author: RAINEY, C. J.

text:
    JONES, LUMBER CO. et al. v. GUARANTY STATE BANK & TRUST CO. et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 3, 1913.
    Additional Findings of Fact May 31, 1913.)
    1. Mechanics’ Liens (§ 13) — Property Subject-Public Property.
    Materialmen and laborers can. fix no lien upon public works for money due them for materials furnished or labor performed in the construction of such works.
    [Ed. Note. — Eor other cases, see Mechanics’ Liens, Cent. Dig. §§ 14, 15; Dec. Dig. §, 13.]
    2. Municipal Corporations (§• 373) — Public Improvements — Liens on Fund por Labor and Materials.
    Dallas City Charter, art. 14, § 21, requiring subcontractors, materialmen, mechanics, and laborers upon any public works of the city to notify the city of all claims on account of such work against the city, and requiring the city to retain from any funds due the contractors an amount sufficient to satisfy all claims, and providing that such notice may be given at any time after such indebtedness becomes due and before final settlement, merely prescribes a mode by which the city can pay materialmen and laborers such amounts as may be due tliem out of funds held by it and due the contractor, and does not give them any superior claim or right to the fund, except as against the contractor, and hence did not give laborers and materialmen a right to such a fund superior to that of a party which took an assignment from the contractor before notice was given to the city by the laborers and materialmen.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. § 373.]
    3.Municipal Corporations (.§ 373) — Public Improvements — Liens on Fund por' Material and Labor.
    Where parties advancing money to a contractor to carry out his contract for the construction of a public improvement took assignments of the funds due the contractor from the city long prior to the giving of the notice of their claims to the city by materialmen and laborers as required by the city charter, which also required the city, upon receipt of such notice, to retain an amount from the funds due the contractor sufficient to satisfy all claims, the assignees’ legal rights under the assignments were superior to the equities of the materialmen and laborers.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. § 373.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by the Guaranty State Bank & Trust Company and others against the Jones Lumber Company and others. From a judgment, the defendant named and other defendants appeal.
    Affirmed.
    J. J. Eckford, A. B. Flanary, R. G. Watson, Spence, Knight, Baker & Harris, Alex. F. Weisburg, B. M. Baker, Smith, Robertson & Robertson, Etheridge & McCormick, Henri L. Bromberg, and Joe Utay, all of Dallas, for appellants. Burgess, Burgess & Chrestman, Leake & I-Ienry, and R. V. & W. S. Davidson, all of Dallas, and Kleberg & Neethe, of Galveston, for, appellees.

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

   RAINEY, C. J.

The following statement of the case is taken from appellees’ brief:

“On September 5, 1911, the appellee, Guaranty State Bank & Trust Company, brought this suit against John C. Underwood and M. Murphy and the city of Dallas. The suit was on a note of said Underwood for $4,500, and said note was indorsed by the defendant Murphy; that said note was in part a renewal of an original note for $2,000 of the said Underwood made in January, 1911; that said Underwood on the 9th day of January, 1911, as additional security for said original note, made an assignment to secure said note and any future indebtedness of the said Underwood to the said guaranty company, all the balance due him on a certain contract between himself and the city of Dallas for paving a part of Commerce street, amounting to $1,150.87, and also assigned to said bank all the balance due him by said city under his contract for the laying of a pipe line, amounting to $2,238.56, and also so assigned all such sums as the said city might thereafter hold in reserve under said contracts. The defendant Underwood answered in Ms own person, admitting the execution of the said notes and assignments to the said Guaranty Bank & Trust Company, and also the allegations of M. Murphy and the Fidelity & Deposit Company of Maryland. The city of Dallas filed its answer January 8, 1912. In this answer the city set forth fully the contracts that had been made with it .by the said Underwood, stating: That on July 8, 1910, it made a contract with him for the paving of a part of Commerce street. That it had paid the said Underwood under said contract $8,-815.16. That Underwood had failed to perform his contract in full, requiring the city to pay out for him the sum of $577.80, and that the city had a balance in its hands belonging to Underwood under said Commerce street contract of $S,212.58, and stating as follows in respect to said balance: ‘ * * * Which said sum is now being held by the city of Dallas, subject to the assignments and claims hereinafter referred to.’ That on September 26, 1910, the city made a contract with the said Underwood to construct a pipe line. That under said contract the city had paid said Underwood $17,230.64. That said Underwood did not fully perform the said contract, and that it required $559.64 to complete same, which amount was due to and the contract completed by the said Fidelity & Deposit Company and M. Murphy, appellants herein, at the said cost of $559.64. That there was a balance in the hands of the city on said contract of $5,147,90, exclusive of the $559.64 due the sureties, Fidelity & Deposit Company and M. Murphy, for completing the contract. The city set forth that claims and assignments had been filed with it, which claims and assignments are those of appellants and appellees in this cause. The city also stated that the assignments and claims were far in excess of the money held by it to the credit of Underwood, and prayed that upon a hearing of the cause it should have a judgment protecting it in the payment of said moneys, and that such said assignees and claimants be required to adjudicate their respective rights, and that the city’s rights be fully adjudicated and protected. It also pleaded certain provisions of its contract with Underwood and provisions of its charter. The city made parties all the assignees and claimants to the funds.
“On January 25, 1912, M. Murphy and the Fidelity & Deposit Company of Maryland filed their first amended petition of intervention wherein they set up that they had given bond for John C. Underwood to the city of Dallas in the sum of $5,000 for the faithful performance by John O. Underwood of his contract of September 26, 1910, with the city of Dallás for the laying of the White Rock pipe line, and alleged that in the application the said Underwood agreed to pay it all costs, damages, charges, and expenses resulting from any act of negligence on his part which would result in the sureties on the bond being made liable; that on May-12, 1911, the said John C. Underwood advised the said M. Murphy, general agent of the Fidelity & Deposit Company of Maryland, in writing, that he was unable to comply with said pipe line contract, and requested them to do so, and in same assigned and set over all his rights and interest in said contract and all moneys then held in reserve by the city of Dallas on said contract, amounting to about $5,700, and authorized them to collect the same, subject, however, to orders heretofore given by Underwood to the Guaranty State Bank & Trust Company and the Crane Company ; that Underwood obtained money from the Guaranty State Bank & Trust Company to do this work; that M. Murphy became-surety upon said note, and also surety upon his bond to the city of Dallas, and that he executed the assignment above mentioned primarily and wholly for securing intervener Murphy against any loss he might sustain by reason of his suretyship upon said note; that said Underwood failed to build said pipe line; and that the sureties did so at a cost of $559.64.
“The First National Bank of Galveston, an intervener, and defendant in said cause, filed its first amended original intervention and answer on January 28, 1912. It alleged the date of the contract between the city and Underwood for paving Commerce street, viz., the 8th day of July, 1910, and that Underwood performed his contract, except as to a small portion thereof, which was performed by the city. That the said Underwood, being without means to carry out said contract, requested the bank to furnish him the money therefor, and in consideration of the bank’s agreeing so to do, and the further consideration on the part of Underwood to secure an indebtedness then owing to the bank, Underwood on the 7th day of September, 1910, executed and delivered to the bank an assignment, which is as follows: ‘Dallas, Texas, Sept. 7, 1910. For a valuable consideration to me in hand paid, I hereby assign to the First National Bank of Galveston, Texas, all the revenues accruing to me from the said city of Dallas by virtue of a certain contract with them for the paving of Commerce street. [Signed] Jno. C. Underwood.’ That on the 15th day of September, 1910, in-tervener notified the city of Dallas of this assignment, and that on the 22d day of October, 1910, the said Underwood ratified said assignment by a certain other instrument of writing of that date. That on the 23d day of October, 1910, the city of Dallas was again notified of said assignment and also the instrument of date the 22d day of October, 1910. That on the 10th day of May, 1911, intervener also notified the city of Dallas that Underwood was then indebted to inter-vener in the sum of $6,500. That at the time of the filing of the intervention there was a balance due the intervener from Underwood of the indebtedness secured by said assignment, and evidenced by notes and open account as follows: One note for $1,600, one note for $2,500, one note for $1,200, and balance by overdraft of $180.
“The intervener prayed judgment upon its said notes and open account, and also as follows: ‘That tbis honorable court will adjudge and decree that the intervener has and had assignments and transfers to it of date the said 7th day of September, 1910, and the 22d day of October, 1910, and of the 10th day of May, 1911, of all the aforesaid sums of money which accrued to the said John C. Underwood, and payable to him, under the said contract for the paving of Commerce street, and which has been paid into court, by the said city of Dallas, and amounting to the said sum of $8,212.58. That inter-vener has a prior valid and subsisting lien on said sum of $8,212.5S, as of dates the 7th day of September, 1910, and October 22, 1910, and May 10, 1911, to secure its aforesaid indebtedness and interest and attorney’s fees, and costs of this intervention, and that said lien be duly foreclosed as against all parties to this suit, including the said plaintiff and all defendants and all interveners, and other parties herein, and that this court order and decree that the said sum of $8,-212.58, or so much thereof as may be necessary to pay said indebtedness of intervener and interest and attorney’s fees and costs of this intervention, be paid to this intervener. That the said assignments and the said liens of the said intervener may be adjudged and decreed as a first and prior lien to any and all other alleged assignments and claims and liens to said sum of $8,212.58, being the said moneys now in the hands of the said city of Dallas, defendant herein, and by it paid into court.’
“The appellants in this, cause filed interventions and answers alleging that they had furnished material and labor in and about the execution of said contracts by the said Underwood, and had filed their claims with the city of Dallas.
“The appellants, the Gulfport Greosoting Company, the Texas Bitulithic Company, the Dallas Paving Company, the Southwestern States Portland Cement Company, E. L. Har-alson, and the Phelan Coal Company, among otter matters sought by their pleas to impeach the consideration made by Underwood to the First National Bank of Galveston and to M. Murphy and the said fidelity company; to these pleas the said named appellees demurred, because the pleas were not duly verified by affidavits as required by the statutes of Texas; these demurrers were sustained and the pleas were not otherwise amended, but remained as they were, notwithstanding the judgment of the court sustained the demurrers thereto; there are no assignments of error to this ruling.
“On the 3d day of February, 1912, final judgment was entered in the cause:
“(1) In favor of the Guaranty Bank & Trust Company, as plaintiff, against Underwood, as principal, and M. Murphy, as surety, for $5,401.00 and interest.
“(2) In favor of the said Guaranty State Bank & Trust Company against the city of Dallas, defendant, for the said amount of $5,401 and interest and costs, to be paid by said city out of the fund of $5,147.90 on the pipe line contract, and balance out of the Commerce street fund; the right of payment of its judgment out of the Commerce street fund was subject to the payment of the judgment in favor of the intervener the First National Bank of Galveston.
“(3) The First National Bank of Galveston recovered judgment against Underwood for $6,349.13, with interest. It was ordered that said judgment be paid by the city of Dallas out of the funds in its hands belonging to the Commerce street fund, amounting to $8,212.58, and it was adjudged that said bank had a prior and paramount Hen on said fund of $8,212.58 in so far .as the said amount was necessary to pay off its said judgment.
“It was adjudged also that in event the said appellee Murphy should be compelled to pay the judgment against him in favor of the Guaranty State Bank & Trust Company, or any part thereof, that the judgment in favor of the Guaranty State Bank & Trust Company should not be discharged by such payment, but the judgment should remain in force for the use of the said Murphy and should be considered as assigned to him, both against Underwood and against the city of Dallas. Judgment was also rendered for $559.64 against the city in favor of the said Fidelity & Deposit Company and M. Murphy, being the amount of costs incurred by them for completing the said pipe Hne contract. Judgments were rendered in favor of the appellants against Underwood for their several claims, and that those of said appellants who had furnished materials for the Commerce street paving contract should have judgment for any balance left of said fund remaining after the payment of the judgments in favor of the First National Bank of Galveston and the Guaranty State Bank & Trust Company; and those who furnished material for the pipe line should have judgment against the city of Dallas for the balance remaining of said fund after payment of the said judgments in favor of the Fidelity & Deposit Company arid M. Murphy and the guaranty company, the amount of said balance after payment of the above judgments to be prorated among the interveners in proportion to the amount of their respective claims, except that the claim of the Southwestern States Portland Cement Company should share in said prorating on the basis of $1,013.02, and the Jones Lumber Company should share in said prorating on the basis of $497.22. By said judgment it was also provided as follows: ‘It is expressly adjudged that the limit of the liability of the defendant, city of Dallas, upon the judgments herein rendered against it .is, and shall be, the amounts herein adjudged to be in its hands in the respective funds, without interest or costs.’ ”

