text:
    GEER v. ST. LOUIS, S. F. & T. RY. CO.
    (No. 2490.)
    (Supreme Court of Texas.
    May 9, 1917.)
    1. Commerce &wkey;>8(6) — Federal Employers’ Liability Act — Exclusion oe State Laws.
    The federal constitutional provision which authorizes Congress to regulate commerce between the states gives controlling effect to the federal Employers’ Liability Act (Act April 22, 1908, e. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), to the exclusion of state laws covering the same field.
    2. Commerce <&wkey;27(7) — Railroads—Federal Employers’ Liability Act — “Engaged in Interstate Commerce.”
    A brakeman who received a fatal injury' from being thrown from the top of a car while engaged in switching it, together with two other cars, one of which was loaded, all destined for points without the state, was engaged in “interstate commerce,” and the right of action in such case is controlled by the federal Employers’ Liability Act, which gives a right of action to the parents for the wrongful death of an employe only when he leaves no wife or child surviving.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Engaged.]
    3. Appeal and Error &wkey;>1095 — Review—Supreme Court — Findings oe Fact oe Court oe Appeals. ■
    The finding of fact by the Court of Civil Appeals that intestate was engaged in interstate commerce at time of injury is binding upon this court, in the absence of evidence to the contrary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4268, 4329, 4330.]
    4. Master and Servant <&wkey;2C4(2) — Injury to Servant — Defense not Pleaded — Interstate Commerce.
    Although interstate shipment was not alleged by either party, defendant railroad may avail itself of the federal Employers’ Liability Act, where the evidence requires a finding that employe was engaged in interstate commerce at time of injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861, 863.]
    Error to Court of Civil Appeals, Fifth. Supreme Judicial District.
    Action by Angeline Geer against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals (149 S. W. 1178), where the judgment was affirmed in part and reversed and rendered in part, whereupon this court granted a writ of error.
    Affirmed.
    J. C. Wall, of Austin, and Davis & Davis, of Gainesville, for plaintiff 'in error. Andrews, Ball & Streetman, of Houston, Head, Smith, Hare & Head, and McReynolds & Hay, all of Sherman, for defendant in error.
    An-
   YANTIS, J.

A switchman named E. H. Geer, while in the employ of the St. Louis, San Francisco & Texas Railway Company, defendant in error, was injured on the night of August 5, 1910, in said railway company’s yards in Sherman, Tex., while rendering services in its behalf. He died from the injuries on the following day.

Mrs. Angeline Geer, who was the mother of the deceased, and who is plaintiff in error herein, recovered damages in the district court of Grayson county, Tex. The questions presented arise upon the issue of whether or not the deceased was engaged in interstate commerce at the time he received the injuries from which he died. The Court of Civil Appeals for the Fifth District, in deciding the case on appeal to it from the district court, held that the deceased was engaged in interstate commerce at the time of his injuries, and that the federal Employers’ Liability Act of Congress, under the facts presented, control the determination of the case adversely to the plaintiff in error. (Civ. App.) 149 S. W. 1178. This court granted a writ of error upon th*e authority of Pedersen v, Delaware, Lack. & West. Ry. Co., 197 Fed. 537, 117 C. C. A. 33. Since that decision by the Circuit Court of Appeals was published, the United States Supreme Court has passed upon the case, and held adversely to the holding of the Circuit Court of Appeals, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.

If at the time the deceased received the injuries he was employed for the railway company in interstate commerce, or in doing that which was so intimately connected with interstate commerce as to be practically a part of it, then the said act of Congress would control the disposition of the case. Upon the contrary, if he was not so engaged in interstate commerce, or in rendering a service connected therewith, and so closely related to interstate commerce as to be considered a part of the same, then the state law would control the question. The federal Employers’ Liability Act does not authorize a recovery in behalf of a parent where the case is controlled by that act, where the deceased leaves a surviving widow, husband, or children, but only allows a recovery in behalf of the parents when the- deceased leaves no surviving widow, husband, or children. The statute of this state provides in such a case for a recovery in behalf of the parents of the deceased, as well as in behalf of the surviving widow, husband, and children, and the next of kin in case there be no surviving widow, husband, children, mother, or father. It obviously follows that the plaintiff in error, being the mother of the deceased, would be denied a recovery if the case is controlled by the federal Employers’ Liability Act. It is equally plain that she would be allowed a recovery if the case is controlled by the state law on the subject. It is necessary for us to determine which law should be applied.

It is well settled that the federal constitutional provision which authorizes Congress to regulate commerce between the states gives controlling effect to an act of Congress which has occupied the field to the exclusion of state laws, which also undertake to cover the same field. It is plain that Congress has occupied the field in relation to the rights of relatives to recover damages for the death of a railway employs who is engaged at the time of his death in interstate commerce, and the United States Supreme Court has construed the act and held it to apply to railway employSs engaged in doing an act in aid of interstate commerce, and so closely related thereto as to be practically a part of it. Shanks v. Delaware, Lack. & West. Ry., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, and cases there cited. It is our duty to yield obedience to these decisions by the United States Supreme Court, and we have no inclination to do otherwise. The question, therefore, turns upon the issue of fact whether at the time the deceased was injured he was engaged in the service of the defendant in error in interstate commerce, or in work so closely related thereto as to be practically a part of it.

The evidence shows that when the deceased was injured he was working at night in the capacity of a switchman. At the time of his injury the crew with which he was working were engaged in switching three “bad order” cars onto the “repair track” situated in the yards, for the purpose of having the ears repaired. The deceased had been instructed by his foreman, W.' L. Pelly, to mount one of the’ cars that was to be carried onto the “repair track” for the purpose of riding the same into the switch, in order that he might set the brakes and stop the cars at proper places on the “repair track.” The cars were struck by the engine, but they did not receive sufficient momentum to carry them as far on the “repair track” as desired, and in order to accelerate their speed, they •were again struck by the engine in order to ■cause them to reach the desired destination. The second stroke of the engine threw .deceased from the top of the car down on the track, where he was run oyer and received ■the injuries that caused his death the following day. The cars with which the deceased was working at the time of the accident, and which were being carried to the “repair track” to be repaired, were two box cars and an oil tank car. The deceased was riding on the empty box car at the time of the accident, which was destined for Hugo, Okl., and which left Sherman for its destination August 8, 1910. The next car, which was the oil tank car, was destined for Mounds, Okl., and left Sherman for its destination on August 10, 1910. The next car originated at Morrisville, Tex., was loaded with lumber, and was destined for Oklahoma City, and left Sherman for its destination August 7, 1910.

The St. Louis-, San Francisco & Texas Railway Company is a Texas corporation, owning and operating a line of railroad in Texas which stops at Red river. The deceased was a citizen of Grayson county, Tex., and his mother, the plaintiff in error, and his widow and children also resided there. The switchyard in which he was killed was the local yard of said railway company at Sherman. The three out of repair cars had been detached by the local switch crew from the train and were being carried to the “repair track.” The local switch crew had charge of the cars, and the engine being used was the local switch engine. The three cars, when carried to the local yards, remained there for several days until they were repaired, when they continued on their journey to their places of destination in Oklahoma. From this evidence there can be no question that the car which was loaded with lumber, and which originated at Morrisville, and which was on its journey to Oklahoma City, was an interstate shipment, and the carriers who were causing it to be operated, and those of its employés who were assisting in furthering the interstate carriage of the shipment, were engaged in interstate commerce. If there is any question of fact involved in whether the empty box car and the oil tank car which was not proven to be loaded were being used by the carrier in interstate commerce, it would seem immaterial here, in view of the undisputed evidence that the deceased was carrying to the “repair track” for repair at the time he was injured the box car which ;was loaded with lumber, and which was clearly being used by its carrier in interstate commerce. The evidence requires this conclusion. We think that when the deceased, Geer, was carrying this car to the “repair track” for repairs he was engaged in a work so intimately connected with interstate commerce as to be practically a part of it. We think it is clearly so in view of the holding of the United States Supreme Court. In the ease of Shanks v. Delaware, Lack. & West. Railway Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, the United States Supreme Court, in construing the federal Employers’ Liability Act, and also in reviewing the holdings of that court in relation to it, made use of the following language:

“Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion (see Swift & Co. v. United States, 196 U. S. 375, 398 [25 Sup. Ct. 276, 49 L. Ed. 518]), and that the true test of employment in such commerce in the sense intended is, Was the employe at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it? Applying this test, we have held that the requisite employment in interstate commerce exists where a car repairer is replacing a drawbar in a car then in use in such commerce -(Walsh v. New York, New Haven & Hartford R. R., 223 U. S. 1 [32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44]); where a fireman is walking ahead of and piloting through several switches a locomotive which is to be attached to an interstate train and to assist in moving the same up a grade (Norfolk & Western Ry. v. Earnest, 229 U. S. 114 [33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 19140, 172]); where a workman about to repair a bridge regularly used in interstate transportation is carrying from a tool car to the bridge a sack of bolts needed in his work (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146 [33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153]); where a clerk is on his way through a railroad yard to meet an inbound interstate freight train and to mark the cars so the switching crew will know what to do with them when breaking up the train (St. Louis, San Francisco & Texas Ry. v. Seale, 229 U. S. 156 [33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156]); where a fireman, having prepared his engine for a trip in interstate commerce, and being about to start on his run, is walking across adjacent tracks on an errand consistent with his duties (North Carolina R. R. v. Zachary, 232 U. S. 248 [34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 19140, 159]); and where a brakeman on a train carrying several cars of interstate and two of intrastate freight is assisting in securely placing the latter on a side track at an intermediate station, to the end that they may not run back on the main track and that the train may proceed on its journey with the interstate freight (New York Central R. R. v. Carr, 238 U. S. 260 [35 Sup. Ct. 780, 59 L. Ed. 1298]).”

