text:
    LOWE v. STATE.
    (No. 4811.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    Cbiminal Law <&wkey;1091(4) — Appeal and Eb-bob — Bills op Exceptions.
    A bill of exceptions to the admission of testimony in a murder case, which fails to comply with any of the rales prescribing the requisites of such an appeal, will not be considered.
    Appeal from District Court, San Augustine County; Garland Smith, Judge.
    T. B. Lowe was convicted of murder, and he appeals.
    Affirmed.
    Wm. McDonald, of San Augustine, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted in the same indictment with Dinke Lowe, Emma Jane Phillips, and Grade Lowe for the murder of Leon Lee on August 16, 1916. These four defendants were principals in the commission of the alleged murder. They severed, and appellant and Dinke Lowe were tried separately. They each were convicted and appealed. This court affirmed the Dinke Lowe Case, which is reported in 201 S. W. 986. A sufficient statement was made in the Dinke Lowe Case so that no further is necessary in this.

Appellant herein, as Dinke Lowe did on his appeal, claimed that the court erred in overruling his motion for a continuance and not admitting the testimony of a certain witness about tracing chicken thieves from the chicken house of Franklin Lee and to the disqualification of the special judge'elected and who tried these cases. All three of these questions were decided adversely to appellant in said Dinke Lowe Case. It is unnecessary to further state or discuss them.

The only other questions raised • are presented by two hills of exception to the admission of certain testimony.

The rules prescribing the requisites of a bill of exceptions to the admission of testimony are well established. They are of long standing in this court. None of them are new. They have been established and enforced from the very creation of this court, and even before. They are plainly laid down in sections 857 and 1123 of Judge White’s Ann. C. C. P., wherein he cites some of the cases. In addition, they are also laid down in 1 Branch’s Ann. P. C., in sections 207 to 210 inclusive, wherein he collates a very large number of the decisions of this court, gome of these rules, taken from Judge White’s book, are repeated in the opinion of this court in Best v. State, 72 Tex. Cr. R. 204, 164 S. W. 998, and before Mr. Branch’s work was ever published. We will here quote them from said decision in the Best Case:

“(1) The allegations [of the bill] should be full and explicit so that the matters presented to the court on appeal for revision may be comprehended without recourse to inferences.
“(2) They should be so explicit as to enable the court on appeal to fully understand all the facts upon which the correctness or error of the rulings depend; otherwise they will not be considered.
“(3) It must set out the proceedings in the court below sufficiently to enable the court on appeal to know that an error has been ■ committed. It must be so full in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error, and must state enough of the evidence of facts proven to render intelligible the ruling excepted to.
“(4) It cannot be aided either by'a statement in reply to a motion for new trial or by the statement of facts.
“(5) It controls even the statement of facts.
“(6) Objections, or the mere statement of the ground of objection in the bill, is not the certificate of the judge that what is stated is true; it is the mere objections of the party.
“(7) Inferences will not be indulged to supply omissions in them. Nor will the court, on appeal, supply omissions, nor aid the bills by inferences or presumptions.
* * * * * *
“(9) A bill to the admission of evidence is incomplete and insufficient which simply states the grounds of objections to the errors, but fails to state, as matters of fact, the matters upon which the objections were predicated.”

To these we add another well-established rule taken from Mr. Branch in the second paragraph of section 207:

“The legal 'presumption is that the ruling of the trial court was correct, unless the bill of exception shows otherwise” — citing cases directly so holding.

It is useless now to discuss the propriety and necessity of hills of exception^ meeting these requirements. If they had not been adopted and were not enforced, this court in every defective bill would be required to search the whole record to ascertain if an error had been committed, in this instance, of the admission of certain testimony. Take this case as an illustration. The statement of facts herein is 71 pages of full typewritten matter. Other records are frequently very much more voluminous and would entail very much diligent search over a very much greater mass of matter to ascertain what, if true, could have been pointed out in a bill in only a page or two at most. The trend of legislation for many years and the decisions of this court appear to simplify the work of this court in such matters by requiring appellants to comply with these rules, which could easily be done by them, instead of forcing that labor upon the judges of this court.

The said rules should be enforced in all cases, if they are enforced at all. All appellants should be treated alike. The rule should not be overlooked or omitted of enforcement in one case and enforced in another.

With these principles and rules in mind, we will now quote said bills. Each is headed with the number and style of the case and term of the court and has the usual “be it remembered.” And then his bill No. 3 states-that .on the trial of said cause:

“The state offered as a witness in the case, one Ada Canton, and the court, over the objection of the defendant, permitted the said Ada Canton to testify as follows:
“ ‘She (meaning Grade Lowe) came on in the house and asked me was I asleep, and I said, “No.” She came on in and said Leon was dead. I said: “Yes, I heard the noise over there; I heard about it, and I heard them before I heard it.” She said she hated it, but it couldn’t be helped, and she stood there a few minutes, and went on outdoors, and, when she got out there, she called me, and I went on out, and she said: “I want to see you and your boys. I want you and your boys to be as light as you can, not know nothing about it at all, and get your boys not to know nothing about it.” She says, “Where' is Jim?” I says, “He is, in the house.” And that time he came on the gallery, and she called him out there, and she wanted him not to know anything about it and be as light as he could. Jim said, “Yes, ma’am.” I said: “Gracie, I don’t believe in smuggling nothing like that, as plain as that is; I can’t smuggle nothing like that.” She said, “I don’t care, it ain’t any more for my boys to go to the pen than anybody else.” She went over to the other fence and got on the steps and sat down. I just leaned back against the fence with my back to her this way. She said, “Ada, come here a minute.” I went over the fence where she was at. She said, “Do you see that hoe?” I said, “Yes.” She said, “That is the hoe that Dinke killed Leon with.” I said, “What are you going to do with my loe?” She said: “I was fixing to make way with it. I got the hoe and carried it on back to the yard and went on.” She said she was fixing to make way with it. I got my hoe and carried it back. The first time they came over there that night, they came to hunt money. That is the hoe that I took away from Willie Lowe. That is the -hoe they carried over into the Brooch’s farm.’
“To all of which testimony, when offered by the state, the defendant objected because all of the proof in the record showed that the transaction had been over for more than one hour, as indicated by the record and by the witness, and the defendant on trial was not present, as shown by the record at the time of the declarations and conduct of Gracie Lowe, as testified to by the witness, and is therefore not bound by any acts or declarations of the said Gracie Lowe or any other person with reference to the transaction under inquiry.”

Then follows the statement that the court overruled his objections and permitted the testimony to go to the jury, to which he excepted.

An examination of this bill will show that it does not comply with any of the rules above quoted so as to entitle it to consideration by this court. It is unnecessary to enumerate wherein it fails to meet the requirements; they are so apparent. His objections in the bill were mere objections and were approved merely as such and not as a statement of fact by the judge. It would not be difficult to determine that such testimony was admissible on many grounds.

His bill No. 4 is:

“The state offered as a witness Dr. C. W. Spears, who was permitted by the court over the objections of the defendant to testify as follows:
“ T was acquainted with Emma Jane Phillips during her lifetime. I don’t remember the date when she died; I remember it was some time in the spring. Before she died I was called over there to see her. I didn’t have any conversation especially with her while I was there in regard to Leon. Lee’s death, in regard to the transaction that occurred over there when he was killed. I heard her make some remarks about it. I don’t remember. I wouldn’t be positive who it was she was talking to, but I was there in the room and some darkey was in there, some negro woman; my recollection is it was her aunt, but I am not sure about that. There was several there that wasn’t in the room, but they were on the place. There was only one in the room at that time. The first thing the party that asked me to go over there wanted to know if she really had consumption. She had been told she did have by some and by some not, and they wanted to be satisfied about it; and I told her I thought she did, I didn’t think she was going to live long. I thought she had tuberculosis and about the last stage. Then this woman was in there and she commenced talking to them, commenced crying, and told them she had tried to get her mother, she had asked her mother to send and get Myrtle, I think it was, something like that. I didn’t know who that was. I only know from hearsay, say that that was Leon Lee’s wife. I didn’t know it then. I understand now that that was Leon Lee’s wife. She wanted to make friends with them, and said something; I don’t remember just how she brought that in hut that she wasn’t the one that killed Leon, or something to that amount, that she was in the fight, “We were all in the fight” (I think was the words), but that Dinke was the one that hit him with the hoe. That was about the. substance of it, and she commenced* crying. As to whether or not she wanted to tell Leon’s wife about it beforehand, will say it seemed that she wanted to get them over there and talk about the matter before she died. That is the way I took it' by the eonversatibn.’
“To all of which testimony, when offered, the defendant then and there excepted, because the transaction was long since over. It was not shown that the defendant was present at the time of the conversation, and therefore the defendant could not be bound by .any acts or declarations of said Emma Jane Phillips; that the testimony offered was incriminating as to the defendant, and therefore prejudicial to his rights before the jury.”

