author: JENKINS, J.

text:
    PROVIDENCE WASHINGTON INS. CO. v. LEVY & ROSEN.
    (No. 5659.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1916.
    Rehearing Denied Nov. 29, 1916.)
    1. Insurance <&wkey;4 — Liability — Statute — Constitutionality.
    Acts 33d Leg. c. 105, §§ 1-3, enacted to prevent insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy, where the act breaching such provision has not contributed to bring about the loss, is constitutional.
    [E'd. Note. — For other cases, see Insurance, Cent. Dig. § 4; Dec. Dig. &wkey;»4.]
    2. Statutes <&wkey;109 — Subject and Title — Constitutional Provisions.
    Const, art. 3, § 35, providing that no bill shall contain more than one subject which shall be expressed in its title is violated by an act whose caption does not direct attention to the subject-matter of the act, or which embraces a part of the subject-matter, but is more restrictive than the act, in which case the. act is void as to such part as is not embraced in the title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 136-139; Dec. Dig. &wkey;109.]
    3. Statutes <&wkey;105(l) — Subject and Title-Constitutional Pbovisions — CONSTRUCTION.
    A statute'is to be construed most liberally to make the whole law constitutional, where the ¿art objected to as infringing Const, art. 3, § 35, providing that no bill shall contain more than one subject, which shall be expressed in its title, can be considered as appropriately connected with or subsidiary to the main object of the act as expressed in the title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 117; Dec. Dig. &wkey;>105(l).j
    4. Statutes <&wkey;113 (3) — Subject and Title-Constitutional Pbovisions.
    Acts 33d Leg. c. 105, entitled “An act, to prevent insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions * * * where the act breaching such provision has not contributed to bring about the loss,” by section 1 so providing, and by section 2 declaring it not to affect or repeal Rev. St. 1911, art. 4874, relating to fire insurance policies upon real or mixed property, and by section 3 declaring an emergency, does not violate Const, art. 3, § 35, providing that no bill shall contain more than one subject, which shall be expressed in its title, as the title sufficiently indicates its purpose.
    [Ed. ■ Note. — For other cases, see Statutes, Cent. Dig. § 144; Dec. Dig. (&wkey;>113(3).]
    Error from District Court, McLennan ' County; E. J. Clark, Judge.
    Action by Levy. & Rosen against the Providence Washington Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    This is a companion case to ./Etna Insurance Co. v. Waco Company, 189 S. W. 315, recently decided by this court, and reference is here made to our findings of fact in that case for our findings of fact in this case, the only difference being that in the former case the policy had been assigned by Levy & Rosen, the defendants in error herein, to. the intervener, the Waco Company.
    Thompson, Knight, Baker & Harris, Will C. Thompson, and G. S. Wright, all of Dallas, for plaintiff in error. W. L. Eason, of Waco, for defendant in error.
   JENKINS, J.

The only issue necessary to be passed upon in this case is as to the con-# stitutionality of the act of the Thirty-Third Legislature (chapter 105, page 194) which is assailed upon the ground that the same is violative of article 3, § 35, of the Constitution of this state, and which reads as follows:

“No bill * * * shall contain more than one subject which shall be expressed in its title.”

The caption of the bill referred to reads as follows:

“An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the áct breaching such provision has not contributed to bring about the loss, and declaring an emergency.”

The 'act is as follows:

“Be it enacted by the Legislature of the state of Texas:
“Section 1. That no breach or violation by the insured of any of the warranties, conditions or provisions of any fire insurance policy, contract of insurance, or application therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such broach or violation contributed to bring about the destruction of the property.
“Sec. 2, That the provisions hereof shall in no way affect or repeal the provisions of article 4874 of the Revised Civil Statutes of 1911 in so far as the same relates 'to fire insurance policies upon real or mixed property.
“Sec. 3. Whereas, under the existing laws, insurance policies and contracts may be defeated upon purely technical provisions and defenses that in no way affect the merits of the claim against the insurance company, and such defenses have been upheld to the extent of making it almost impossible for an insurance policy upon personal property to be collected by suit, creates an emergency and imperative public necessity that the constitutional rule requiring bills to be read of three several days in each house be suspended, and that this act take effect and be in force from and after its passage, and it is so enacted.”

We held in the case above referred to (not yet officially reported) that said act was constitutional, and we adhere to that decision, and again refer to Ins. Co. v. Finegold, 183 S. W. 833, in support of this decision.

We concede the correctness of appellant’s proposition that an act is uneonstitu-tional if its caption does not direct attention to the subject-matter of the act, and also, if it embraces a part of the subject-matter, but is more restrictive than the act, it is void as to such part of the act as is not embraced in the title. Adams v. Waterworks Co., 86 Tex. 485, 25 S. W. 605; Railway Co. v. State, 102 Tex. 153, 113 S. W. 917; Giddings v. San Antonio, 47 Tex. 548, 26 Am. Rep. 321. Appellant cites numerous cases from other jurisdictions to the same effect. But, as was said by Mr. Chief Justice Roberts, in Giddings v. San Antonio, 47 Tex. 556, 26 Am. Rep. 321:

“While this has been regarded as the settled rule of construction here, in its application the most liberal [rule of] construction has been given by the Supreme Court of this state, in accordance with the general current of authority, to make the whole law constitutional where the part objected to as infringing this provision of the Constitution could be considered as appropriately connected with or subsidiary to the main object of the act as expressed in the title, which may be seen by reference to a number of cases that have been decided pro and con, involving this question. Cannon v. Hemphill, 7 Tex. 208; Parker v. Parker, 10 Tex. 86; Robinson v. State, 15 Tex. 312; Tadlock v. Eccles, 20 Tex. 792 [73 Am. Dec. 213]; State v. Shadle, 41 Tex. 404; Breen v. T. P. R. Co., 44 Tex. 302.”

The main object expressed in both the title and the act was to prevent the avoidance of a policy on personal property by reason of the breach of a provision therein which did not contribute to or bring about the loss. We think that, under the liberal construction required of an act of the Legislature as regards its constitutionality, the title of the act under discussion sufficiently indicated its purpose.

Eor the reasons stated, the judgment of the trial court is affirmed.