Moreover, upon that point the finding of fact by the Court of Civil Appeals is binding upon this court, there being no evidence of a contrary nature.

It is urged in able argument, both oral and written, by counsel for the plaintiff in error, that the Court of Civil Appeals erred in holding that the case is governed by the federal ¡Employers’ Liability Act, for the reason that said act, and the interstate character of the shipment were not pleaded in the trial court as 'a defense. It is true that the fact of interstate shipment was not alleged by either party to the suit. It has been held, however, by the United States Supreme Court that it need not be pleaded in order for the railway company to avail itself of the Employers’ Liability Act, where the evidence requires a finding that the employé was engaged in interstate commerce. St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; Toledo, St. Louis & Western Ry. Co. v. Slavin, 236 U. S. 454, 35 Sup. Ct. 306, 59 L. Ed. 671. We recognize the controlling force of this holding by the United States Supreme Court, and in doing so the only course open to us upon the question is to overrule the contention of the plaintiff in error, which we do. The judgment., of the Court of Civil Appeals in reversing and rendering the judgment of the district court should be affirmed; and it is accordingly so ordered. Affirmed.
      ifesPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: YANTIS, J.

license: Public Domain

text:
    ARMOUR & CO. v. MORGAN.
    (No. 2506.)
    (Supreme Court of Texas.
    May 16, 1917.)
    1. MASTER AND SERVANT <&wkey;177 — INJURIES TO Servant — Negligence of Fellow Servant.
    If any injury to an employé was caused alone by the negligence of Ms fellow servant, the employé was not entitled to recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353.]
    2. Master and Servant <&wkey;201(l) — Injuries to Servant — Negligence of Master and Fellow Servant.
    If any injury to an employé was caused by the employer’s negligence alone, or by its negligence blended with the negligence of the employes fellow servant, the employé could recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 515.]
    3. Master and Servant <&wkey;291(6) — Injuries to Servant^-Instruotion.
    In a servant’s action for injuries received when the machine at which he worked with his fellow servant was started by such follow servant, the court should have given defendant’s special request, directing the jury to find for defendant if the fellow servant was such and if the injuries were inflicted by reason of his negligence; the issue of the negligence of a fellow servant being clearly raised by the evidence, and defendant, in its answer, having alleged that the accident was caused by the acts of a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1137.]
    4. Master and Servant <&wkey;287(4) — Injuries to Servant — Negligence of Operator; of Machine — Question for Jury.
    In, an action for injuries to an employé, working at a machine, whether the operator of the machine, plaintiff’s fellow servant, was guilty of 'negligence was a question of fact for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1045, 1060.]
    5. Master and Servant <&wkey;264(15) — Injuries to Servant — Right to Have Defense Submitted.
    '⅛ Where the personal negligence of the employing company was the only ground of negligent pleaded by plaintiff in his action for injuries, the fact did not deny the employer the right to have the negligence of a fellow servant submitted to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 875.]
    6. Master and Servant &wkey;»185(8) — Injuries to Servant — Negligence of Fellow Servant — Failure to Guard Machinery.
    If injury to a company’s servant was traceable to the personal negligence of the company in failing to safeguard machinery, negligence of a fellow servant was not a defense.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 394.]
    Error to Court of Civil Appeals, Sixth Supreme Judicial District.
    Action by Eddie Morgan, by next friend, against Armour & Co. There was judgment for plaintiff, which was affirmed by the Court of Civil Appeals (151 S. W. 861), and defendant brings error.
    Judgments of the district court and the Court of Civil Appeals reversed, and cause remanded for new trial.
    Capps, Canty, Hanger & Short, of Ft. Worth, I-I. E. Stager, of Chicago, Ill., and Wm. L. Evans, of Ft. Worth, for plaintiff in error. A. J. Clendenen and Ben M. Terrell, both of Ft. Worth, for defendant in error.
   YANTIS, J.

Eddie Morgan, the defendant in error, recovered a judgment in the district court of Tarrant county, Tex., for damages as compensation for personal injuries which he received while in the employ of the plaintiff in error, Armour & Co. When injured, he was engaged, with three co-workers, all of whom were minors, in bradding the ears on buckets, by means of an iron bradding machine, which had a top similar to a table, and which was fastened to the floor. The particular work which the defendant in error was doing at the time he was injured was dropping bucket ears into a slot, through which they passed to the place of the machine where the ears were bradded to the bucket. The machine was operated by electricity. When young Driscoll pressed a pedal of the machine with his foot, this connected the machine with the power in the building and put it in operation. Young Morgan was dropping the ears in the slot, and young Driscoll would work the pedal, which caused the ears to be bradded to the buckets. It was a part of the duty of the defendant in error to pick np from the floor the ears which had, by accident in handling them, been dropped thereon. At the time he was injured he was engaged in picking up the ears from the floor. He testified that he began doing this while young Driscoll was not operating the machine, but had left it for the purpose of securing a drink of water. Young Morgan, according to his testimony, got off his stool, knelt on the floor, and was picking up the ears therefrom with his right hand; with his left hand partly resting on the top of the machine. Young Driscoll returned to the machine and set it in motion, at which time the defendant in error’s left hand was caught in the bradding machine at the place, of bradding, and the injuries complained of were inflicted.

Several grounds of negligence were alleged, but the case was submitted to the jury upon the one which alleged that the plaintiff in error was guilty of negligence in failing to safeguard the cogwheels and other machinery under the bradding table where his hand was caught. From, a verdict favorable to the defendant in error appeal was taken, which was passed upon by the Sixth Court of Civil Appeals, and the judgment of the district court affirmed. The Court of Civil Appeals found that the evidence warranted the conclusion that the plaintiff in error was guilty of negligence in failing to provide guards or fenders to dangerous machinery as pleaded, which negligence was the direct and proximate cause of the injury to the minor. A writ of error was granted by this court on the petition of the plaintiff in error.

If the injury complained of was caused alone by the negligence of young Driscoll, as a fellow servant, the defendant in error was not entitled to recover. If it was caused by the negligence of the plaintiff in error alone, or by its negligence blended with the negligence of the fellow servant, Driscoll, the defendant in error was entitled to recover. The trial court did not submit to'the jury any charge authorizing a recovery favorable to the plaintiff in error in the event the jury should believe that the injuries inflicted upon the defendant in error were caused alone by the negligence of his fellow servant, Driscoll. The jury was not given an opportunity by the trial court to find that Morgan’s injuries were the result alone of the .negligence of a fellow servant. The plaintiff in error requested that a special charge prepared by it be given to the jury, directing the jury to find in favor of the plaintiff in error if Tom Driscoll was the fellow servant of the defendant in error, and if the injuries complained of were inflicted by reason of "said Tom Driscoll’s negligence. This charge was refused. We think it should have been given, and that it was error to refuse it. It is contended by counsel for the defendant in error that the issue of the negligence of a fellow servant was not raised by any evidence in the case, and for this reason there was no error in refusing the special charge which was requested. We think the issue was clearly raised, and should have been charged upon. The plaintiff in error in its answer alleged that the accident was caused by the acts of a fellow servant of the defendant in error, and that by reason thereof the latter was precluded from recovering damages therefor. The term “acts” as used in said pleading is, of course, broad enough to include all negligent acts. The defendant in error testified that young Driscoll started the machine up while he, the defendant in error, was down on the floor, as stated, picking up the ears, and that the starting of the machine jarred his hand off the top of the machine and caused it to be caught and injured; and he further stated:

“The boy did not give me any warning that he was going to start up the machine. I did not see or know that he was about the machine, or was liable to start it up.”

We think this plainly presents the question of the negligence of Morgan’s fellow servant. It was a question of fact for the jury to determine whether young Driscoll was guilty of negligence. He had stopped the machine and left it for the purpose of •getting a drink of water, and, after returning to the machine and observing the attitude of the defendant in error on the floor, with one hand resting on the machine, and without any knowledge that Driscoll had returned, for the latter to start the machine without warning the defendant in error that he was going to do so would be sufficient to raise the question whether or mot he was guilty of negligence. There being both pleading and evidence upon the question of the injury resulting from the negligence of the fellow servant, the issue should have been submitted to the jury.

The personal negligence of the company was the only ground of negligence that was submitted to the jury, but we do not think this fact would deny the defendant the right to have a complete defense submitted for the determination of the jury. The negligence of the fellow servant, standing alone, and not contributed to by the negligence of the company, would be a complete defense.

It is true that if the injury to young Morgan was traceable to the personal negligence of the company in failing to safeguard the machinery, then the negligence of a fellow servant would not be a defense, or, if both operated together, they would constitute no defense. Railway Co. v. Jones (Civ. App.) 133 S. W. 744. But the plaintiff in error did not admit that the injuries resulted from the personal negligence of the company, or from its negligence blended with the negligence of a fellow servant. The plaintiff in error denied this, and alleged that the injuries were caused by the negligence of a fellow servant. If so, it would be a complete defense. There was evidence, as quoted, tending to prove it. There was a special charge requesting this defense to be submitted to the jury. Its refusal amounted to a denial by the trial court to allow the jury to find a verdict in its favor'if the jury should believe that the injuries were caused alone by the negligence of a fellow servant. We cannot approve a judgment which may be accounted for by the fact that the plaintiff in error was denied one of its defenses at the trial. It is no answer to say that the jury found that the injuries resulted from the personal negligence of the" company in failing to safeguard the machinery, for-they might not have so found, if they had been allowed to find otherwise in the event they should believe the injuries were caused by the act of a fellow servant..