Conclusions of Facts.

John C. Underwood on July 8, 1910, contracted with the city of Dallas to pave Commerce street, and also on September 26, 1910, contracted with the said city to construct a pipe line from the city to White Rock Reservoir; said contracts were entered into with reference to the charter and ordinances of the city of Dallas, which were expressly referred to in said contracts. The contracts also provided that Underwood was to be paid as the work progressed upon estimates furnished, but the city had the right to reserve 15 per cent, from each and every estimate so made until final completion and acceptance. Underwood failed to complete said undertakings, and the same was completed by his sureties, M. Murphy and the Fidelity & Deposit Company of Maryland, at a cost of $559.64, which amount was still due them. Underwood, on January 9, 1911, being indebted to the Guaranty State Bank & Trust Company of Dallas county, by promissory note assigned and transferred to said bank “all such sums as the said city may hereafter hold in reserve under and by virtue of the said contracts,” and the bank was authorized to collect, etc. Of this assignment the city was notified and agreed to pay said sums direct to the bank. The assignment to the bank was to cover all amounts due by Underwood, which amounted to $4,-500, before Underwood abandoned the work.

On September 7, 1910, Underwood made to the First National Bank of Galveston the following assignment: “Dallas, Texas, September 7, 1910. For a valuable consideration to me in hand paid, I hereby assign to the First National Bank of Galveston, Texas, all of the revenues, accruing to me from the city of Dallas, by virtue of a certain contract with them for the paving of Commerce street. [Signed] John C. Underwood.” Underwood notified the.city of this assignment, but it was never accepted by the city.

On October 22, 1910, Underwood executed to the First National Bank of Galveston a power of attorney to collect the sum of money due him by the city for paving Commerce street. On May 10,1911, the last-named bank gave notice to the city that Underwood was due it $6,500 to pay for work and material used in paving Commerce street, etc. Underwood was not able alone to financially comply with his contract and made arrangements with said bank to furnish the money for that purpose, and to secure it made the assignment to them. The other appellants herein were materialmen or laborers and furnished material or performed labor of which the city had been notified; .the notices ranging from April 4 to May 18, 191Í.

Conclusions of Law.

It is well settled by the decisions of this state that materialmen and laborers can fix no lien upon public works for money due them for material furnished or labor performed in the construction of such works. Bank v. Coleman, 151 S. W. 1123, and authorities cited therein.

The appellants, therefore, do not claim any right to fix a lien on the works constructed for the city of Dallas, but they claim for the material furnished and labor performed in the construction of said works, for which the contractor Underwood is still indebted to them, that they have a superior claim on the money still due by the city to Underwood on said contracts. This claim is by virtue of article 14, § 21, of the city charter, which section reads: “No lien of any kind can ever exist against the public school buildings, public halls, parks, or public works of the city of Dallas. All subcontractors, materialmen, mechanics and laborers upon any public works of the city of Dallas are hereby required to notify the city of all claims they may have on account of such work against the city, and when such notice has been given the city shall retain an amount from any funds due the contractors sufficient to satisfy all claims: Provided, that such notice may be given at any time after such indebtedness becomes due and before final settlement: And provided, further, that no contractor or subscontractor shall issue any time checks on or on account of any public work of said city.” This section of the charter merely prescribes a mode by which the city can pay materialmen and laborers such sums as may be due them for material furnished and labor performed out of funds held by it under the contract and due the contractor; but we do not understand that said section gives any superior claim or right to said fund, except as against the contractor. It does not change the rule where the fund has been assigned to third parties before the materialmen and laborers had notified the city, as was the case here.