Affirmed.
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source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA v. LUCK.
    (No. 5699.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1916.
    Rehearing Denied Dec. 13, 1916.)
    1. Trial <&wkey;136(3) — Questions fob Couet— CONSTRUCTION OF WRITTEN INSTRUMENT.
    It is the court’s duty to construe a written instrument, -and a special charge, requiring the jury to determine the legal effect of such instrument, is error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 326; Dec. Dig. <S&wkey;136(3).]
    2. Appeal and Error &wkey;>1175(5) — Disposition of Case — Uncontradicted Evidence.
    Where the uncontradicted' evidence showed that a member of a fraternal order had been more than three months in arrears with his dues and had paid up his arrearage less than three months prior to his death, which, under the constitution of the order, prevented his being a member in good standing and entitled to a death donation, the court, on reversing a judgment for the beneficiary of the member for error in submitting the interpretation of the constitution to the jury, can render judgment for the order.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4579; Dec. Dig. <&wkey;>1175(5).]
    Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.
    Action by Mary Luck against the United Brotherhood of Carpenters and Joiners of America. Judgment for the plaintiff, and defendant appeals.
    Revers.ed, and judgment rendered for defendant.
    W. A. Gordon, of Austin, for appellant.
   RICE, J.

Louis Luck, during his lifetime was a member of one of appellant’s local unions No. 526, situated at Galveston, Tex. After his death, which occurred on June 7, 1914, his mother, appellee herein, claiming to be his legal beneficiary, brought this suit to collect from appellant, a fraternal order, his funeral donation of $200, alleging that he was a member in good standing in such order at the time of his death, by reason of which she, as such beneficiary, was entitled to recover such funeral donation. The appellant filed a general denial, and, specially answering, resisted payment on the ground that ap-pellee was not entitled to recover because her son Louis was in arrears to said order at the time of his death. A jury trial resulted in a verdict and judgment in behalf of appellee, from' which this appeal is prosecuted. Section 109 of the constitution of said order, which was introduced in evidence, provides that:

“When a member owes a sum equal to three months’ dues he is not in good standing and is thereby suspended from all donations in the interim, and will not again be entitled to donations until three months after his»arrearages are paid in full, including the current month.”

The uncontradicted testimony showed that on February 1, 1914, Louis Luck owed a sum equal to three months’ dues; that he did not pay up his arrearages in full, including the current month, until March 27,1914; that he died on June 7, 1914, which was before his right to a donation had accrued under said section of the constitution. The court submitted to the jury but one special issue, which is as follows:

“Was the deceased, Louis Luck at the time of his death a member in good standing in the United Brotherhood of Carpenters and Joiners of America, as defined in section 109 of its constitution?”

Appellant objected to this charge on the ground that it left it to the jury to interpret, construe, and declare the legal effect of section 109 of said constitution, which was the exclusive province of the court and not the jury. In this connection the appellant requested and the court refused to give the following special charge, to wit:

“Was the said Louis Luck indebted to the Houston local union on February 1, 1914, in a sum equal to three months’ dues? Second. If you answer question No. 1 in the affirmative, then state at what daté did the said Louis Luck pay up all arrearages in full, including the current month, to said Houston local union.”-

Appellant excepted to the refusal to give this special charge, reserving its bill.

It is the duty of the court to construe and interpret a written instrument, and a special charge, requiring the jury to pass upon the legal effect of such instrument, is error. See Shepherd v. White, 11 Tex. 358; Berry v. Harnage, 39 Tex. 650; City of San Antonio v. Lewis, 9 Tex. 69; Cook v. Dennis, 61 Tex. 249; Quebe v. G., C. & S. F. Ry. Co., 77 S. W. 443; Ivey v. Williams, 78 Tex. 687, 15 S. W. 163; Daughtrey v. Knolle, 44 Tex. 457. The court, therefore, erred in refusing to give appellant’s special instruction above set out.

Appellant insists that we should reverse and render the judgment, because the uncontradicted evidence showed that Louis Luck was in arrears for more than three months, including the current month, at the time of his death, which was not paid in full until the 27th day of March, 1914, his death having occurred on the 7th of June next thereafter, less than three months from the date of said payment, for which reason, it is claimed, he had forfeited his right to a funeral donation, and appellee was therefore not entitled to recover; and it is insisted that this is true notwithstanding the fact that the working cards, introduced in evidence over appellant’s objection, recited that he was a member in good standing, because the section of the constitution above quoted controls, and could not, under the facts of this case, be overridden by such recitation.

We agree with this contention, and hold that the judgment of the court below should be reversed and here rendered for appellant, which is accordingly done.

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


author: FLY, C. J.

text:
    CHARBONNETT v. ARBETTER et al.
    (No. 5734.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1916.
    Rehearing Denied Dec. 13, 1916.)
    Bills and Notes &wkey;>520, 525 — Action—Evidence — ^Transeeb—Fraud.
    Evidence, in an action on a note executed by two of the defendants, payable to a third, held to show that the note was obtained by fraudulent representations and was fraudulently transferred to plaintiff after its maturity, so as to sustain a judgment in favor of the maker.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832-1839; Dee. Dig. &wkey;520, 525.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Suit by J. A. Charbonnett against Theresa Arbetter, M. Scharlack, and Henry Jacobs. Judgment for plaintiff against defendant Jacobs only, and plaintiff appeals.
    Affirmed.
    McCollum Burnett, of San Antonio, for appellant. Guy Cater, Chambers & Watson, and Schlesinger & Schlesinger, all of San Antonio, for appellees.
   FLY, C. J.

This is a suit instituted by appellant against Theresa Arbetter, M. Schar-lack, and Henry Jacobs, on a promissory note for $400, executed by Theresa Arbetter and M. Scharlack, payable to Henry Jacobs, and sold by said Jacobs to appellant. Mrs. Arbetter pleaded a failure of consideration and fraud upon the part of Jacobs in obtaining the note, and 'alleged that appellant was not the owner of the note, and that the transfer to him was made illegally and without consideration. Her answer was adopted by Scharlack. The court rendered a judgment in favor of appellant for the amount of the note, interest, and attorney’s fees as against Jacobs, but rendered judgment that, as to Theresa Arbetter and M. Scharlack, appellant take nothing, and that they recover their costs. This appeal is perfected by Charbonnett alone.

The sole ground upon which this appeal is prosecuted is the insufficiency of the evidence to support the judgment in favor of Mrs. Ar-better and Scharlack. Mrs. Arbetter brought a suit for the cancellation of the nóte, and applied for an injunction to prevent Jacobs from selling the note. That cause was after-wards dismissed. This would seem to offer an incentive for the transfer of the note, and Jacobs and appellant swore that the transfer was made on May 5, 1914, before the maturity of the note, for a valuable consideration and without notice. It was shown, however, that the note was transferred to one B. A. Laurie, who was exercising ownership and control over it as late as August 1, 1914, after maturity of the note. Appellant testified that the note was indorsed to him by Jacobs, but the only indorsement written on the note was made by Laurie. The evidence showed that the note, in compliance with the orders of Laurie, was delivered to A. E. Story on August 7, 1914, although appellant testified that the note' had never been out of his possession until placed in.the hands of his attorney for suit. The note was presented to Scharlack for payment on July 28, 1916, by the West Texas Bank & Trust Company, and at that time the indorsement made by Laurie to appellant was not on the note. On June 1, 1914, nearly a month after the pretended transfer to appellant, Jacobs swore that he had transferred the note on May 2d to Laurie. There was evidence which tended to show’ that appellant had nothing, and had • pawned a pistol to raise money about, the time he claims to have bought the note. Jacobs swore that he sold the note to Laurie on May 2d, but took it back before May 5, and yet the note was under control of Laurie on August 1st. The evidence was ample to show'that there was no real transfer of the note to appellant, and that the transfer by Laurie was made after the maturity of the note. The note was procured by fraud from Mrs. Arbetter, and was without consideration.