The same observations can be made to this as to his bill No. 3. Neither of them are in accordance with said rules so as to require consideration, as they are presented to this court.

The court gave a full, apt, and complete charge presenting every issue that was raised by the testimony. He charged and submitted the law of murder, of principals, of manslaughter, of self-defense. There was no complaint of the charge in any particular. In his charge he expressly withdrew from the jury, and told them not to consider it for any purpose, the testimony .of said Ada Canton objected to by appellant’s third bill, and he also instructed the jury not to consider the testimony of Dr. Spears for any purpose except such testimony he gave which tended to impeach or contradict the statement of Emma Jane Phillips which was introduced and read to the jury by defendant.

The testimony was ample to show that appellant, as one of the principals, killed deceased.

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


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    SCHWIMMER v. STATE.
    (No. 4916.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Witnesses <&wkey;37(4) — Competency — Reputation.
    In a prosecution for keeping a disorderly house, it was error to admit testimony by police officers as to the reputation of the premises, where such officers did not have adequate knowledge thereof.
    2. Criminal Law <&wkey;1169(l) — Appeal — Harmless Error — Admission op Evidence.
    In a prosecution for keeping disorderly house, error in admitting testimony of police officers as to reputation of house when they had no adequate knowledge thereof is prejudicial where proof of offense was not strong and defendant’s testimony, if believed, explained all the circumstances against him.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Mike Schwimmer was convicted of keeping a disorderly house, and he appeals.
    Reversed.
    A. E. Heilbron and C. J. Matthews, both of San Antonio, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for.the State.
   MORROW, J.

Appellant was convicted of keeping a disorderly house as defined in article 496, Penal Code.

Pie was keeping a disorderly house which he had occupied about two months. The police were notified of a disturbance at his house and found therein four soldiers and three women occupying connecting rooms. The disturbance was caused by one of these soldiers who was under the influence of intoxicating liquor. Another room was occupied by a man and woman. The evidence showed that these women had been or were prostitutes, but appellant disclaimed knowledge of that fact. He said that the man and woman who occupied one of the rooms had rented it from him upon the representation that they were husband and wife; that one of the other women was in his house without his knowledge or consent; that he had rented the room on the night .in question to two girls who claimed to be working girls, and he believed them to be such. It was shown that the girl who had gone to the house without his consent had accompanied one of those to whom he had rented the room; that they had entered the house without arousing the landlord, appellant, and this girl who was the guest of her companion claimed that she had not expected to meet men and had consented to occupy a room with them after she reached the premises upon the persuasion of her companion ; that she had formerly been a prostitute, but had abandoned that life.

These facts constituted practically the evidence developed, except that some police officers testified that the house bore a reputation of a disorderly one. Before giving this testimony, they were interrogated by appellant as to their knowledge, and, after his examination of them, he made objection to their giving testimony touching the reputation of the house, claiming that it affirmatively appeared that they were not possessed of knowledge of facts upon whch to form or ex> press such conclusion. The sole facts which these witnesses disclosed upon the subject showed that, in connection with their duties as police officers, they had seen noted on a book at the police station memoranda showing that the authorities had been advised over the telephone of a disturbance on the premises. No arrest or prosecution had resulted, and the witnesses were not aware of any investigation having been made based on the information mentioned. They were unable to give the time at which they saw the memoranda, or to state that it occurred at any time during the two months appellant had occupied the premises.

In this character of prosecution, the reputation of a house is a legitimate inquiry. Hickman v. State, 59 Tex. Cr. R. 88, 126 S. W. 1149. Evidence of character or reputation is in the nature of opinion testimony ' (Ruling Case Law, vol. 10, p. 954, § 125), and, generally speaking, the qualification of a witness to give such testimony is for the court to decide and ordinarily the court’s ruling will not be reviewed. When, however, the witness on a preliminary examination discloses an absence of knowledge upon which to base his conclusion, the court should not permit him to give it. Wigmore on Evidence, § 691, vol. 1; also, section 654, vol. 1. “Reputation” is estimate in which one is held in the community, and proof of it should be made by one whose knowledge extends in some degree to the estimate of the community; that is, how it is generally regarded therein.

In our opinion the witnesses mentioned showed an absence of such knowledge, in consequence of which the court should have rejected their testimony to the reputation of the premises.

The evidence of the state to prove the offense charged is not strong. Appellant introduced evidence which, if believed, explained all the circumstances against him.

We are therefore of the opinion that the admission of the improper testimony was harmful to an extent that it requires a reversal, which is ordered.
      (®=;jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    JENNINGS v. STATE.
    (No. 5185.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    Intoxicating Uiqtjoiís <&wkey;236(8) — Illegal Sales — Evidence—Sufficiency.
    Evidence, in a prosecution for pursuing the business of selling intoxicating liquors in local option territory, held) sufficient to sustain a verdict of guilty.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Jumbo Jennings was convicted of unlawfully pursuing the business and occupation of selling intoxicating liquors in local option territory, and he appeals.
    Affirmed.
    See, also, 200 S. W. 169.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of unlawfully pursuing the business and occupation of selling intoxicating liquors, in local option territory.

There are three bills of exception in the record, but, as explained by the court in his qualification, we are of opinion they present no question of a reversible nature. The state relied upon the testimony of Doug Dyer, who states that on the 8th and 9th of August he bought intoxicating liquors from appellant. Dyer also testified that he bought intoxicating liquors from him many other times. 'The sheriff testified that at' one time he was called to go out the road leading from Tyler to Porters Bluff, and in doing so met appellant and several others in an auto, in which they carried 172 bottles of whisky. This whisky was taken in possession by the sheriff, and the parties arrested and placed in jail. Shortly afterward appellant gave bond and was discharged from custody, and upon doing so claimed 12 bottles of whisky, which was turned over t.o him by the sheriff. A woman testified that she got a pint of whisky from appellant on the 28th day of October. She is contradicted in such way and by such circumstances that we presume the jury did not credit her testimony. It is shown beyond question by several witnesses, and one of them Dr. Smith, a physician, who performed a surgical operation upon defendant on the 24th day of October, that he was unable to be out of his room and bed at the time this woman says she bought whisky from him, which she says was on the 28th of October. Not only Dr. Smith testifies to this who was the attending physician and surgeon, but other witnesses testified to the same facts. If this woman bought whisky from appellant she evidently got the date wrong. Appellant and his witnesses deny selling whisky to Dyer at any time, and introduced evidence to the effect that Dyer bought whisky about the time indicated from a man named Collins, and not from appellant. This is the case briefly stated.

If Dyer bought whisky from appellant as he testified, on two specified occasions, and at numerous other times not specified in the indictment, this! might possibly be sufficient to predicate a conviction in connection with the sheriff’s testimony that he and others found appellant and others in possession of 172 bottles of' whisky, 12 of which belonged to him. We would hardly feel justified, in view of these facts and circumstances, to reverse this judgment, though to’ the mind of the writer it seems the testimony is rather meager to form the predicate of pursuing the business or occupation of selling intoxicants. As the record is presented, however, the judgment will be affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes •


author: DAVIDSON, P. J.,

text:
    RAILEY v. STATE.
    (No. 5188.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    Criminal Law &wkey;>1122(3), 1124(3) — Appeal —Necessity of Incorporating Evidence in Record.
    Exceptions to the charge, and grounds of motion for new trial, both in refusing instructions and in passing on sufficiency of evidence, need not be considered, where the evidence does not accompany the record.
    Appeal from Criminal District Court, Dallas County; • Robt. B. Seay, Judge.
    Andrew Railey was convicted of theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.,

Appellant was convicted of theft of property over the value of $50, and allotted two years in the penitentiary.

He reserved exceptions to the charge of the court because “it deals with the innocence of John M. Fletcher when,” from defendant’s standpoint, the witness is an accomplice, and asked the court by special charge to give said charge to the jury; second, it nowhere charges the defendant’s act as being that of embezzlement, which he contends should have been done, and that the case does not make one of theft. It is contended in the motion for new trial that the evidence is not sufficient, and that the court erred in not giving requested instructions asked by defendant, because appellant could not be convicted of theft -unless he was connected with the actual taking. The exceptions to the charge of the court and grounds of the motion for new trial, both in refusing requested instructions and in passing on the sufficiency of the evidence, need not be considered, because the evidence does not accompany the record.

The judgment as the record is presented will be affirmed.


author: PRENDERGAST, J.

text:
    RAILEY v. STATE.
    (No. 5189.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    Appeal from Criminal District Court, Dallas County ; Robt. B. Seay, Judge.
    Andrew Railey was convicted of theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a felony conviction of theft, but the record contains no statement of facts or bill of exceptions. In the absence of these there is nothing which can be reviewed.