The contracts herein were made by the city in its own behalf and not for the benefit of materialmen and laborers. No right of action is given them to enforce its performance, and they stand in relation thereto as any other party. In the case of Bank v. Coleman, supra,, in which a writ of error was denied by the Supreme Court, where materialmen and laborers made a similar claim of a superior right to a fund held by the county of Gray-son, which was due a contractor, from a public work, we held that: “They were not parties to the contract between McNerney and the county. Under it they had no right of action to compel its performance to protect their interests for labor performed and material furnished. The county by the terms of the contract was under no obligations to them.”

However we may view the hardships on the laborers and materialmen in not receiving their dues for their labor performed and material furnished, we must not overlook that appellees advanced money which enabled Underwood to progress with the work as far as he did, and which was completed by the efforts of the Fidelity & Deposit Company of Maryland and M. Murphy. The appellees were vigilant and secured themselves by having Underwood to assign to them such funds as might be retained by the city by virtue of the contract. This was a right accorded them by law, and having complied with the law their rights are paramount to the equities of appellants. Harris Co. v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; Lumber Co. v. Smith, 151 S. W. 605; Bank v. Coleman, supra; Beilharz v. Illingworth, 132 S. W. 106.

The assignments of the fund in the hands of the city to appellees by Underwood being legal and made long prior to any rights of appellants had accrued, the amounts due ap-pellees were entitled to be first paid out of said fund and the trial court did not err in so holding.

The judgment is affirmed.

Additional Findings of Fact

At the request of appellants we find the following facts: That the defendant John C. Underwood was justly indebted to appellants in the respective amounts, on the dates shown by the record, for material furnished or by labor performed by them, which material was used or labor performed either in paving Commerce street or laying the White Rock pipe line, which were public works of the city of Dallas, under the said Underwood’s contract^ with the city of Dallas, dated respectively July 8, 1910, and September 26, 1910. That said añiounts were unpaid, and the fact that each of appellants notified in writing the city of Dallas of their said claims that the said notices in writing were given after the maturity of the respective claims, and that each of appellants complied with section 21, art. 14, of the charter of the city of Dallas, in the filing of their said claims with said city. That the defendant John C. Underwood was justly indebted to Gulfport Creosoting Company in the sum of §14,747.78 on the date of the trial, January 25, 1912, for material furnished by said Gulfport Creosoting Company to the said John C. Underwood, and by him used in paving Commerce street, a public work of the city of Dallas, under his (Underwood’s) contract with the city of Dallas, dated July 8, 1910, and which amount is unpaid. That said indebtedness became due February 9, 1911. That said Gulfport Creosoting Company notified in writing the said city of Dallas of said claim on the 9th day of March, 1911. That the wooden blocks used by John C. Underwood in paving Commerce street, under his contract with the city of Dallas, dated July 8, 1910, was sold to him by the Gulfport Creosoting Company under a sale made in June, prior to the opening of the, bids by the city of Dallas, and that John C. Underwood based his bid for said work upon the prices for the wooden blocks made him by the appellant Gulfport Creosoting Company and when the contract was awarded him the sale was concluded. That the first shipment was made by appellant to Underwood September 26, 1910, and the last December 9, 1910. No amount was to be payable later than 60 days. That appellant Gulfport Creosoting Company had no notice or knowledge of any assignment by Underwood to the First National Bank of Galveston until May 10, 1911, or to the Guaranty State Bank & Trust Company until April 5, 1911.


source: Caselaw Access Project

author: PRENDER GAST, J.

license: Public Domain

text:
    CLAUSSEN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    Rehearing Denied June 4, 1913.)
    1. Cbiminai, Law (§ 1102) — Appeaj>—Statement of Facts.
    A purported statement of facts consisting of the stenographer’s report, showing not only the questions and answers of the witnesses but other unnecessary matter, will be stricken out on motion.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1102.]
    2. Criminal Law (§ 605) — Continuance-Time to Prepare Motion — Denial.
    On a bill of exceptions claiming that the court should have given defendant time to prepare a motion for a continuance because only 15 of the 60 veniremen drawn were in attendance, and that he could not get a fair jury from the streets, there was no showing that defendant did not get a fair trial out of the 15 regular jurors, and it appeared that the remaining 45 were excused by the court or not found after diligent search for them by the sheriff. Held, that the denial of time to prepare such motion was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1362; Dec. Dig. § 605.]
    3. Criminal Law (§§ 742, 857) — Province oe Jury — Credibility of Witnesses.
    The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and may properly discuss their testimony in the jury room.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721, 2054, 2055; Dec. Dig. §§ 742, 857.]
    4. Criminal Law (§ 598) — Continuance-Diligence.
    On a bill of exceptions showing that defendant’s application for witnesses was not filed until the day the case was set for trial, and that a subpoena was immediately issued for them and a return made thereon, and that the court issued attachment for such witnesses and proceeded with the trial, there was no such diligence as entitled a continuance on the ground of their absence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    5. Criminal Law (§ 596) — Continuance-Impeaching Evidence.
    - A continuance will not be granted to obtain impeaching evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent'. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    Appeal from District Court, Grayson County; J. M. Pearson, Judge.
    Guy Claussen was convicted of burglary, and lie appeals.
    Affirmed.
    J. E. Cawthorn, of Denison, and E. W. Nea-gle, of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDER GAST, J.

From a conviction for burglary with the lowest penalty assessed, this appeal is prosecuted.

The Assistant Attorney General has made a motion to strike out the bills of exception because not filed within the time allowed by law, nor the order of the lower court. As the record stood at the time this motion was. made, it was well taken; but since then the appellant has furnished and filed as a part of the record an order made by the lower court extending the time for filing the bills of exception. The bills were filed within the time allowed. That portion of the motion of the Assistant Attorney General is therefore denied.

The Assistant Attorney General has also made a motion to strike out the purported statement of facts, because it is not a statement of facts but is the stenographer’s report, showing not only the questions and answers of the respective witnesses, but a good deal of other unnecessary and improper matter to be contained in the statement of facts. This court, as the law now stands, and has since 1907, will strike out and not consider such purported statement of facts, and the said motion to strike out the said purported statement of facts is therefore granted. Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055, and cases there cited. It is needless to cite other cases. We will say, however, that we have read the purported statement of facts, and, if we could consider it, it would clearly show appellant’s guilt.

By one bill appellant claims that the court should have given him time to prepare a motion for a continuance, because only 15 of the 60 veniremen drawn were in attendance upon the court, and claims that he could not get a fair and impartial jury picked up from the streets of Sherman to try this case. The bill is wholly defective in that it does not show that he did not get a fair and impartial jury out of the 15 regular jurors in attendance. Besides, the court, in allowing his bill, states that: “The sheriff’s return showed that, while 60 jurors were drawn from the wheel, 15 were present and the remaining 45 were either excused by the court for legal cause or not found after diligent search for them by the sheriff. And no evidence whatever was offered to show that the sheriff had not exercised proper diligence to procure said jurors; nor was any evidence offered to show that the talesmen would be picked up from the streets of Sherman, or were picked up from the streets.” This presents no error.

His next bill complains of the misconduct of two of the jurors in that they discussed the state’s witnesses who testified. The court qualified this bill by stating: “That one of the jurors on the motion for new trial testified that when he first went out to consider the verdict he was not satisfied and was for acquittal; that .they discussed the testimony of the witnesses and some one of the jurors remarked that he believed that Guy Claussen, the defendant, was guilty, and that the witnesses Henry, Williams, and Hagerman, who testified, were also guilty, and that this statement influenced, him; that he believed that the defendant and the others too were all guilty.” The law makes the jury the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. It is therefore important and clearly within their duty for them to discuss these questions when considering the case, and the witnesses discussed were state’s witnesses, and such discussion was adverse to them and to the state. This bill presents no error.

The only other bill appellant has is to the refusal of the court to postpone the case in order that he might procure the attendance of some other witnesses which he had just a day before subpoenaed to attend that day. The bill shows that the attendance of these witnesses was sought solely for the purpose of impeaching the state’s witnesses. The court, in allowing the bill, qualified it by stating that appellant’s application for the witnesses was not filed until the day the ease was set for trial, and a subpoena was immediately issued for said witnesses, and a return made thereon, and the court stated to counsel for appellant that he would issue attachment for the witnesses named and proceed with the trial, which was done. The diligence shown was wholly insufficient.

Besides, even if his diligence had been sufficient, where the testimony sought could only be available to impeach the state’s witnesses, the continuance was properly refused. Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184. A continuance will not be granted to obtain impeaching evidence. Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088; Bolton v. State, 43 S. W. 1010. No error is shown.

The judgment will be affirmed.


author: PRENDERGAST, J.

text:
    SYLVESTER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Criminal Law (§ 1087) — Notice of Appeal — Record.
    Where no notice of appeal is shown in any way by the record, the court has no jurisdiction, and the appeal will be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2770-2781, 2794; Dec. Dig. § 1087.*]
    Appeal from Criminal District Court, Dallas County; Itobt. B. Seay, Judge.
    Paul Sylvester was convicted of burglary, and he appeals.
    Appeal dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

The record before us shows a proper indictment, verdict, judgment, and sentence of the appellant for burglary. There is no notice of appeal in any way shown by this record.

This court has no jurisdiction, and the appeal will be dismissed.


author: DAVIDSON, P. J.

text:
    SYLVESTER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Cbiminal Law (§ 1097*) — Appeal—Statement of Facts.
    The grounds of the motion for a new trial cannot be considered, in the absence of the statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.’
    Paul Ss'lvester was convicted of theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. .Gen., for the State.
   DAVIDSON, P. J.

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

The transcript of the record is before us without a statement of facts or bills of exception. The grounds of the motion for new trial cannot be considered, in the absence of the statement of facts.

There being no reversible error apparent in the record, the judgment is ordered to be affirmed.


author: HARPER, J.

text:
    BAKER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    1. Criminal Law (§ 1090*) — Appeal—Bill of Exceptions.
    In the absence of a bill of exceptions, the Court of Criminal Appeals cannot review alleged errors in admitting or rejecting evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig-. § 1090.*]
    2. Criminal Law (§ 1144*) — Appeal—Statement of Facts.
    In the absence of a statement of facts, the Court of Criminal Appeals must presume that the trial court charged all of the law applicable to the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144'.*]
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    S. L. Baker was convicted of rape, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at 25 years’ confinement in the penitentiary.

There are many grounds assigned in the motion for new trial, but if he reserved any bills of exception they are not copied in the record; consequently we cannot review the grounds complaining of the admission or rejection of any testimony.

No statement of facts accompanies the record, and in the absence of a statement of facts we presume the court charged the law, and ail the law, applicable to the evidence.

The judgment is affirmed.


text:
    SPENCER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Criminal Law (§ 1097) — Appeal—Record— Statement of Facts — Necessity.
    The denial of a motion for a new trial on the ground that the verdict is contrary to the law and the evidence cannot be reviewed on appeal, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Ed. Spencer was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at four years’ confinement in the penitentiary.

The only ground in the motion for a new trial assigns that the verdict is contrary to the law and the evidence. No statement of facts accompanies the record; consequently we cannot review this ground.

The judgment is affirmed.


text:
    BIRD v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Intoxicating.Liquors (§ 239*) — Wrongful Sale — Statutory Offense — Instructions.
    Pen. Code 1911, art. 589,. provides that, if any person shall pursue the occupation of selling intoxicating liquors, in prohibition territory, he shall be punished, etc. Article 591 declares that to establish such offense the state shall prove that accused made at least two sales of intoxicating liquor within three years next preceding the indictment. Held that, since the mere making of two or more sales in itself does not constitute the offense of pursuing the business of selling intoxicating liquors, an instruction by which the court made that the test of whether accused was pursuing the business or occupation of selling intoxicating liquors, and which did not clearly charge that the jury must believe from all the evidence that he pursued that business or occupation, and in addition thereto made at least two sales, was erroneous.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.*]
    Appeal from District Court, Potter County ; John W. Veale, Special Judge.
    Charley Bird was convicted of unlawfully pursuing the business of selling intoxicating liquors in a prohibition precinct, and he appeals.
    Reversed and remanded.
    Cooper, Merrill & Lumpkin, of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted and convicted of unlawfully engaging in and pursuing the business of selling intoxicating liquors in commissoners’ precinct No. 1 in Potter county, wherein prohibition was in force.-

It is necessary to consider but one question, which is properly raised. The charge of the court in stating the case tells the jury that the appellant stands charged by indictment with the offense of unlawfully engaging in the occupation and business of selling intoxicating liquors in said precinct in Potter county; then “the several sales alleged to have been made by defendant constituting such offense .are alleged to have been made by the defendant in said commissioners’ precinct in said Potter county to the persons, and on or about the dates, as follows”; then, as in the indictment, the court specifies eight particular and distinct sales at distinet and separate times alleged to have been made by •appellant to Csesar Jackson; then six other separate and distinct sales at different and distinct times alleged to have been made by appellant to Louise Johnson; then one other at a separate and distinct time alleged to have been made by appellant to Louie Kirsch. All of this is in one paragraph of the court’s charge. Then follows, in a separate paragraph, a statement " in the charge as to the law to govern the jury in the disposition of the case, and says: “First. This, in substance, is that our statute provides that if any person shall engage in or pursue the occupation or business of selling intoxicating liquors, except as permitted by law, in any prohibition territory in which the sale of intoxicating liquors has been prohibited, he shall be punished by confinement in the penitentiary not less than two nor more than five years.” Then in the second paragraph the charge is: “Our statute further provides that, to constitute -the engaging in or pursuing the occupation or'business of selling intoxicating liquors (within the meaning of the law as given in paragraph one of this charge), it shall be necessary for' the state to prove by competent evidence beyond á reasonable doubt that the defendant made at least two sales of intoxicating liquors within three years next before the filing of the indictment.” Then in submitting the case to the jury for a finding in the third paragraph, the charge tells the. jury: “If you find and believe from the evidence beyond a reasonable doubt that on or about the several dates and times here-inbefore set out since the 16th day of November, 1911, the defendant in said precinct did engage in or pursue the occupation or business of selling intoxicating liquors, and you further believe beyond a reasonable doubt that the sale of intoxicating liquors had theretofore been and was then prohibited in said precinct, then you will find the defendant guilty,” etc. Appellant contends, and did in the lower court, that the effect of this charge by the court is to tell the jury that they could convict the appellant by the state proving that he made at least two sales of intoxicating liquors since November 16, 1911, the date prohibition went into effect in said precinct. And also that by said charge the jury is not told specifically and clearly that in order to convict appellant the state must prove that he was enagaged in and pursued the said business, and in addition made at least two sales of intoxicating liquors as charged specifically in the indictment.

In addition to the complaints of the court’s charge, the appellant requested charges seeking to correct the claimed errors in the court’s charge, which were refused. While these special charges may not have been entirely accurate, they were sufficiently so to require the court to either give one or both of them, or so modify the charge of the court as to cover the questions.

The offense prescribed by this statute (P.' C. art. 589) is that “if any person shall engage in or pursue the occupation or business of selling intoxicating liquors, except as permitted by law,” in any territory wherein prohibition is in force, he shall be punished, etc. That is the offense. But article 591 of the Code requires, in addition, to make out this offense, that it shall be necessary for the state to prove that the accused made at least two sales of intoxicating liquor within three years next preceding the indictment. The mere making of two or more sales within and of itself does not constitute the offense. The making of two or more sales, and especially where a large number are made by an accused, at and about and shortly prior to the time he is charged by the indictment with the said offense, might and probably would be sufficient evidence to establish the fact that he was engaged in and pursued such business. Mansfield v. State, 17 Tex. App. 472. ’ By the charge of the learned trial judge in full substance given above, he seems to make the criterion simply two sales as pursuing the business or occupation of selling intoxicating liquors. He by no means makes it clear by the charge that the jury must believe from all the evidence that he pursued the said business or occupation and in addition thereto made as many as two sales.

It is unnecessary to cite the cases on this point decided by this court. The statute itself is very clear and distinct; but see Wilson v. State, 154 S. W. 572, and cases therein cited. Others might be cited, but we deem it unnecessary. So that in our opintion appellant’s contention is correct; the charge of the court is erroneous, which necessitates a reversal of the judgment. There is no other question raised in this case likely to occur on another trial. The description of precinct No. 1 in Potter county, in which prohibition was adopted, as has already been held by this court, was sufficient.

The judgment is reversed, and the cause remanded.


text:
    LAWRENCE v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    Homicide (§ 294) — Defenses—Intoxication —Submission to Juby.
    Pen. Code 1911, art. 41, provides that any intoxication or temporary insanity produced by the voluntary and recent use of ardent spirits shall constitute no excuse for crime, nor shall intoxication mitigate either the degree or penalty of the crime, but evidence of temporary insanity produced by the use of such spirits may be proved by accused in mitigation of the penalty, and in cases of murder to determine the degree of murder of which he may be found guilty. Seld that, where the evidence in a prosecution for murder raised the issue that at the time of the killing he was in an irresponsible mental condition from the recent use of intoxicants, it was error to refuse to charge the provisions of such article and to instruct that the voluntary and recent use of liquor would constitute no excuse for crime, nor mitigate the degree thereof nor penalty therefor.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 605; Dec. Dig. § 294; Criminal Law, Cent. Dig. | 1830,]
    Appeal from District Court, Brazoria County; C. W. Robinson, Judge.
    W. W. Lawrence was convicted of murder, and be appeals.
    Reversed and remanded.
    J. W. Munson and Masterson & Rucks, all of Angleton, for appellant. R. R. Lewis, Co. Atty., of Bay City, and C. A. Sweeton and C. E. Lane, Asst. Attys. Gen., for the State.

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

   HARPER, J.

This is the second appeal in this case; the opinion in the former appeal being reported in 143 S. W. 636. In that opinion we held that the evidence on that trial called for a charge on temporary insanity produced by the recent use of ardent spirits, and also a charge on temporary insanity produced by the recent use of intoxicating liquors and drugs combined. The able trial judge, who presided over the trial, held to a different view and refused to submit either issue to the jury, and so strong was his conviction in the premises instead of submitting those issues he instructed the jury: “I instruct you that intoxication produced by the voluntary and recent use of ardent spirits will constitute no excuse in this state for a commission of crime, nor shall it mitigate the degree of the crime (if any), nor shall it mitigate the penalty of the crime committed (if any).” The court, giving this charge, evidently was of the opinion that the evidence showed that appellant was intoxicated, and we do not think any two minds can arrive at a different conclusion after reading this record; but he did not think the evidence raised the issue to that extent of rendering appellant incapable of knowing right from wrong (that is, it did not produce a mental aberration to the extent of rendering him temporarily insane). It may and should be conceded that evidence offered in behalf of the state would support a finding by the jury that appellant was sane and knew right from wrong at the time he killed Buchheit, but that is not the question here to be decided; the question before us is, Did the testimony offered in his behalf raise the issue that he may have been at that time so under the influence of intoxicants as to so affect him mentally as to produce a temporary mental condition which rendered him incapable of appreciating and knowing what he was doing at the time he shot and killed the deceased? We have, on more than one occasion, read the testimony and can come to no other conclusion than that it raised that issue with such strength and cogency as to require its submission to the jury.

Beginning with the night before, when appellant was in Houston, Charlie Smith testified he met appellant between 10 and 11 o’clock in the reservation. “I was standing on the corner, when he came along by himself very much intoxicated. He was so drunk that he did not know me till I told him who I was. We were together from that time until the next morning about 9 o’clock; when I met him he said, ‘You are the very damn fellow I want to see.’ He had a bottle of whisky and we commenced drinking out of it. We drank the whole quart, and then went into a house and began drinking beer. We stayed in this house till daylight the next morning. When I met him he had a quart bottle of whisky. It was not quite full; a little gone out of it. He and I drank it all. We found this fellow Thompkins in the house and Lawrence introduced me to him. We emptied the bottle before we met Thomp-kins. We drank a good deal of beer, but do not remember just how much. We stayed there till about daylight. Lawrence was very drunk and could hardly stand. Talked at random; cursed me out as well as every one else. The landlady- took us upstairs and put us in a room where there was a bed and a couch. Lawrence lay across the bed and I lay on the couch. Directly he got to cutting up — got crazy — walked around the bed, catching hold of everything, and trying to pull the bed apart. I can’t repeat what he said; he was talking out of his mind; then a woman came in and asked what was the matter with him, and she says, T will quiet him;’ and she pulled up his sleeve and gave him a hypo; that quieted him for a while; this occurred about 4 o’clock or somewhere like that time. Did not drink any more beer that night. Stayed there till about daylight, then left for town. Went to Davis’ saloon just outside the reservation-and took several drinks, then caught a car and went down in town to Dubards’ saloon, where Lawrence had left some money, and he got his money and we took eight or ten drinks of whisky. Think we got there about 7 o’clock, and don’t know how long we stayed. He sent Thomp-kins to the depot with some package, and we got on the car and went back to the reservation to the same house; when we got there he got to cutting up again, and the same woman gave him another hypo. That was about half past eight. I got- him away after we had drunk one or two bottles of beer. I told him if he was going to catch that train that he would have to- hurry. We went back to Dubard’s saloon and I got him on the car and he cursed me because I would not go with him. I put him on a car that would take him to the Central Depot. He was just as drunk as a man could get, and his mental faculties were not right, as he was cursing me for everything he could think of and wanted to fight everybody. I have known him for eight or ten years, and when he drinks he becomes wild and unmanageable and will fight and abuse his best friend. I have seen him crazy drunk in Batson.”

A number of witnesses testified as to appellant’s condition in Houston, and they corroborate Smith. W. J. Thompkins, after testifying as to appellant’s condition in Houston, testified: That when he got to the Grand Central Depot in Houston the next morning he was pretty drunk and did not recognize him at first. That he pushed appellant on the train, and then adds: “We went into the train, took a bottle of whisky, went to the closet and opened the whisky and each of us took a drink; we drank quite a number of drinks between Houston and Bay City. No one else drank with us; we emptied one quart bottle and had opened the second one and drunk a good deal of it. I don’t know just how much was left in the second quart bottle when we got to Bay City. I had kinder forgotten where I was going when I reached there. I was arrested at Bay City and taken off the train by the marshal for drinking whisky on the train. I was pretty full myself, and Lawrence was pretty full. We had drunk one whole quart of whisky and a right smart out of the second bottle when we reached Bay City, and I was taken off of the train.” Appellant remained on the train until it arrived at his home in Markham, when his wife, Mrs. W. W. Lawrence, testified that shortly after the train arrived (between 2 and 3 o’clock) she saw her husband standing by the corner of the rice mill acting like some one that was crazy; that she and her children went after him and carried liim home and put him to bed; that he would jump up and down and acted like he did once before when he was crazy from whisky, and his eyes were jumping in his head. That after a while he went to sleep. A drayman brought nine quarts of whisky to the house. About 4 o’clock Jim Ryan came and woke appellant up (over her protest). The record does not disclose that prior to this visit of Jim Ryan appellant ever had any ill will towards deceased Bueh-heit, but had him in his employ as a trusted employé and had left his business in Buch-heit’s hands when he went to Houston., The record further discloses that Ryan desired Buchheit’s position and reported matters about Buchheit to appellant, and persuaded appellant to go to town, and then the telephone message occurs upon which the state relied to show motive, etc., in this case. Appellant returned home from town about 6 o’clock and requested his wife to get supper ready, but that after she prepared supper he did not eat anything, saying repeatedly, while supper was before him, “Why don’t you get supper ready?” That he poured whisky in his coffee and drank it, eating nothing. She shows he was in this condition when he left home, saying that appellant, Ryan, and Thompkins, who had arrived from Bay Oity, drank about iy2 quarts of whisky between 5 and 7 o’clock that evening. Ryan, being indicted for this same offense, did not testify. Thompkins testified that he, Ryan, and appellant started to the oil field in one buggy. That before driving far they met Alvin Lawrence, who called to him to get in the buggy with him, and says: “While we were making the exchange Bill Lawrence took another drink. We then drove on to the store and stopped again, and there we took a couple of drinks around. We next stopped at the drilling rig. Alvin and I got out and went up to the derrick, but Bill Lawrence and Jim Ryan stayed in the buggy in which they were in. Bill Vandeveer went out to where they were and got in the buggy with Ryan and Lawrence; at that time Will Lawrence was pretty drunk; the balance of us that went out there with him were pretty well jagged too.” Alvin Lawrence testified on this trial that he was a brother of appellant and corroborated the above testimony of Thompkins, and that at this time his brother did not know what he was doing, and left with Ryan in a buggy. In a few minutes Buchheit was killed by Lawrence.

Dr. Baxter Smith, a regular practicing physician, qualified as an expert, and in answer to a hypothetical question'testified: “In the first place it would depend on how much whisky this man had been taking and what the peculiarities of his constitution were, and if he was in the state of beastly intoxication, and these drugs were injected into him, it would floor him altogether, and he would have ho mind at all, and if it was cocaine it would be very apt to kill him. If he was in the state of beastly intoxication, and those drugs were injected on top of it, that would knock him out altogether. The effects of opium lasts from 12 to 18 hours as a general thing. Cocaine sometimes takes several days to get over; that is, if you get over it at all.”

Many witnesses testified; some of them had known appellant for. years, and said when he got on these periodical sprees they had seen him in that condition and “he then looked and acted like a crazy man,” citing what he did on those occasions. Witnesses testify that almost immediately after the killing they met appellant and Ryan, and when appellant was left alone he went sound asleep. The deputy who arrested him that night says he drove him back to the house where the homicide occurred, and when he went in he left appellant in an automobile, and when he returned appellant was again asleep.

Article 41 of the Penal Code provides: “Neither intoxication nor temporary insanity of mind, produced by the voluntary recent use of ardent spirits, shall constitute any excuse in this state for the commission of crime, nor shall intoxication mitigate either the degree or the penalty of crime, but evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in any criminal prosecution in mitigation of the penalty attached to the offense for which he is being tried, and, in cases of murder for the purpose of determining the degree of murder of which the defendant may be found guilty. It shall be the duty of the several district and county judges of this state, in any criminal prosecution pending before them, where temporary insanity is relied upon as a defense and' the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquors, to charge the jury in accordance with the provisions of this article.” It is thus seen it is made the duty of the judge trying a criminal case, when the evidence tends to show temporary insanity brought about by the immoderate use of intoxicating liquors, to give this article in charge to the jury, and, under every decision rendered by this court since the enactment of the above article, testimony of the above force and cogency has been held sufficient to raise this issue. We are not discussing, as hereinbefore stated, whether the evidence offered in behalf of the state would support a finding that he was sane. We are of the opinion it will, but every one on trial has the right to have the issues submitted from the standpoint of the defendant as well as from the standpoint of the state and we are unable to see how any one could conclude that the above testimony does not tend to raise the issue that appellant at the time was in that mental condition from the use of intoxicants as to require a submission of that issue under the plain letter of the above statute. Another contention of the state is that, if that issue should have been submitted by the court, a failure to do so would not present reversible error, as appellant was convicted only of murder in the second degree. In cases of murder, this statute provides in plain terms that temporary unsoundness of mind applies both to the degree of murder and in mitigation of the punishment of whatever degree he may be found guilty. We do not deem it necessary to discuss this last question further, as after next July we will have no degrees in murder.

The other questions herein presented need not be reviewed as they will not probably occur on another trial, but for the error of the court in that portion of his charge here-inbefore copied, which took away from him his sole defense, and in refusing to submit the issues as directed in the former opinion of this court in this case, the judgment will be reversed, and the cause remanded for another trial, and we trust the trial court will follow the instructions of this court and not put the state to the expense of more than one more trial.

The judgment is reversed, and the cause remanded.


text:
    REAGAN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    1. Criminal Law (§ 404) — Evidence—Clothing Worn by Deceased.
    Where there is a conflict in the testimony, in a prosecution for homicide as to the position of the deceased when the first shot was fired, the clothing worn by him was properly admitted in evidence to show which theory was correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dee. Dig. § 404.]
    2. Witnesses (§ 330) — Impeachment— Cross-Examination — Facts Inconsistent with Testimony.
    Where the wife of the defendant testified to witnessing the shooting, it was proper to ask her on cross-examination if, about the time of the shooting she was not telephoning to a certain woman, since that tends to show the falsity of her testimony on direct examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.]
    3. Witnesses (§ 407) — Impeachment — Rebuttal.
    The other party to the telephone conversation may testify, in rebuttal concerning it, since the testimony of the defendant’s wife is subject to the same attack as that of. any other witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1280, 1282; Dee. Dig. § 407.]
    4. Criminal Law (§ 1147) — Appeal and Error — Record — Question Arising After Judgment.
    A bill of exceptions, complaining of the refusal of the trial court to order a knife introduced in evidence to be sent up as an exhibit, does not present a ground for reversal of the j judgment; the remedy being to ask for an order from the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal I^Cent Dig. §§ 3088, 3072, 3073; Dee. Dig.
    5.Criminal Law (§ 1122) — Review — INSTRUCTION— Evidence Not in Record.
    Where a knife, said to have been in the possession of the deceased at the time he was killed, is not described by the witnesses or sent to the appellate court as an exhibit, the court cannot say there was error in refusing to charge on presumption arising from the use of a deadly weapon by the deceased.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    6. Homicide (§ 340) — Harmless Error — Instructions.
    Where a defendant was convicted of murder in the second degree, error in instructions as to murder in the first degree was harmless.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    7. Homicide (§ 308) — Instructions — Murder in the Second Degree.
    Where the court, applying the law to the facts in an instruction on second degree murder, states that if the defendant, under the circumstances and not in defense of himself, or under circumstances that would reduce the offense to manslaughter, unlawfully and with implied malice shot the deceased, he is guilty of murder in the second degree, the instruction is not erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    8. Homicide (§ 271) — Question for Jury-Manslaughter — Adequate Cause.
    The question whether insulting words and conduct toward the wife of the defendant actually produced rage in defendant’s mind is for the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 565; Dee. Dig. § 271.]
    9. Homicide (§ 49) — Manslaughter — Insulting Words to Wife.
    Insulting words and conduct toward the wife of the defendant may be adequate cause to reduce homicide to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 73; Dee. Dig. § 40.]
    10. Homicide (§ 295) — Instructions — Manslaughter — Provocation — Previous Threats and Altercation.
    It is error for the court, in a prosecution for homicide, where there was evidence of previous threats made by deceased to defendant, and that an altercation occurred between them about 40 minutes before the one in which the homicide occurred, to limit the provocation in its instructions on manslaughter to the occurrences of the last altercation, since in passing upon the provocation arising from that altercation, the jury should consider it in the light of the previous threats and altercation.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    11. Criminal Law (§ 814) — Instructions— Applicability to Evidence.
    An instruction on manslaughter that insulting words or gestures, or an assault and battery so slight as to show no intention of inflicting pain, are not adequate provocation is not applicable to the evidence, where the only assault by the deceased was with a knife, and there was testimony that the deceased had sent threats to the defendant, and had come to defendant’s home and used vile and insulting language in the presence of his wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    12. Criminal Law (§ 814) — -Instructions— Applicability to Evidence.
    Where the theory of the state in a prosecution for homicide is that the deceased was shot while going along the road in front of defendant’s house, and the theory of the defense is that he had entered the yard, and there was no testimony that the defendant ever requested the deceased not to pass his house, an instruction that the defendant had no right to eject the deceased from a public road is not applicable to the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    13. Homicide (§ 297) — Instructions — De-pense op Property and Selp-Deeense— Separate Instructions.
    Where the testimony of the defense raises the right to eject an intruder from the premises, the right of self-defense from attack, and the right of self-defense in view of previously communicated threats, each defense should be separately stated in distinct' paragraphs, applying the law of reasonable doubt to each.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 611; Dec. Dig. I 297.]
    Appeal from District Court, Limestone County; H. B. Daviss, Judge.
    Joe Reagan was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Kennedy & Blackmon, of Groesbeck, and Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 25 years.

In the first bill of exceptions it is shown that appellant objected to the introduction of the clothing worn by deceased at the time of the shooting. In the testimony there is a sharp conflict as to the position of deceased when the first shot was fired. Appellant contended that deceased was advancing on him with an open knife, while the contention of the state was that appellant shot deceased from ambush as he was going down the public road. Under these circumstances the shot holes in the clothing would be of material aid to the jury in determining which theory of the case was the correct one, and the court did not err in admitting the clothing in evidence.

Appellant’s wife, Mrs. Joe Reagan, testified in his behalf, and on cross-examination she was asked by the state if on the morning of the shooting, and about the time of the shooting, she did not have a conversation with Mrs. Hewitt over the telephone, and which conversation was abruptly broken up. Mrs. Reagan had testified on direct examination to witnessing the shooting, and testified to facts in the first place which would tend to show her husband acted in self-defense, and, secondly, if not in defense of himself, then under circumstances which would reduce the offense to manslaughter. The state’s contention was that she did not witness the shooting, but at the time was talking over the telephone to Mrs. Hewitt. This was not a cross-examination of the wife about a matter she had not testified to on direct examination, but was an effort to show the falsity of her testimony on direct examination, and was permissible. Neither did the court err in permitting Mrs. Hewitt to testify in regard to this telephone conversation in rebuttal. The testimony of the wife of one on trial, when a witness, is subject to attack the same as any other witness.

Dr. W. A. Bedford was a witness for the state, and testified to the nature and fatality of the wounds received by deceased. On cross-examination by defendant it was shown he was called by appellant, and then he was asked what appellant said to him about the difficulty. The witness would have answered, if permitted, that appellant at the time he called him stated “he had killed Henry Justice because he was at the time running on him with a knife.” This testimony, if res gestee, was very material to defendant’s defense, as it would have supported the testimony of him and his wife on the trial as contradistinguished from the theory of the state as testified to by Mr. and Mrs. Plunkett and other witnesses for the state. The record discloses that at the time of the killing the doctor was in the town of Thornton, some miles away from the scene of the killing, and could not and did not know the time of the killing, nor the time that had •elapsed from the time of the fatal shooting until he was called over the telephone by appellant. Mr. Reagan nor his wife, both of whom were witnesses, did not testify in regard to the length of time elapsing nor the circumstances attendant upon the calling of Dr. Bedford, and under the record before us we cannot say that the statement was made under circumstances which would bring it within the well-known rules governing res gestte declarations. However, on another trial the court can be governed as the facts may then develop.

The only other bill of exceptions complains of the action of the court in refusing to order, after adjournment of court, the knife to be sent to this court as an exhibit. It appears that appellant introduced in evidence the knife he claimed was found by the body of the deceased, and which he said deceased ‘ was advancing on him with when he first shot. On the trial of the case appellant did not have the knife described by any witness, and seeks to cure this omission by having the knife sent to this court. The court in approving this bill attaches to it an explanation of considerable length, and we do not deem it necessary nor proper here to copy the explanation. Sufficient to say this would present no ground for reversal, as this is a matter within the discretion of the trial judge; and, if appellant was of the opinion he abused his discretion, he could have stated the circumstances in application to this court, requesting that we order the knife sent to this court, and if his application justified us in so doing we would have made such an order. And under the record before us there was no error in the court refusing to charge on presumptions arising from the use of a deadly weapon, if one was in the hands of deceased.

These are all the bills of exception in the record, but in the motion for new trial appellant devotes some 13 typewritten pages in the transcript to a criticism of the court’s charge, taking up each paragraph separately, and attempting to point out some error therein. As to the charge on murder in the first degree, it is drawn in language frequently approved by this court; but, if this were not true, as appellant was convicted of murder in the second degree only, such matters would present no ground for reversal of the case.

The charge on murder in the second degree is not subject to the various criticisms leveled at it by appellant. It, too, is drawn in language frequently approved by this court. Puryear v. State, 56 Tex. Cr. R. 235, 118 S. W. 1042; Davis v. State, 57 Tex. Cr. R. 545, 124 S. W. 105; Pratt v. State, 59 Tex. Cr. R. 167, 127 S. W. 829; and Branch’s Criminal Law, §§ 425, 426. The contention that this' charge is subject to the same objections as the charges in the case of Roberts v. State, 156 S. W. 651, decided recently, but not yet officially reported, is not well taken. It is true that the portion of the charge defining murder in the second degree is the same in this case as in the Roberts Case, but the Roberts Case was not reversed because of any error in that part of the charge defining murder in the second degree. This definition has always been approved by this court. For a citation of authorities see Branch’s Criminal Law, § 426. The error in the charge in the Roberts Case was in applying the law to the facts in the case, and in which his conviction for that degree was authorized. In that case, in applying the law, the court instructed the jury that “if they believed beyond a reasonable doubt the defendant, with implied malice, and not in defense of himself, shot and killed deceased, he would be guilty of murder in the second degree.” The court held that inasmuch as the court so instructed the jury, and in that part of the charge used the words “and not in defense of himself,” he should also have instructed the jury, “and not under circumstances reducing the offense to manslaughter as hereinafter defined,” as manslaughter was in the ease, and a failure to do so was prejudicial error. In this case no such omission occurs in the charge applying the law. The court instructed the jury as to the facts that would authorize a conviction, and stated, “and not in defense of himself, and not under circumstances which would reduce the offense to manslaughter, did unlawfully with implied malice shoot and thereby kill,” etc.

The only serious questions in the case arise over the charge of the court in presenting the issues of manslaughter and self-defense. Mrs. Reagan and appellant testify, as do all the witnesses for the state and defendant, to friendly relations existing between deceased up to and including the Sunday before the homicide, which occurred on Saturday. However, they testify that on that day Mr. Reagan turned out some cattle, and deceased became angry, and that on Thursday and Friday Webb, Moss, and others brought a message to him from deceased, in which deceased threatened to take his life. The record is left in this way; the state not introducing Webb nor Moss to disprove such messages and threats, and the defendant not offering them as witnesses in support of himself and wife. Appellant and his wife further say: That deceased came along the public road in front of their house, called appellant out, cursed, and abused him, calling him a son of a b-h and using other abusive epithets, etc. That Mrs. Reagan went to the gate and protested and asked deceased to leave, saying, “Surely you did not send Joe that word.” Deceased replied to her, “Yes, I sent him that word, and he is a son of a bitch.” That her husband then called for her to get his gun, but she did not do so. Then, according to defendant and his wife, defendant secured an ax handle, when deceased left. She says that in about 40 minutes thereafter, while she was lying on the bed, her husband remarked that Justice was coming back, when she got up and went to the door, and deceased came in about two or three steps inside the gate, when, to use her own language the difficulty occurred in the following manner: “My husband said, ‘What in the hell are you coming back here for, Justice?’ Joe had gotten his gun in the meantime, and had it down by his side, and Mr. Justice said, T am coming back here to see if you can talk twice this morning.’ And Joe says, ‘Go on off, Mr. Justice; go on off, I don’t want to have any trouble with you.’ And he just kept insisting on him going on off. I don’t know hardly what Mr. Justice was saying during that time, but he was cursing my husband all the time, and Joe walked out toward him, and Mr. Justice went backing out of the yard gate, and my husband went on out to the gate. Mr. Justice kept backing out of the gate, and they kept on, and I got up just as Mr. Justice backed out of the gate, and I went out in the yard and says, ‘For God’s sake, Mr. Justice, go on and let’s not have any trouble.’ And Mr. Justice says, ‘You go in the house with your bastardly brats.’ My children were out in the yard with me. When Justice said that my husband told him to go on and not have any trouble, and Justice started like he was going home, and then he turned and ran at Joe with a knife, and Joe shot him.”

This testimony may be said to present fairly defendant’s contention, and under it he insists that the court should have charged, not only that insulting words and conduct to the wife was adequate cause to produce an offense of manslaughter, but if insulting words are shown, then the law presumes that anger, rage, etc., were produced. This is not the law, and the court did not err in not so instructing the jury. It is right and proper for the court to charge the jury as a matter of law that insulting words and conduct toward one’s wife is “adequate cause,” but it is a question of fact in each case for the jury to decide whether or not this adequate cause does in, fact produce that degree of anger, rage, or resentment such as to render the mind incapable of cool reflection.

However, appellant insists that the other facts and circumstances testified to might be adequate cause to produce anger, rage, etc., sufficient to render the mind incapable of cool reflection, and that this was not properly presented to the jury in the court’s charge, and in this we are inclined to think he is correct. Appellant and his wife testify to threats being communicated; to facts which would tend to show a condition of affairs occurring in the morning at the first meeting which would arouse animosity in any man, and yet at this meeting appellant only drove him away, or compelled him to leave, saying as he did so, “I will meet you with a gun,” if appellant and his wife are to be believed. All these facts and circumstances testified to by appellant and his wife were sufficient to raise the issue of adequate cause, and sudden passion from such cause, and should have been properly submitted to the jury. The court in a measure did do this, but limited the provocation to such as arose at that time. It is the law of this state that the provocation, on this phase of the ease, must arise at the time of the homicide, yet the jury, in view of the “provocation” then occurring, should be instructed that in passing on whether or not this provocation was sufficient to produce that degree of anger or rage as to render the mind incapable of cool reflection,! where there was previous provocation, as in this case, in passing on this question they should consider such previous provocation, threats, etc., if any, in determining whether or not the provocation occurring at the time was sufficient to produce that degree of anger, rage, or resentment as to render the mind incapable of cool reflection, and did in fact produce such state of mind. This the charge did not do, and this error is emphasized by the court instructing the jury: “Insulting words or gestures, or an assault and battery, so slight as to show no intention to inflict pain or injury, are not deemed adequate causes.” In this case there is no evidence calling for this charge. There is no evidence that deceased was guilty of an assault and battery of any character, slight or otherwise; there is no evidence that he made an assault so slight as to show no intention to inflict injury, for if under the testimony in this case deceased did start at defendant with a knife, any person would have reasonable grounds to believe that he did intend to injure him. Again, that part of this paragraph which says insulting words or gestures are insufficient to produce adequate cause is not applicable to this case. As an abstract proposition of law this statement may be said to be correct, and in’a case where all that was shown was some insulting words and gestures and nothing more, it would be proper to so instruct the jury, but in a case of this kind, where the defendant’s theory is that he was sent insulting communications and threats, and when he paid no attention to them deceased came to his home, and in the presence of his wife used all character of vile language, left with the threat that he would get a gun, coupled with the further fact that he did return, come into his yard and repeat the vile and abusive language, even if no act is done, or the facts would not justify him, yet such facts and circumstances may be adequate cause under article 1130 of the Penal Code; and if the jury should so find, and further find that cause did produce anger, rage, or resentment to such an extent as to render the mind incapable of cool reflection, the offense would be of no higher degree than manslaughter.

There are two theories in this case: The state’s theory is that deceased at the time of the homicide did not curse appellant, nor use any improper language to his wife; that he was going along the road when appellant shot him, and the state’s testimony is ample to support that theory; the defendant contends, as above stated, that deceased was guilty of such conduct, and came into his yard. The court instructed the jury that appellant would have the right to use all necessary force to expel one from his premises, but added, “defendant had no right to eject deceased from the public road.” There is no evidence calling for this latter qualification. If the defendant’s theory of the ease is the correct one, deceased had entered his premises, and if the jury so found, it would be a proper question to submit to the jury whether he used more force than under the circumstances was reasonably deemed necessary. The state’s theory was that as deceased was passing the house appellant stepped out and shot him. There is no evidence that appellant had demanded or requested that deceased not pass Ms house; there is no evidence that there was any question of deceased’s right to use the road, or effort made to eject him from the road, and appellant’s criticisms of that portion of the charge are well founded.

Again, the court should not combine the right of self-defense from real or apparent danger and the right to defend one’s possession of his property and eject an intruder therefrom. Separate and distinct charges should be given upon these two separate and distinct phases of the law. In a case where one seeks to justify on the ground of protecting his property and ejecting an intruder therefrom, it is right and proper in the charge to limit his rights to the use of such force as was necessary, or apparently necessary, under the circumstances. On the other hand, where one seeks to justify his acts on the ground that a person had threatened his life, and turned and ran at him with an open knife, his right to defend should not be burdened with a charge on the use of more force than was necessary, but a clear-cut charge on his right to defend from real or apparent danger should be given.

Appellant and his wife by their testimony inject into the case self-defense from three separate and distinct viewpoints: First, the right to protect their property and eject a trespasser from their premises. In this event the jury should be instructed that he could use no more force than was necessary, or apparently necessary, to accomplish that purpose, but this issue should not be presented as to the other two phases. Secondly. The right to defend from an attack, or apparent attack, threatening life or serious bodily injury. And, thirdly, the right to defend in the light of threats, which they state had been communicated to them and the, conduct of deceased at the time, applying the law of reasonable doubt to each, and each given in separate and distinct paragraphs. In view of what we have said, we do not deem it necessary to discuss the other grounds assigned in the motion for) new trial, for the court, from a perusal of this opinion, can so frame his charge as not to be subject to just criticism. We have discussed this case mainly from the standpoint of the testimony offered in behalf of the defendant, as he was entitled to have the issues raised thereby submitted to the jury in an appropriate charge. However, we may say that the testimony offered in behalf of the state would fully and amply support a verdict, not only of murder in the second degree, but, if true, of murder in the first degree; and, in view of a change in the law, if this case should not be tried before July 1st, we would suggest that the court, in instructing the jury, instruct them that they would not under the new law be authorized to assess the penalty now assessed against murder in the first degree, but the penalty should be submitted fully as is now applicable to murder in the second degree.

The judgment is reversed, and the cause is remanded.