We have examined each of the other questions presented in the several assignments-contained in the petition for writ of error, and we are of the opinion that they do not present reversible error.

For the error indicated herein, the judgments of the Court of Civil Appeals and the district court should be reversed, and the cause should be remanded to the district court for another trial. It is so ordered.

Reversed and remanded.
      &wkey;>For'other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    SCHIELE v. KIMBALL.
    (No. 2492.)
    (Supreme Court of Texas.
    May 16, 1917.)
    Courts <&wkey;247(10) — Texas Court of Civil Appeals — Question of Boundary.
    The test for determining whether a case is one of boundary, in which event the jurisdiction of the Court of Civil Appeals is final, is whether there would have been any ease if there had been no question -of boundary, or whether the whole litigation grows out of a question of boundary.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Trespass to try title by Láveme F. Kim-ball against Louis Schiele. Judgment for plaintiff, and defendant appealed to Court of Civil Appeals, where judgment was affirmed (150 S. W. 308), and defendant brings error.
    Cause dismissed.
    Love & Channell, of Houston, for plaintiff in error. Hutcheson & Hutcheson, of Houston, for defendant in error.
   PHILLIPS, C. J.

The question of our jurisdiction of this case was considered in passing upon the application for writ of error. We overruled a motion to dismiss at that time, and, being of the view that we had jurisdiction, granted the writ. Upon a full investigation it is apparent that the case is one of boundary, of which the jurisdiction of the Court of Civil Appeals is final.

The action was in the form of trespass to try title to certain land, the plaintiff pleading title in fee simple and by limitation. The defendant answered by plea of not guilty and iby pleas of limitation, and also pleaded over for the recovery of the land. While the suit had this form, the controversy in fact was over the true location of the boundary line between the adjoining tracts of the parties, and, if not located as the plaintiff contended, whether the defendant was not estopped to assert the contrary.

The plaintiff owned land upon the Moody survey, the defendant upon the Duckworth, two adjoining surveys in Harris County. The Duckworth is the older survey. The Moody survey lies south and west of it, its field notes calling for the south and west line of the Duckworth. The disputed line is the west boundary line of the Duckworth.

At the outset of the trial, the parties made an agreement which, in its effect, was that if the land in controversy was in the Moody survey, the plaintiff was entitled to it; and if in the Duckworth, the defendant was entitled to it, unless his claim was overcome by limitation or estoppel.

In the trial court a verdict for the plaintiff was directed, under the court’s view that he had conclusively established his claim of title under five years limitation.

The Court of Civil Appeals found that there was sufficient evidence to sustain the defendant’s contention that the west line of the Duckworth was 386 varas west of the line claimed by the plaintiff. This would make the land in suit a part of the Duck-worth ; and, according to its finding, rendered erroneous the peremptory charge in favor of the plaintiff as to a title by five years limitation, since the payment of taxes relied on to support such a title was only upon land described as in the Moody survey. It further found, however, that under the proof the defendant was estopped from claiming that the location of the disputed line was as asserted by him in the suit, and upon that ground affirmed the judgment.

The test for determining whether a case is oneoof boundary is: Would there have been any case if there had been no question of boundary? If so, it is not a boundary case. If not, it is necessarily a boundary case, though it may involve questions of title. The determinative inquiry simply is: Does the whole litigation grow out of a question of boundary? Cox v. Finks, 91 Tex. 318, 43 S. W. 1.

The essential question in the present case was whether the land in dispute was in the Moody or in the Duckworth survey. This depended upon the location of the boundary line. Under the agreement of the parties, the defendant was entitled to the land if it was in the Duckworth, unless defeated by limitation or estoppel. The plaintiff’s asserted title by limitation of five years depended upon the location of the line. The issue of estoppel likewise concerned only its location. It operated only as a method invoked for locating the line according to the equitable rights of the parties. There were no other possible issues in the case under the agreement. The location of the line was the dominating question of the entire case, and determines its character.

The writ of error was improvidently granted, and the cause is dismissed because the court is without jurisdiction of it.


author: MORROW, J. DAVIDSON, P. J. PRENDERGAST, J.

text:
    McDOUGAL v. STATE.
    (No. 4353.)
    (Court of Criminal Appeals of Texas.
    April 18, 1917.
    Dissenting Opinion May 7, 1917.)
    1. Criminal Law <&wkey;448(2) — Evidence—Conclusion.
    In trial for murder, where defendant’s wife testified on direct that defendant had shot deceased in self-defense, evidence that she had stated to the son of deceased that defendant had killed deceased because he had sued him was inadmissible, being a conclusion of the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1036.]
    2. Ckiminal Law <&wkey;925%(3) — Trial—Conduct of Jury.
    In view of Code Cr. Proc. art. 843, providing that, when new trial is granted, former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument, it was error requiring the granting of a new trial for a juror after submission of the cause to remind the jury that the accused had once been convioted, and on proof of such statement accused was entitled to new trial under the mandatory provisions of article 837, providing that new trial shall be granted where the jury have received new testim'ony after retiring.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2251.] f

    Prendergast, J., dissenting.
    Appeal from District Court, Smith County; R. M. Smith, Judge.
    Ira W. McDougal was convicted of murder, and he appeals.
    Reversed and remanded.
    See, also, 185 S. W. 15.
    Simpson, Lasseter & Gentry, of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for the offense of murder, with punishment assessed at 19 years’ confinement in the state penitentiary.

That appellant killed the deceased was a conceded fact, and his excuse was self-de.fense. This issue as well as manslaughter and provoking the difficulty were submitted to the jury. Appellant’s wife was an eyewitness, and testified to facts tending to show that the deceased was the aggressor, or at least at the time of the homicide the deceased was attacking appellant with a knife with the declaration that he intended to kill him. On cross-examination it appeared that the appellant’s wife had remained in Lrndale, where the homicide took place, some little time, about a half hour, after the homicide, and then started for her home, four miles distant, and traveled in a wagon with her son, and while so traveling she met Isom Vickery and his wife traveling toward Lin-dale. The state’s counsel asked her if on this occasion when her wagon was passing the vehicle in which Isom Vickery was traveling the latter did not say to her, “Who killed him?” and if she did not reply, saying: “Ira killed your papa because he sued him; I tried to keep him from it, hut I couldn’t do it.” Objection was made to this testimony on the ground that it was not proper cross-examination of the wife, not germane to the direct examination, and called for an opinion of the witness. The objection was overruled, and, Mrs. McDougal having denied the conversation, the state’s counsel proved by Isom Vickery and by Mrs. Isom Vickery that the conversation named did occur. This was objected to as hearsay and as undertaking to prove an opinion and conclusion and as being an inquiry not germane to the direct examination, which objections were overruled, and exception duly reserved.

We do not think that this expression comes within the rule stated in those cases in which it has been held that expressions constituting a shorthand rendition of the facts are admissible, though they bear the appearance of a mere opinion. These cases are cited in Branch’s Ann. P. C. p. 1036, but they all recognize the law to he that, where the statement is a mere opinion, even though in a dying declaration, it cannot be admitted in evidence. This is illustrated in Manley’s Case, 62 Tex. Cr. R. 392, 137 S. W. 1137. The dying declaration in that case contained the-following:

“I was stabbed by one of the soldiers at the fair grounds to-day, and without any word or act of my own that could be regarded as hostile or a provocation.”

The court held that the words “that could be regarded as hostile or a provocation” were the opinion or conclusion of the dying man and inadmissible.

In Sorrell’s Case, 74 Tex. Cr. R. 505, 169 S. W. 303, the dying declaration contained the words:

“He was shot down like John Ross.”

This was declared objectionable because an-opinion. The same principle was adhered torn Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1157, where the quotation from the dying-declaration was that a coward shot him.

In Bateson’s Case, 46 Tex. Cr. R. 35, 80 S. W. 88, the dying declaration contained the-words:

“They murdered me without cause.”

This court held that this statement should have been excluded. The rule is stated in Medina v. State, 43 Tex. Cr. R. 52, 63 S. W. 332, as follows:

“A dying declaration is admissible to show-all the facts immediately connected with the homicide to which a witness, were he present, could testify. This would exclude narratives, of past transactions and opinions or mere conclusions of the declarant” — citing Roberts v. State, 5 Tex. App. 141; Warren v. State, 9 Tex. App. 619, 35 Am. Rep. 745; 1. Greenl. Ev. § 159; Boyle v. State, 105 Ind. 469, 5 N. E. 203, 55 Am. Rep. 218; People v. Abbott, 4 Pac. 769.

In the Williams Case, 40 Tex. Cr. R. 570,.. 51 S. W. 226, the dying declaration said:

“When they came into the office I treated them perfectly gentlemanly. They added insult after-insult.”

The admission of this was held error.

The fact that, where the defendant uses-his wife as a witness, the state may conduct a cross-examination germane to the direct examination is not in question. That is settled by the decisions of this state. Branch’s • Ann. P. O. § 152, p. 86. From the same author (page 87) we quote the limitation or qualification upon this rule:

“It is error to permit the state to go into new matter on cross-examination of the wife of defendant either for the purpose of impeachment or to draw out circumstances or statements adverse to defendant. Cross-examination is not a device by which the state is entitled to lay predicates as to matters about which the wife of defendant could not be cross-examined or contradicted, or to get before the jury her opinions of defendant’s guilt, or her apprehensions of danger, or her hearsay statements as to new matter. [Citing cases.]
“If the state goes into new matter- on cross-examination, the witness becomes, for the time being, a state witness. The state is not entitled on cross-examination of the wife of the defendant to go into new matter, and thereby make the wife of defendant a witness for the state against her husband. The wife of the defendant may bo cross-examined by the state only as to such matters as naturally spring out of and appertain to her testimony given on her direct examination. [Citing cases.]”