The judgment is therefore affirmed.


text:
    REUM v. STATE.
    (No. 5183.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Indictment and Information <&wkey;125(36) — Conjunctive Charges — Unlawfully Practicing Medicine.
    Complaint and information for unlawfully practicing medicine, preferred under Pen. Code 1911, arts. 750, 755, averring conjunctively several matters in articles defining offense, and following substantially an approved form, were sufficient. ■
    2. Physicians and Surgeons <&wkey;6(10) — Unlawful Practice — Prosecution — Evidence.
    In prosecution, under Pen. Code 1911, arts. 750, 755, for unlawfully practicing medicine, court properly excluded testimony of district clerk, offered by defendant, and record, in his office in register of physicians and surgeons, showing entries previously made under old law, then in force, but since repealed.

      3. Physicians and Surgeons &wkey;6(10) — Unlawful Practice — Evidence.
    In prosecution for unlawfully practicing medicine, it devolves on state to prove defendant did not have license or diploma, with verification, and did not have it registered.
    Appeal from El Paso County Court at Law; Will P. Brady, Judge.
    Anna Reum was convicted of unlawfully practicing medicine, and she appeals.
    Reversed and remanded.
    M. W. Stanton and Jackson & Isaaeks, all of El Paso, for appellant.
    B. B. ‘Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully practicing medicine, a misdemeanor.

The complaint and information were in three counts. The state elected to prosecute, and did prosecute, under the third only. The complaint and information were preferred under articles 750 and 755, Pen. Code 1911, which prescribe the offense. They aver con-junctively several matters in said articles defining the offense, and .they follow substantially, if not literally, the approved form of Willson, Texas Crim. Forms (4th Ed.) No. 343, and were clearly sufficient. In misdemeanors especially it has uniformly been held by this court that, where several ways by which an offense may be committed are prescribed in the same statute, and are embraced in the same general definition and punished in the same manner and to the same extent, and not repugnant to each other, they may be charged conjunctively in the same count in an information. 'See authorities collated" in 1 .Branch’s Ann. P. C. § 508. Said pleadings are therefore valid against appellant’s objections thereto.

The court did not err in excluding the testimony of the district clerk, offered by appellant, and the record in his office in the register of physicians and surgeons showing certaih entries made in February, 1900, under an old law that was then in force. The law under which those entries were made has long since been repealed, and the statute under which this prosecution was based prescribes an entirely different record and registration. Gay v. State, 79 Tex. Cr. R. 305, 184 S. W. 200.

The court in his charge told the jury:

“In this case it does not devolve upon the state to prove that defendant did not have a license or diploma, with verification of same, and did not have same registered.”

The appellant duly excepted to this charge, specifically pointing out the error in giving it. This was doubtless the view the trial judge had of the law on this point, and the prosecution thereupon introduced no proof at all showing or tending to show that appellant had not registered in the district clerk’s office, as required by the statute, her authority to practice medicine. Under the recent and latest decision of this court this was error (Denton v. State, 20(1 S. W. 183), and for this error the case must be reversed.

No statement or discussion is necessary of other claimed errors by appellant, as none of them present reversible error. .

Reversed and remanded.
      iffi=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MILLER v. STATE.
    (No. 5161.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Rape <&wkey;59(23) — Instruction — Assault with Intent — Attempts.
    In prosecution for assault to commit rape, it was error for the court to submit to the jury the law of attempt to commit rape.
    2. Criminal Law <@=51172(8) — Error in Instruction — CUre by Verdict.
    In prosecution for assault to commit rape, error in submitting the law of attempt to commit rape was harmless, where the jury acquitted accused of both offenses and convicted of aggravated assault.
    3. Indictment and Information <&wkey;191(8)— Included Offense — Aggravated Assault.
    The offense of assault with intent to rape includes aggravated assault.
    4. Rape <§=15— Attempt — Effect of Assault.
    Where an assault is made, conviction cannot be had for an attempt to rape.
    5. Criminal Law <&wkey;1144(14) — Appeai>-Pre-sumptions — Instructions.
    In prosecution for assault with intent to commit rape, where the court submitted the issue of aggravated assault and the jury convicted of that offense, the presumption on appeal, in the absence of the testimony is that the court, properly submitted such issue upon evidence warranting its submission.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    W. C. Miller was convicted of aggravated assault, and he appeals.
    Affirmed.
    Osear H. Calvert, of Dallas, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged in the ordinary stereotyped form with assault to commit rape upon a girl under 15 years of age. The court submitted to the jury the law of attempt to commit rape. This was error. An indictment charging assault with intent to commit rape will not sustain a conviction for an attempt to rape. This question -has been before the court in a great number of cases which will be found collated in Branch’s Ann. P. C. pp. 1012, 1013. The jury, however, acquitted appellant of assault to rape or attempt to rape. These issues passed out of the case.

The court also submitted the question of aggravated assault, for which appellant was convicted. Under the charge in the indictment for assault to rape, if the facts authorized the charge, appellant could be convicted of aggravated assault. He may have' made the assault upon the girl, and if the facts so showed, and it was an assault with intent to commit rape, it might he an aggravated assault. The fact that an attempt to rape was submitted by the court would not affect the question of aggravated assault, if the evidence showed that appellant made the assault. Where an assault is made, a conviction cannot be had for an attempt to rape. It does not make any difference what the facts may be, because an attempt to rape precludes the idea of an assault; but, if an assault was made by appellant upon the girl, the jury might be instructed to convict of aggravated assault. This would depend upon the evidence, and the fact that the court submitted an attempt to rape, for which appellant was acquitted, would not prevent a conviction for aggravated assault if the facts showed that an assault was in fact made upon the girl. If no assault was made upon her, then a conviction could not be had for any phase of assault. This we cannot determine because the evidence is not before us. The court having submitted the issue of aggravated assault, and the jury so found, in the absence of the testimony, the presumption is that the court properly submitted this issue to the jury, and that it was warranted by the facts.

Taking this view of the record and the case, the judgment will be affirmed.
      ©=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOWARD v. STATE.
    (No. 5198.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    Criminal Law &wkey;1092(9) — Bill of Exceptions — Time to Eii.e.
    Where the term at which the trial was had ended May 25th, and time was extended until June 24th, to file bill of exceptions, a bill of exceptions filed September 6th will not be considered.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Sam Howard was convicted of unlawfully pursuing the business of selling intoxicating liquors in prohibited territory, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for unlawfully pursuing the business of selling intoxicating liquors in prohibited territory.

The record is not accompanied by a statement of facts. The term at which the trial took place ended on the 25th day of May» 1918. The only bill of exceptions appearing in the record was filed September 6, 1918. The record shows that an order extending the time for filing bills of exception was entered June 24, 1918; but this order granted only 30 days’ additional time, which expired some time before the bill of exceptions was filed. The bill, however, in the absence of a statement of facts, would be insufficient to disclose error.

The judgment of the district court is affirmed.


text:
    CROUCH v. STATE.
    (No. 4821.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Indictment and Ineobmation <&wkey;125(3)— Different B'elonies — Duplicity.
    An indictment containing but one count, in which two different and distinct felonies with different penalties are completely alleged, is bad for duplicity.
    2. Eorgery <&wkey;34(2) — Bill op Lading-Proof Showing Ordinary Eorgery.
    Under indictment for forging name of railroad’s agent to bill of lading, in violation of-Vernon’s Ann. Pen. Code 1916, art. 1547, punishment by confinement for not less than 5 nor more than 15 years, conviction could not be had on showing violation of article 924, denouncing crime of ordinary forgery, penalty for which, under article 936, is imprisonment for not less than 2 nor more than 7 years.
    Appeal from District Court, Bell County; E. M. Spann, Judge.
    J. C. Crouch was convicted of forgery, and he appeals.
    Reversed and remanded.
    J. H. Evetts, J. B. Talley, and P.owmer & Brewster, all of Temple, and AVilliams & Williams, of Waco, for appellant.
    E B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for two years.

The indictment contained two counts — one charging forgery of the name of the agent of the railway company to a bill of lading; the other passing a forged instrument. The substantial averments in the indictment are as follows:

“That J. C. Crouch, in said county and state, on or about the 6th day of April, 1915, did without lawful authority, and with intent to injure and defraud, make a false instrument in writing, purporting to be the act of one J. W. Shields, as the duly and legally authorized' agent of and for the Gulf, Colorado & Santa Fé Railway Company, said railway company being a private corporation duly and legally organized and existing under the laws of the state of Texas, and being a common carrier of passengers and freight for hire, did on or about said- date, unlawfully and with intent to defraud, forge the name of said J. W. Shields, agent of said railway company at Abernathy, Tex., to said instrument in writing, the same being a bill of lading, the tenor whereof is as follows.”