The cross-assignments of Jacobs are based on the assumption that the note was a valid one, and was lawfully transferred to appellant. Jacobs had no claim for a judgment against Mrs. Arbetter and Scharlack under the facts. He raised no objection to the judgment against him in favor of appellant. The testimony is convincing that the note was obtained by fraudulent representations, and that it was fraudulently transferred to appellant after its maturity.

The judgment is affirmed.
      ©=For 9<&or case* see same topic.and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    TURNER v. FOWLER.
    (No. 1070.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1916.)
    Justices of the Peace <&wkey;202(3) — Appeal— Bond — Identity of Cause.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 754, allowing an adverse party to move to dismiss a certiorari at the first term of the court to which it is returnable for want of a sufficient cause appearing in the affidavit, or for want of a sufficient bond, apd in view of article 748, whereby the trial court, granting the writ of certiorari, states the amount of the bond, a bond on cer-tiorari to review a judgment of' the justice court for defendant, with costs against plaintiff, merely reciting that a judgment “for costs” was rendered against appellant, without setting out the judgment in full, in view of the petition for the writ of certiorari supplemented by the transcript of the proceeding's in the justice court, sufficiently identified the court and the judgment.
    • [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 789; Dec. Dig. <&wkey;>202(3).]
    Appeal from Crosby County Court; Pink L. Parrish, Judge.
    ■Suit by Paul A. Turner against Orrie C. Fowler. From a judgment of the county court dismissing a writ of certiorari, granted upon a judgment in justice court for defendant, with costs against plaintiff, plaintiff appeals.
    Reversed and remanded for trial de novo.
    R. A. Wallace, of Crosbyton, for appellant. Benson & Spence, of Lubbock, for appellee.
   HENDRICKS, J.

The appellant, Paul A. Turner, sued the appellee, Orrie' C. Fowler, in the justice court of Crosby county, Tex., upon a note for $141.25, and upon trial judgment was rendered in favor of Fowler. The county judge, in vacation, granted a 'writ of certiorari, which was dismissed on motion of the appellee-herein, by said court.'

The grounds in the motion were that the bond did not describe correctly the court in which the judgment was rendered, nor did said bond correctly describe said justice court ■judgment, in that it failed' to state the name of the defendant correctly, failed to give the file number of the' suit, and did not state, the amount of the judgment rendered except to describe it, “as a judgment.for costs.”

Article 754, vol. 1, Vernon’s Sayles’ Civil Statutes, prescribes that an adverse party may move to dismiss a certiorari at the first term of the court to which the same is returnable for want of sufficient cause appearing in the affidavit, or for want of sufficient bond.

Confining the issue to the grounds in the motion attacking the bond as insufficient, the only question raised is the matter of the sufficiency of the bond, based upon an inadequate identification of the judgment or the proceedings. The judgment in the justice court against Turner, the appellant herein, was one for costs.

“In acting upon a motion to quash or dismiss a certiorari, the district court will always look to the petition for the writ, and to the transcript from the justice’s court, in order to determine the merits of the motion.” Seeligson v. Wilson, 58 Tex. 370.

This ease does not present a question of material variance, but one of sufficiency. The petition for the writ of certiorari, supplemented by the transcript of the proceedings in the justice court, rebut the grounds of the motion as wholly untenable. The amount o'f the judgment would not have to be stated in the certiorari bond, except as a matter of identification. The trial court, granting the certiorari, states the amount to be nominated in the bond in such sum as he shall direct. Article 748. It is true that the bond merely recites that a judgment “for costs” was rendered against appellant without setting out the judgment in full; but, legally speaking, the recitation in the bond is correct, and as a means of identification, looking to the whole proceedings, the bond is sufficient. Nelson v. Hart, 23 S. W. 832 (writ of error denied by the Supreme Court, 24 S. W. xvi).

The judgment of the trial court is reversed and remanded for a trial de novo.
      <$m»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    NERIO v. CHRISTEN et al.
    (No. 5741.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1916.)
    1. Evidence &wkey;273(4) — Adveese Holding-Admissibility.
    A statement made by the possessor of land-that his possession was held in subordination to the real title is admissible on the issue of whether or not the possession was adverse.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 1115, 1116; 'Dec. Dig. &wkey;273(4).]
    2. Evidence <&wkey;313 — Adveese Holding — Weight.
    An admission by the possessor of land that his possession was held in subordination to the real title, if made during the period relied upon, should be given conclusive effect, but, if subse-quest to such period, is to be considered with other evidence in determining whether the possession was adverse.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1166, 1167; Dec. Dig. &wkey;313.]
    3. Advebse Possession <&wkey;115(5) — Nature of Claim — Question of Pact.
    Where title to land is claimed by adverse possession, the nature of possessor’s claim as an adverse holder, is a question of fact.
    [Ed. Note. — Por other eases, see Adverse Pos-, session, Cent. Dig. §§ 314, 696, 697, 699, 700; Dec. Dig. <j&wkey;115(5)J
    4. Appeal and Ebbob <&wkey;1010(l) — Review— Findings.
    Where title to land is claimed by adverse possession, and there is no evidence other than the mere fact of possession, and an admission to the effect that the possession was in subordination to the claim of the owner, a finding that the possession was not adverse must be upheld on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec! Dig. &wkey; 1010(1).]
    5. Adverse Possession <&wkey;85(3) — Evidence— Sufficiency.
    Under Rev. St. 1911, art. 5681, defining “adverse possession” as an actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another, in an action to recover land, evidence of the character of plaintiff’s possession of the land, which, in the absence of other evidence, would support a finding that it was adverse, coupled with plaintiff’s testimony that he went on the land intending to pay rent for it to any one who proved himself to be the real owner and the first time he intended to claim was “this year,” held to support a finding that his possession was not adverse.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 503, 688-690; Dec. Dig. <®=»S5(3).
    For other definition, see Words and Phrases, First and Second Series, Adverse Possession.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Suit by Susano Nerio against D. J. Christen and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Greer & Hamilton, of Laredo, for appellant. Mann & Henry, of Laredo, for appellees.
   MOURSUND, J.

Susano Nerio sued L. J. Christen, Albert Urbahn, John H. Davis, Mrs. L. J. Hamilton, and Frederico Ayala on October 15, 1915, seeking to recover a small tract of land within the limits of the city of Laredo, pleading specially title by limitation under the statute of limitations of 10 years. Defendants answered by general denial and plea of not guilty. The trial without a jury resulted in a judgment in favor of defendants.

Appellant contends the judgment is contrary to the evidence, in that the evidence disclosed that plaintiff had been in actual, open, peaceable, and adverse possession' of the premises described in his petition for more than 15 years, cultivating, using, and claiming the same as his own.

It appears that plaintiff inclosed the land in controversy and used it for a long period of time, 20 years or more, but upon demand being made by defendant Ayala for possession thereof he surrendered possession, removed his fence, and delivered to Ayala a part of the crop as rent. Upon being asked upon cross-examination when was the first time he decided to claim the land, he replied: “This year.” The court interrogated him at considerable length in regard to his claim. It is unnecessary to state the questions and answers, and would unnecessarily prolong the opinion. Suffice it to say that he stated he went upon the land thinking that if any one should ’ claim it he would pay rent for it; that he had such intention as long as it might take for the real owner to appear; ■ that he had made up his mind to pay the rent provided he proved he was the real owner. He repeated the statement that the year of the trial was when he first claimed to own the land.

In order to acquire title by virtue of article 5675, R. S. 1911, the possession must be adverse for a period of 10 years, and article 5681 defines adverse possession as:

“An actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”

- “The character of possession which is necessary to sustain the statute of limitation for either of the three periods is expressed in [Rev. St,. 1895] articles 3340, 3342, and 3343 to be ‘peaceable and adverse possession.’ To constitute adverse possession it must be taken and held with the intention to claim the land so occupied. Schleicher v. Gatlin, 85 Tex. 270 [20 S. W. 120]; 1 Am. & Eng. Bncy. Law, p. 791, and authorities in the note; Caufield v. Clark [17 Or. 473, 21 Pac. 443] 11 Am. St. Rep. 845; Winn v. Abeles, 35 Kan. 85 [10 Pac. 443, 57 Am. Rep. 138].” Holland v. Nance, 102 Tex. 183, 114 S. W. 346.
“Possession, with the'exercise of such rights as pertain to an owner alone, must be deemed sufficient evidence of adverse claim, in the absence of some evidence indicating that it is held in subordination to the title of the * * owner.” Craig v. Cartwright, 65 Tex. 424.
“In order for possession to be adverse to the true owner it ‘must be of such a character as to indicate unmistakably an assertion of claim of exclusive ownership in the occupant.’ ” Bender v. Brooks, 103 Tex. 334, 127 S. W. 168, Ann. Cas. 1913A, 559.

In the instant case the character of possession was such as would, in the absence of other evidence, support a finding that it was adverse, but there is other evidence which conclusively destroys the inference that the possession was adverse. Plaintiff’s own testimony shows that he held the land in subordination to the real title. Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24; Texas Western Ry. Co. v. Wilson, 83 Tex. 157, 18 S. W. 325; Whitaker v. Thayer, 38 Tex. Civ. App. 537, 86 S. W. 364; Id., 58 Tex. Civ. App. 282, 123 S. W. 1137; Rushing v. Lanier, 132 S. W. 528.

Appellant relies upon the cases of Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104, Cattle Company v. Barnhart, 147 S. W. 662, and L. & T. Lumber Co. v. Stewart, 148 S. W. 1193, wherein it is held that admissions made after title has been acquired by limitation cannot affect such title. A statement by the possessor to the effect that his possession was held in subordination to the real title is admissible in evidence upon the issue whether the possession was adverse. If such admission is made during the period relied upon to establish the limitation title, it has been suggested it should be given conclusive effect. If made subsequent to such period, it is to be considered with other evidence in determining whether the possession was adverse. Whitaker v. Thayer, supra; Hunter v. Malone, 108 S. W. 709; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 509. The nature of the possessor’s claim is a fact inquiry, and when a jury or the court has found upon sufficient evidence that the claim of right existed coincident with the possession for the statutory period, such finding establishes that the subsequent admission has been considered and discarded as untrue. When there is no evidence other than the mere fact of possession and an admission to the effect that the possession was in subordination to the claim of the owner, though made after the period of time relied upon, a finding by a court or jury that the possession was not adverse would have to be upheld by the appellate courts, and when the admission is made by the possessor upon the witness stand in the very case in which he assumes the burden of showing adverse possession, it should be received as much more conclusive than when made under other circumstances.

In the ease of the Texas Western Ry. Co. v. Wilson, hereinbefore cited, one of the directors furnished the only evidence bearing immediately upon the question whether the possession was under a claim of right. He said:

“We went on the land and have never paid for the right of way. We expected and intended to pay for it when called upon at any time by the owner.”

It was held that no claim of right in the railway company independent of and antagonistic to the owner was shown. There can be no doubt that, when the possessor testified as did appellant in this case, the court is justified in finding that his possession was not adverse. In fact, we do not see how the court could have decided otherwise.

The judgment is affirmed.
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author: PRENDERGAST, P. J. PRENDERGAST, P. J. DAVIDSON, J.

text:
    WILSON v. STATE.
    (No. 4154.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.
    On Motion for Rehearing, Nov. 1, 1916.
    Dissenting Opinion, Dec. 13, 1916.)
    1. Gaming &wkey;j85(l) — Indictment and INFORMATION — Sufficiency.
    In an indictment under Pen. Code 1011, art. 557, providing that, “If any person shall bet or wager at * * * the game of matching money or coins of any denomination for such coins, or for other things of value * * * he shall be fined not less than ten * * * nor more than fifty dollars,” a count charging that accused “did unlawfully bet and wager at a game of matching money and coins for such money and coins and other things of value” was sufficient.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 220-223; Dec. Dig. &wkey;85(l).]
    2. Gaming <&wkey;85(l) — Indictment and Information — Sufficiency.
    In an indictment under Pen. Code 1011, art 557, providing that, “If any person shall bet or wager at * * * the game of matching money or coins of any denomination for such coins, or for other things of value * * * he shall be fined not less than ten * * * nor more than fifty dollars,” a count charging that accused “did then and there unlawfully bet and wager at a game of matching coins for other things of value, to wit, cold drinks,” was sufficient.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 220-223; Dec. Dig. &wkey;85(l).]
    3. Indictment and Information <&wkey;132(4)— Election Between Counts — Misdemean- or.
    Where several counts in an indictment charge different phases of the same transaction under the same statute, no election between counts can be required where misdemeanors only are charged.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 430-443, 445; Dec. Dig. &wkey;>132(4).]
    4. Indictment and Information i&wkey;125(20) —Joinder of Counts — Same Offense-Statute-
    Under Code Cr. Proc. 1011, art. 481, providing that an indictment or information may contain as many counts charging the same offense as may be deemed necessary, where several ways are set forth in the same statute by which an offense may be committed, and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and may be charged conjunc-tively in the same count.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 351; Dec. Dig. &wkey;125(20)J
    5. Criminal Law ¡&wkey;827 — Trial—Instructions.
    It is essential even in a felony case to give a reason or statement why a requested charge should be given.
    [Ed. Note. — For. other cases, see Criminal Law, Cent. Dig. § 2006; Dec. Dig. <&wkey;>827.]
    6. Criminal Law <&wkey;lO0O(14), 1091(0) — Appeal and Error — Reservation in Lower Court of Grounds fob Review — Exceptions.
    Under Code Cr. Proc. 1011, arts. 737 and 743, as amended by Act April 5, 1013 (Acts 33d Leg. c. 138), providing (737) that either party may present written instructions, which the court must refuse, give, or modify in writing, and (743) that judgment shall not be reversed for failure to comply with preceding sections unless shown to be prejudicial, in misdemeanor cases, the only way the appellate court is authorized to consider complaints of the charge of the court and the refusal of special charges requested is by bill of exceptions taken at the time giving the specific reasons why the court erred in giving the charge complained of, or in refusing the requested charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2818, 2831, 2043, 3204; Dec. Dig. &wkey;lO0O(14), 1001(0).]
    7. Jury <&wkey;116 — Competency of Jurors— Service in Other Case.
    In a prosecution for betting and wagering at a game of matching coins for things of value, where seven of a panel of fourteen jurors answered that while they had sat as jurors in other similar cases and had an opinion they could disregard the opinion and try the case on the facts and evidence adduced, the action of the court in overruling a challenge of the whole panel was not error, especially where the bill of exception shows that no one of the seven sat in the case.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 542, 543; Dec. Dig. &wkey;116.]
    S. Criminal Law <&wkey;680(l) — 1Trial—• Order of Proof.
    In a prosecution for betting and wagering at a game of matching coins for cold drinks, it was not necessary for the state to first prove the kind of a drink drunk on the occasion before introducing evidence as to the value of the drinks.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1600, 1613; Dec. Dig. <S=> 680(1).]
    On Motion for Rehearing.
    9. Gaming <&wkey;98(2) — Evidence—Sufficiency.
    In a. prosecution for betting and wagering at the game of matching coins for things oí value, uncontradicted evidence offered by state held to sustain a verdict of guilty.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. § 292; Dec. Dig. &wkey;98(2).]
    Davidson, J.,- dissenting.
    Appeal from Fisher County Court; M, A. Hopson, Judge.
    Pat Wilson was convicted of a petty misdemeanor, and he appeals.
    Affirmed.
    D. H. McCrea, of Roby, and Joe C. Ran-del, of Hamlin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of a petty misdemeanor and assessed the lowest fine, $ 10.

Among other offenses, article 557, P. O., enacts:

“If any person shall bet or wager at * * * the game of matching money or coins of any denomination for such coins, or for other things of value * * * he shall be fined not less than ten * * * nor more than fifty dollars.”

The indictment is in four counts. The charging part in each is that said Wilson on or about January 30, 1916, in said county:

. Then in the first: “Did unlawfully bet and 'wager at a game of matching money and coins for such money and coins and other things of value.”

In the second: He “did then and there unlawfully bet and wager at the game of matching money.”

In the third: He “did then and there unlawfully bet and wager at a game of matching coins for such coins.”

in the fourth: He “did then and there unlawfully bet and wager at a game of matching coins for other things of value, to wit, cold drinks.”

We think counts 1 and 4 are undoubtedly good.

The court eliminated the second and third by giving appellant’s charge instructing the Jury to consider neither in making up their verdict. Clearly the two remaining counts charged different phases of the same transaction under- the same statute. This is always not only proper, and expressly provided for by statute (article 481, C. C. P.), but commendable as good criminal pleading, as this court has often said, in pleadings in both felony and misdemeanor (White, Ann. C. C. P. § 403). And where the pleading is as stated, no election between counts can be required in an indictment charging misdemeanors only. White, Id., subd. 4; 1 Branch, Ann. P. C. p. 233, at the bottom of the page. Both Judge White and Mr. Branch cite many decisions of this court so holding. Judge White, in sections 405 and 383 in bis Ann. C. C. P. says:

“Where several ways are set forth in the same statute by which an offense may be committed and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses and they may be charged conjunctively in the same count”— citing a large number of cases of this court and of the Supreme Court when it had criminal jurisdiction.

This is unquestionably the law in this state. Cabiness v. State, 66 Tex. Cr. 415, 146 S. W. 934. So that the pleader in this instance could have charged all these matters in one count only, and that he charged them in separate counts makes no difference.

Appellant filed with the judge several grounds of -objections to his charge. He also requested some 11 special charges, all of which were refused, except the one to disregard the second and third counts above' mentioned, which was given. In neither requested charge, nor in any way connected therewith, did he give any reason or statement why it should be given. This is essential in even a felony case. Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 878, and many other cases. Nor did he except or take any bill of exception to the judge’s refusal to give his charges, or any of them. Neither did he take any bill of exceptions to the judge’s charge, or any portion thereof, nor to the court’s failure or refusal, if he did, to modify his charge to meet his objections. All such matter are necessary to be shown now by bills of exceptions; otherwise .they! cannot be considered by this court in either' felony or misdemeanor cases.

It is the well-settled law .of this state, , and has been so since the establishment of this court:

“That in misdemeanor cases the only way this court is authorized to consider complaints of the charge of the court and the refusal of
special charges requested is by bill of exceptions taken at the time to the charge of the court in the matters attempted to be complained of, and to the refusal of the court to give the special charges requested, giving in the bill therefor the specific reasons why the court erred in giving the charge complained of, or, as the case may be, in refusing the requested charge.” Basquez v. State, 56 Tex. Cr. R. 329, 119 S. W. 861; Brunk v. State, 60 Tex. Cr. R. 264, 131 S. W. 1125; Hobbs v. State, 7 Tex. App. 117; Campbell v. State, 3 Tex. App. 33; Goode v. State, 2 Tex. App. 520; Dunbar v. State, 34 Tex. Cr. R. 596, 31 S. W. 401; Downey v. State, 33 Tex. Cr. R. 380, 26 S. W. 627; Cole v. State, 28 Tex. App. 536, 13 S. W. 859, 19 Am. St. Rep. 856; Loyd v. State, 19 Tex. App. 321; Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Martin v. State, 32 Tex. Cr. R. 441, 24 S. W. 512; Wright v. State, 60 Tex. Cr. R. 385, 131 S. W. 1070; Jenkins v. State, 60 Tex. Cr. R. 465, 132 S. W. 133; Brown v. State, 73 Tex. Cr. R. 574, 166 S. W. 508.