The subject here emphasized is that the opinion as to the guilt or innocence of a defendant on trial or to the cause of the homicide is not admissible in evidence. In Marsh’s Case, 54 Tex. Cr. R. 148, 112 S. W. 323, the wife of the appellant while on the stand as a witness for him was on cross-examination asked by the prosecution if she had not said to Will Brown on an occasion named that it was nothing in the world that caused the trouble except a foolish remark of Kathleen Adams. U'pon her denying this statement, Will Brown was put upon the stand for the state, and testified that she made it. 1-Iis testimony was limited in the court’s charge to impeaching purposes. Judge Ramsey, delivering the unanimous opinion of the court, held this proceeding error. We quote from him as follows:

“It formed no part of the transaction or the conversation or matter inquired of from Mrs. Marsh on her original examination. It wholly related to another transaction subsequent to the killing, and was not receivable either for the purpose of impeachment or as a circumstance adverse to appellant. Again, we think the testimony was objectionable in that it called for the opinion of the witness as to the killing. For full discussion of this matter see Richards v. State, 53 Tex. Cr. R. 400, 110 S. W. 432; Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807; Id., 41 S. W. 638, 70 Am. St. Rep. 719; Messer v. State, 43 Tex. Cr. R. 97, 63 S. W. 643; Washington ,v. State, 17 Tex. App. 197; Hoover v. State, 35 Tex. Cr. R. 342, 33 S. W. 337; Gaines v. State, 38 Tex. Cr. R. 202, 42 S. W. 385; Creamer v. State, 34 Tex. 173; Greenwood v. State, 35 Tex. 587; Merritt v. State, 39 Tex. Cr. R. 70, 45 S. W. 21; Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431; Owen v. State, 7 Tex. App. 329; Red v. State, 39 Tex. Cr. R. 414 [46 S. W. 408]; Bluman v. State, 33 Tex. Cr. R. 43, 21 S. W. 1027 [26 S. W. .75].”

In Taylor’s Case, 74 Tex. Cr. R. 3, 167 S. W. 61, the majority of the court expressed the opinion that the Marsh Case, supra, was not sound, and that it should be overruled so far as it was in conflict with the Taylor Case, supra, and the decisions there cited. The decisions cited are those which establish the rule that a wife may be cross-examined on matters brought out on her direct examination. In the Taylor Case it was not contended that the testimony of the wife constituted her opinion, but the difference between the majority of this court in writing that opinion and Judge Ramsey in writing the opinion in the Marsh Case, supra, involved the extent to which cross-examination of the wife might go. In substance, as we understand it, the correctness of the rule as' quoted from Branch’s Ann. P. C. above was not involved, but its application only. We therefore assume that that part of the Marsh Case in which Judge Ramsey holds that the wife’s opinion as to the cause of the homicide is not admissible» is not in conflict either with the Taylor Case or the authorities therein cited. In Drake’s Case, 29 Tex. App. 276, 15 S. W. 730, this court, in an opinion, by Judge Will-son, on rehearing, disposed of substantially the same character of testimony in the following language:

“It did not involve facts in evidence, but merely the conclusion of the witness. It was not the statement of a fact, but of a conclusion — a mere opinion or belief of the witness. It was therefore a statement collateral to the issue as we understand the authorities upon this subject. In addition to the citations of authorities in our former opinion bearing upon this question, we refer to Wharton’s Criminal Evidence, § 482, 1 Wharton on Evidence, § 551, and 1 Greenleaf’s Evidence, § 449. As to the second proposition, we held, and still hold, that the statement inquired, about involved the opinion merely of the witness. A statement of opinion merely cannot be used to impeach a witness, except when opinion is an issue or where the opinion stated goes to show bias of the witness. Whart. Crim. Ev. § 482; 1 Greenl. Ev. § 449; Holmes v. Anderson, 18 Barb. [N. Y.] 420.”

In Watson’s Case, 50 Tex. Cr. R. 171, 95 S. W. 115, a witness who bad testified to facts showing self-defense was impeached by showing that he had stated that defendant shot deceased for nothing. This was held error on the ground that it was proving the opinion of the witness. In Woodward’s Case, 50 Tex. Cr. R. 294, 97 S. W. 502, the same principle is adhered to. Likewise in Hobbs’ Case, 53 Tex. Cr. R. 71, 112 S. W. 316.

The cases cited by the Assistant Attorney General are not in conflict with the case of Marsh v. State, supra, in so far as it declares the opinion of the witness inadmissible and declares the statement quoted in that case to have been an opinion. The statement imputed to Mrs. McDougal to the effect that her husband killed deceased “because he sued him” does not purport to relate any fact, but only a conclusion supposed to have been .drawn by her from the facts obtained by her from an undisclosed source. It touched a vital issue — the cause of the homicide. That appellant killed the deceased was not in question. The reason for it was the subject of the trial. The evidence complained of should have been excluded. ■

Appellant asserts that there was error in the refusal of the trial court to grant a new trial on the gi’ound that the jury after its retirement discussed, and used against him the fact that he had previously been convicted in this case and his punishment assessed at 20 years’ confinement in the penitentiary. It appears that in developing the case reference was made to the fact that the defendant had been previously tried,'but there was no reference or evidence showing how it resulted. On the first night that the jury were .out they were of the opinion that appellant was guilty of some degree of homicide, and they balloted a number of times upon the amount of his punishment. Their views varied, some insisting that the offense was manslaughter and the punishment should be 2 years, others insisted upon 5 and others upon 10 years, and others for various numbers of years going up to 99. They reached that night a stage in which ten voted for 15 years as the punishment and two against it. There is evidence that one of the men who was for the highest punishment began the discussion ' or statements relating to the former conviction. One of the jurors testified as follows:

“Just before the 10 and 15 year men agreed on 19 years it seemed that we had come to a halt, when the other two would not come to them, and we quit, and several went into another room and went to sleep, and a little after 3 o’clock one of the jurors roused up the balance and wanted an agreement.”

As to its terms he replied:

“Well, in the former trial the jury gave Mc-Dougal 20 years, and I think that the anguish that he has undergone for the past year, we will just disregard that year and give him 19 years.”

The juror testifying said that he told him he did not think they had a right to consider the former sentence, but finally told him that they would get the men together, and they did get the other eight, including himself, and arrived at a verdict of 19 years. The jurors generally stated that they were not influenced by the fact brought to their knowledge of the prior conviction or the discussion of it.

Article 837, O. O. P., prescribes that:

“New trials in cases of felony shall be granted * * * where the jury, after having retired to deliberate upon a case, have received other testimony.”

In Mitchell’s Case, 36 Tex. Cr. R 318, 33 S. W. 367, 36 S. W. 464, Hurt, Presiding Judge, delivering the opinion of this court construing this statute, says:

“It would appear from this that, if the jury received other testimony after having retired to deliberate upon a case, a new trial is mandatory. Certainly it would be so where the testimony is of a material character, and it makes no difference whether the jury received this testimony from one of their number, or from others.”

In Lankster’s Case, 43 Tex. Cr. R. 298, 65 S. W. 373, Henderson, J., delivering the opinion of this court reversing the judgment assessing the penalty at 7 years’ confinement in the penitentiary because during their deliberations one of the jurors mentioned in the .presence of his fellows the fact that appellant had been previously convicted in the same case and his punishment fixed at 25 years in the penitentiary on one trial and 15 years on another, said:

“The question thus presents itself: Was this such misconduct on the part of the jury as to require a reversal of this case? We are aware there are some cases wherein we have stated that the mere allusion to the failure of defendant to testify is not a ground for reversal. But in those cases it will be found that state’s counsel was provoked in what he stated by remarks of defendant’s counsel. Campbell v. State, 35 Tex. Cr. R. 161 [32 S. W. 774] ; Brantly v. State, 42 Tex. Cr. R. 293 [59 S. W. 892], In Morrison’s Case, 39 Tex. Cr. R. 519 [47 S. W. 369], which has been referred to, we do not understand that any question as to' the misconduct of the jury was before the court. The case was reversed on other grounds, and it was held in that case that the affidavit seeking to impeach the verdict of the jury for misconduct was too general. * ⅜ * The former convictions were alluded to and discussed. Obviously, as men generally act from motive, this matter was discussed by some one for a purpose; and the suggestion that former juries had not only found appellant guilty, but had fixed a heavy punishment to his offense, would have more or less moral weight with the jury. It was calculated to strengthen the weak-kneed, and to increase the ardor of those who were already in favor of the greatest number of years. But we do not believe, in a matter of this sort, we are authorized to speculate as to possible injury that may have accrued to appellant. The jury were guilty of misconduct in referring to the former convictions, and the bare fact that this misconduct was of a character calculated to injuriously affect him is enough.”

In Tutt’s Case, 49 Tex. Cr. R. 202, 91 S. W. 584, Morawitz’s Case, 49 Tex. Cr. R. 366, 91 S. W. 227, Hardiman’s Case, 53 S. W. 121, Horn’s Case, 50 Tex. Cr. R. 404, 97 S. W. 822, Clements’ Case, 69 Tex. Cr. R. 369, 153 S. W. 1137, and Blocker’s Case, 61 S. W. 391, there were reversals because the jury after retirement and before verdict had received from one of their number knowledge of the prior conviction of the defendant or his co-defendant, each of them holding that such knowledge was receiving evidence within the terms of the statute, and that harmful evidence was received, rendering it imperative that a new trial be granted unless the absence of injury was shown. In most of these cases the punishment assessed upon the previous trial was greater than that in the case passed upon, and in all of them there was testimony by the jurors to the effect that they were not influenced by the knowledge thus received.

