text:
    HOVEY et al. v. KIRBY.
    (No. 5685.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1916.
    Rehearing Denied Nov. 29, 1916.)
    Carriers c&wkey;228(3) — Injury to Cattle — Evidence.
    In action against railroad for injuring cattle shipped, to be placed on1 pasture in ranches near the point of destination, it was permissible for a witness to testify as to their market value in that section of the country, where he also testified that their market value would be the same all over that section, which included the point of destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. <&wkey;>228(3).J
    Appeal from District Court, Crockett. County; J. W. Timmins, Judge.
    Action by J. C. Kirby against S. B. Hovey and others. From a judgment for plaintiff, defendant Texas & Pacific Railway Company appeals.
    Affirmed.
    H. S. Garrett and C. E. Mays, Jr., both of San Angelo, for appellant. N. W. Graham and C. E. Davidson, both of Ozona, and Blanks, Collins & Jackson, of San Angelo, for appellee.
   RICE, J.

In May, 1914, appellee brought this suit in the justice’s court against the Texas & Pacific Railway Company, the St. Louis Southwestern Railway Company of Texas, and S. B. Hovey and M. L. Mertz, receivers of the Kansas City, Mexico & Orient Railway Company of Texas, for the recovery of damages to a shipment of 141 head of stock cattle from Winona, Tex., to Barnhart, Tex., on the ground that the cattle were delayed and roughly handled in transit. Appellants answered by a general demurrer and a general denial, and specially that if appel-lee’s cattle were damaged, the same resulted by reason of his negligence in overloading the cars; that the cattle were thin and poor and not in condition to be shipped, and if •any damages occurred, same were occasioned by the inherent vice of said stock. Trial in the justice’s court resulted in a judgment in favor of appellee against all' of the defendants, from which an appeal was prosecuted to the district court of said county; the civil jurisdiction of the county court having been given to tnat court. In the latter court the case was tried by the court without a jury, and a judgment was rendered against the Texas & Pacific 'Railway Company, but in favor of the other two defendants, from which this appeal is prosecuted alone by it.

The two first assignments complain of the action of the court in permitting the plaintiff and his witness Montgomery to testify as to the market value of the cattle in question at Barnhart, over appellant’s objection, on the ground that it was not shown that said witnesses were acquainted with the market value of the cattle at said place. The evidence, briefly stated, shows that the cattle were roughly handled between Ft. Worth and Baird on the Texas & Pacific, the cars in which they were shipped being close to the engine, and in switching them about the cattle were frequently knocked down, from which they sustained injury, resulting in the death of four of them, four being seriously injured, and the balance damaged to the extent of from $2.50 to $5 per head. At Baird, over appellee’s objection, they were unloaded in pens full of mud and water, where they bogged to their knees and were unable to get proper feed. Appellee frequently asked permission from the trainmen to get his cattle up, but these requests were denied. Appellee testified that the cattle were stock cattle, and were not shipped for market, but to be placed in pasture on his ranch near Barnhart; that he had been in the cattle business for 40 years, buying and selling cattle in that country, and had frequently shipped cattle, and was acquainted with the fair market value of cattle of that class and character there.

The witness Montgomery testified that he lived in Crockett county, and had been engaged in the cattle business all of his life, having shipped cattle ever since he could ride a train; that he had shipped cattle to market for a number of years; that he saw plaintiff’s cattle when they reached Barn-hart ; that he was acquainted with the market value of cattle at that time and place, and that they were worth, to take them all around, about $27.50 per head; that in his judgment, if the cattle were knocked down from five to seven times in the cars, and were unloaded in muddy pens, that cattle of this character would be damaged from $2.-50 to $5 per head; that the market value at Barnhart was the same as the market value for such stuff all over this country; that he had sold cattle at Mertzon, a little town up the road from Barnhart; that when he spoke of the market value of such stuff he meant the market value all over this country. While it may be true, as contended by appellants that this witness did not testify to sales at Barnhart of such cattle, yet he did testify that the market value at Barn-hart was the same as all over that section for this character of cattle. Where cattle are shipped, not for market, but for the purpose of placing on pasture in ranches near the point of destination, as in the instant case, we think it permissible for the witness to testify as to their market value in that section of the country, and Montgomery testified that their market value would be the same all over that section, which included the point of destination; and, even if it be granted that the testimony of appellee himself failed to show market value at Barn-hart, still, the evidence of Montgomery, which was not contradicted in this respect, was amply sufficient to support the judgment of the court. For which reason these assignments are overruled.

The remaining assignments have been duly considered, and are regarded without merit. Hence we overrule the same. Finding no error in the proceedings of the trial court, its judgment is, in all things, affirmed.

Affirmed.
      ^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBUR.Y, J.

license: Public Domain

text:
    McCAVICK v. McBRIDE.
    (No. 7569.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1916.)
    Limitation of Actions <&wkey;28(2) — Payment by Surety — Recovery from Princi-par.
    Where the accommodation surety, on demand of the payee, pays the note, the principal obligation is discharged, and he can recover from the principal only on the implied promise, and not on the note, and his action is barred after two years under Vernon’s Say les’ Ann. Civ. St. 1914, art. 5687, stating the two-year period of limitations in actions on debts not evidenced by written contract.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 185, 142; Dec. Dig. &wkey;= 28(2).]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Thomas McBride against P. J. MeCavick. Judgment for plaintiff, and defendant appeals..
    Reversed, and cause dismissed.
    ' Walter M. Nold, of Dallas, for appellant. Davis, Johnson, Golden & Handley, of Dallas, for appellee.
   RASBUR.Y, J.

Appellee sued appellant upon a promissory note, and upon trial before jury recovered verdict upon which judgment was awarded for the principal and interest of the note and for certain attorney’s fees therein provided for in case of suit. From such judgment this appeal is taken.

The undisputed facts and those deducible from the verdict and necessary to a disposition of the issues presented on appeal are these: On and prior to September 15, 1905, appellee and appellant resided in Waterloo, Iowa. Prior to or on said date appellee met appellant upon the streets of Waterloo, who advised appellee that he had secured a contract to construct a schoolhouse in one of the Dakotas. Appellant also explained to appel-lee that he was a stranger in Dakota and was desirous of borrowing $1,000 to deposit in the bank there as a basis of credit, etc., but that the Waterloo bank had declined to lend him that sum on his obligation alone. He requested appellee to sign a note with him, which appellee did. The note so signed by appellee is dated September 15, 1905, is in favor of the Leavitt & Johnson National Bank of Waterloo, for the principal sum of $1,000,'is payable on demand, draws 7 per cent, per annum interest, and provides for reasonable attorney’s fees in event of suit thereon. The money derived from the note was received and used by appellant, and appellee was only his surety for payment. Appellant having failed to pay the note, and the bank demanding payment, appellee on October 8, 1908, paid the bank $1,070, the amount of the principal and one year’s accrued interest. When the money was paid by appellee, the bank indorsed the note to appellee without recourse against it. Appellee’s purpose was to purchase the note, and the bank’s purpose was to transfer same to him in order that ap-pellee might occupy the position of the bank and be subrogated to its rights against appellant thereon without recourse against the bank. After so acquiring the note, appellee was unable at once to locate appellant, but finally located him in Kansas City, where appellee visited him and demanded payment of the note. It was not paid. Subsequently appellant took up his residence in Texas, and on March 7, 1911, wrote appellee a letter from Et. Worth, Tex., inclosing $500 to be applied to the note, and in substance acknowledging the justness of the debt and expressing the hope that he would be able to pay the balance owing during the current year. The balance remaining unpaid, ap-pellee on December 2, 1913, instituted the present proceeding.

The substance of the allegations of appel-lee’s petition bearing on the issues presented on appeal is that the note was executed in the manner detailed in our statement of the facts, and that he acquired same as therein stated, and is entitled to recover thereon as the owner; that the letter written by appellant on March 7, 1911, renewed the original promise as of that date, and as a consequence his right of action on the original promise as evidenced by said note would not be barred until four years from and after said date under the laws of Texas. Incidentally in the trial court the issue was made that the laws of Iowa, where the note was executed, controlled the issue of limitations, but the claim is abandoned, or at least not presented, in this court. Appellee prayed for judgment for his principal debt, interest, and attorney’s fees, and the court in presenting appellee’s case so instructed the jury, and the jury so found.