Then follows the bill of lading upon one of the printed forms of the Gulf, Colorado & Santa F6 Railway Company, purporting to have been issued at Abernathy, signed “J. W. Shields, Agent.” Continuing, the indictment says:

“Which said instrument in writing purports to be an original bill of lading issued by said Gulf, Colorado & Santa Eé Railway Company, the same being thereon designated, ‘Order Bill of Lading — Original,’ and imports and implies that on the 26th day of March, A. D. 1915, one Tan-dy Coal Company, as shipper, had delivered to the said Gulf, Colorado & Santa Fé Railway Company fifty-three thousand (53,000) pounds of maize to be carried and transported by the said Gulf, Colorado & Santa F'é Railway from Abernathy, in the state of Texas, to Temple, in the state of Texas, the same being consigned to the order of Tandy Coal Company, notify A. B. Crouch Grain Company.”

After making averments and explaining the meaning of various figures and provisions and misspelled words which are not material to the purpose of this opinion, it continues:

“The words and letters ‘J. W. Shelds,’ written before the word ‘Agent,’ meant and were intended to mean ‘J. W. Shields,’ and was intended-to mean and imply that said J. W. Shields had signed such instrument as the agent of the Gulf, Colorado & Santa Fé Railway Company, acknowledging the receipt of said maize for .shipment as aforesaid. The instrument so written was and is the usual form of an original bill of lading as the same are generally written, executed, and issued by said Gulf, Colorado & Santa BA Railway Companj’, and said J. W. Shields was in fact the duly authorized agent of said railway company at Abernathy, in the state of Texas, and said J. W. Shields, as such agent, had full authority to execute said bill of lading, and said instrument imported and meant to import and imply that said Gulf, Colorado & Santa Fé Railway Company had in fact received and was in possession of 53,000 pounds of maize, the same having been received from the Tandy Coal Company, as shipper, at Abernathy, in the state of Texas, and consigned to Tandy Coal Company at Temple, Texas, the destination of said shipment, the said instrument by its writing thereon, to wit, ‘notify A. B. Crouch Grain Co.’ imported and meant to imply that the A. B. Crouch Grain Company had some interest in said shipment of maize and would probably hold said bill of lading therefor; the said instrument in writing being a bill of lading, being a commercial paper and instrument in common use in the commercial world, the same being transferable, and the holder thereof being regarded as the owner ,and the holder of the title to said property described therein, and if said instrument had been true and genuine the said Gulf, Colorado & Santa Fé Railway Company would have been responsible to the shipper of said maize or other owner and holder of said bill of lading; for the safe carriage of said maize and its delivery to said shipper, or other owner and holder of said bill of lading, at Temple, Texas, and if said instrument had been true and genuine the same would have carried a pecuniary obligation on the part of the said Gulf, Colorado & Santa F'é Railway Company, and the same would have transferred, and might have transferred and been the means of transferring, the title, ownership, and property in and to said maize, and said instrument, if genuine and ti-ue, would have possessed legal validity, and the same was legally capable of affecting a fraud, against the peace and dignity of the state.”

This indictment charges the offense denounced in article 1547, Vernon’s Texas P. C., which is as follows:

“Any person who shall .forge .the name of any agent of a railroad company, or other common carrier, to a bill of lading, with the intent to defraud, or who shall forge the name of any person to any certificate attached to a bill of lading issued by such carrier, with the intent to defraud, or who shall knowingly utter, or attempt to utter, any such forged instrument, with intent to defraud, shall be deemed guilty of a felony, and upon conviction thereof,, shall be punished by confinement in the state penitentiary for a term of not less than five years and not exceeding fifteen years.”

In the development of the case it was conclusively shown that Shields was not the agent of the Gulf, Colorado & Santa Fé Railway Company; that that railway company did not run through or have an office at Abernathy, the place at which it was alleged to have been issued, but Shields lived there- and was the agent of another and different railway company. He denied ' signing the bill of lading.

The court in instructing the Jury submitted the law of ordinary forgery which is defined in article 924, Vernon’s Texas P. C., as follows:

“He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in, writing, purporting to be the act of another, in such manner that the false instrument so made' would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.”

The penalty for this offense is set out in article 936 of the Penal Code, as follows:

“If any person be guilty of forgery he shall be punished by confinement in the penitentiary not less than two nor more than seven years.”

The theory upon which the case appears to have been tried is that while the state failed to prove the offense charged as defined in article 1547, supra, that the allegations in the indictment contained the elements of ordinary forgery'as defined in article 924, supra, and that the prosecution could therefore be maintained for the latter offense. We think this is a mistaken view, for the reason that the two statutes mentioned define separate offenses and are punishable by different penalties. The penalty for viola.tion of article 1547 is confinement in the penitentiary for not less than 5 nor more than 15 years, and for violation of article 924 not less than 2 nor more than 7 years.

“An indictment containing but one count, in which two different and distinct felonies with different penalties are completely alleged, is bad for duplicity.” 1 Branch’s Ann. P. C. p. 260; State v. Dorsett, 21 Tex. 656; Heineman v. State, 22 Tex. App: 44, 2 S. W. 619; Wood v. State, 47 Tex. Cr. R. 543, 84 S. W. 1058.

The case of Dillard v. State, 77 Tex. Cr. R. 1, 177 S. W. 107, was one in which there was a charge of passing a forged instrument which affected the titles to land, defined in articles 947 and 949 of the Penal Code. The court submitted the passing of a forged instrument, such as described in articles 924 and 937, P. C. The court said:

- “If the punishment prescribed was the same, we might deem it immaterial; but for passing an ordinary forged instrument the punishment is not less than 2 nor more than 5 years, while the punishment for passing a forged instrument affecting title to land is not less than 5 nor more than 20 years. In this case, the punishment assessed was only 2 years.”

On this ground, among others, a motion for rehearing was granted, and the ease reversed. Other cases in point are Hutton v. State, 38 S. W. 209; Osborne v. State, 42 Tex. Cr. R. 557, 61 S. W. 491; Sedgwick v. State, 57 Tex. Cr. R. 420, 123 S. W. 702; Malley v. State, 58 Tex. Cr. R., 425, 126 S. W. 598; Williams v. State, 42 Tex. Cr. R. 602, 61 S. W. 395, 62 S. W. 1057.

Under the indictment, no conviction can be had, except upon proof showing that the offense defined in article 1547 had been committed.

Reversed and remanded.
      <®=^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JOHNSON v. STATE.
    (No. 5190.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    Indictment and Information <&wkey;159(3) — Matters of Form or Substance — Time. •
    Error in indictment, alleging that defendant appeared before grand jury on a certain date and testified falsely to something which did not occur, until a subsequent date, was a matter of substance and not of form, and could not be held immaterial or cured by amendment.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Sam Johnson was convicted of perjury, and he appeals.
    Reversed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of perjury. There were some motions to quash the indictment, which were overruled. It is unnecessary to state them. There was no merit in any of them. However, after the conviction appellant further attacked the indictment on the ground that it alleged that on February 6, 1918, appellant appeared before the grand jury, was duly sworn, etc., and that he falsely testified that, on or about March 3, 1918, one John Parker did not sell to him a half pint of intoxicating liquor on March 3, 1918.

From this it will be seen that the indictment alleges that appellant appeared before the grand jury on February 6, 1918, and swore falsely to something that did not occur until March 3d subsequently. The trial judge held that the alleged date of February 6th, as the one he appeared before the grand jury and swore falsely, etc., was a clerical error, and that the true date was March 6th, and he held that this was a matter of form and not of substance.

In this we think the trial judge was clearly in error. In our opinion it was a matter of substance and not of form, and could not have been amended, nor could it be held to be immaterial.

The result is that the judgment must be reversed, and the cause dismissed, which is ordered.


text:
    ABOGADO v. STATE.
    (No. 5201.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    Criminad Daw &wkey;>1099(ll) — Appeal—Statement of Fact — Verification—Certificate.
    A so-called statement of facts, not verified either by agreement of the attorneys or certificate of the trial judge, is wanting in statutory essentials.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Leonardo Abogado was convicted of theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant is sentenced to confinement in the penitentiary for a period of 5 years for theft of property over the value of $50.

We find no bill of exceptions bringing to our attention any complaint of the action of the trial court in the conduct of the case. There is filed with the record a paper denominated a “statement of facts.” It is not verified, either by agreement of the attorneys or certificate of the trial judge, and is consequently wanting in statutory essentials. In the absence of a statement -of facts or bills of exception, there is nothing presented for review.

The judgment is affirmed.


text:
    BRADY v. STATE.
    (No. 5152.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.
    Rehearing Denied Nov. 27, 1918.)
    Criminal Law <&wkey;1090(16) — Bill of Exceptions — Nf,w Trial.
    Grounds of motion for new trial cannot be reviewed in the absence of facts and bill of exceptions.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    George Brady was convicted of murder, and ho appeals.
    Affirmed.
    George Brady, in pro. per.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for ’murder with the death penalty assessed.

There were no exceptions reserved to the rulings of the court during the trial, and no statement of facts accompanies the record. The grounds of the motion for a new trial are several in number, but cannot be revised in the absence of the facts and bills of exception. It was contended in the grounds of the motion that the evidence was. not sufficient to support the conviction, and that the court erred in admitting testimony over the objection of the defendant to the effect that he confessed to crimes committed in Missouri. It is also alleged in the grounds of the motion that the court failed to charge the jury the law applicable to manslaughter, as there was evidence of adequate cause and fresh provocation, and that the court erred in not charging with reference to this phase of the case. Another ground of the motion recites that the court should have charged the jury they could not convict unless they should believe defendant inflicted the mortal wound upon deceased, and that he did it intentionally with express malice, and if they had a reasonable doubt as to whether appellant inflicted the mortal wound they should acquit; and if they should believe that defendant did inflict the mortal wound, but have a reasonable doubt as to whether he did it intentionally, they should acquit. These matters cannot be revised in the absence of statement of facts, and there are no exceptions taken to the charge except those stated as grounds in the motion for new trial. The court is therefore unable to review these questions.

As the record is presented, the judgment is ordered to be affirmed.
      dSmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MATHIS v. STATE.
    (No. 5139.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.
    On Motion for Rehearing, Dec. 4, 1918.)
    1. Criminal Law i&wkey;1172(8) — Appeal— Harmless Error.
    Exceptions to a charge on aggravated assault will not be considered, where the jury acquitted of that offense and convicted of simple assault.
    2. Assault and Battery <&wkey;66 — Provocation.
    Though complainant’s language was of provoking nature, mere words did not justify an assault, though they may be given as a matter of extenuation.
    3. Assault and Battery <&wkey;67, 95 — Self-Defense.
    If complainant reached for a singletree with a view of hitting appellant, who then grabbed it, the jury, if they so believed, should have acquitted appellant of assault, and such questions were for the jury.
    4. Criminal Law &wkey;>763, 764(9) — Instructions — Weight of Evidence.
    In prosecution for aggravated assault, instruction that, if the jury believed defendant was guilty of an assault but had reasonable doubt whether the assault was aggravated, it should acquit of aggravated assault and' convict of simple assault, held not objectionable as on the weight of the evidence or as requiring the jury to convict.
    Appeal from Hill County Court; R. T. Burns, Judge.
    P. H. Mathis was convicted of simple assault, and he appeals.
    Affirmed.
    J. Webb .Stollenwerck, of Hillsboro, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of simple assault, his punishment being assessed at a fine of 85.

The testimony shows that appellant was a renter of the alleged assaulted party, R. C. Cleveland. Cleveland was driving by appellant’s house in a wagon, stopped, and called him to the road where he was and engaged him in conversation. It seems this conversation got a little heated. Cleveland charged appellant with planting too much cotton seed to an acre, and demanded that he readjust his planter so as to plant less. This led to some sharp words, and appellant either got in the wagon or up on it and caught Cleveland somewhere about the shoulder or person and picked up a singletree that was lying in the wagon. The state’s theory was that he undertook to strike Cleveland with the singletree, and did strike him a glancing lick. This was denied by appellant. He admits, however, that he caught Cleveland by the shoulder and took the singletree away from him, but did not use it, and threatened to strike him with his fist.

The court submitted the theory of aggravated assault as charged, and also simple assault, and the jury acquitted of aggravated assault and convicted of simple assault. Appellant’s exceptions to the charge on aggravated assault under this record will not be considered, because the jury acquitted of that offense, and only convicted of simple assault.

The court also charged appellant’s theory of self-defense, we think, in a sufficient manner. It may be conceded that the language of Mr. Cleveland was of a provoking nature, and may have been calculated to bring about a disturbance of the peace or a difficulty; yet this would not justify appellant in making the assault. There must be something more than mere words. Such words may be given as a matter of extenuation, but not as a justification.

If Cleveland, as appellant contends, had reached to get a singletree with a view of hitting appellant, and appellant then grabbed him, and the jury so believed, they should have acquitted. These were questions for the solution of the jury, and we think they were sufficiently submitted in the charge. Under the facts we would hardly feel justified in reversing the judgment.

The judgment is therefore affirmed.

On Motion for Rehearing.

Appellant files a motion for rehearing, contending that the former affirmance was erroneous in that the charge of the court instructed the jury to find appellant guilty of simple assault. That part of the charge is as follows:

“If you believe from the evidence that the defendant is guilty of an assault or an assault and battery, but have a reasonable doubt as to whether such assault and battery was an ‘aggravated assault and battery’ as that term is defined in paragraph 2 of this charge, you will acquit the defendant of aggravated assault and battery and find Mm guilty of simple assault or simple assault and battery and assess bis punishment,” etc.

We are of opinion that this does not instruct the jury to convict appellant of simple assault, except under the contingencies and 'statements of the judge. The jury are instructed if they believe he is guilty of assault, and if they should acquit him of aggravated assault, then they should convict him of simple assault, or simple assault and battery. The jury under this charge would first have to determine that he ivas guilty of assault, or assault and battery, before they could convict. If they determined that he was guilty, then they were instructed, if there was a doubt as to whether he was guilty of aggravated assault, they should convict him’ of the inferior degree. Such charge we think is correct, and was not a charge on the weight of the evidence. He was acquitted of aggravated assault and convicted of simple assault. This is the only question presented, and we are of opinion it is not well taken.

The motion for rehearing is overruled.
      '<S=^For other cases see-same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    YOUNG v. STATE.
    (No. 5016.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Indictment and Information <@=>125(3)— Duplicity.
    In indictment for burglary, alleging that defendant did “break and enter” “in the daytime and at night,” was not duplicitous.
    2. Criminal Law <@=>622(1) — Res Judicata— Severance.
    The granting of motion for severance at a previous term was not res judicata, and the trial judge, under Code_ Cr. Proc. 1911, art. 727, could grant a motion of the other defendant for severance, and change the order of trial, especially where the second defendant was sick and could not be tried.
    3. Criminal Law @=>1097(3) — Review — Statement op Pact.
    In the absence of statement of facts, a bill complaining of the overruling of a motion for continuance on account of absence of a witness cannot be reviewed.
    Appeal from District Court, Polk County; J. Llewellyn, Judge.
    J. Young was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of burglary. There is no statement of facts. t

The first part of the indictment was regular. Then it averred that on or about February 28, 1917, in said county, appellant “did then and there unlawfully, in the daytime and at night, by force, threats, and fraud, break and enter a house there situate and owned by John Handley,” without the consent, etc., of the said Handley, and with the intent, etc., to steal. The latter part of the indictment charging the intent to steal is in regular form and clearly sufficient. No point is attempted to be made against it.

Appellant made a motion to quash the indictment, claiming that it was duplicitous in charging in the same count a burglary both “in the daytime and at night.” As seen, the indictment specifically averred that the burglary was committed “by force, threats, and fraud,” and also that he did “break and enter” a house, etc.

It has been the settled law of this state, since the decision of this court in the Carr Case, 19 Tex. App. 635, 53 Am. Rep. 395, that in an indictment for burglary, other than the burglary of a private residence at night, if it alleges that the accused “did break and enter,” it need not be alleged whether the entry was in the daytime or at night; that under such an allegation, when the proof shows the entry by force applied to the house, which is a “breaking*” with the intent to commit felony or theft alleged, it is immaterial whether the house was entered in the daytime or at night. In other words, when an indictment alleges, as stated above, that he “did break and enter,” and by force, a house, with the intent to commit theft, such an indictment charges both a nighttime burglary and a daytime burglary. For some of the cases so holding, see 2 Branch’s Ann. P. C. § 2327.

In Walker v. State, 55 Tex. Cr. R. 547, 117 S. W. 797, the indictment alleged that appellant by force, threats, and fraud did bur-glariously and fraudulently break and enter a house, etc. He contended that under said allegation the court should have limited the charge to a daytime breaking, This court, through Presiding Judge Davidson, held:

“It will be noted that the court did not select either day or night breaking, and it may be stated that the court’s charge covered a daytime or a nighttime burglary.”

And further:

“We are of opinion that the contention is not correct. This question was decided adversely to appellant in the case of Carr v. State, 19 Tex. App. 635 [53 Am. Rep. 395]. The Carr Case has been followed in an unbroken line of decisions, of which there has been quite a number written.”

In Stephens’ Case, 69 Tex. Cr. R. 380, 154 S. W. 1001, the indictment alleged that appellant aid by force, threats, and fraud break and enter a house, etc. Appellant therein attacked the indictment on the ground that it did not allege whether the burglary was committed in the daytime or night. Judge Davidson said:

“Nor is there any merit in the proposition that the indictment failed to allege whether the offense was committed in the daytime or nighttime. It does allege that the house was, by force, threats, and fraud, broken and entered. This was sufficient to cover a daytime or nighttime burglary” — citing the Carr and Walker Gases, supra, and other cases.

In Montgomery v. State, 55 Tex. Cr. R. 506, 116 S. W. 1162, this court, through Judge Davidson, held:

“That portion ef the criticism in reference to the indictment failing to allege definitely whether it was a night or day breaking is also without merit. The indictment charged specifically that the defendant did by force, threats, and fraud burglariously and fraudulently break and enter a house. This is a sufficient allegation to charge either a night or day time burglary under the general statute” — again citing the Carr and other cases.

In Buchanan v. State, 24 Tex. App. 199, 5 S. W. 848, this court, through Judge Will-son, held:

‘.It is charged in the indictment that the burglary was committed by means of force, threats, and fraud, and that the defendant did “break and enter’ the house. The time, whether daytime or nighttime, is not alleged. It has been held by this court that such an indictment will support a conviction for either a daytime or nighttime burglary, if the proof shows that the force used in the perpetration of the burglary was applied to the building” — citing the Carr and another case.

In Gonzales v. State, 12 Tex. App. 657,”the indictment was in two counts; one charging specifically burglary in the daytime, and the other in the nighttime. This court, by Judge Willson, said:

“Before the trial of the case commenced the court required the district attorney to elect which of these counts he would proceed to try the defendant upon, and he elected to proceed upon the second count. In this we think the court erred. An indictment may contain as many counts, charging the same offense, as the attorney who prepares it may think necessary to insert. C. C. P. art. 433. * * * Where several counts are introduced in an indictment solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same offense, as in this case, the state cannot properly be required to elect. 1 Whart. Am. Cr. Law, 416; Dill v. State, 1 Tex. App. 278; Weathersby v. State, Id. 643; Dalton v. State, 4 Tex. App. 333; Irving v. State, 8 Tex. App. 46. The offense charged in each of the counts in this indictment is the same; the only difference being that one count charges it to have been committed in the daytime and the other that it was committed in the nighttime.”

As stated, where an indictment for burglary alleges that appellant did break and enter a house by force, without alleging whether it was in the daytime or nighttime, charges both daytime and nighttime burglary. Hence, where, as in this ease, the indictment charges that appellant “did break .and enter” by force a house, it certainly would not vitiate the indictment to allege that this was done both in the daytime and in the nighttime. What can be alleged indirectly can certainly be alleged directly.

At the May term, 1917, appellant made a motion averring that Jim I. Voorhies was separately indicted for the offense growing out of the same transaction of which he was indicted, and that Voorhies’ testimony was material for his defense, and sought a severance. The court at that time granted his motion, .and put Voorhies first on trial. The jury failed to agree, and a mistrial therein was entered. The court then at that time continued all cases for that term. At the subsequent term Voorhies made an affidavit in accordance with the statute, seeking a severance from appellant, and asking that appellant’s case be tried first, in order that he could use his evidence in his behalf when he was tried. I-Iis motion was also in accordance with the statute. Voorhies’ attorneys requested the district attorney to postpone his case for a few days. The district attorney declined to do this unless defendant’s attorneys would agree to and would file an application for a severance, which they then did. On the hearing of Voorhies’ motion the matter was submitted to the court, without any suggestion by his attorneys as to what action the court should take. Voorhies’ motion was then granted by the court to which appellant excepted. The court, in approval of the bill presenting this question, qualified it by stating that Voorhies was sick and could not be tried at that term of the court, and defendant’s case appeared first on the docket.

The granting of appellant’s motion for severance at the previous term of the court, as has been expressly held by this court in Brooks v. State, 42 Tex. Cr. R. 350, 60 S. W. 53, was not res judicata of the question of a; severance between different defendants at the next term; that the severance at the time was granted for that trial, and “upon subsequent trials the parties would have the right to change the order of trial. * * * ” The statute (article 727, C. C. P.) provides that, in the event two or more defendants make an affidavit for a severance “and cannot agree as to the order of trial, then the presiding judge shall direct the order in which the .defendants shall be tried: Provided, that the making of said affidavit does not, without other sufficient cause, operate as a continuance to either party.” In this case, as shown, Voorhies, at the term appellant was tried, made a motion for a severance. Appellant did not at that term make any such motion. He relied on his motion made at the previous term. But in effect they could not or did not agree which should first be tried. The court then undoubtedly, under the statute, had the right, as well as it was made his duty, to determine the order of trial, and could, as he did, require appellant to be tried first. In addition, if he had required that Voorhies should first tried, then, as he states in the qualification to appellant’s bill, Voorhies was then sick, and could not be tried at that term, and this would have resulted in a continuance of appellant’s case. This the trial judge had a right to prevent under the terms of the statute. Stouard v. State, 27 Tex. App. 11, 10 S. W. 442; King v. State, 35 Tex. Cr. R. 478, 34 S. W. 282; Locklin v. State, 75 S. W. 306; Millner v. State, 72 Tex. Cr. R. 45, 162 S. W. 351; Millner v. State, 75 Tex. Cr. R. 22. 169 S. W. 902; Howard v. State, 79 Tex. Cr. R. 267, 184 S. W. 507. On both and eacli of said grounds the court’s action presents no reversible error.

Appellant has another bill complaining of the action of the court in overruling his motion for a continuance on account of the absence of another witness. The state contested this motion. This question cannot be considered, in the absence of a statement of facts, as has all the time been held by this court. Besides, in hearing the contest, the evidence heard by the judge must be held to have been sufficient to have justified his action. What testimony was heard is not shown by the bill or the record otherwise.

The judgment is affirmed.
      ®=3Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and -Indexes


author: GRAVES, J.

text:
    TRINITY COUNTY LUMBER CO. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.
    (No. 7569.)
    (Court of Civil Appeals of Texas. Galveston.
    June 14, 1918.
    On Motion for Rehearing, Oct. 31, 1918.)
    1. Insurance @=512 — Insurance oe Master Against Workmen’s Compensation Claims — Risks Covered.
    Where insurer insured employer against losses under Workmen’s Compensation Act, § 21 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246xxx), but employer failed to give notice as required by section 19 ¡(article 5246x), so as to bring his workmen within the act, and was held liable as at common law, he could not recover an additional sum of the insurer, who had paid the schedule amount, since his own negligence permitted the servant to recover more.
    2. Insurance @=435 — Insurance oe Master Against Workmen’s Compensation Claims — Risks Covered.
    Policy insuring master for injuries to employes, together with binders and amendments .attached after the enactment of Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), held to contemplate indemnity against losses under the act only and according to its schedule of compensation.
    3. Insurance @=3435 — Insurance oe Master Against Workmen’s Compensation Claims — Risks Covered.
    Where defendant had insured plaintiff against injuries to its employés, and the contract was changed subsequent to the enactment of Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), charging a larger premium, it did not continue original liability as well as liability under the act.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by tbe Trinity County Lumber Company against tbe Ocean Accident & Guarantee Corporation, Limited. Prom tbe judgment rendered, plaintiff appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood1, Ellis P. Collins, and C. L. Carter, all of Houston, for appellant.
    Earl Wbarton, of Houston, for appellee.
   GRAVES, J.

The Trinity County Lumber Company’s employd, Garrison, while in tbe discharge \of bis duties as such, was injured on September 11, 1913. He declined to accept tbe compensation he would have been entitled to under tbe Texas Workmen’s Compensation Law (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246b-5246zzzz]), claiming that be bad a cause of action against that company for a much larger amount as damages, because of its failure to give him the required notice of its having become a subscriber under tbe terms of that act. Tbe Lumber Company and tbe Ocean Accident & Guarantee Corporation, appellant and appellee here, respectively, both of whom were foreign corporations with permits to do business in Texas, under a special agreement between themselves, hereinafter more fully referred to, united in making a settlement out of court with Garrison for $11,000, of which tbe Lumber Company paid $7,400 and tbe Guarantee Corporation paid $3,600.

Tbe Lumber Company then brought this suit against tbe Guarantee Corporation, which right bad been reserved in their special agreement, to recover tbe $7,400 so paid by tbe former, and interest thereon, basing its claim therefor upon certain contracts of insurance alleged to have been issued to it by tbe appellee corporation.

By way of answer, in addition to certain exceptions, denials, pleas of limitation, and breach of warranty, the Guarantee Corporation specially charged that tbe $7,400 paid Garrison by the Lumber Company, in order to effect such compromise settlement, bad been voluntarily done upon its part, and not in response to any legal obligation, in that, being a subscriber under tbe Compensation Act, it could have rightfully refused to pay any sum whatever under the protection afforded by that statute; that its own liability (the appellee’s) was, under the insurance contracts then existing between the two companies, limited to the schedule of benefits provided by the Workmen’s Compensation Act, which aggregated the $3,600 already paid; but added, in the form of a cross-action, in event the court should find that no contract of insurance at all was in effect between the two 'companies at the date of Garrison’s injury, September 11, 1913, a further plea, seeking recovery of the $3,000, less premiums collected, as having been paid through mistake.

The case was tried before the court without a jury, resulting in a judgment denying the Lumber Company a recovery, and providing that the Guarantee Corporation take nothing on its cross-action. The Lumber Company appeals.

Since the appellee neither took exception thereto below nor complains here of the trial court’s adverse finding upon its alternatively pleaded cross-action, that matter passes out of the case, leaving, as we think, hut one real question presented by the appeal, and that is: Did the court err in its conclusions of law “that the policy, EC-501507, the various hinders referred to, and policy EY-44S0, witness the existence of a policy on September 11, 1913, of insurance under the Texas. Workmen’s Compensation Act, and not, in addition thereto, a general indemnitj against liability to employés not arising under said act; (2) that defendant is liable to pln'ntiff for the amount to which its injured employé was entitled under said act?”

After careful consideration of the entire record, including the helpful briefs and arguments for both litigants, the conclusion is reached that it did not, and an order affirming the judgment below has been entered. Accordingly, it is thought that what is deemed a sufficient statement of this court’s reasons for the view taken should properly conclude its opinion, without seriatim and detailed discussion of the various assignments of error presented.

In other words, if by the contracts of insurance in force and effective as of the date of September 11, 1913, between these two corporations, it may fairly be said to have been their intention that the-liability paid for by the one and assumed by the other should be such only as the Texas Workman’s Compensation Law then imposed upon insuring companies carrying such risks as materialized in Garrison’s injury, the main contention of appellant here would fall, and with it, we think, all subsidiary ones.

While from several slightly different viewpoints appellant devotes the first seven and the tenth assignments in its brief to the contention that such was neither the purpose nor effect of the contracts, but that they evidenced an undertaking to indemnify it against unlimited liability at common law in addition to that imposed by the Workmen’s Compensation Act, it yet insists under the eighth assignment that, even if the contracts did limit the liability to such only as arose under that statute, general liability would still follow from a proper construction of the express provisions of the act itself.

Although unable to agree that the Compensation Law may properly be so construed, what otherwise seems to us a complete answer to this last-stated position is the fact that Garrison was not settled with according to that act, but wholly outside of its provisions, a result directly caused by appellant’s own and negligent failure, which it admitted, to bring him within its terms by giving him the required notice that it had provided for payment of the compensation thereunder, thereby leaving open to him a cause of action against it for damages at common law. The act not only made the giving of such notice obligatory upon appellant as a subscriber (Vernon’s Sayles’ Statutes, art. 5246x), but further provided that a subscriber who has complied with all the rules, regulations, and demands of the association may recover from it, or from a member of it carrying the risk, whatever damage such subscriber has been required to pay an employé by any judgment of a court of law, thus apparently denying to one who has not so complied any other recovery than the schedule of benefits prescribed in the act for employés (article 5246xxx). If'the settlement had been made in accordance with that schedule, it is not denied that the §3,600 paid by the appellee would have been all Garrison was entitled to. Moreover, the final policy formally bringing the insurance here contracted for under the terms of the Compensation Law, EY-4480, hereinafter more fully referred to, specially provided that the limit of liability thereby assumed for injury to employés should he that fixed by.the terms of the act itself.

Consequently, with the decks stripped back again, as we think, to the single issue of their purpose and meaning, return is made to an examination of the contracts themselves. The trial court’s findings of fact, after a full review of the various policies and binders, together with the dealings between the parties concerning them, was:

“I also find that it was the intention of the parties that a contract of insurance was to be had in accordance with the Texas Workmen’s Compensation Law.”

Following a like examination of the statement of facts, we cannot agree with the special insistence of appellant under its 10th assignment that this finding was without support in the evidence, but, holding that it was, adopt it as the finding of this court also. The first policy issued between the parties, EC-501507, commonly known as a “manufacturer’s employés liability policy, exclusive of workmen’s compensation,” bore date of April 25, 1913, at which time there was- no Workmen’s Compensation Law in effect in Texas, and specially recited that it did not cover liability under any Workmen’s Compensation Agreement Plan or Law. It ’ covered the period from May 1, 1913, to May 1, 1914, and limited the corporation’s liability for injury to or death of one person to §5,000, and its total liability for one accident, without reference to the number of persons, to §10,000. This policy, as thus written, remained in force and effect until midnight of August 31, 1913, when, to meet the situation brought about by the fact that in the meantime a Workmen’s Compensation Act had been passed in Texas, which would become effective on September 1, 1913, following out agreements by correspondence for that purpose, a binder, No. 29210, bearing date of August 28, 1913, was delivered and toot effect, its term expiring on September 10, 1913, which specifically recited that—

“The Ocean Accident & Guarantee Corporation hereby acknowledges itself bound by a liability and workmen's compensation insurance undertaking, the subject-matter of the insurance being described in the following schedule; and during the term of this binder the actual contract of insurance shall be evidenced by such of the printed policy form blanks in use by the corporation during such term as. are indicated by the letters given in the schedule.”

In the .schedule referred to under the words “Policy Form” were typed the words' “Workmen’s Compensation” ; after the words “Limited of Liability” was the following; “One person $-one, accident — none”; under the words “Description of Risk” were typed the words, “This binder shall constitute the assured a subscriber within the meaning of the Texas Workmen’s Compensation Act.”

At the expiration of binder 29,210, it was renewed by a second one of the same wording and duration; that is, covering the period from September 10 to September 20, 1913. Then, on September 22, 1913, Workmen’s Compensation Endorsement No. 141233, made by its terms to cover the date of Garrison’s injury, September 11, 1913, was issued, containing, among lengthy recitals, these provisions:

“The said policy is hereby extended to include within its terms all obligations imposed upon or assumed by the assured under any of the provisions contained in the said, act in so far as the same shall have reference to the subject-matter of this insurance.
“The assured has elected to accept and has accepted, in the manner provided' in the Workmen's Compensation Act, hereinafter in this paragraph designated, the schedule of workmen’s compensation benefits therein contained ; and the assured further warrants that this acceptance will not be revoked during the period that this indorsement is in effect: Chapter 179, Laws of 1913,, State of Texas, commonly known as the Texas Workmen’s Compensation Law.”

Lastly, on, October 20, 1913, there was issued and delivered the final form of policy used, EY-4480, which by its terms was made retroactive so as to be effective from and aft-ter September 1, 1913. This policy also contained the identical provision relating to acceptance of the schedule of benefits appearing in the workmen’s.compensation indorsement last above quoted from, No. 141233, and the additional one:

“If any condition in this policy contained is at variance with any provision of the Workmen’s Compensation Law or Laws designated in Declaration 7, such specific statutory provision shall be substituted for such condition.”

It thus appears that not only did all binders issued between August 28 and October 20, 1913, specifically recite that the Insurance Corporation acknowledged itself bound in, accordance with the Compensation Act, such obligation to be evidenced by its printed policy form blanks in use during that period, but, after expressly providing against conflicts with that act, the final policy itself, as well as the binder immediately preceding it, correspondingly required an acceptance by the assured of the schedule of benefits therein prescribed; in other words, the plain purpose was, as we think, and the trial court found, to so change the insurance existing prior to the taking effect of the new Compensation Law, on September 1, 1913, as to substitute in such case as here arose its schedule of compensation for the pre-existing liability. Indeed, the general agent of the appellee so testified, his statement, which was not controverted, being epitomized in these excerpts:

“The binder that was attached to the first policy was issued merely until we could get the second policies. You see when that manual became effective, or the law became effective on the 1st of September, some companies went to work and canceled their policies outright and rewrote them from the 1st of September to the following 1st of September. Our office didn’t do that, because I didn’t want all our business bunched up in one month so I could not handle it, and so we conceived the idea of indorsing our policies from the date of August 31st and increase the rate or decrease it, and on all of our liability policies covering them by that in-dorsement into compensation policies, and in cases where we didn’t do that we issued a binder. The binder was intended to be the contract in force between the parties as from the date of the issuance of the binder.’?
“It says here, ‘This binder shall constitute the assured a subscriber within the meaning of the Texas Workmen’s .Compensation Act,’ so that that binder converts this policy into a compensation policy.”

The act itself provided that any insurance company should have the same right to insure the liability to pay the compensation therein prescribed as the association created under it, and, when it did so, might exercise the same powers, but should be subject to parts 1, 2, and 4, and sections, 10,17, and 21, of the Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246u, 5246ww, 5246xxx), and must file with the Commissioner of Insurance and Banking its classification of premiums to be charged, none of which could take effect until approved by that official as being adequate to the risks assumed, nor could they be greater than those charged by the association (Vernon’s Sayles’ Statutes 1914, art. 5246yyyy).

It was further shown that at the time the act became effective neither the insurance companies nor the various state agencies charged with its administration had had opportunity of becoming familiar with its operative details, and the Industrial Accident Board had not then completed the forms of insurance contracts and the manual of rates to be used; hence, under the above-stated plan it had adopted to meet this condition, the appellee could only issue binders until at a later date in position to deliver a permanent policy, in accordance with the compensation law, and as approved by the Industrial Accident Board, at rates by it prescribed. This was all done in the policy of October 20, 1913, EY-4480, the trial court making this finding as to the rates charged:

“The amount of the premium paid for said policy was in accordiance with the schedule or manual of rates filed by the defendant company with the Commissioner of Banking and Insurance and with the Industrial Accident Board as the rates to be charged by them for the writing of insurance upon the plants of this character in accordance with the Texas Workmen’s Compensation Act.”

There is not only no attack made upon this finding as to the rate paid by the Humber Company for the insurance here involved, but there was no- evidence upon which a different one could have been based.

In support of its contention that the various binders attached to original policy EC-501507, together with final policy EY-4480, did not limit the insurance contracted for to workmen’s compensation liability, but merely extended it so as to cover that liability also, the Lumber Company lays much stress upon the clause in the binders that' the insurance corporation “acknowledges itself bound by a liability and workmen’s compensation insurance undertaking,” insisting that the conjunctive form of expression would not have been used if the intention had not been to provide for both a general and a workmen’s compensation liability. While that appears to be an introductory recitation, descriptive merely of the change made in the character of the insurance, if it is to be given further meaning we think it may be explained as having reference to. that section of the act permitting an unlimited recovery of exemplary damages, reading as follows:

“Nothing in this act shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife and heirs, or such of them as there may be, of any deceased employé, whose death is occasioned by homicide, through the willful act or omission or gross negligence of any person, firm or corporation, the employer of such employs at the time of the injury causing the death of the latter, and in all cases where exemplary damages are sought under this section, in case the injured party has already been awarded; actual damages by the board herein provided, said fact and said amount so received shall be made known to the court or jury trying said cause for exemplary damages; and on the issue for exemplary damages he shall have the same defenses as under the existing law.” Vernon’s Sayles’ Statutes 1914, art. 5246j.

Therefore, in writing insurance in accordance with this. statute, the corporation was by its express terms not only bound by the fixed schedule of compensation to be paid in particular cases for specified injuries, but for the unlimited amount recoverable as exemplary damages. It is, however, not contended here that Garrison’s injuries occurred under any such circumstances as made that provision of the statute applicable to his cause of action.

Another most earnestly and ably presented argument is that, because there was a largely increased premium rate required to be paid on this new insurance, after September 1st over that charged under the previous contract and pre-existing law, it must have been intended to both continue the liability formerly carried and to add that imposed by the compensation statute.- The obvious answer to this suggestion is that, under the undisputed evidence, no part of the premiums paid after September 1st was in fact paid for any other insurance than that in strict compliance with the compensation law, but was such only as had been officially promulgated by the Industrial Accident Board as the authoritative rate for insurance in conformity therewith, neither more nor less than which could be legally charged. From this situation the necessary result would be that, if appellant did so get and retain insurance under both systems after September 1st it had the continuing benefit of the kind first carried for nothing.

Furthermore, other reasons than the one suggested by appellant for higher rates under the new system are easily supposable; indeed, the possibilities suggested, by the conditions here involved indicate at least one. Under the old policy it had protection for only $5,000 on each employs injured, in no event to exceed $10,000 for any one accident, no matter how many were injured therein; that is, the insurance company, for the rate charged on that policy, limited its maximum liability in the circumstances stated to $10,000, even though 100 employés should sustain damages of $5,000 each, totaling $100,000 for only 10 per cent, of which it would be liable, leaving the Lumber Company to pay the remaining $90,000; whereas, if the latter company had brought this supposed contingency under the operation of the Compensation Law, and had complied with the requirements thereof by so notifying its employes, the entire $90,000 might have been saved.

Such possibilities might well furnish mutual justification for far greater relative increase in rates than iSthere claimed to have obtained, to the assured in paying it because of the immunity afforded, and to the insurer in charging it in view of greatly enlarged liability.

So that, considering all the clauses, conditions, and stipulations of these contracts together, and then giving them such interpretation as reasonably appears to harmonize with the intention of the parties, we think the trial court stated a correct conclusion. 14 Ruling Case Law, Insurance, last sentence, par. 103, footnote 15; 16 Am. & Eng. Ency. of Law (2d Ed.) p. 862; Hearne v. Gillett, 62 Tex. 23; Kempner v. Advance Thresher Co., 44 Tex. Civ. App. 128, 97 S. W. 1080.

Under this view the remaining assignments raise immaterial issues. ■

It follows that all assignments should be overruled.

Affirmed.

On Motion for Rehearing.

In the original opinion it was recited that the trial court, after fully reviewing the various policies and binders, had stated its fact finding to be that the parties intended their contract of insurance to be one in accordance with the Texas Compensation Law, which finding this court, after a like review of the statement of facts, wherein all the policies and binders were set out in full, adopted as its own. Then followed an extended description and discussion of them in their proper sequence, with quotations of such provisions tiierefrom as were deemed adequate to an understanding of their import, and a closing reiteration that all their various stipulations had been considered together. We did not, however, copy in hsee verba all the different recitations therein which appellant contended constituted the full and final contract of insurance between it and the appellee. That was not then, nor is it now, thought essential, but, in deference to the very earnest request of counsel for appellant that it be done, the court has pleasure in making these additional findings of fact:

1. Policy EY-4480, of date October 20, 1913, contains these paragraphs:

“Par. 2. To pay the compensation and to furnish or cause to be furnished the medical and surgical treatment provided by the Workmen’s Compensation Law or Laws designated in declaration 7 as they exist when this policy takes effect, excluding amendments thereto subsequently made;
“Par. 3. To indemnify the assured against loss by reason of the liability imposed by law for damages;
Par. 4. To investigate accidents involving such bodily injuries or death, to negotiate settlement of claims, and to defend suits for compensation or damages brought on account of such bodily injuries or death, in the name and on behalf of the assured, unless and until the corporation shall elect to effect settlement thereof ; and
“Par. 5. To pay all costs taxed against the assured in any legal proceeding defended by the corporation in accordance with the preceding paragraph, all interest accruing upon the judgment rendered in connection therewith, and all expenses incurred by the corporation for investigation, negotiation, or defense.”

2. In policy No. 501,507, of date April 25, 1913, occur these provisions:

“(1) To indemnify the assured against loss from the liability imposed by law upon the assured for damages on account of bodily injuries (including death at any time resulting therefrom) accidentally suffered, or alleged to have been» suffered, during the policy period defined in said statements, by any employe or employés of the assured while at the places designated in statement 4 by reason of work therein described;
“(2) To contest claims and to defend suits, even if groundless, made or brought against the assured on account of such bodily injuries or death, unless it shall elect to settle such claims or suits; and
“(3) To pay all costs taxed against the assured in any legal proceeding defended by the corporation according to agreement (2) above, and all interest accruing after entry of judgment upon such part of same as is not in excess of the corporation’s limit of liability as hereinafter expressed.”
“A. The corporation’s liability on account of bodily injuries to, or the death of, one person, shall be limited to the sum of five thousand dollars ($5,000.00), and, subject to the same limit for each person, the corporation’s total liability on account of bodily injuries to, or the death of, more than one person, as a result of one accident, shall be limited to the sum of ten thousand dollars ($10,000.00); but in addition to these limits the corporation will pay expense incurred by the corporation in the investigation of claims and in the defense of suits, and all sums for which the corporation may be liable under section (3) of the insuring agreements.”

3.Workmen’s Compensation Endorsement No. 141,233 embraces these recitations:

“(1) That in consideration of the' payment of the premium rates specified in paragraph 7 of this indorsement in lieu of the premium rates for which pay roll expenditure is the basis for premium calculation expressed in the policy to which this indorsement is attached, and in further consideration of the warranty contained in paragraph 5 hereof, the said policy is hereby extended to include within its terms all obligations imposed upon or assumed by the assured under any of the provisions contained in the said act in so far as the same shall have reference to the subject-matter of this insurance.
“(2) That paragraph A of the conditions of the said policy is hereby eliminated.”
“(4) That notwithstanding the said act or any part thereof is now or shall hereafter be. declared invalid or unconstitutional, all premiums provided by this indorsement shall be fully earned by the corporation, and accordingly the schedule of woi-kmen’s compensation benefits contained in the said act (as distinguished from the additional liability imposed for the recovery of damages) shall be considered a part of said policy as fully and completely as if wholly written therein, and shall be and remain a part of said policy so long as the said policy shall remain in force; but permission is given to the assured to cancel this indorsement on a pro rata basis at any time after the said act has been declared invalid or unconstitutional by the judgment of any court of last resort, and the policy itself shall then remain in full force and effect as originally written.”

In the motion for rebearing attention is also called to an inadvertent but wholly unimportant error in the statement of some figures in the former opinion, where it was said, “even though one hundred employés should sustain damages of $5,000 each, total-» ing $100,000,” etc., when it should have read twenty employés instead of one hundred. In acknowledging the opportunity to make the correction, attention is arrested by the fact that the error in the figures actually used but emphasized and accentuated the point of the argument the court was making.

The motion for rehearing, after having been carefully read and considered, is overruled.

Overruled.
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