Touching [¿his character of testimony, we quote from the cases of Lankster v. State, supra, ¿nd Mitchell v. State, supra, as follows:

“The jury say that this discussion in no wise influenced them in arriving at their verdict. The affidavits of jurors who are guilty of misconduct to the effect that they were not prejudiced by what they did is of little weight. As was said in Mitchell’s Case, 36 Tex. Cr. R. 318 [33 S. W. 367, 36 S. W. 463]: -‘Such an affidavit is to be expected from jurors seeking to justify themselves for their own misconduct, and to escape a responsibility imposed upon them by their oaths, which an admission that they were' otherwise influenced would entail.’ ”

There are cases passing upon article 837, subd. 7, holding that a mere incidental mention of the former conviction will not necessarily result in reversal. Among them are Baines’ Case, 43 Tex. Cr. R. 490, 66 S. W. 847, where the complaint relating to a reference toy the state’s attorney to the former conviction, the court held there was no such reference; Salazar’s Case, 55 Tex. Cr. R. 313, 116 S. W. 819, where there was no discussion of the former conviction, but a bare mention of it only; Coffman’s Case, 73 Tex. Cr. It. 309, 165 S. W. 939, where a witness during the trial volunteered a statement of the previous conviction, and the court promptly reprimanded the witness and withdrew the matter from the jury, and where it appeared that there was no discussion of the previous conviction by the jury, and it further appeared that the jury knew of it in advance; Smith’s Case, 52 Tex. Cr. R. 344, 106 S. W. 1161, 15 Ann. Cas. 357, in which there was' casual, incidental allusion to the former conviction, but no use of it, the court stating the true rule to be:

“That a verdict ought not to be set aside for every incidental and casual mention of a former * * * conviction, * ⅜ ⅜ unless the court may fairly and reasonably see in the light of all the eircumstanees that such reference or discussion did or might have prejudiced the appellant’s case.”

Arnwine’s Case, 54 Tex. Cr. R. 215, 114 S. W. 796, was one in which the jury knew, of the prior conviction before it was mentioned in the jury room. It was discussed, however, and there was a dissenting opinion holding that a reversal was required, and with this opinion we agree. An examination of each of the cases in which there has been an af-firmance will disclose facts differeiit from those involved in the present case. In each of them, except the Arnwine Case, supra, the evidence demonstrated an absence of the injury.

The statute has also been given a mandatory effect in its application to the receipt of harmful testimony other than that of prior conviction. Thus in the McWilliams Case, 32 Tex. Cr. R. 269, 22 S. W. 970, Hurt, Presiding Judge, writing the opinion reversing for the receipt of .such testimony, says:

“If the jury, after having retired to deliberate upon the case, shall receive other testimony, a new trial shall be granted; and, the additional testimony being against the accused, we will not stop to inquire as to its effect np«n the jury or jurors.”

And in Tate’s Case, 38 Tex. Cr. R. 261, 42 S. W. 595, reversing on a similar ground, the court says:

“We are left in the dark as to the extent of the discussion of this matter in the jury room, nor are we informed that it had any particular effect as against the defendant; but we are constrained to believe that, as the matter appears from the record in this case, it must have been used to his detriment.”

The court further says that to permit the testimony given in the jury room would be to deprive the defendant of the right of cross-examination and violative of the fundamental principles underlying the right of trial by jury. Other cases in which there have been reversals upon the ground of a reference to or proof of the prior conviction are Sorrell v. State, 74 Tex. Cr. R. 505, 169 S. W. 299; Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 145; Kirksey v. State, 58 Tex. Cr. R. 188, 125 S. W. 15; May v. State, 59 Tex. Cr. R. 141, 127 S. W. 832; Clements’ Case, 69 Tex. Cr. R. 369, 153 S. W. 1137; Hughes v. State, 44 Tex. Cr. R. 296, 70 S. W. 746.

Another statute (article 843, C. C. P.) provides that former convictions shall he regarded as no presumption of guilt, nor shall it be alluded to in the argument. The violation of this statute has been uniformly held reversible error. Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366; May v. State, 59 Tex. Cr. R. 141, 127 S. W. 832; Wyatt v. State, 58 Tex. Cr. R. 115, 124 S. W. 929, 137 Am. St Rep. 926. In the analogous case of McCampbell v. State, 37 Tex. Cr. R. 611, 40 S. W. 497, relating to the violation of the statute prohibiting the separation of the jury without the consent of the court, there was held a presumption of error, the court saying:

“The accused is not alone interested in this matter. The state has an interest in the life and liberty of the citizen. The state has an interest in the purity of the trial by jury. * ⅜ * A separation of the jury may result in great injustice to the state, as well as the accused, not only in the particular case, but as establishing a bad precedent.”

And in Early’s Case, 51 Tex. Cr. R. 391, 103 S. W. 868, 123 Am. St. Rep. 889, it was held that, where a juror talked over the telephone, violative of a statute which prohibited jurors from communicating with other persons without the consent of the court, the presumption of injury would be indulged, at least to the degree that the state would have the burden of showing that there was no injury. Many reversals have been ordered by reason of the failure to observe the rule declaring that defendant’s failure to testify shall not be used against him and for the violation of other statutory regulations.

The statute the violation of which is complained of in this case is one which expressly directs that a new trial shall be granted ⅜ where the jury after retirement receives other testimony. The Constitution guarantees a public trial by an impartial jury and that the accused shall be confronted with the witnesses against him; and one of the provisions of the Code is that one is disqualified as a juror who is a witness in the case. A juror who knows damaging facts against the appellant should disclose them and disqualify himself upon the ground that he is a witness, and failing to do so and disclosing them to the jury after the retirement, can hardly be classed as an impartial juror. The testimony thus received by the jury in its retirement is contrary to the constitutional requirement giving the defendant the right to be confronted with the witnesses against him. Testimony thus received is under circumstances denying the right of cross-examination declared by our courts as an efficacious test for the discovery of truth. Bell v. State, 2 Tex. App. 220, 28 Am. Rep. 429. The statutes mentioned were passed to preserve to parties accused of crime the constitutional rights referred to and to protect the state against a corrupt verdict. The inhibition against the receipt by the jury of evidence after its retirement is against legal evidence as well as illegal evidence, but the facts under discussion here relate to illegal evidence only. If on the trial of the case the state had proved over the objection of appellant the prior conviction, it would have given its sanction to the introduction of the damaging fact which was not admissible. Article 843, O. O. P.; May v. State, 59 Tex. Cr. R. 141, 127 S. W. 832. If such evidence were introduced and its admission brought before this court for review, it would, as stated in the cases mentioned above, be reversible error. Under such circumstances the court would not call the jurors to inquire whether they were influenced by the introduction of this' illegal evidence, but the fact that they were influenced by it would be presumed. It seems illogical to place upon the appellant a greater burden where the illegal evidence is received in his absence, in opposition to a constitutional right and statutory provision, than would be imposed upon him if the evidence had been introduced in his presence on the trial. Clements v. State, 69 Tex. Cr. R. 369, 153 S. W. 1137. It is therefore thought that the conclusion reached by this court as recorded in Lankster’s Case, 43 Tex. Cr. R. 298, 65 S. W. 373, supra, and Mitchell’s Case, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456, supra, is correct.' These cases bear evidence of careful consideration of the questions involved. They are characterized by no loose expressions, but with cogency of reasoning and clearness of statement declare that, when a jury after it retires to consider its verdict receives other evidence damaging to defendant, the presumption of injury obtains, to rebut which the state must do more than to elicit the conclusions of the jurors that they were not influenced. These cases have been followed. Ysaguirre v. State, 42 Tex. Cr. R. 253, 58 S. W. 1005; Casey v. State, 51 Tex. Cr. R. 433, 102 S. W. 725; Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 824; Hughes v. State, 44 Tex. Cr. R. 296, 70 S. W. 746; Clements v. State, 69 Tex. Cr. R. 369, 153 S. W. 1137.

“ In our judgment, the facts disclosed by the bill of exceptions show that the jury after its retirement to deliberate upon the case not only received other testimony, but received illegal testimony damaging to the appellant, and, further, that the former convictions of appellant were alluded to and used against him in a manner inhibited by article' 843, C. C. P. The evidence, in our opinion, does not show that appellant was not injured by these' proceedings. In obedience to the command of article 837, C. C. P., appellant’s motion for a new trial should have been granted.

Because of the errors pointed out, the judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J., dissents.

DAVIDSON, P. J.

(concurring). Concurring with Judge MORROW in the reversal of this judgment, I desire to make a few general observations with reference to the introduction of the statements of appellant’s wife. The question presented is this: Was her statement one of fact or one of conclusion or opinion based on some known facts, or formed and reached without facts?. If it was an opinion from either viewpoint, it was clearly inadmissible. If her statement was the result or conclusion of statements made to her by her husband, those statements, if admissible, should be produced and not the conclusion from the statements. This, of course, would result in excluding a conclusion or opinion by the witness from such facts, or want of facts. The statement of these propositions ought to be self-evident; that is, if the facts exist, being permissible, they should be introduced, and not the opinion formed from such facts, or, if there be no facts, then the conclusion would not only be an opinion, but would be hearsay, and opinion without foundation. If there are no facts upon which to predicate the opinion, it is equally self-evident that the opinion could not be introducible. The statement imputed to Mrs. McDougal excludes every idéa except that of conclusion or opinion. What operated upon her mind to form the conclusion was not stated. Her statement or conclusion was that appellant killed deceased because deceased had sued him. There must have been some fact inducing such conclusion. What was it? Whatever it was was not given nor stated by her, nor was she asked about it. The witness only stated her conclusion. The jury was entitled to know the facts, if any existed, and not the opinion of a witness. If her conclusion was reached by any communication made by her husband, this would come within the interdiction of article 794, O. O. P., prohibiting the use of confidential communications. She could not be even cross-examined about such confidential communications. This would lead necessarily to the proposition that she could not be impeached so far as this phase of the matter is concerned. Confidential communications are placed by our statute as being within the Holy of Holies of the law and the family circle, to be rigidly upheld. The family is the basic foundation of our civilization and government, and no invasion should be permitted as to this sacrbdnoss. Any statement made by the husband to the wife cannot be used under the terms of article 795, O. O. P., if incriminating; for this would be making her a witness as to such confidential matters and statements. The question of the t'estimony of other witnesses as to conversations between husband and wife heard by them is not here discussed, uor is it involved so far as the record shows. The wife is not to be classed as a third party. If her statement was but an opinion or conclusion, it was error to admit the statement. This was conceded and so held in the opinion on the former appeal as found in 185 S. W. 15. But that opinion upheld the ruling of the trial court upon the theory that it was legitimate cross-examination of the wife. In the light of further reflection I am persuaded the former opinion on this question was erroneous, ought not to have been so rendered, and should not now be upheld ns the law under the facts of this case. The relation of husband and wife existed. She testified at the instance of her husband to facts and circumstances attending the difficulty which ended in the killing. After the killing she was asked but denied making the statement that her husband killed deceased because deceased had sued her husband. This was not germane to her testimony given as to the incidents of the fatal difficulty, but, if it was and was formed on confidential statements to her, still the statute would interdict the use of such statements ; much less could her opinion be given. The state could not use such evidence as incriminating. If her husband killed on account of the lawsuit, it would tend to show on his part a motive, and therefore would or might impair his defensive theories of the killing. She, as before stated, was not asjmd about any facts upon which her conclusion was reached or her opinion formed. AVhat these facts were, if any, was not disclosed by the questions or the answers. If her husband made statements, they could not' be used, and therefore for much stronger reasons her opinion or conclusion could not be introduced in evidence: First, because they were confidential communications; second, if she obtained the information from others, her conclusion would be' an opinion formed upon hearsay, and therefore inadmissible; third, being incriminating, they would be interdicted and inadmissible because coming from-the wife; fourth, if legitimate, the facts should be given, and not her conclusion resulting from the facts, nor her opinion stated from such facts, or information from others; " fifth, the propounded question itself assumes as a predicate facts which are not stated and about which inquiry was not made; sixth, the impeaching answer verified the fact that it was but her conclusion or opinion predicated either upon known and undeveloped facts, or upon hearsay statements, even if she made the statement imputed to her; seventh, realizing the solemnity of adjudication of questions, I further realize the more important fact that it is far better to overrule erroneous opinions than to let them stand as a menace to the law and to our statutes and jurisprudence. Such opinions are always dangerous when they lead to erroneous punishment, and this from any viewpoint, but when they lead to substituting opinions of witnesses for the facts and takes away from the jury their province to decide upon the facts, it becomes a menace to the liberty of our people, but, when this uncovers the relation of husband and wife and breaks down that sacred bulwark, it becomes subversive of the foundation stone of society as well as the law and substitutes opinion of witnesses for facts and jury trials. Even where there is a doubt of facts, the doubt should be resolved in favor of the sanctity of the home inhering in the marital relations. Doubt, of fact, or law favors the presumption of innocence, and this by statute and the fundamental principles pertaining to criminal trials. This is true in regard to the proposition generally stated, but when it goes further and undertakes to invade the home circle and tear down its inherent sanctity, then it becomes more than serious.

I also wish to concur in the reversal of this judgment on account of the misconduct of the jury as shown by the motion for new trial and evidence in support of it, and stated by Judge MORROW in his opinion. In view of the fact he has so fully and conclusively reviewed the question, I deem it unnecessary to add anything to what he has said, but simply add this by way of concurrence. He has reached the correct conclusion of the law applicable to the state of case presented by the record, and has rightly decided the case on that question. It is unnecessary for me to say more than the above or write further, but I cite the following as some of the cases fully sustaining Judge Morrow’s opinion: Lankster v. State, 43 Tex. Cr. R. 298, 65 S. W. 373, Hughes v. State, 43 Tex. Cr. R. 511, 67 S. W. 104, and citation of authorities in both cases; Hughes v. State, 44 Tex. Cr. R. 296, 70 S. W. 746; Baines v. State, 43 Tex. Cr. R. 490, at page 498, 66 S. W. 847; Tutt v. State, 49 Tex. Cr. R. 202, 91 S. W. 584; Clements v. State, 69 Tex. Cr. R. 309, 153 S. W. 1137.

PRENDERGAST, J.

(dissenting). On the first appeal of this case, reported in 185 S. W. 15, precisely the same question was then raised that is now raised on this appeal as to the impeachment of Mrs. McDougal, appellant’s wife. The state in cross-examination of her, for the purpose of laying a predicate to impeach her, was properly permitted to ask her if when she met Isom Vickery and his wife (deceased’s son and his wife), and he asked, “Who killed Papa?” if she did not reply, “Ira killed your papa; he killed him because he sued him, and I done everything I could to keep him from doing itand when she denied making such reply, the state was then properly permitted to impeach her by Isom Vickery and his wife, in which they testified that Mrs. McDougal was asked said question and made said reply. All this was for the purpose of laying a predicate to impeach and impeaching her by the testimony of Isom Vickery and his wife. As stated, •this identical question was the one decided in this case by this court on the first appeal. It was fully and thoroughly considered both, when the original opinion was handed down and again on appellant’s motion for a rehearing by this full court as then constituted, and, without any difference of opinion or any dissent from any member, the said proceedings were held legal. I have no doubt of the correctness of that holding, and, so far as I am concerned, adhere to it and reaffirm it.

Said statement by her to Isom Vickery and his wife, as they swore, was, at most, but a shorthand rendering of the facts, which heretofore has always been held admissible. 1 Branch’s Ann. P. C: § 132; Miller v. State, 18 Tex. App. 232; Powers v. State, 23 Tex. App. 64, 5 S. W. 153; Fulcher v. State, 28 Tex. App. 471, 13 S. W. 750; Meyers v. State, 37 Tex. Cr. R. 210, 39 S. W. 111; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345.

Again, this court has heretofore held that a dying statement by a deceased, such as that he was “killed for nothing” or “shot without cause,” and other like statements, was a shorthand rendering of the facts, and not a mere opinion, and admissible. Roberts v. State, 5 Tex. App. 150; Pierson v. State, 21 Tex. App. 59, 17 S. W. 468; Sims v. State, 36 Tex. Cr. R. 165, 36 S. W. 256; Connell v. State, 46 Tex. Cr. R. 261, 81 S. W. 746; Lockhart v. State, 53 Tex. Cr. R. 593, 111 S. W. 1024; Craft v. State, 57 Tex. Cr. R. 261, 122. S. W. 547; Gaines v. State, 58 Tex. Cr. R. 631, 127 S. W. 181; Corbitt v. State, 72 Tex. Cr. R. 396, 163 S. W. 436; Clark v. State, 56 Tex. Cr. R. 296, 120 S. W. 179.

If the statement is a shorthand rendering of the facts as shown by the statement, or the context, it has heretofore been held admissible, though apparently an opinion. Sims v. State, supra; Connell v. State, supra ; Lockhart v. State, supra; Craft v. State, supra; Gaines v. State, supra; Lane v. State, 59 Tex. Cr. R. 603, 129 S. W. 353; 2 Branch’s Ann. P. C. p. 1036.

I have moré than once read and .studied the testimony heard by the trial judge in the attack of appellant on the verdict of the jury. I am thoroughly convinced that the trial judge was fully justified in-overruling the motion for-new trial on that ground. I think a careful study of all of that testimony should convince any one that the trial judge correctly overruled the motion on that ground. It is useless for me to detail that evidence. There may be culled, as has been done herein, some expressions in the testimony of some of the jurors which, if taken alone, might have justified the trial judge to have set aside the verdict on- that ground, but that is not the criterion. All the testimony of all of the jurors should be considered; and when that is done, as was done by the trial judge in this case, I think his action was correct. And his action is supported by the former decisions of this court I merely cite some of the cases without commenting upon them. Coffman v. State, 73 Tex. Cr. R. 308, 165 S. W. 939; Morrison v. State, 39 Tex. Cr. R. 519, 47 S. W. 369; Arnwine v. State, 54 Tex. Cr. R. 213, 114 S. W. 796; Smith v. State, 52 Tex. Cr. R. 527, 107 S. W. 844; Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847; Salazar v. State, 55 Tex. Cr. R. 313, 116 S. W. 819; Lamb v. State, 75 Tex. Cr. R. 78, 169 S. W. 1158.

The judgment herein should be affirmed, not reversed. I respectfully dissent

       Reported in full in tlie Pac. Reporter; reported as a memorandum decision without opinion, in 66 Cal. xviii.

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author: PRENDERGAST, J.

text:
    McGEE v. STATE.
    (No. 4402.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. AnimAls <S^29 — Tick Eradication — Offenses — Statute Applicable.
    The tick eradication law, enacted March 6, 1917, does not apply to the case where the cause originated and the conviction was had and the appeal perfected before that date, but only the provisions of Acts 33d Leg. c. 169, are applicable,
    [E'd. Note. — For other cases, see Animals, Cent. Dig. § 79.]
    2. Statutes ®^>76(1) — Construction—Constitutional Provisions.
    Const, art. 3, § 56, prohibits, except as otherwise provided, passage of certain local and special laws, “and that where a general law can be made applicable, no local or special law shall be enacted.” Article 16, § 23, provides that the Legislature may pass laws for the regulation of live stock, etc., and exempts sections or counties from the operation of such laws. Tick Eradication Law (Acts 33d Leg. c. 169) § 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7314e), provides for an election in each county to determine whether such county shall take up the work of tick eradication, and when such elections are carried, the county judge shall notify the sanitary live stock commission of the adoption of such law and that the Governor shall issue a proclamation quarantining the county for tick eradication, etc. Held, that under Const, art. 16, § 23, section 8 of Acts 33d Leg. c. 169, is constitutional.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 77½.]
    3. Criminal Law <®==>304(9) — Evidence—Judicial Notice.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), as under the law the court and jury had to take judicial notice of the Governor’s proclamation that a county had adopted the law, it was unnecessary to prove the proclamation alleged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 706, 2951½,]
    4. Criminal Law <@=>430 — Documentary Evidence.
    If the state undertook to introduce the proclamation, a certified copy was sufficient, and under no circumstances would it have been necessary to produce the original.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 1019.]
    5. Criminal Law <@=>304(17) — Evidence—Judicial Notice.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), judicial notice could not be taken of the notices from and orders of the state sanitary live stock commission.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 712, 2951⅝.]
    6. Criminal Law <S=^441^-Evidence — Documentary Evidence — Admissibility.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), a notice from the state sanitary live stock commission, not signed or properly authenticated or proven up, should have been excluded, since either the original should have been produced and identified, or at least a properly authenticated copy thereof in order for it to be admissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1028.]
    7. Animals <§=>36 — 1Tick Eradication — Offense — Evidence.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), based on section 7, making it a misdemeanor to fail or refuse to dip or otherwise treat live stock as directed by the sanitary live stock commission, although section 4 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7314c) makes it the duty of the owner or caretaker of live stock located in special quarantined area established under authority of section 3 to treat such live stock as directed by such commission, a purported copy of a notice to the sheriff by the commission, unsigned, notifying him to take defendant’s cattle in possession and dip them, was immaterial, and should have been excluded, as the prosecution was not based on that section of the law giving the commission power and authority to require the sheriff to do it.
    [Ed. Note. — Por other cases, see Animals, Cent. Dig. §§ 95, 96.]
    Appeal from Young County Court; W. P. Stinson, Judge.
    W. C. McGee was convicted of unlawfully violating the tick eradication law, and he appeals.
    Reversed and remanded.
    Johnson & Johnson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully violating the tick eradication law, and assessed the lowest fine.

The first and only law applicable herein passed by our Legislature on the subject of the eradication of ticks, so far as we can find, was the act of April 8, 1913, p. 353 et seq. This act is quite crude, at least in some of its provisions, and some of them are quite difficult to understand, if indeed the language thereof is such that they can be understood in some particulars at all.

The present Legislature, however, by an act approved March 6, 1917, not yet published, enacted another law dn this subject, which is much clearer and some of its provisions fuller than the act mentioned above. We have examined the new act in the secretary of state’s office, and find that it provides that that act is cumulative 'only, and in effect does not expressly repeal the previous law. Furthermore, as this cause originated and the conviction was had and this appeal perfected before said act of March 6, 1917, was enacted, its provisions cannot be applied herein, but only the provisions of the said act of April 8,1913, are applicable. This prosecution was had under section 7 of said act of April 8, 1913, which is:

“Any person, company or corporation owning, controlling or caring for any domestic animals affected with or known to have been exposed to any contagious or infectious disease or the agency or transmission thereof, who shall fail or refuse to dip or otherwise treat such live stock at such time and in such manner as directed by the live stock sanitary commission, * * ⅜ shall be fined in any sum not less than fifty dollars nor more than one thousand dollars.”

Section 4 thereof is:

“It shall be the duty of any person in any county who is the owner or caretaker of any live stock located in a special quarantined area established under the authority of section 3 of this act, known by the live stock inspector to be infected with ticks (Margaropus analatus) or scabies infection are exposed to infection or agent of transmission of any other infectious, contagious, or communicable disease to treat such live stock and at such times and in such manner as shall be directed by the Live Stock Sanitary Commission.”

Section 8 requires the commissioners’ court of any county lying in a certain portion of the state to order an election held in such county upon the petition of a certain number of resident landowners to determine whether such county shall take up the work of tick eradication therein. It also directs when and how such elections shall be held, returns made, and the result declared. And when such elections are carried, etc., it requires the county judge -of such county to notify the sanitary live stock commission of the adoption of such law, and requires the commission to have the Governor issue a supplementary proclamation quarantining said county for tick eradication, and, in substance, requires the counties and citizens thereof under the direction of said commission to begin the work of tick eradication within 30' days thereafter.

The information herein, which was based upon and follows a proper complaint, alleged that an election was held in Young county on December 11, 1915, for determining whether that county should be under the direction of said commission for the eradication of the Texas fever tick, and after said law was in force and effect, and tlie Governor liad issued properly the said proclamation placing said county under quarantine for said purpose, that thereafter, on July 6, 1916, appellant was the owner and caretaker of domestic animals, catüe, “then and there infected with and exposed to the Texas fever tick, an agency for the transmission of an infectious and contagious disease, and did then and there fail and refuse to dip his said cattle as required by law,” and after said commission had directed him to- dip his cattle, “and an order to that effect had been served upon him by an authorized inspector.”

Section 56, art. S, of our Constitution, provides that “the Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing,” and then specially enumerates a large number of matters embraced within this express prohibition, and concludes with this further provision, “and in all other cases where a general law can be made applicable, no local or special law shall be enacted.”

If this section of our Constitution was all there was therein about the enactment of a local or special law, then perhaps it would have prohibited and excluded the enactment of said sections of the said act of 1913; but the constitutional convention and the people in adopting it enacted another provision (section 23 of article 16) which is:

“The Legislature may pass laws for the regulation of live stock and the protection of stock-raisers in the stock-raising portion of the state, and exempt from the operation of such laws other portions, sections or counties; and shall have power to pass general and special laws for the inspection of cattle, stock and hides, and for the regulation of brands: Provided, that any local law thus passed shall be submitted to the freeholders of the section to be affected thereby, and approved by them before it sháll go into effect.”

This section 23 took out of said section 56 any prohibition'of the character of legislation of said act of April 8, 1913, and is one of the exceptions “otherwise provided in this Constitution” by section 56. Both our Supreme Court, in Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440, and this court, in Ex parte Tompkins, 47 Tex. Cr. E. 359, 83 S. W. 379, and see also Roberson v. State, 42 Tex. Cr. E. 597, 63 S. W. 884, have expressly held that under said section 23 our Legislature has the power and authority to pass a law regulating live stock and to make it applicable to the entire state or to a given county or to a subdivision of a county. And that such law can be made effective by direct enactment of theTlegislature, or the Legislature can provide for submitting said law to a direct vote of the freeholders of the locality in order to make it effective. We regard this question so well settled that we deem it unnecessary to further discuss it now. So that that part of the act of April 8, 1913, pro-. vi'ding for the submission of the tick eradication law to a vote of the county, and that the county had adopted it and the Governor at the instance of the commission had properly issued said proclamation, is not unconstitutional, but on the contrary the act and what was done thereunder was clearly constitutional.

Under the law the court and jury had to take judicial knowledge of the Governor’s proclamation alleged. It was unnecessary to prove it. But if the state undertook to introduce it at all, it would be proper to procure from the secretary of state a properly certified copy of such proclamation. The new act of March 6, 1917, so provides. Under no circumstances would it have been necessary to have produced the original and introduced that.

Judicial knowledge could not have been taken of the notices from and orders of the sanitary live stock commission. The notice from the sanitary live stock commission introduced over appellant’s objections was unsigned by any one and not properly authenticated or proven up. Appellant’s objections to it should have been'sustained, and that document excluded. Either the original of that from the commission, if necessary to be introduced at all, should itself he produced and identified, or at least a properly authenticated copy thereof, in order for it to be admissible.

We cannot see how the purported copy of a notice to the sheriff by the commission, unsigned, notifying him to take appellant’s cattle in possession, arid him, the sheriff, dip them, had any bearing in this case. The commission had the power and authority under the law to require the sheriff to do this, but this prosecution was not based on that feature of the law, but was upon appellant’s failure and refusal himself to dip his own cattle. On another trial, unless in some other way this is shown to be material, that notice, should be excluded.. We think the testimony of the county attorney sought to he introduced by appellant was inadmissible.

We deem it unnecessary to discuss any other question attempted to be raised.

Eor the errors above pointed out, the judgment is reversed, and the cause remanded.
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text:
    MUNSEY v. STATE.
    (No. 4427.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Indictment and Information <©==>72 — Conjunctive Allegations.
    The Tick Eradication Law (Acts 33d Leg. c. 169) § 7, provides that the law may be violated by failure or refusal to dip animals “affected with any contagious disease, or any animal” known to have been exposed to such disease. Held, that a complaint charging violation of ithe law properly charged defendant eonjunc-lively with violating the statute in both ways prescribed.
    [Ed. Note. — For other cases, see Indictment anl Information, Cent. Dig. §§ 195-199.]
    2. Animals ®=336 — Tick Eradication — Offense — Complaint.
    A complaint under Tick Eradication Law, § 7, providing that the law may be violated by failure or refusal to dip an animal affected with a contagious disease, which charged that defendant was the owner of an animal which “was affected with” Texas fever tick, and failed and refused to dip her as required, was sufficient.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 95, 96.]
    3. Animals 3=^36 — Tick Eradication — Offense — Complaint.
    A complaint under Tick Eradication Law, § 7, providing that the law may be violated by failure or refusal to dip animals “known to have been exposed” to a contagious disease, which failed to allege that the animal in question was “known to have been exposed” to a contagious disease, was insufficient.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 95, 96.]
    4. Animals 3^36 — Tick Eradication — Offense — Evidence.
    In a prosecution for violation of the tick eradication law in failing and refusing to dip an animal “affected” with contagious' disease, evidence held not to sustain a conviction.
    LEd. Note. — For other cases, see Animals, Cent. Dig. §§ 95, 9G.]
    Appeal from Xoung County Court; W. P. Stinson, Judge.
    J. S. Munsey was convicted of violating the tick eradication law, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of violating our tick eradication law, and assessed the lowest fine.

In the case of W. O. McGee, 194 S. W. 951, No. 4402, from the same county, this' day decided, we have stated and quoted our tick eradication law so far as applicable herein. Section 7 of said act prescribes two distinct ways in which' said law may bo violated, with the same punishment to he assessed. That section provides first: Any person owning or caring for any domestic animals affected with any contagious or infectious disease, or the agency or transmission thereof, who shall fail or refuse to dip such stock at such time and in such manner as directed by the sanitary live stock commission, shall be deemed guilty of a misdemeanor, and shall he fined not less than $50, nor more than $1,000. The other way is: Any person owning or caring for any domestic animals known to have been exposed to any contagious or infectious disease, or the agency or transmission thereof, who shall fail or refuse to dip such live stock at such time and in such manner as directed by the sanitary live stock commission, shall be deemed guilty of a misdemeanor, and fined the same as prescribed above.

The complaint and information herein undertake to charge appellant conjunc-tively with violating said statute in both ways prescribed, which was proper, and, we think, sufficiently did so under the first; that is, that he was the owner of a cow which was affected with Texas fever tick, and that he failed or refused to dip her, as required. But said pleadings failed to legally charge the second or latter way of violating said statute by failing to allege therein that his said animal was known to have been exposed to a contagious or infectious disease, or the agency or transmission thereof, and failed and refused to dip her as required. Appellant made a motion to quash the complaint and information as to this latter method of violating the law, because it failed to charge that his said animal was known to have been exposed, etc., which the court overruled. In our opinion, that feature of the pleading was wholly insufficient, and should have been held so by the lower court.

The positive, uncontradictcd, and uncontested testimony heroin shows that appellant’s cow had no tick on her at the time he was required to dip her, and had never at any time had a tick on her, and that she had no disease, etc. So that any conviction of him for a violation of the first method of violating said law was without evidence to sustain it. The evidence was sufficient to show that his cow had been exposed to the agency or transmission (ticks) of a contagious or infectious disease. If the complaint and information had been good on this feature of the prosecution, the conviction might have been sustained; but as it was insufficient and fatally defective, the conviction cannot therefore stand.

It occurs to us that the Legislature in enacting that the animal was known to have been exposed, etc., had some purpose and object in prescribing that as the second method of violating said law. We supposed the Legislature did not require that such animals should be known to be affected with ticks or the fever caused thereby or therefrom, because his animal would be exposed to his daily observation, and he could well ascertain whether or not she had ticks upon her or had the splenic fever caused thereby or otherwise. But he and no other might know or have any knowledge that his cow had been exposed to the ticks by reason of other cattle infected therewith having been driven by or through territory where his cow was located; and the Legislature in one instance required knowledge, and in* the other did not. But whatever the object or purpose of the Legislature was, the statute plainly prescribes that to constitute a violation of the second phase of said law it is necessary that it shall be known the animal has been exposed, etc., which this court cannot ignore, although it may not readily understand why the Legislature enacted the law as it is.

The judgment is reversed, and the cause remanded.
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author: JF.NKINS, J.

text:
    DANIEL v. FINLEY et al.
    (No. 5772.)
    (Court of Civil Appeals of Texas. Austin.
    April 4, 1917.)
    1. Wills ©=253 — Probate—Jurisdiction of District Court.
    Under Rev. St. 1911, arts. 3200, 3207, giving county courts the general jurisdiction of probate courts and district courts appellate jurisdiction over probate matters, a district court had no original jurisdiction ove'r probate of a will.
    [Ed. Note. — For other cases, see Wills, Cent.' Dig. .§ 589.]
    2. Wills ©=708 — Rights of Devisees Before Probate.
    A party claiming to be a devisee under a will which he alleges defendants wrongfully suppressed, but who is not an heir of the testator, cannot sue to recover land under the provisions of said will prior to its probate.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 16S7-1689.]
    3. Wills ©=234 — Probate — Destroyed Will.
    The destruction of a will does not prevent its being probated.
    [Bd. Note. — For other cases, see Wills, Cent. Dig. § 563.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Suit by J. H. Daniel against Margaret Daniel Finley and others. From an order sustaining a demurrer to the petition, petitioner appeals.
    Affirmed.
    A. R. Eidson, of Hamilton, for appellant. T. B. Ridgell, of Rockwall, J. L. Lewis, of Hamilton, and Haynes & Haynes, of Dallas, for appellees.
   JF.NKINS, J.

Appellant brought this suit in the district court of Hamilton county against Margaret Daniel Finley, Sarah Daniel Grier, and Rachael Daniel Hoad, alleging that Jesse Daniel departed this life on the - day of March, 1911, leaving surviving him as his only children the defendants herein and J. W. Daniel, T. B. Daniel, Robt. Daniel, and J. H. 'Daniel, the father of appellant; that said Jesse Daniel left a written will, duly executed, whereby he bequeathed to the first six of said children and to appellant, the son of J. H. Daniel, all of his property; that said property consisted of 7?. acres of land in Dallas county; that the appellees suppressed said will and sold said land to F. L. Neney and A. V. Rozelle for 831,093.33, and appropriated the proceeds of said sale to their own use and benefit, and he sues to recover a one-seventh interest in the value of the land so sold, as a legatee under said will.

The trial court sustained a demurrer to appellant’s petition, for the reason that it did not allege that said will had been probated. In this we think there was no error. A will is not a muniment of title, unless it has been probated. Lagow v. Glover, 77 Tex. 448, 14 S. W. 141; Paschal v. Acklin, 27 Tex. 174; Brunige v. Rutherford, 57 Tex. 22. The district court has no original jurisdiction as to the probate of a will. R. S. arts. 3206, 3207; Caffey v. Caffey, 12 Tex. Civ. App. 616, 35 S. W. 738.

It may be that under a proper state of facts the district court, as a court of equity, might have the power to render judgment for plaintiff for the value of property which he would have taken under a will, although such will had never been probated. For example, if it had been alleged that appellees suppressed the will of Jesse Daniel, deceased, and caused said estate to be administered upon, and that the land had been sold in regular course of administration to an innocent purchaser for value, and the proceeds paid over to appellees, or that the deceased had left certain children, who were his only heirs, and that they had joined in a deed to an innocent purchaser for value, and had received the proceeds of such sale, when in fact the appellant was entitled to a portion of such proceeds by virtue of a will which they suppressed, the court might render judgment in his favor upon proof of the proper execution of the destroyed will, for the reason that the probate of said will would be a useless proceeding. However, such is not the case here, and we are not called upon to pass upon any such a case.

It appears from the allegations herein that appellant was not one of the heirs of Jesse Daniel, deceased, and that his iitterest, if any, in the property arose by virtue of said alleged will. It appears that the land, which belonged to the seven children of Jesse Daniel, deceased, was sold by three of them only, who appropriated the proceeds of said sale. If such be the fact, J. H. Daniel, the father of appellant, might recover his one-seventh interest in such land, as an heir of Jesse Daniel, deceased, but appellant would have no interest in said land during the lifetime of his father, who is not alleged to be dead, except as a legatee under the alleged will. If he should cause said will to be probated, be would then become the owner of an undivided interest in said land, and might recover the same from the purchaser, in so far as it appears from the allegations in appellant’s petition.

The case of Stringfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871, as cited by appellant, is not in point. In. that ease all of the heirs agreed to suppress the will, which it appears would otherwise have been contested, and to divide the land between them, in accordance with their interest under the statute of descent and distribution. This partition was upheld: First, for the reason that it was a compromise of a threatened suit; and, second, for the reason that the parties to tlie partition were the owners of all of the land partitioned, and had a right to dispose of their property as they saw fit.

The fact that the will had been destroyed, if such was the fact, is no bar to its being probated under the laws of this state.

Appellant cites Adams v. Adams, 22 Vt. 50; Buchanan v. Matlock, 8 Humph. (Tenn.) 390, 47 Am. Dec. 622; Townsend v. Townsend, 4 Cold. (Tenn.) 70, 94 Am. Dec. 192; Harris v. Tisereau, 52 Ga. 153, 21 Am. Rep. 242. In the Vermont case the estate of the deceased had been administered. The Tennessee and Georgia cases seem to rest on the question of original jurisdiction of courts of chancery in those suits.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
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