It will not be necessary to detail appellant’s pleading, since all issues raised by appellant in his brief are supported by appropriate-pleading.

Appellant’s first and only assignment of error complains of the refusal of the court indirect peremptory verdict for appellant. The action of the court in refusing so to direct verdict is assailed on the ground that it appears from the evidence without contradiction that appellee’s right of action was barred by the two-year statute of limitation, which provides, among other limitations, that actions for debt, where the indebtedness is not evidenced by a contract in writing, shall be commenced and prosecuted within two-years after the cause of action shall have accrued, and not afterward. Article 5687, Vernon’s Sayles’ Civ. Stats.

The claim is made that it appears from-the evidence that, appellee was surety for appellant, and hence, when appellee paid the note to the bank, the debt was extinguished, and appellee’s right of action was, not upon the note, but upon the implied promise arising out of the relation of the parties that appellant would reimburse appellee for the amount so paid. It does apirear from the evidence without dispute that when appellee signed the note he did so as surety for appellant, and, when the relation of principal, and surety is established, the rule stated does apply. In the past cases in our Supreme Court were in conflict on the question. Eaires v. Cockerell, 88 Tex. 437, 31 S. W. 190, 28 L. R. A. 528. And in the case cited the Supreme Court as then constituted recognized the conflict and assumed to settle the question upon authority and principle. After much research and consideration that court reached the conclusion:

“That when the creditor has no security,. * * * and the debt itself holds no lien upon property, nor is for any reason entitled to-priority over other debts of the debtor, the payment of the debt by a co-obligor or surety satisfies the original debt, and the party paying has-his right of action against the others upon the implied promise raised by law for reimbursement,” etc.

Such implied promise, since it obviously does not arise as matter of law from the contract, has its support and origin in the broad principle of equity that it would be fair and just that proportional contribution-should be had between the sureties in such cases and indemnification or reimbursement on the part of the principal. Counsel- for appellee does not deny the correctness of the rule declared by the Faires Case, but concedes it when the relation of principal' and surety is once established. But it is-asserted that it appears from the evidence without contradiction that appellee did not satisfy or extinguish the debt, but purchased the note from the bank, and thereby became in law the owner of the note and entitled to all the rights and remedies against appellant that the bank had when it acquired the note. The note was executed and afterwards acquired by appellee in the manner and for the purpose we have detailed. Hence his status, both before and after acquiring the note, is a question of law arising upon the undisputed facts. He, in fact, signed the note as surety, and the jury so found. When called upon to pay the note to the bank, he was obliged to do so, because as to the bank he was primarily liable; yet he remained as between himself and the appellant a surety. His status, as between himself and appellant as such, was fixed as matter of law when it was disclosed as matter of fact that he was an accomodation maker and entitled to reimbursement from his principal. When he paid the note he did so because as surety he was bound to do so. It is said that:

“The action by the surety against liis principal for indemnity is brought on the contract implied by law, and this is true notwithstanding the fact that a formal assignment of the claim has been made by the creditor either to the surety or to a third person. The form of the action is assumpsit for money paid or a special action, on the case; the claim for reimbursement being a purely legal one, enforceable only by action, in the absence of special circumstances.” 32 Cyc. 261.

Such was the holding in the Eaires Case when it departed from and overruled the holding in Tutt v. Thornton, 57 Tex. 35. The facts in that case are practically identical with those in the instant case, and the court there held that the payment of a note by a surety is not, as between himself and the principal, an extinguishment of the debt, and that the surety’s right of action is upon the note, and not upon the implied promise to indemnify. Thus our court of last resort, in overruling Tutt v. Thornton, supra, swept aside every obstacle to the rule regarded by it as sustainable on authority and principle that in case of joint agreements to pay a sum' of money the contract was extinguished when either joint obligor paid the money, and hence the right of action was upon the implied promise to reimburse, and not upon the note or contract which had been extinguished. Such being the rule in our court of last resort, reference to the holdings of other courts seems unnecessary, although, with one exception, all cases we have read from other jurisdictions observe the same rule. It may also be mentioned that our statutes regulating the rights and remedies of principal and surety seem to recognize the rule we have stated and provide ample protection for the surety in such cases. Appellee’s suit is upon the note, and not upon the implied promise to indemnify, since he sought and secured judgment in the court below upon the note, with interest at the rate provided therein, and for attorney’s fees, while under the rule in this state he would only have been entitled to recover what he actually paid, with legal interest therein. About the character of the suit, however, there is no issue, since .appellee concedes that it is upon the original joint obligation as revived, and maintains such was his right. As we have shown, however, the rule is otherwise, and from which it results that appellee never did have any cause of action upon the note and cannot recover thereon. It therefore becomes our duty to reverse the judgment and order the cause dismissed by the trial court.

Judgment reversed, and cause dismissed.

        tfzzzFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    MONTGOMERY v. McCASKILL.
    (No. 5729.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1916.)
    1. Exchange op Property &wkey;>8(5) — Breach 03? Contract — Damages—Measure.
    For a breach of contract to exchange realty, the measure of damages is the difference in market value between the two properties.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 18; Dec. Dig. <&wkey;8(5).]
    2. Exchange op Property <&wkey;8(3) — Breach op Contract — Damages—Measure—Plead - ING.
    A petition for breach of contract to exchange realty merely alleging that plaintiff’s four sections of land were worth $15.55 per acre, and that plaintiff was to take defendant’s realty subject to a mortgage -for $18,400, and that his equity, had defendant performed, would have been about $30,000, though aided by the answer, alleging the values to be $39,808 and $30,000, respectively, was defective in failing to show, as a basis for assessment of damages, the market values of the properties.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 1QY2; Dec. Dig. <&wkey; 8(3).]
    3. Exchange op Property <&wkey;8(5) — Breach op Contract — Damages—Measure.
    In a petition for breach of contract to exchange realty, allegations as to commissions and inability to close another trade set up no cause of action, since such matters are no part of the measure of damages.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 18; Dee. Dig. <&wkey;8(5).]
    4. Judgment &wkey;>18(3) — Suppiciency op Petition — General Demurrer.

      A. petition subject to general demurrer will not support any judgment, since a verdict, however well supported by the evidence, cannot be upheld in the absence of pleadings to form a basis for it.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 36; Dec. Dig. <&wkey;>18(3).]
    5. Pleading <&wkey;403(2) — Petition and Answer-Supplementing Petition.
    The allegations of the answer may be used to aid and supplement those of the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1344-1347; Dec. Dig. &wkey;403(2).]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by K. H. MeCaskill against John F. Montgomery. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Gordon Bullitt, of San Antonio, for appellant. John D. Hartman, of San Antonio, for appellee.
   FLY, .0. J.

This is a suit for damages arising out of the breach of a contract to exchange certain real estate, made by and between appellant and appellee. The cause was submitted to the jury on special issues, and upon the answers judgment was rendered in favor of appellee in the sum of $3,-852.

It was alleged that a contract had been entered into between appellant and appellee whereby appellee sold to appellant four sections of land in Winkler county, Tex., there being an incumbrance on the land of $5.55, an acre, and received in exchange for the same from appellant a property in San Antonio known as the Glenwood Apartments, located on four lots, together with four lots lying back of and adjoining the apartment lots, and the furniture in such apartments. It was recited in the contract that there was an incumbrance on the city property of $18,-400, which was assumed by appellee, with the exception of $1,500 which was to be paid by appellant. Appellee alleged a breach of the contract by the refusal of appellant to accept the deed tendered him by appellee, and by a refusal to execute and deliver to appel-lee a deed to said city property.

The measure of damages in this suit would be the difference in the market value of the property in Winkler county and the property in the city of San Antdnio. Sedgwick, Damages, § 1020. That is, if the market value of the four sections of land in Winkler county was of less value at the time of the breach of contract than the property in the city of San Antonio, appellee, under proper allegations, was entitled to recover the difference in values. The only attempt on the part of appellee to allege the value of the properties was:

“The plaintiff further avers that the four sections of land in AVinkler county, Tex., mentioned in above contract were valued at $15.55, and that the plaintiff was to take the Glenwood Apartments, mentioned in the above contract, subject to an incumbrance of $18,400, and that the value of plaintiff’s equity in the Glenwood Apartments, had the contract been carried out by the defendant, was about $38,000.”