It Is useless to cite the large number of recent cases to the same effect This was so before articles 737 and 743, C. O. P., of the revision of 1911, were amended by Act April 5, 1913, p. 278. As amended by this act, this proposition is in effect emphasized. So that none of appellant’s special refused charges nor his preliminary objections to the court’s charge can -be considered. However, we might say we have examined all of his objections and special charges, and if we could consider them, the court’s action would present no error.

The court gave a full and correct charge properly submitting every issue raised by the evidence under the indictment.

The positive, uncontradicted testimony by the state clearly established appellant’s guilt. He did not testify himself, nor did he introduce any testimony.

Appellant has only two bills of exception in the record. The first, as qualified by the- court, is to the effect that 14 jurors constituted the panel. That in examining all of them, seven naming them, answered in substance, that while they had sat as Jurors in two other eases against another person, not appellant, on a charge similar to the charge in this case, the indictments being the same except against another party and at a different date, they had an opinion as to the character of verdict they should and would render in this ease, on similar facts, yet they could disregard any opinion that they had, and would try this case on the facts and evidence adduced on the trial of this case, and the law submitted them by the court. He thereupon challenged the whole panel. The court overruled his challenge. The bill further shows that not .a single one of the seven who had so answered sat on this case. There was no error in the court’s ruling. Edgar v. State, 59 Tex. Cr. R. 255, 127 S. W. 1053; Engman v. State, 180 S. W. 235; 1 Branch, Ann P. C. p. 279.

His other bill presents no error. It shows that the state ashed a witness: “What did they pay, how much a glass?” He answered: “Mr. Harris don’t sell anything. but five-cent drinks.” His objection, in substance, was that the state would have to first prove the kind of drink drunk on that occasion.

The judgment is affirmed.

DAVIDSON, J. I cannot agree to this affirmance and may write later.

On Motion for Rehearing

PRENDERGAST, P. J.

Appellant presents but two grounds in his motion for rehearing. In the first he urges that the evidence was insufficient to sustain the verdict. We will here give all of the testimony. It was introduced by the state only. Appellant neither himself testified, nor did he offer any testimony.

Hubb Parker testified:

Direct:
“I live at McCaulley, Fisher county, Tex. I saw Pat Wilson on or about the 30th day of January, 1916, at Harris’ drug store; also I saw Arthur McHone about that time. The boys were matching money for the cold drinks. Pat and others walked in Harris’ drink stand and matched for the drinks. I never saw them who paid for the drinks. I never saw them pay for them at all, but the drinks were set out to them.”
Cross:
“I don’t know what the drinks were that were set out, and I never saw them take any drinks, and I don’t know what they drank if they drank at all. And I don’t know who paid for it; don’t know whether it was paid for or not. All I know is that I saw the boys walk in and put the coins on the table or desk, but I did not see whether it was money or coins or what it was.”
Arthur McHone testified:
Direct:
“I know Pat Wilson, and I was in Harris’ drug store about the 30th day of January, 1916. I matched money with Pat Wilson for the drinks in Harris’ drug store on or about that time. I do not remember which one of us boys got stung, and I do not remember what we drank on that occasion, but we got the drinks. I do not know who paid for the drinks; I suppose the one that got stung paid for them as that is the rule. Mr. Harris don’t sell anything but five-cent drinks, and it is a rule that whoever got stung paid for the drinks, but I don’t remember whether that is the way that we did at that time.”
Cross:
“I don’t know whether I matched coins in the Harris drug store with Pat Wilson on or about the 22d of February, as well as on the 13th of January. I don’t know who I matched with on the 22d of February, as I don’t keep any dates, and I don’t know what date I matched with Pat Wilson. Don’t know whether it was the 30th of January or the 22d of February. It might have been both times.”
Redirect:
“I know that I did match with him on or about the 30th of January.”
Recross:
“Ves; it might have been about the 22d of February.”
Redirect:
“Ves; it was right about January the 30th.”
Carl Ellis testified:
Direct:
“I saw Pat Wilson at Harris’ drug store about the 30th of January, but I would not swear to that, for I was out of town part of that month, and I do not know whether it was along about that time; it may have been after that time. I started to moving about the 5th of January and moved all through the month. I don’t know that I saw Pat WUson matching coins at the drug store about that time, but I have seen him matching there, and I would not swear to whether it was money or coins that he was matching for I don’t know. They just matched to see who would pay for the drinks. It was customary for the one that got stung to pay for the drinks, but I do not know whether Pat got stung or not, and I do not know whether Arthur McHone got stung or not, and I do not know which one paid for the drinks. It is customary everywhere like it is here, and every other place in Texas, for the man that gets stung to pay for the drinks. I know it is custom here in Roby, because I have seen them matching.”

We think this testimony was not only sufficient to sustain the verdict, but that from it no other verdict by an honest jury could have been rendered than finding appellant guilty.

The other question he urges is shown by his bill of exceptions passed upon in the last paragraph of the original opinion. It was correctly decided therein. There is no necessity of further stating or discussing it.

The motion is overruled.

DAVIDSON, J.

(dissenting). I believe this case and causes No. 4155, Silas Glasscock v. State, 189 S. W. 1076, and No. 4156, Carl Ellis v. State, 189 S. W. 1074, companion cases, involving the same questions practically, all from the same county, should have been reversed. The majority opinion sets out the four counts in the indictment. It is unnecessary to repeat them. The trial court affirmatively withdrew and instructed the jury not to consider the second and third counts. The first count charged that appellant matched money and coins for money and coins “and other things of value.” The fourth count gave a definition of “the things of value” and called them “cold drinks.” That the first count was insufficient in not alleging what “the other things of value” were is recognized by the pleader in charging what “the things of value” were in the fourth count. It seems to be a sort of universal rule that the particular thing constituting the offense must be charged, if known, and, if not known, that fact must be properly pleaded in the indictment. This was done in the fourth count, not in the first; therefore the first count was not sufficient as to that phase in the judgment of the writer of the pleading. I am persuaded he was correct in setting out what constituted “the things of value” in the fourth count. The court submitted only the first count. The opinion of the majority proceeds upon the theory that as many counts may he inserted in the indictment as are necessary to meet the environments of the case and the facts. That was done in this case. But that idea does not relieve the court of the duty of charging the law. The court can elect whether the state doesl or not, and here the court did elect. This selection confined the case to the first count. It is as well settled as a rule can be that the selection of a count in the indictment by the court in his charge to the jury and limiting the jury in their consideration to that count, is an election by the state. Parks v. State, 29 Tex. App. 597, 16 S. W. 532. See Branch’s Crim. Law, § 300, for collation of cases. The rule laid down in the Parks Case was this: Where there are several counts in an indictment, and the charge of the court limits the jury in their finding to one count only, it is tantamount to an election by the state to rely upon that count alone, and a verdict in such case finding the defendant guilty will be held to have reference toi the count submitted to the jury. That case has been followed, so far as the writer is aware, in all subsequent decisions. Whatever may be the rule in regard to requiring the state to elect, it is subordinated here to the fact that the election was made and the jury limited in their finding to the count submitted. The jury could not have convicted under the other counts. The jury can only convict on counts submitted, and not on counts unsubmitted. A conviction or acquittal thus obtained bars further prosecution on the unsubmitted counts. Branch’s Crim. Law, § 396; Parks v. State, 46 Tex. Cr. R. 105, 79 S. W. 301; Tracy v. State, 49 Tex. Cr. R. 38, 90 S. W. 308; McKay v. State, 49 Tex. Cr. R. 118, 90 S. W. 653; Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742; Jessup v. State, 44 Tex. Cr. R. 83, 68 S. W. 988; Stephens v. State, 36 Tex. Cr. R. 386, 37 S. W. 425.

The evidence is conclusive that the defendant did not match money for money or coins for coins. The second and third counts, which the court expressly withdrew, charged, in substance, that the defendant matched money for money or coins for coins. The fourth count was not submitted by the court, and therefore withdrawn. It specifically defines what “the thing of value” was for which the matching or wager occurred, to wit, “cold drinks.” There was no evidence to support the court’s charge in submitting the matching of coins for coins or money for money. Every witness swore in regard to it that the matching between defendant and another was for drinks at Harris’ drug store. The drink was Coca-Cola. This was not submitted to the jury by the court; therefore •could not be the basis of conviction-. The evidence does not support the finding of the jury under the first count. There was no matching or betting of money for money or coins for coins. When the court withdrew the second and third counts he eliminated the first, because they were all substantially the same in law. But this would be true even if the other two counts had not been withdrawn, because the evidence not only fails to prove the first count, but emphatically disproves it as well as the second and third counts.

I do not care to elaborate further. I cannot agree to the affirmance of the case, because unwarranted by the allegations in the pleadings and disproved by the facts. This applies as well to the cases of Silas Glasscock v. State and Carl Ellis v. State, supra.
      <Sz=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    ELLIS v. STATE.
    (No. 4156.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Criminal Law &wkey;763, 764(1) — Gaming— Instruction — Weight of Evidence.
    In a prosecution for making bets or wagers, a charge that matching money or coin for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is'a bet or wager, provided said thing or things for which the matching is done is a thing of value, was not erroneous as on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1731, 1737, 1742, 1743, 1746; Dec. Dig. &wkey;763, 764(1).]
    2. Gaming <&wkey;71 — Wager—Definition.
    Matching money or coins for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is a bet or wager, provided said thing or things for which the matching is done is a thing of value.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 166, 167; Dec. Dig. <&wkey;>71.]
    3. Criminal Law &wkey;>810 — “Bet”—“Wager” —Criminal Prosecution — Trial—Instruction.
    ' In a prosecution for making bets or wagers, a charge that matching money or coins for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is a “bet” or “wager,” provided said thing or things for which the matching is done is a thing of value, was not in conflict with a charge that a “bet” or “wager” is the mutual agreement and tender of a1 gift of something of value, which is to belong to the one or the other of the contracting parties, according to the result of the trial of chance or skill, or both combined, and such agreement may be made by words, by words and acts, or by acts without words, but is merely supplementary thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1968; Dec. Dig. <S=810.
    For other definitions, see Words and Phrases, First and Second Series, Bet; Wager.]
    4. Criminal Law <&wkey;>1038(3), 1056(1) — Appeal and Error — Instruction in Misdemeanor Cases.
    In a misdemeanor case, unless exceptions are reserved to given charges and other charges requested and exceptions reserved' to refusal to give requested charges, at the time of trial, the appellate court will not be authorized to review such charges, and in the absence of such exceptions an erroneous charge will not be ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2646, 2668, 2670; Dee. Dig. &wkey;1038(3), 1036(1).]
    5. Gaming <&wkey;98(2) — Criminal Pbosecution —Evidence—Sufficiency.
    In a prosecution for unlawfully betting and wagering at a game of matching coins for things of value, evidence held to support a verdict of guilty.
    [E'd. Note. — For other cases, see Gaming, Cent. Dig. § 292; Dec. Dig. &wkey;>98(2).]
    Davidson, J., dissenting.
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    Carl Ellis was convicted of unlawfully betting and wagering, and he appeals.
    Affirmed.
    L. H. McCrea, of Roby, and J. C. Randel, of Hamlin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an indictment, omitting formal parts, reading as follows:

“Carl Ellis on or about the 22d day of February, 1916, in the county of Fisher and state of Texas, did then and there unlawfully bet and wager at a game of matching money and coins for such money and coins and for other things of value.”
“And further present upon their oath that on or about the 22d day of February, 1916, and anterior to the presentment of this indictment in the county of Fisher, state of Texas, Carl Ellis did then and there unlawfully bet and wager at a game of matching coins for other things of value, to wit, cold drinks.”

We have omitted the second and third counts in the indictment, as the court specifically withdrew them from the jury, and have only copied the first and fourth counts. The court in his charge only submitted the first count in the indictment, the charge reading:

“You are instructed that, if any person shall bet or wager at the game of matching money or coins of anjr denomination for such coins, or for other things of value, he shall be fined in any sum not less than $10 nor more than $50.
“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, in the county of Fisher and state of Texas, on or about the 22d day of February, 1916, did bet and wager at the game of matching money or coins for such coins or other things of value, as charged, you will find him guilty and assess his punishment at a, fine in any sum not less than $10 nor more than $50.
“You are instructed that a bet or wager is the mutual agreement and tender of a gift of something of value, which is to belong to the one or the other of the contracting parties, according- to the result of the trial of chance or skill, or both combined, and such agreement may be made by words, by words and acts, or by acts without words.
“In a criminal case the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt, and if you have such doubt you will acquit the defendant.
“You are the exclusive judges of the facts proved, and of the credibility of the. witnesses and of the weight to be given their testimony, but you are to receive the law as given you in this charge and be governed thereby.”

The jury found appellant guilty and assessed his fine at $15.

There is hut one bill of exceptions in the record, and it reads:

“Comes now the defendant and objects to the special charge requested by the state’s counsel No. 1 for the reasons:
“That said charge is upon the weight of the evidence.
“That said charge does not correspond with the 1st count or any other count in the indictment, as the allegation is, and the statute, ‘things of value,’ and said charge is not under said law or statute and allegations in accordance therewith.
“That same is in conflict with the- court’s main charge wherein the court defines what a bet or wager is.
“That same is not a correct definition of a bet or wager.”

The special charge to which these exceptions were reserved reads as follows:

“You are further charged herein that matching money or coins for the purpose of determining which of the persons so matching said money or coins shall pay for the thing or things for which they may match is a bet or wager, provided said thing or things for which the matching is done is a thing of value.”

This charge is not upon the weight to be given the testimony, and corresponds with the first count in the indictment. It is a correct definition of a bet and wager. Stearnes v. State, 21 Tex. 692, Long v. State, 22 Tex. App. 195, 2 S. W. 541, 58 Am. Rep. 633; and cases cited under section 1197, Branch’s Ann. Penal Code. By reading the above special charge and the charge of the court herein copied it is manifest that the special charge is not in conflict with the court’s main charge, but is merely supplementary thereto.

In addition to this bill of exceptions, in the motion for a new trial appellant assigns many other grounds, but these are not presented in a way authorizing us to review them. In Hobbs v. State, 7 Tex. App. 118, Judge White takes up the various provisions of the procedure governing misdemeanor trials, and there announces the rules that have since been adhered to by this court, and that is, if a charge is given, it must be excepted to at the time of the trial, and special charge requested, and if the special charge is refused, an exception must be reserved to the action of the court in refusing to give such charge before we would be authorized to review the charge in a misdemeanor case; that if such exceptions are not reserved, even an erroneous charge will be no ground for reversal in misdemeanor cases. In that case he says the charge is erroneous, but, no proper exceptions being reserved, the judgment was affirmed. A few of the earlier cases approving this rule may be cited. Sewell v. State, 15 Tex. App. 56; Lloyd v. State, 19 Tex. App. 321; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Garner v. State, 28 Tex. App. 561, 13 S. W. 1004; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Anderson v. State, 34 Tex. Cr. R. 96, 29 S. W. 384; Dunbar v. State, 34 Tex. Cr. R. 596, 31 S. W. 401. Later cases are referred to in the companion case of Pat Wilson v. State, 189 S. W. 1071, in which the opinion was rendered last week. In this case W. H. Parker testified, in substance:

“I saw Carl Ellis, appellant, matching money in Mr. Harris’ drug store; he drank coco-cola that sells for five cents a glass. . Carl Ellis was matching with Silas Glasscock. I knew it was money by the ring. Carl drank one and Silas Glasscock drank one. Carl Ellis got stuck and got some money out with which to pay for the drinks.”

This evidence would support the verdict, and the charge as given fairly presented the law.

The judgment is affirmed.

DAVIDSON, J., dissents. See Pat Wilson v. State, recently decided.
      t&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ELLIS v. STATE.
    (No. 4157.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    Carl Ellis was convicted of crime, and he appeals.
    Affirmed.
    L. H. McCrea, of Roby, and Joe Randel, of Hamlin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a companion case to that of Pat Wilson v. State, 189 S. W. 1071, this day decided in an opinion by Judge Prend-ergast, the fine assessed in this case being $10. Every question presented in this case is correctly disposed of in the opinion in the Pat Wilson Case, and the judgment is therefore affirmed. •


author: PRENDERGAST, P. J.

text:
    GLASSCOCK v. STATE.
    (No. 4155.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.
    Rehearing Denied Nov. 1, 1916.)
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    Silas Glasscock was convicted of crime, and he appeals.
    Judgment affirmed.
    L. H. McCrea, of Roby, and Joe C. Randel, of Hamlin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is a companion case with that of No. 4154 against Pat Wilson (189 S. W. 1071), this day decided, and also with two cases, 4156, and 4157, against Carl Ellis (189 S. W. 1074, 1076). There is no distinguishing' feature between this and said Wilson Case. The opinion in the Wilson Case decides all questions in this, and is applicable thereto.

The judgment is affirmed.

DAVIDSON, J., dissents. See Pat Wilson v. State, this day decided.


author: DAVIDSON, J.

text:
    ARCE v. STATE.
    (No. 4297.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.)
    Homicide &wkey;>257(l) — Assault with Intent to Kill — Sufficiency of Evidence.
    Evidence held to sustain a conviction of assault to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543, 544, 552; Dee. Dig. &wkey; 257(1).]
    Appeal from District Court, Webb County; J. F. Mullalley, Judge.
    Macario Arce was convicted of assault to murder, and be appeals.
    Affirmed.
    George & Townes, of Laredo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of assault to murder, bis punishment being assessed at five years’ confinement in the penitentiary.

This case is reduced by the record to the question of sufficiency of the evidence to warrant the conviction. It is a case of circumstantial evidence, and, while it is not as clear and strong as some cases of this character, yet we are of opinion that the facts, taken together, are sufficient to sustain the verdict of the jury. Appellant was at the place of the difficulty where the assaulted party was seriously cut with a knife. His brother-in-law, who was drunk, was engaged in a brawl with the alleged injured party. This resulted in a bout between them, and while they were struggling, or fighting, quite a number of Mexicans came upon the scene and proceeded to assault the injured party. Among others, the defendant and his wife came rushing from their residence, which was near by, in a state of deshabille, appellant being in his nightclothes and barefooted, and his wife had not taken time to enrobe herself fully. They went upon the scene, and in the melée the assaulted party was badly cut. Looking around when he felt the shock or force of the blow, he discovered appellant and appellant’s wife standing close by on his left. They immediately turned away, and the officers arrested them and started to police headquarters. The defendant asked the officers to let him go by home and put on his clothes. They took him there, and just as they were going through or near the gate appellant dropped something. The officers returned to this place and found a knife. There are other circumstances going to show that he was so connected with the matter that the jury was justified in concluding that appellant was guilty. Some of the policemen of the city seem to have been Mexicans; they came upon the scene and began beating the wounded soldier over the head with their clubs, one or more of them, and finally arrested and took him to police headquarters, from which point lie was carried to a hospital and had an operation performed. These Mexicans set upon this soldier, until he was relieved by different means and methods, and some one of them in the mSlee cut him, and the evidence points with some degree of cogency to appellant as the party who did the stabbing or cutting. He denied having the knife, as the balance seemed to have done, but somebody cut him, and appellant and his wife, from the state’s side, were the two parties in position to have done it. They were on the left of the injured party, the wounds being on the left. The others were on his right. There was a serious wound in his side several inches long, entering the cavity sufficiently deep for the fat, as the doctor called it, to be protruding four or five inches at the time the doctor reached him.

Believing there is no sufficient reason why the judgment should be reversed, it is affirmed.

HARPER, J., absent.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes