in a prosecution for assault with intent to murder, where a state’s witness, the county attorney, stated that defendant, when he made a statement about his knife, also made a statement about the difficulty with the assaulted party, that it was all the same statement, and that it was written down and given to the district attorney, defendant’s offer to prove the balance of the statement or conversation was improperly rejected.
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Needham Davis was convicted of assault with intent to murder, and. he appeals.
    Reversed and remanded.
    A. R. Eidson, of Hamilton, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged and convicted of assault with intent to murder.

The evidence discloses that appellant wounded Vol Howard with a knife. One of the state’s witnesses testified that the next morning after the fight appellant came to see the witness, who was county attorney. The witness said:

“Davis showed me the knife that he said he cut Howard with. Mr. Lemons, the sheriff, also saw the knife, and heard him say it was the one he cut Howard with. The blade that Davis said he used was very sharp. * * * Davis made the remark that it was a home-made blade, that his brother made for him there in the shop.”

This witness stated that the appellant, at the same time that he made the statement about the knife, made a statement about the difficulty; that it was all the same statement ; that it was written down and given to the district attorney, but it did not appear whether it was signed by appellant or not. Appellant offered to prove the balance of the statement or conversation. There occurred therein exculpatory facts and facts raising the issue of self-defense. Complaint is made of the refusal of the court to admit this proffered testimony. Appellant did not testify in the case, and the issue of self-defense was not submitted to the jury. Punishment was assessed at three years’ confinement in the penitentiary.

Article 811, Vernon’s O. O. P., p. 759, is as follows:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

Under the statute, as construed by the decisions of this court, we think the appellant was entitled to make the proof which was excluded. Sims v. State, 72 Tex. Cr. R. 621, 163 S. W. 79, and other cases listed in Vernon’s C. C. P. p. 759; Branch’s Ann, P. C. p. 58.

The error in excluding the testimony mentioned requires that the case be reversed and remanded, which is accordingly ordered.
      <g=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MARTINEZ v. STATE.
    (No. 4568.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Homicide <&wkey;300(7) — Self-Defense — Instruction — Pbovoking Difficulty.
    In a prosecution for murder, the fact that defendant may have struck the first blow in the difficulty with deceased will not justify a charge on self-defense, qualified with a charge on provoking the difficulty (Vernon’s Ann. Code Or. Proc. 1916, art. 735, note 66), in the absence of evidence of intent to bring the difficulty on to provoke an attack in which defendant intended to kill or injure deceased.
    2. Criminal Law <&wkey;1099(5) — Appeal—Bill of Exception — Filing after Term.
    Bill of exception, disclosing the facts on which rests the contention that the jury received evidence in its retirement, not having been filed during the term, cannot be considered on appeal.
    Appeal from District Oourt, Bee County; F. G. Chambliss, Judge.
    Pancho Martinez was convicted of manslaughter, and he appeals.
    Judgment reversed, and cause remanded.
    Dougherty & Dougherty, IT. S. Bonham, J. F. Odem, and B. D. Tárlton, Jr., all of Bee-ville, for appellant. E. B. Hendricks, Asst. A tty. Gen., for the State.
   MORROW, J.

Appellant was charged with murder and convicted of manslaughter.

He stabbed with a knife and killed Sil-berio Ornelas on December 25, 1915. Appellant and deceased were acquaintances and with others had been drinking whisky during the day, and, according to appellant’s statement, deceased late in the evening called appellant aside and asked him to give him a drink of whisky. Appellant denied that he had any; deceased used insulting language toward and struck appellant; appellant seeing a knife in his hand caught it and took it away from him and-deceased drew another out of his pocket, and while opening it or attempting to open it appellant stabbed him, using the knife he took away from deceased. There was no evidence of any previous quarrel or any motive for the homicide other than that growing out of the affray in which the homicide took place. The only other eyewitness was a boy by the name of Shelton, who was passing the place of the homicide and saw the men, neither of whom he knew, talking to each other. The witness was some distance away, estimated by him from 50 to 150 yards, and was unable to understand the conversation. To quote from him:

“I seen one man had his hand this way (indicating finger in palm of hand). * * * It looked like he had his finger in his hand this way, and then pretty soon one hit the other one, and then the other one slapped the other’s hat off, and then they went to fighting, and pretty soon one knocked the other down and stabbed him. The dead man was the one that had his finger that way, and they were about 3 feet apart at that time. The dead man had his finger in his hand that way, and was pointing at the other with something in his hand. * * * Pancho [appellant] struck the first lick. * * * Then this one hit the other, and the other one slapped this one’s hat off, and then this one knocked the other down and stabbed him. When he knocked him down he stabbed him in the breast.”

There was evidence of several witnesses tending to show that the knife used by appellant .was a knife made out of a file or something of that kind, and that it belonged to, or had been in the possession of, deceased, and there was evidence that a pocket knife was also found near deceased after the homicide.

The court charged the jury on the law of self-defense, qualifying it, however, with the charge on provoking the difficulty. Ap>pellant insists that the evidence did not justify this qualification of his right of self-defense. Such charge would have been authorized only in the event that there was evidence that the appellant intended to provoke a difficulty for the purpose of causing the deceased to attack him and thereupon to kill him or do him serious bodily injury; that pursuant to such intention he used means reasonably calculated under the circumstances to bring about that result; that the demonstration or attack by deceased was so brought on and that appellant stabbed him pursuant to his original intent. Branch’s P. C. art. 1138; Vernon’s C. O. P. p. 459, and cases cited. We do not find any evidence of these elements. The evidence indicates that deeased sought the interview, and that appellant joined him with no cause or purpose to bring on a quarrel. Evidence of intent to bring on the occasion to kill deceased appears to be entirely absent. Appellant may have struck the first lick; be may have begun the difficulty, but this would not justify the charge in the absence of evidence of an intent to bring it on for the purpose of provoking an attack in which he intended to kill or injure his assailant. Reese v. State, 49 Tex. Cr. R. 242, 91 S. W. 583; Burnett v. State, 51 Tex. Cr. R. 20, 100 S. W. 381; Thomas v. State, 71 Tex. Cr. R. 387, 160 S. W. 71; Bow v. State, 34 Tex. Cr. R. 481, 31 S. W. 170; Smith v. State, 48 Tex. Cr. R. 203, 87 S. W. 151; Morgan v. State, 34 Tex. Cr. R. 222, 29 S. W. 1092; Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44.

There is complaint that the jury received evidence in its retirement. The bill discloses the facts upon which this contention rests was not filed during the term, and cannot, therefore, be considered. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. The assignment with reference to argument relates to a matter that doubtless would not arise upon another trial. In the other questions raised we find no error.

Because the charge submitting the issue of provoking the difficulty was not supported by the evidence, the judgment of the lower court is reversed, and the cause remanded.
      ffin^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    SPURLOCK v. STATE.
    (No. 4595.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Cbiminal Law &wkey;>1090(7, 8, 16) — Absence ox Bill ox Exceptions — Evidence—Review.
    Without bills of exceptions and the evidence this court is unable to review grounds for new trial which cannot be intelligently considered in the absence thereof, rulings on admission of testimony, and refusal of a continuance and the judgment will be affirmed.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Ada Spurlock was convicted of keeping a bawdyhouse, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of keeping a bawdyhouse; her punishment being assessed at a fine of $200, and 20 days’ imprisonment in the county jail.

The record contains neither a statement of facts nor bill of exceptions. The grounds of the amended motion for new trial, in the absence of statement of facts and bills of exception, cannot be intelligently revised. There was an application for a continuance, but a bill' of exceptions was not reserved to its refusal, and, in addition, the evidence is not before us. The remaining grounds of the motion refer to rulings of the court in regard to the admission of testimony. Without bills of exception and the evidence this court is unable to revise these matters. The judgment is therefore ordered tp be affirmed.


text:
    Ex parte SPARKS.
    (No. 4755.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Cbiminal Law &wkey;>1148 — Appeal and Error —Bail.
    A trial court’s denial of bail in a murder case is accorded great deference on appeal.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Application by Lee Sparks for bail. Prom a judgment denying bail, the relator appeals.
    Reversed, and bail granted.
    John H. Crooker, Cr. Dist. Atty., of Houston, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is because of

the refusal of the judge of the criminal district court to allow bail to relator, who was held under indictment for murder.

The decision of the trial court, after an investigation of the facts, is accorded great deference. Ex parte Moore, 5 Tex. App. 103; Ex parte Beacom, 12 Tex. App. 318; Ex parte Matlock, 18 Tex. App. 227. Mindful of this, we have examined the record, and, omitting a discussion of the facts, our conclusion is that the evidence is such as to entitle the relator to bail. Ex parte Russell, 71 Tex. Cr. R. 377, 160 S. W. 75; Ex parte Stephenson, 71 Tex. Cr. R. 380, 160 S. W. 77; Ex parte Burton, 75 Tex. Cr. R. 105, 170 S. W. 308, 39 L. R. A. (N. S.) note pages 780-784; Bill of Rights, Vernon’s C. C. P. p. 9, and cases cited.

The judgment is consequently reversed; and it is ordered that appellant be granted bail in the sum of $7,500.


text:
    McHAM v. STATE.
    (No. 4599.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Criminal Law <&wkey;747, 1159(3) — Question xob Jury.
    The question of defendant’s guilt of a simple assault, the testimony being conflicting, was one of fact for the jury, and not for the Court of Criminal Appeals.
    2. Criminal Law &wkey;>363 —Assault —Evidence — “Res Gestae.”
    In a prosecution for simple assault, where the testimony showed that, before the prosecuting witness and another began to fight, such other called the prosecuting witness “a thick-lip-son of a bitch,” which at once caused a fight; that, just before, defendant had told the other to get the prosecuting witness out of the house; and that, as soon as the prosecuting witness and the other began to fight, defendant ran up and struck the prosecuting witness on the side of the face, constituting the offense charged — testimony as to the cursing and name calling was admissible as part of the res gestae; res gestae being the facts and circumstances immediately hovering around and directly connected with the transaction, occurring at the time and place of the main fact.
    [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Res Ges-tee.]
    3. Criminal Law <&wkey;1169(6) — Appeal — Harmless Error—Evidence.
    Where the lowest punishment was assessed against defendant, if the testimony was not res gestse, and erroneously admitted, its admission was not error justifying reversal.
    4. Criminal Law &wkey;>829(l)—Trial—Instruc-tions—Repetition.
    It was not error to refuse to give again substantially, at defendant’s request, a charge already covered by the court’s charge.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Earl McHam was convicted of a simple assault, and lie appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of a simple assault, and the lowest fine assessed against him.

The testimony of the state is positive and clear, establishing the offense charged; that of the appellant and his witnesses, if believed, would have shown that he was not guilty. This was a question of fact for the jury, and not for this court.

Appellant has two very meager bills to a question asked and an answer given, which, under the rules, are so defective as to preclude their consideration; however, considering them, neither shows any reversible error. In one, he objected to the county attorney asking a witness if Earl Humphrey cursed or abused him before they began fighting, and he answered, “Yesthat he called him “a thick-lip son of a bitch.” In the other, he objected to this .question to a witness: “While you were were holding the defendant, did he curse you?” and he answered, “Yes; he called me a son of a bitch.” To the bill complaining of the first, the court, in approving it, explained that á witness had testified he heard “defendant tell Humphrey to get Haley (the assaulted party) out of the house, thus connecting him as a vice principal, if true.” All of this testimony was clearly res gestse of the transaction. Tlfe testimony was sufficient to show that just before the prosecuting witness, Haley, and Humphrey began fighting, Humphrey called Haley a thick-lip son of a bitch, which seemed to have at once caused a fight between them; that just before this defendant told Humphrey to get Haley out of the house, and as soon as Haley and Humphrey began to fight appellant ran up and himself struck Haley on the side of his face a hard lick, and knocked him to one side, which constituted the offense in this case. Shelton then grabbed defendant and'held him until the fight was over. It was as Shelton grabbed and held him, and .because thereof, appellant then called Shelton a damned son of a bitch. Judge White, in his Annotated P. G. § 1236, correctly says res gestse are the facts and circumstances immediately hovering around and directly connected with the transaction, occurring at the time and place of the main fact, and that all which was said or done, or that which occurred at the time of the alleged offense, tending in the slightest degree to explain the transaction or conduct or motives of the parties, is admissible. These statements were clearly res gestse. Muldrew v. State, 73 Tex. Cr. R. 469, 166 S. W. 156, and cases cited.

As stated, the lowest punishment was assessed against appellant, and if it could be held that either of said items of testimony objected to by appellant was not res gestee, and erroneously admitted, the admission of either or both would be such error as to justify a reversal.

The only other objection was to the refusal of a special requested charge by appellant. The court correctly refused this, for the reason stated, that it was sufficiently embraced in the court’s main charge. This was true, and it, of course, was no error to refuse again to give substantially a charge that was already covered by the court’s charge.

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