It is apparent that there is no allegation of the market value of the property at any time. What was the market value of the property at the time of the breach of the contract, or at any other time? To this question the petition gives no response. The defect in the petition is practically admitted by ap-pellee, but he seeks to cover the defect through the allegations of the answer. The answer stated that the market value of the four sections of land was $39,808, and the property to be conveyed to appellee was of the value of $30,000, that is, appellee was to sell property to appellant of value in the sum of $9,808 greater than that of the property he was to receive, and consequently he actually saved that sum by a breach of-the contract, if the allegations of the answer be adopted.

The answer of the jury as to the value of the Glenwood Apartments and other city property at time of the breach had no basis in the pleadings, because appellee alleged that his equity in the property was “about $38,000” at some time not mentioned, and although the petition and answer both alleged the value of the four sections to be $39,808, the jury found that its market value was $32,000. The market value of the property was not mentioned in the petition.

The other allegations as to commissions and inability to close another trade set up no cause of action; the measure of damages in cases of this character not including such matters.

The petition was subject to a general demurrer, and consequently would not support any judgment. However much testimony there may be to support a verdict, it cannot be upheld in the absence of pleadings forming a basis for it. Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567.

There can be no doubt of the soundness of the proposition that allegations of an answer may be used to aid and supplement the allegations of a petition, but, as before stated, the allegations of the answer herein do not aid the petition, but tend rather to break it down and destroy it. The allegations of both petition and answer do not set out a case for appellee.

The judgment is reversed, and the cause remanded.
      <£=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    ANDERSON v. GAMMON.
    (No. 7741.)

    (Court of Civil Appeals of Texas. Dallas.
    Nov. 4, 1916.
    Rehearing Denied Dec. 2, 1916.)
    Appeal and Error <&wkey;680(l) — Record.
    There is nothing to consider under an assignment complaining of failure to sustain a demurrer, the record not showing the demurrer was presented to or acted on by the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2880; Dec. Dig. <&wkey;>6S0(l).]
    Error from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by J. L. Gammon against E. P. Anderson. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    E. P. Anderson, of Waxahaehie, for plaintiff in error. G. C. Groce, of Waxahaehie, for defendant in error.

      Application for writ of error pending in Supreme Court.

   RAINEY, C. J.

This suit was brought by appellee against appellant to enjoin a levy of four executions on a certain tract of land on the ground that appellee was not a party to said executions, nor in any way liable for the payment of the debt said executions were issued to collect; that the land was not subject thereto and the levy thereon cast a cloud upon the title; that said levies and attempted sale were for the purpose of annoying defendant in error, disturbing his tenants and his possession, and to prevent him from making any sale of said property by impairing the market title thereto. The levies were made for the purpose also of extorting the payment of certain money not due them by defendant in error by thus annoying him and rendering the sale of said property impossible, and that, said acts accomplished said purpose, etc. A temporary injunction was granted. The plaintiff in error filed an answer covering 34 pages of the transcript. Defendant in error filed a motion to strike out this, and also excepted to it, because of its scurrilous, impertinent, and highly scandalous character, both as to the parties to the suit and persons not parties to the suit, and because the libelous, impertinent, scurrilous, and scandalous matters were so interwoven with other allegations in the answer that they were incapable of being separated. The court sustained said motion and struck out the entire answer. Defendant was granted leave to amend by the court, but defendant declined to do so, whereupon the allegations of the petition were taken as confessed and judgment rendered, perpetuating the injunction, from which this appeal is taken. *

We will first consider plaintiff in error’s motion to strike out defendant in error’s brief, because filed too late. The brief was filed on October 21, 1916, the day this ease was regularly set down for hearing and submitted. Rule 41a, Ct. Civ. App. (142 S. W. xiv), requires that four copies of brief of each party filed below be filed in the clerk’s office of the Court of Civil Appeals on or before the hearing in this court. The brief of plaintiff in error was properly filed in the trial court, but there is nothing in the record showing whether or not defendant in error’s brief was filed in the trial court, and plaintiff in error complains that a copy of it was not furnished him, and that he never saw it until the day the case was submitted, fi^his proceeding, strictly speaking, is irregular; and, should we strike out defendant in error’s brief, we find that the brief of plaintiff in error under the rules cannot be considered.

Only two errors are assigned, as shown by the transcript, and two are presented in plaintiff in error’s brief, neither of which is correctly copied. There is no reference to any page of the transcript where the assignments of error can be found, nor does it state any proceeding had therein, except the statement that the court failed to sustain his demurrer to the petition. But, looking to the record, there is nothing showing that the demurrer was ever presented to the trial court, or that he ever took any action with reference thereto. Such being the case, there-is nothing for this court to consider relating to the assignments of error.

There is no error shown by the assignments of error presented that requires a reversal of the ease, and the judgment is affirmed.
      <§cs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLX, C. J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SHEPPARD et al.

    (No. 5727.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1916.
    Rehearing Denied Dec. 6, 1916.)
    1. Appeal and Ebbob <&wkey;8S2(14) — -Review—Invited Erbob.
    In an action for personal injuries caused by a falling window screen, where defendant’s requested issues were submitted to the jury in the language of defendant, if there was error in submitting such issues, or in the jury answering them in the affirmative, defendant is in no position to assail them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3604; Dec. Dig. <&wkey;> 882(14).]
    2. Negligence <&wkey;134(5, 11) — Evidence — Sueeiciency.
    In an action for personal injuries caused by a falling window screen, evidence held to justify a jury finding that the screen fell on account of the negligence of defendant in not having it properly fastened, and that such negligence was the proximate cause of plaintiff’s injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 267, 273; Dee. Dig. &wkey;134(5,11).]
    3. Negligence <&wkey; 121(3) — Evidence — PRESUMPTIONS AND BURDEN OP PBOOB.
    The proof of such fall would raise a presumption of negligence on the part of defendant owner, and the- burden was on defendant to show that the screen was not negligently fastened, and that its fall occurred from some other cause.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 225; Dec. Dig. <®==>121(3).]
    4. Trial &wkey;>114r — Statements op Counsel.
    Where the jury must have known what the effect of their answers to the issues would have upon the judgment, and that, in order for plaintiff to recover, all of the issues must be necessarily answered in the affirmative, it could not have been error for counsel to inform the jury of the effect of their answers to the issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 275-278, 296; Dee. Dig. &wkey;114.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Elsie Phillips Sheppard and another against the Southwestern Telegraph & Telephone Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    W. S. Bramlett, of Dallas, and Henry Mc-Closkey & Robertson, of San Antonio, for appellant. Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of -San Antonio, for appellees.

      Writ of error pending in Supreme Court.

   FLX, C. J.

This is an action for damages originally instituted by Elsie Phillips, who, pending the suit, married A. H. Sheppard, and he joined her in the suit. It was alleged in the petition that appellant is engaged in the telephone business and has, on Travis street in the city of San Antonio, a certain six-story brick building in which its business is conducted; that on April 13, 1914, Elsie Phillips Sheppard, who wilDbe described as the appellee, was on the sidewalk in front of said building, and that it was her purpose to enter said building to discharge her duties as an employé of appellant, and that a screen from the fourth story of the building fell and struck and permanently injured appellee. The allegations of negligence are:

“That the defendant owned, used, and operated the said building, and it was its duty to properly secure the screens in the windows thereof so they would not fall upon people who were on the public sidewalk, but, notwithstanding this duty, the defendant negligently caused and permitted the said screen to be so improperly, defectively, and insecurely fastened that it fell and struck the plaintiff, as aforesaid, and such negligence directly, without any fault whatever on the part of the plaintiff, caused the injuries hereinafter stated.”

The cause was submitted to the jury on special issues, prepared by appellant, and requested to be given, and upon the answers thereto judgment was rendered in favor of appellee for $16,000.

Appellant requested the submission of three issues, followed by a question as to the amount of damages. The issues, in short, were as to whether appellant was guilty of negligence in so fastening the screen that it fell and struck appellee, and was that negligence the proximate cause of the injuries inflicted upon appellee. The issues were drawn and submitted in the very language of appellant, and yet the three first assignments of error are devoted to an attack, not only on the sufficiency of the evidence to support the answers, but on the ground that there is an utter and entire absence of such testimony. It would occur, it seems, to any one that if there was no evidence to sustain either of the issues, appellant should not have led the court into submitting such issues, but should have requested a peremptory instruction to find for appellant. If there was error in submitting such issues or in the jury answering them .in the affirmative, appellant is in no position to assail them. It alone is responsible for the issues going to the jury. Alamo Dressed Beef Co. v. Yeargan, 58 Tex. Civ. App. 92, 123 S. W. 721; Railway v. Smith, 155 S. W. 363; Southwestern Tel. & Tel. Co. v. Shirley, 155 S. W. 665; Gosch v. Vrana, 167 S. W. 760; Railway v. Flanders (Sup.) 179 S. W. 263. We conclude, however, that the issues were properly submitted, and that the evidence sustained the finding of the jury that the screen fell on account of the negligence of appellant in not having it properly fastened, and that such negligence was the proximate cause of the injury to appellee.

It would be singular indeed, if a pedestrian on a sidewalk is struck by a falling screen, that the owner of the building from which it fell would not be liable for the injuries resulting from such blow, without direct proof of the negligent manner in which the screen was fastened to the house. Proof that the screen fell would proclaim the fact in unmistakable terms that the screen was insecurely fastened, and the burden rested on appellant to show that it was not negligently fastened, and that .the fall occurred from other cause. It is well known that screens do not usually fall from windows, and proof of such fall would raise a presumption of negligence on the part of the owner. The fact that the screen was not securely fastened, not only appeared from the fall, but from the fact that after the accident appellant fixed the screens in its building so that they could not fall. The circumstances surrounding the fall of the screen lead inevitably to the inference that a screen securely fastened will not fall, and the one in question fell. The burden of disproving its negligence in fastening the screen devolved on appellant. The facts in this case lead inevitably to the conclusion that the screen fell because insecurely fastened. There was evidence to the effect that if the screen had been fastened at the top with hinges, it would not have fallen. Railway v. Garven, 50 Tex. Civ. App. 245, 109 S. W. 426; McCray v. Railway, 89 Tex. 168, 34 S. W. 95.

It has been held by the Court of Civil Appeals of the First District that it is error for counsel to inform a jury of the effect of their answer in a certain way to certain issues. Fain v. Nelms, 156 S. W. 281; Railway v. Hodnett, 182 S. W. 7. But in the cases of Railway v. Casey, 172 S. W. 729, and Guffey v. Dinwiddie, 182 S. W. 444, the Courts of Civil Appeals of the Second and Sixth Districts have committed themselves to a contrary doctrine. In the case of Railway v. Casey a writ of error was refused by the Supreme Court, and it would seem that it is settled that such action upon the part of counsel was not error. However, it is not necessary for this court to commit itself to either side of the conflict, for in this case there could not be any error, for it is apparent that the jury knew as well as counsel what the effect of their answers to the issues would have upon the judgment. They knew, without being told, that if they answered that the screen did not fall because insecurely fastened, appellee could not recover, or that if they answered that it did fall because insecurely fastened, but that if it was not negligence to have the screen defectively fastened, or that such negligence did not cause the injury to appellee, she could not recover. We could scarcely imagine a jury so simple and ignorant as not "to know that, in order for appellee to recover, all of the issues should necessarily be answered in the affirmative.

No complaint is made of the amount of the verdict.

The judgment is affirmed.

        <&zz>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    TINDEL v. STATE.
    (No. 4122.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.
    On Rehearing, Oct. 4, 1916.)
    1. Criminal Law <§=3598(2) — Continuance-Diligence.
    Overruling motion for continuance for absent witness was not error, under evidence showing lack of diligence in that accused and his father knew long prior to trial that the witness was outside the state, but made no effort to secure his attendance, and did not know his whereabouts at time of trial, or whether he would ever return.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1336, 1341; Dec. Dig. <§= 598(2).]
    2. Criminal Law <§=>608 — Continuance — Absent Witness — Sufficiency of Showing.
    Overruling motion for continuance for absent witness is not error when there is no showing as to whereabouts of the witness, or that he could be produced, or would testily as indicated in the motion. \
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. <§=>608.]
    3. Criminal Law <§=>901 — Waiver of Objection-Motion to Direct Verdict.
    Where, after defendant’s motion for directed verdict at close of state’s evidence, he introduced evidence, and the state rebutted, the court on appeal will consider, on the correctness of the ruling, all the evidence, and not merely the state’s evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2124; Dec. Dig. <§=>901.]
    4. Seduction <§=46 — Corroboration—Sufficiency.
    While the seduction prosecutrix, as an accomplice, must be corroborated by evidence tending to connect the accused with the offense, corroboration need not extend to every essential of the offense, and refusal of instruction to acquit unless she was corroborated both as to intercourse and promise of marriage is not error.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. <§=46.]
    On Rehearing.
    5. Seduction <§=46 — Corroboration — Evidence.
    Evidence held to corroborate prosecutrix on issue of promise of marriage.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. <§=46.]
    6. Criminal Law <§=598(5) — Continuance-Diligence,.
    Where subpoena for witness at the term prior to trial was returned not served, and accused could have then learned that witness had left the county, the requirement of diligence authorizing continuance is not met by merely issuing new subpmna just prior to trial and several months after the first return.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335, 1336; Dec. Dig. <§=> 598(5).]
    Appeal from District Court, McCulloch County; John W. Goodwin, Judge.
    Edwin Tindel was convicted of seduction, and he appeals. Affirmed. On motion for rehearing.
    Motion overruled.
    ' Adkins & Adkins and Sam McCollum, all of Brady, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of seduction, and his punishment assessed at three years’ confinement in the state penitentiary.

The first bill of exceptions relates to the action of the court in overruling his application for a continuance. Appellant was indicted at the September term, 1915, of the district court of McCulloch county, while this trial was had at the February term of said court in 1916. When the case was called for trial on February ,23d appellant moved to continue the case on account of his failure to secure the attendance of Messrs. Pinkney King and H. E. Rathburn. Appellant states he expects to prove by King that frequently during the years 1914 and 1915 he had carnal knowledge of the prosecutrix, Eda Bell Castleman, and by Rathburn that he had intercourse with the prosecutrix the same time from August, 1914, to August, 1915; that being the time Rathburn resided in McCulloch county. The materiality of such testimony readily appears, if they would so testify, as this is a case of seduction, and appellant is alleged to have seduced the prosecutrix in May, 1915. When this trial was had the girl and her mother both testify that she was only 16 years of age; consequently in 1914 she was under 15 years of age; therefore it would not be reasonable to expect nor could either of the witnesses have been required to testify they had intercourse with the girl in 1914. It would have made them guilty of rape to have so testified. As to the witness Pinkney King, it appears that, when a complaint was filed against appellant in August, 1915, charging him with seduction, his father went to Pinkney King and had a conversation with him, and that King at once left the country. Appellant’s father had a subpoena issued for him in September, 1915, and the return showed that King had left McCulloch county. Thus notice is traced directly home to appellant and his father that King had left McCulloch county at least in September, 1915, consequently an additional subpoena issued to McCulloch county in December, 1915, would be wholly lacking in diligence. In justice to counsel who appeared in this court in behalf of appellant, we will state that they stated they were not representing appellant at that time. So what we shall say in regard to lack of diligence will have no application to counsel. When the motion for new trial was heard, evidence was adduced, and it is made to appear that Pinkney King left McCulloch county immediately after appellant’s father talked with him in August, and that he had never returned to that county, that the last letter received from him showed he was in Kansas City, Mo., in December, 1915, and that his present whereabouts were unknown. By Will King, the same witness, appellant proved that Pinkney King had left McCul-loch county in August, 1915, and was last heard from in Kansas City, Mo., in December, 1915. It was proven on cross-examination that Pinkney King told him before he left McCulloch county, and after appellant’s father had visited the witness, that he (Pink-ney King) had never at any time had intercourse with the prosecutrix, Eda Bell Castle-man. Under such circumstances there was no error in overruling the application as to this witness, as it was wholly lacking in diligence, to say the least.

As to the witness Rathburn, it shows that he had left McCulloch county August 4, 1915, prior to the institution of any prosecution of appellant, and that appellant was aware of that fact, and yet had no process issued for the witness until January 6, 1916, which process had been returned witness not found. On the hearing of this motion for new trial evidence was heard, and it is made to appear that appellant did not know where Rathburn was then located, and it is not shown what efforts he had made to locate the witness. There is no showing made that the witness had stated or admitted to any one that he had ever had intercourse with the girl, or that he had been associated with her. In fact, the witness called by appellant, W. H. Goodner, testified to intimate association with Rathburn, and about trouble he had about another girl and her father getting after him with a knife, but said Eda Bell Castleman was not that girl; “that Rathburn never did say anything to me about having intercourse with Eda Bell Castle-man [the prosecutrix] or being with her, or anything that would lead me to believe that he had intercourse with the prosecutrix.” No such showing is made that either of the witnesses would probably testify that he had intercourse with the girl as would authorize us to hold the court erred in not granting a continuance, when diligence to secure their attendance is wholly lacking. In such cases, where it .is made to appear that the witness or witnesses would testify as alleged, and it would show a complete defense, and some excuse shown for lack of diligence, we have held that justice demanded the person on trial be given an opportunity to secure the testimony; for this court and no other court would be willing to allow a person to be confined in the penitentiary when no crime had been committed. But no showing is made that the attendance of the witnesses could be had, or their testimony secured, even though a new trial was granted, or that the witnesses would so testify if secured. Mr. Goodner says Rathburn fled from an irate father of another girl; that he was short in his accounts, and he has never been heard from since his departure. O’Neal v. State, 14 Tex. App. 582; Long v. State, 17 Tex. App. 129; Boyd v. State, 57 Tex. Cr. R. 647, 124 S. W. 651; and authorities collated in Branch’s Penal Code, p. 186 et seq.

When the state closed its testimony, axjpellant moved the court to instruct a verdict of not guilty on the ground that the prosecutrix had been insufficiently corroborated to sustain a .conviction. When the court overruled this application, appellant proceeded to introduce his testimony, and the state its testimony in rebuttal. In passing on this question we do not consider whether or not the evidence at the time the motion was acted on was sufficient to sustain a conviction, but it becomes our duty to consider the testimony as a whole adduced on the entire case. Had the defendant declined to introduce testimony, and rested on his motion, then we would pass on whether or not the testimony at that time would sustain a conviction; for that would be all the testimony before us. But the appellant and his witnesses materially aided the state’s case as made by the direct testimony. And as we are of the opinion the testimony as a whole will sustain the verdict, the court did not err in refusing to give peremptory instructions.

The exceptions filed to the court’s charge and a special charge requested'by .appellant all present the issue that there was error in the court not specifically instructing the jury that the prosecutrix must be corroborated both as to an act of intercourse and the promise of marriage. Appellant himself testifies to the first act of intercourse at the time and place fixed by the girl. So there can be no question as to corroboration on that issue. The fact that she was only 16 years of age (and under 25) was amply corroborated by her mother, but on the question of promise of marriage there is no direct and positive corroboration of the prosecutrix. If corroborated as to this, it is from circumstances alone, such as he had frequently visited her at her mother’s home, and had called to see her when she was staying at Mr. Mann’s, prior to the time they, in company with others, went to the negro meeting. Both appellant and the prosecutrix agree that this is the night the first act of intercourse occurred, and that it occurred some 25 or 30 minutes after they had separated themselves from the others and gone walking. She says that he then made a proposition of marriage and was accepted, and the act of intercourse subsequently occurred. This he denies. He says she readily submitted to him, and nothing was said about marriage. The court instructed the jury;

“If from the evidence you believe that defendant had carnal intercourse with Eda Bell Castleman, hut believe that at the time of the first act of intercourse she was not a chaste woman, or if you have a reasonable doubt of that fact, you will acquit the defendant, even though you may believe such act of intercourse was. accomplished by means of a promise of marriage.
“If from the evidence you believe that defendant had carnal intercourse with Eda Bell Castleman, and if from the evidence you believe that she was a chaste woman at the time of the first act of intercourse between her and defendant, but believe that she yielded to same to satisfy her own amorous passion, you will acquit defendant.
“If from the evidence you believe that defendant had carnal intercourse with Eda Bell Castleman, and if from the evidence you believe that at the time of the first act of intercourse by and between fhem said Eda Bell Castleman was a chaste female, but have a reasonable doubt as to whether or not defendant promised to marry her, the said Eda Bell Castleman, you will acquit him.-!’

It is thus seen that the court submitted defensively for appellant every issue that the testimony raised in his behalf, and the only question left is: Should the court have specifically instructed the jury, as requested by appellant, that unless the jury found that the prosecuting witness, Eda Bell Castleman, “was corroborated both as to the act of intercourse and promise of marriage,” to acquit appellant. We have some decisions so holding, but they were rendered prior to the rendition of the opinions in Williams v. State, 59 Tex. Cr. R. 349, 128 S. W. 1120; Howe v. State, 51 Tex. Cr. R. 175, 102 S. W. 409; Nash v. State, 61 Tex. Cr. R. 259. In the case of Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583 (a seduction case), this court laid down a form of charge on accomplice testimony which was almost literally followed in this case; the only difference being that the court in this case required the jury to find that the corroborating testimony “connected” the defendant with the commission of the offense, instead of only requiring such testimony to “tend to connect” the appellant with the commission of the offense. All the above decisions were rendered prior to the writer’s accession to the bench, and he followed them in the case of Murphy v. State, 65 Tex. Cr. R. 55, 143 S. W. Rep. 618, and such rule has prevailed since the rendition of the above decisions. While there is some conflict in the decisions of other states, as well as our own, the weight of authority seems to approve the rule announced in the Williams’ Case, supra, under statutes worded as is the one in our Code. While the charge as thus drawn is sufficient, yet we would not be understood as holding that, if in the evidence there were no facts and circumstances tending to support the girl’s testimony that a promise of marriage had been made, the conviction should or would be sustained. In this case such corroboration is shown, or the circumstances tend to show that she spoke the truth about the matter in that appellant frequently visited her at her home and at Mr. Mann’s, and his conduct on those occasions.

The judgment is affirmed.

On Rehearing.

Appellant in his motion for rehearing in this cause assigns *but three grounds, the first being that the evidence is insufficient to convict, in that he contends there is no corroboration of the girl’s testimony as to the promise of marriage. He seriously contends the following sentence in the original opinion is erroneous:

“If corroborated as to this, it is from circumstances alone, such as he had frequently visited her at her mother’s home, and had called to see her when she was staying at Mr. Mann’s, prior to the time they, in company with others, went to the negro meeting.”

Appellant says:

“If the state had shown such a state of facts as this, then corroboration would be shown, but we insist the court erred in such finding as to the facts.”

Appellant then contends all these visits were after the first act of intercourse. Appellant’s counsel must not have read the record we have before us. By this record alone we must be governed. The first act of intercourse is shown both by the testimony of the girl, and that of appellant to have occurred on the 3d day of May, 1915, the night appellant and this girl went to the church in company with his mother and others. The sister of the girl testified:

“During the fall of 1914 and the spring of 1915 he [appellant] visited at our house. He would come over once a week, and sometimes twice a week. He would average coming about two or three times a week. He directed his attention to Eda Bell [the alleged seduced girl], and his conversations were with her.”

To the same effect is the testimony of Mrs. Castleman, and Mr. Mann testified that while Eda Bell stayed at his home appellant came to see the girl, and no other man visited her. This testimony evidences that appellant called on the girl in 1914 and the spring of 1915, while the girl was at home and at Mr Mann’s, and the act of intercourse did not take place until in May, 1915, as testified to by both of them; Under such state of facts appellant says that under the record in this case he would admit corroboration, and such is the record we have before us, approved as a statement of the evidence introduced on the trial. His second contention is that, as he demurred to the evidence when the state rested, we should pass on the sufficiency of the evidence at that time to sustain a conviction, and not take the récord as a whole. Such is not the law, but we must consider all the evidence adduced on the trial in passing on that issue on appeal.

The third and last contention is that we erred in holding there was no error in' overruling his application for a continuance. The girl testified she was only 16 when the case was tried, and this led us to say that she would have been under 15 at the time he stated he expected to prove certain facts by King and Rathburn in his motion for a continuance. Having our attention called to when she testified she would be 17, we want to say that perhaps we were in error in making the statement she would have been under 15 at the time alleged. But we did not sustain the action of the court in -overruling the motion for a continuance on that ground, but for lack of diligence in suing out process. Appellant again insists that we erred in stating that appellant’s father testified process was issued for the witness King at the prior term of court. Again appellant must not have read the record we have before us. Appellant’s father testified he went to see King, and the record shows that King left for “parts unknown” the next day. Appellant’s father testified that on the following “Monday he had a subpoena issued for King.” It is true he says he was not instrumental in having King leave the county, hut nevertheless his evidence makes it plain that a subpoena was issued for King at the preceding term of court at which this case was tried, and it then ascertained King had left McCulloch county. By the exercise of the least diligence appellant could have learned that King was not in McCulloch county and had not been there since September. Having another subpoena issued for the witness to McCulloch county three or four months after that term of court, and just before this trial, would not be the exercise of reasonable diligence on his part. The record disclosed that King was out of the state, and had been for some time, and there is nothing to indicate when he would come -back into the state, if ever. As to Itathburn, he left McCulloch county “rather hurriedly” some six months before the trial, and appellant nor any other person, so far as this record discloses, had been able to locate him from that day until the date of the overruling of the motion for a new trial. Appellant cannot contend that he made any showing that he would ever be able to secure the attendance of either of the witnesss named.

The motion for rehearing is overruled.
      <§s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    PAGE v. STATE.
    (No. 4296.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.)
    1. Criminal Law <§==>1092(6) — Preservation of Exceptions — Time to Pile.
    A bill of exceptions to denial of new trial, filed nearly a month subsequent to termination of the court cannot be considered.
    [It'd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <§=>1092(6).]
    2. Criminal Law <§=>939(1) — New Trial — Diligence.
    The accused cannot have new trial for newly discovered evidence, which the least diligence would have disclosed before trial, without showing any diligence whatever.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318, 2321-2323; Dec. Dig. <§=>939(1).]
    Appeal from District Court, Taylor County; W. P. Mahaffey, Special Judge.
    G. R. Page was convicted of burglary, and he appeals.
    Affirmed.
    Harry Tom King, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was for burglary, the minimum punishment being assessed. The case is one of circumstantial evidence, but sufficiently strong to warrant a conviction.

Newly discovered testimony was made a ground of the motion for new trial. The statement of facts found in the record in regard to the matter purports to have been evidence taken in a subsequent case growing out of a series of burglaries, of which the instant case is one. Two witnesses, it seems, testified in the other case involving some of the features of this case. Their testimony is made a part of the motion for a new trial, but is not approved by the judge as being correct, though certified by the official stenographer to be as taken in the other trial. Whether this was submitted to the court as a part of the motion for new trial is not shown. The hill of exceptions with reference to this matter was filed nearly a month subsequent to the termination of the court, and therefore cannot be considered.

But, even if the testimony was considered, we are of opinion that it is not of sufficient importance to require a reversal of the judgment, and, further, defendant must have known of the leading features of the supposed newly discovered testimony. This testimony was intended to show that on a certain day, in the town of Abilene, at a certain point where parties were selling things on the street, or engaged in that character of peddling, the defendant bought some meat from somebody who came where they were in a wagon. If appellant bought meat under the circumstances detailed, he’ must have known some of the witnesses around where the transaction occurred. It required diligence in seeking these witnesses and their testimony. It seems to have been a place where parties were engaged at stands peddling things, and where people came and bought things. The appellant testified, and introduced other testimony, to the effect that some of the meat found in his possession was bought on different days prior to the time of the burglary. Among other things, appellant testified he bought some of the stolen goods, harness, at the residence of Thornton from a peddler. Thornton is the man who was assisting him in disposing of the stolen harness in Anson, Jones county. The burglary occurred in Taylor county. This was shortly after the alleged burglary. He says that he bought the harness and perhaps some of the other things from a man at Thornton’s residence on Thursday. The burglary, it seems, was committed on Tuesday, February^ 29th. Appellant claims to have bought these things at Thornton’s residence from a stranger. The state in rebuttal proved that the owner of some of the harness recovered it on .Thursday at about'4 o’clock in the evening, and the sheriff shows he traced much or all of the stolen property to appellant and Thornton.

Just a few of these facts are mentioned to show that this could not be newly discovered testimony, and its probable want of truth. If appellant knew these facts and circumstances, any sm-t of diligence could have produced some of the witnesses who knew the facts; that is, those who were at the peddling stands. There was no effort made on his part to discover these things or secure the evidence.

As the record presents the case to this court, it should be affirmed; and it is accordingly so ordered.

HARPER, J., absent.
      @=»F#r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PATTERSON v. STATE.
    (No. 4287.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.)
    Trespass <@=>79 — Unauthorized Use oe Automobile — “Owner. ’ ’
    A person who hires an automobile from a garage or uses it with permission of the garage proprietor, with whom the car is stored by the owner, is not criminally liable for using an automobile without the consent of the “owner,” in violation of statute.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. § 169; Dec. Dig. <@==>79.
    For other definitions, see Words and Phrases, First and Second Series, Owner.]
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    George Patterson was convicted of using an automobile in violation of statute without the consent of the owner, and he appeals.
    Judgment reversed, and cause remanded.
    J. S. None, of Denison, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of using an automobile in violation of the statute without the consent of the owner, and given six months in the county jail.

There is but one real question presented for review. The evidence shows appellant drove the car, and drove it without the con-sentí of the owner, and even without his knowledge. The owner went into the garage where he was in the habit of leaving his car, and left it in charge of the garage as usual; they took care of it for him, charging him so much per month, and when he drove in he ordered his ear washed, and would call for it the next day. When he went for his car he found it had been used and some injury done it. The auto, it seems from the speedometer, had been driven about iten miles. Appellant’s defense or excuse for using it was that the man in charge of the garage authorised him to drive this particular car. He wanted to drive a while around the streets and public thoroughfares. The proprietor or party in possession of the garage at the time gave him this particular car, and he drove it. This is substantially the case.

It was contended by the state that the statute, where it uses the word “owner,” was exclusive, and that the use of the ear without the consent of the owner in person could not excuse. In other words, the ruling of the court was that the fact the proprietor of the garage turned over the car to appellant to drive, and that he used it under that authority, would not excuse him under the wording of the statute. We do not agree with that contention. Parties hiring an automobile from a garage, or using it by designation of the proprietor, ought to be excused from criminal punishment. This matter ought to have been taken into consideration in the trial of this case, and if the jury so believed, there ought to have been a verdict of not guilty.

The judgment is reversed, and the.cause remanded.

HARPER, J., absent.
      <@=>For Other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    GUERRA v. STATE.
    (No. 4290.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.)
    1. Criminal Law <@=>1099(5) — Appeal — Statement oe Fact — Filing after Adjournment.
    The Court of Criminal Appeals cannot consider a purported statement of facts, filed, not in term time, but weeks after the trial court had adjourned.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. § 2876; Dec. Dig. <@=>1099(5).]
    2. Criminal Law <@=>1144(18) — Appeal — Presumptions Favoring Court Below— Motion for New Trial.
    The Court of Criminal Appeals must presume, where evidence heard by the trial court on defendant’s motion for new trial is not brought to the Court of Appeals properly, that the facts heard on the motion sustain the trial court’s action.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3086; Dec. Dig. <@=> 1144(18).]
    3. Criminal Law <@=>923(1) — New Trial — Incompetency of Juror.
    New trial should not be granted for incompetency of one of the jurors by whom the case was tried, when it is not shown that the incompetency was not known, when the juror was accepted or that it could not have been known by proper inquiry.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2225; Dec. Dig. <@=>923(1).]
    4. Criminal Law <@=>923(1) — New Trial-Disqualification of Juror — Injury.
    Defendant, convicted of crime and seeking new trial for incompetency of a juror, must show that injury resulted to him by reason of the juror’s claimed disqualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2225; Dec. Dig. <@=>923(l).]
    ■ Appeal'from District Court, Starr County; V. W. Taylor, Judge.

      Eusebio Guerra was convicted of seduction, and be appeals.
    Judgment affirmed.
    R. Oosterveen, of Riogrande, and Canales & Dancy, of Brownsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for tbe State.
   PRENDERGAST, P. J.

Appellant was convicted of seduction, and assessed tbe lowest punishment.

Tbe sole question in tbe case is whether tbe court should have granted him a new trial because, after tbe trial, in a motion for new trial, one of the jurors1 was alleged to be under 21 years of age. Tbe record shows that tbe court beard evidence on this question in passing upon tbe motion for new trial. There is, at tbe end of tbe statement of the facts herein on tbe trial of tbe case, what purports to be tbe testimony beard by the court on this motion. It was filed, not in term time, but weeks after tbe court had adjourned. Under such circumstances the uniform holding of this court in a long line of decisions is that this court cannot consider such a purported statement of facts. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 59, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 550, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 615, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 268; Tarleton v. State, 62 S. W. 748; Knight v. State, 66 Tex. Cr. R. 335, 144 S. W. 968; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996. See, also, Jordan v. State, 10 Tex. 479; Sharp v. State, 6 Tex. App. 650; Graham v. State, 73 Tex. Cr. R. 34, 163 S. W. 726; Ethridge v. State, 74 Tex. Cr. R. 635, 169 S. W. 1152; Sorrell v. State, 186 S. W. 338; and a large number of other cases unnecessary to collate. This court must presume, and always does, that where such evidence is not brought to this court properly, the facts1 heard on the motion sustain the court’s action.

Further, the rule is, as stated by the Supreme Court in Roseborough v. State, 43 Tex. 570, that a new trial should not be granted for the incompetency of one of the jurors by whom the case was tried, when it is not shown that the incompetency was not known when the juror was accepted, or that it could not have been known by proper inquiry. Trueblood v. State, 1 Tex. App. 650; O’Mealy v. State, 1 Tex. App. 180; Brill v. State, 1 Tex. App. 572; 2 Gra. & Wat. on New Trial, 764; 6 Crim. L. Mag. 334. And, as added by' these authorities to the rule above stated, an appellant must show injury has resulted to him by reason of the claimed disqualification of the juror.

Notwithstanding we cannot properly consider the purported evidence heard by the trial judge on the motion for a new trial, yet we have read the said testimony at the end of the statement of facts, the juror who was claimed to be under age testified that he lived in the town, which was the county seat of the county where the trial was had, and was a school-teacher, and had taught school therein two years; that he had known one of appellant's attorneys, who, it seems, also lived in said town, for seven years and had gone to school with him; and he further swore that he knew about the age of this attorney, and that this attorney probably knew about his age. Neither this attorney nor any of appellant’s other attorneys, nor did appellant himself, testify that they did not know appellant’s age at the time they took him on the jury, and the record discloses that he was not asked his1 age by appellant, or any of his attorneys, at the time he was taken on the jury, the juror stating, however, that he did not hear the question propounded by the court, asking whether or not he was a qualified voter and juror. No intimation is shown in the record that any injury resulted to appellant by reason of his taking said juror on the jury, further than the mere fact that they claimed that he was not qualified as a juror because of his age. So that in any contingency the court’s action in refusing a new trial was correct. .

The judgment is affirmed.

HARPER, J., absent.


text:
    MACIAS v. STATE.
    (No. 4289.)
    (Court of Criminal Appeals of Texas.
    Nov. 22. 1916.)
    Criminal Daw <§=51035(5) — Appeal — Conduct oe Trial — Impaneling Juey — Time eor Objection.'
    Where a juror whose name was erased from the jury list by defendant’s attorney, served on the jury by mistake, without discovery, although the clerk testifies he called the list of jurors with this juror’s name thereon, it appearing that the juror was qualified, an objection after ■verdict and on appeal comes too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2636; Dee. Dig. <§=51035(5).]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Luz Macias was convicted of burglary, and he appeals.
    Affirmed.
    Stafford & Brady, of El Paso, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

There is but one question presented for review. It appears that when the jury list was furnished appellant’s attorney the name of A. B. Ahr was erased. However, through some mistake, Mr. Ahr served on the jury, and this fact was not discovered until after the verdict was received and the jury discharged. The clerk testifies he called the list of jurors with Mr. Ahr’s name thereon. Appellant’s counsel, not noticing at the time that Mr. Ahr’s name was called, he was sw.orn and impaneled to try the cause. Appellant does not contend that Mr. Ahr was in any manner prejudiced against him, or that he knew anything of the facts in the case. He says he erased the name on the recommendation o.f a brother attorney, no reason being assigned for giving such recommendation. In fact, it appears that the juror was fully qualified to try the cause. In the absence of a showing that the juror entertained animus or prejudice, this objection comes too late after verdict. Munson v. State, 34 Tex. Cr. R. 498, 31 S. W. 387; Cooper v. State, 65 Tex. Cr. R. 423, 144 S. W. 937.

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


text:
    HILL v. STATE.
    (No. 4294.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.)
    Cbiminal Law <©=31210 — Sentence—Suspended Sentence — Cumulative Sentence.
    Where defendant was on the same day indicted in two cases, and was convicted in one, with suspended sentence, and later convicted in the other, it was proper, on motion of the county attorney setting out such facts, to impose two cumulative sentences, under Acts 33d Leg. c. 7 (Vernon’s Ann. Code Or. Proc. 1916, § 865e), providing that upon final conviction of the defendant of any other felony, pending the suspension of sentence, the court granting such suspension shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3298-3301, 3315; Dec. Dig. <@=31210.]
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    William Hill was| convicted of illegally selling intoxicating liquor in prohibition territory, and sentence was suspended, and he was later convicted of pursuing the business of selling intoxicating liquor in such territory. Thereupon the county attorney moved for cumulative sentence, and from the order so sentencing him, Hill appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

On December 17, 1914, appellant was indicted in two cases, one, No. 12999, on the district court docket, for illegally making a single sale of intoxicating liquor in the prohibition county of Grayson, after an election putting prohibition in force in that county had been carried which was after the felony statute was in force, and in the next cause, No. 13000, for pursuing the occupation on business of so selling liquor in said county. He was tried and convicted in the latter case first, and, the jury so finding therein, his sentence was suspended, his conviction having occurred on August 18, 1915. A short time after his said conviction in cause No. 13,000 he was tried and convicted in said other case. He appealed that, and it was affirmed by this court on May 24,1916. 1-Iill v. State, 186 S. W. 769.

Thereafter, on August 17, 1916, the county attorney filed the proper motion, setting up all these facts. Appellant answered, contending that because he was indicted at the same time and later convicted in the case first docketed, the court could not therefore sentence him under said first cause wherein his sentence had been suspended. The court, upon hearing the matter in said cause No. 13000, on August 18, 1916, sentenced him in accordance with the statute, making the sentence cumulative of . thei penalty in the other cause.

The action and sentence of the court was in strict accordance with the suspended sentence law. Acts 1913, p. 8. Section 4 thereof (article 865e, Vernon’s Ann. O. G. P.) prescribes:

“Upon the final conviction of the defendant of any other felony, pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court, and upon the execution of a capias, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction.”

The statute is so clear and plain and was so strictly and literally followed by the judge of the lower court, we see no necessity of discussing the matter at all.

The judgment is affirmed.

HARPER, J., absent.
      dlnmFor' other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LOONEY v. STATE.
    (No. 4285.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.)
    1. Labceny <@=312 — Connection with Obigi-nal Taking.
    One to be guilty of a larceny must be connected with the original taking.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 22-29; Dec. Dig. <§=312.]
    2. Laeceny <@=317 — Necessity oe AspobtaTION.
    Asportation is not necessary to theft, but the fraudulent taking of property is enough.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 30; Dec. Dig. <@=317.]
    3. Labceny <@=317 — Appeopbiation oe Pkop-eety.
    The segregation of properly from a building, by breaking it, it being machinery, and placing it outside the building, is a sufficient appropriation to constitute theft.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § SO; Dec. Dig. <@=17.]
    4. Larceny <@=32(2) — Indictment — Ownership oe Property.
    An indictment for larceny of property which others had stolen, and which had not been returned, should allege th'e ownership in them.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 82; Dec. Dig. <@=32(2); Indictment and Information, Cent. Dig. § 281.]
    5. Larceny <@=4íD-Intent — Evidence.
    As bearing on intent defendant in larceny may testify that he went to the office of the owner to buy the property, and was told by an •occupant that he attended to the owner’s business, and that defendant could take the property and settle with the owner on his return.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 134; Dec. Dig. <@=44.]
    •6. Indictment and Information <@=191(5)— Different Offense Included in Offense Charged.
    There cannot under an ordinary theft indictment be a conviction of larceny for conversion by one of property coming into his possession honestly.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 612; Dec. Dig. <@=191 (5).]
    Appeal from District Court, Cherokee •County; E. B. Robb, Special Judge.
    J. C. Looney was ■ convicted, and appeals.
    ■Reversed and remanded.
    Guinn & Guinn, of Rusk, for appellant. C. •C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted •of theft of over $50 in value, his punishment ■being assessed at two years’ confinement in ■the penitentiary.

The indictment alleged ownership of the property in H. S. Guinn. The property ■consisted of copper and other metal that belonged to a foundry. This copper had been ¡severed from the building by Ross and McPherson, who left it near the building. Subsequently it was removed some distance, .apparently or really, for the purpose of secreting it. The state’s contention is that appellant assisted in moving the property. Appellant’s theory was that he had nothing to do with the moving of the property from the foundry to where it was subsequently found. Appellant was informed of the fact that the property had been stolen by the other parties and went in company with Reagan and •carried it to Rusk and shipped it to Tyler, ■where it was sold. There is no question of ■the fact that appellant was absent when the property was severed from the building. There is an issue of fact as to whether he assisted in moving the property subsequently to the woods. There is no question of the fact that he and Reagan got a wagon and hauled the stolen property from where they •discovered it in the woods to Rusk and appellant shipped it to Tyler. We might stop the case here, perhaps, on the theory that the state has not shown a ease of theft by appellant. In order to constitute the taker a thief, he must be connected with the original taking. If he fraudulently receives it or conceals it subsequently, he would be a receiver or concealer of the goods, as the facts would show;. This applies to the ownership in Guinn. Guinn was constructively the owner, in that he was the agent of the corporation or people who owned the foundry. This foundry seems to have been out of business for some time, and parties had been ravaging it and taking metal from it for quite a while. There seems to be some question also of Guinn’s right to sell. When McPherson and Ross severed the property and appropriated it to their use for the ulterior purpose of soiling it, they committed theft of the property. Asportation is not necessary in theft. The fraudulent taking is sufficient without asportation. Their segregation of the property from the building, which took them some hours to accomplish by breaking it, it being part of the machinery of the building, was an appropriation of the property. They removed it from the building and went away intending to go back and ultimately dispose of it, but in the meantime, the state contends, appellant got the property and appropriated it. The question of return of the property by Ross and McPherson is not suggested by the evidence; in fact, the idea of voluntary return on their part is excluded by the testimony. Under this view of the case the property was in possession of the original takers, who had deprived Guinn of the property and appropriated it. They had broken it loose from the machinery of the building and became owners of it so far as thieves could be the owners of stolen property. “Ownership” and “possession” are usually synonymous terms under our statute. Ownership is constituted by the actual care, control, and management of the property. Where a thief has stolen a horse or a cow, or an animal and it escapes or gets back upon its range, or is turned loose upon its range, the ownership may be then in the owner. This is the general rule, especially where the animal is on its accustomed range or in the neighborhood. If appellant committed theft, it occurs to the writer the ownership should have been alleged in the parties from whom he took the property, Ross and McPherson. These matters were brought to the attention of the court in several ways, by special charges and exceptions to the charge, and in regard to the sufficiency of the evidence.

There is another serious question in the case for which this judgment will have to be reversed. The question of intent became an important factor. Appellant had had conversations with the alleged owner, Guinn, two or three years prior to this transaction with reference to buying the property, and also with reference to hauling such property from the foundry. Guinn notified him he would write to the owner and obtain permission, if he could, and he would employ appellant to haul it or sell it to him. This is the substance of the matter. When appellant was informed of the fact that this property had been stolen from the foundry, he went to see Mr. Guinn at his office. Upon reaching the office another one of the Guinns of the law firm had a conversation with appellant or appellant with him. Appellant informed Mr. Guinn of his mission and desired to get this property. After talking the matter over some time Guinn informed him that he and one of the other members of the firm often wrote letters for the alleged owner, H. S. Guinn, and, it may be generally stated, sometimes assisted in looking after the business for him. It is not intended to go into the details, but rather state the substance. Finally Guinn told appellant it would be all right, and to get the property, which appellant did. In order to get this matter perhaps a little clearer we will state this much from the bill of exceptions :

“The court refused to permit the defendant to testify that Charley Guinn stated to the defendant that he was the nephew of H. S. Guinn, the prosecuting witness, that he occupied the same office with • said H. g. Guinn, and that said Guinn was out of town, but that he (Charley Guinn) attended to all of his business, and that he would authorize the defendant to go and get the'property alleged to have been stolen, and that he could see H. S. Guinn about a settlement of the matter later, and that the defendant at the time he took the property alleged to have been stolen believed said Charley Guinn had full authority from H. S. Guinn to authorize him (defendant) to take the alleged stolen property, and that'it was because of said authority given by said Charley Guinn that defendant did take said property.”

This is copied from the bill of exceptions, which follows several pages of questions and answers, retiring of the jury, bringing them back, arguments and discussion of counsel, which it is supposed was put in to manifest the exact status. The court signs this bill without qualification. It has always been the rule in theft cases that the taking must be fraudulent, and that the intent is an essential element on the part of the taker to take and appropriate the property fraudulently. If he had the right to take it or believed he had the right to take it, the case is not one of theft. This has been so long the rule in Texas that authorities aré not necessary. The statute makes this so by its definition. If the property comes into the possession of a party honestly, he would not be guilty of theft by afterwards converting it, under an indictment of this character. To meet this very proposition the Legislature enacted a statute with reference to theft under a contract of hiring and borrowing by bailee. This is not an indictment of that character; it is an ordinary theft indictment. This is not only so, but; since the defendant can testify in his own case, he may testify as to his intent and connection with the property alleged' to have been stolen, disclaiming any fraudulent purpose. This has been decided in quite a number of cases. He cannot only prove it by himself, but he can prove it by any testimony that is legitimate. The court seems to have acted upon the theory that this was .a conversation between Charley Guinn and defendant, and therefore it could not be used in evidence before the jury to show his intent. This is not the law. Mr. Branch has collated a great number of these cases in his work on Criminal Law, in section 799. Not only so, but, if he is laboring under a mistake of fact as to his right, this can be shown, and, if it is a fact that he made a mistake, he still would not be guilty. This is also fixed by the statute. The fact that appellant went to see H. S. Guinn to talk with him about the matter and obtain his permission to take the property tends to aid him in his contention of the fact that he did talk with Charley Guinn, H. S. Guinn being absent, and obtained, as he believed and as the bill of exceptions shows, his permission to take the property and settle with H. S. Guinn afterwards. This certainly would be strong evidence of the fact that he was not contemplating taking the property without authority. This explains or" tends to explain why he went for the property and why he took it. He brought the property into town of Rusk and shipped it from the depot. It laid around at the depot before it was shipped in plain sight of everybody who went about it; some of the property was on the ground and some on the platform or gallery. This is raised by bill of exceptions, as before stated, to the rejection of testimony, and it is also raised in special charges, which were refused. The evidence should have been introduced and the jury instructed affirmatively that if appellant, under the circumstances, did not intend to defraud, but took the property believing he had a right to take it, they should acquit him.

There are some exceptions to the charge on accomplice testimony. The charge is not aptly drawn and is subject to criticism. Upon another trial, however, this will not occur. Charges on accomplice testimony have been written about so much that it is well enough for the trial- courts to follow those eases that have been adhered to by this court in which the rule in regard to proper charge on this matter has been settled.

For the reasons indicated, the judgment is reversed, and the cause remanded.

HARPER, J., absent.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes