text:
    EVANS et al. v. FIRST GUARANTY STATE BANK OF SOUTHMAYD.
    (No. 1195.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.)
    1. Dills and Notes &wkey;>540 — Indorsement— Liability of Maker and Indorses.
    Where a tenant executed to his -landlord his note in ordinary form inciting that it was a rent note for 100 acres of land for a specified year, and the note was indorsed to a bank by the landlord, and by such bank to plaintiff, plaintiff was entitled to judgment on the note against the tenant and the landlord.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1918-1934.]
    2. Vendor and Purchaser t&wkey;i96 — Severance of Rents from Realty — Rent Note.
    Where a tenant gave his landlord a note in ordinary form reciting that it was a rent note for 100 acres of land for a specified yeai-, in the landlord's hands the note was merely evidence of a lease contract, and did not sever the rents from the-realty until it passed out of his hands.
    [Ed. Note. — For other cases, see Vendor and Purchasei-, Cent. Dig. §§ 404-408.]
    3. Deeds &wkey;>194(3) — Delivery—Presumption as to Date.
    In the absence of any proof as to when a deed was delivered, there is a presumption that it was delivered on the day of its .date.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 578, 634.]
    4. Vendor and Purchaser ©^IQB-^Genebal Warranty Deed — Retention of Interest in Rents.
    A landlord who conveyed the land by general warranty deed, containing no recital reserving the rents, could not retain any intei-est therein by merely keeping in his possession a rent note executed by his tenant, which was simply an evidence of his lease contract with the tenant.
    [Ed. Note. — For other cases, see Vendor and Purchasei’, Cent. Dig. §§ 404 — 406.]
    5. Vendor and Purchaser <&wkey;194^-SALE of Land — Right of Buyer and Assignee of Rent Note.
    Crops pass by sale of the land, if they belong to owner at time of sale, and where neither the buyer of land from a landlord nor the buyer’s grantee had any notice of execution by the tenant and transfer by the landlord to a bank of a rent note at the date of the purchase, the crops belonged to them as against the bank’s as-signee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 403.]
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    Suit by the First Guaranty State Bank of Southmayd against E. C. Chaney and others, wherein Mrs. Louise Evans, as administratrix of a deceased defendant and individually, joined by her minor son, Warner Evans, Jr., filed an answer adopting the original answer filed by deceased and another defendant. From a judgment for plaintiff, defendants appeal.
    Affirmed in part, and reversed and rendered in part.
    J. W. Finley, of Sherman, for appellants. Wood, Jones & Hassell, of Sherman, for ap-pellee.
   HALL, J.

Appellee bank sued E. O. Chaney, C. M. Raysor, Warner Evans, Jr., and Mrs. W. L. Brown, alleging that said Raysor on March 28, 1914, executed his note in the sum of $250, payable October 1, 1914, to the order of Ohaney, for rent of 100 acres of land near Southmayd for the year 1914; that said note was sold and transferred to said bank before its maturity for value without notice; that subseguent to the execution of said note Chaney sold the 100 acres of land to Evans and Mrs. Brown. Defendant Chaney filed no answer. Defendant Raysor answered, denying plaintiff’s allegations, and alleged that he had leased the land for part of the crops; that on March 28, 1914, he executed the note in suit in lieu of crop rents with the agreement that it should be negotiated in Sherman or Southmayd, and, if not so negotiated, it should he void, and that it was not so negotiated; that it was procured by fraud, of which plaintiff had notice; that he told Evans during the negotiation for the sale of the land that he was to pay part of the crops as rent. Evans and Mrs. Brown answered that in March,/1914, prior to the execution of said note, and prior to the maturing of any crops on the land, they had bargained for the purchase of land on which Raysor resided, all terms having been agreed upon between them and defendant Chaney; that both before and after tbe execution of said note Cbaney and Raysor, with knowledge that these defendants were buying tb© land, stated to the said Evans that the land was leased for part of the crops; that they purchased the land upon the express agreement that they should have the rents due for the year 1914; that the rents were understood to be part of the consideration; and that they had no notice that any such note as the one in suit had ever been executed. The amended petition alleged that Warner Evans had died pending the suit and left as his only heirs his widow, Louise Evans, and their minor son, Warner Evans, Jr. Mrs. Evans, as administratrix and individually, joined by ber minor son, filed an answer adopting the original answer, which had been filed by Warner Evans and Mrs. Brown. Plaintiff filed a supplemental petition, denying notice of the rights of Evans and Brown or of their terms of purchase, alleging purchase of the note before its maturity for value without notice. A trial before the court resulted in a judgment for plaintiff bank against Ray-sor and Chaney for the full amount of the note, and against appellants Louise Evans individually and as administratrix, Warner Evans, Jr., and Mrs. W. L. Brown. The judgment was also against J. E. Evans and E. C. Hunter under said guaranty agreement which it is not necessary to mention further in the disposition of the case.

The court filed findings of fact and conclusions of law. The material facts found are that on March 28, 1914, Raysor executed to Chaney his note for $250 in ordinary form, containing this recital, “Rent note for one hundred acres of land for year 1914;” that said note was indorsed to the Cumby State Bank by E. C. Chaney and by the Cumby State Bank to appellee bank; that after the execution of said note Evans and Chaney consummated the trade for the 100 acres of land, and that Chaney executed a deed conveying the same to the said Evans, said deed bearing date April 2, 1914, the certificate of acknowledgment bearing date April 2S, 1914, and that the instrument was filed for record with the county clerk of Grayson county May 8, 1914; that subsequently -Evans conveyed a half interest in the land to Mrs. Brown; that on April 25, 1914, Chaney assigned the note as collateral security to the Cumby State Bank, and afterwards, on May 5, 1914, the note was sold by Chaney to said bank, and on the same day assigned without recourse to the appellee bank; that it was agreed that Evans and Mrs. Brown should have the rents of the 100 acres of land for the year 1914, which Chaney represented to be a third and fourth of the crops, and that Evans and Mrs. Brown collected as rents, which, together with the interest thereon, amounted to $194.97; that after the filing of the suit and before the trial Evans died, and left surviving Rim his wife, Louise, and their minor son, Warner, Jr.; that Mrs. Evans is the duly appointed and qualified administra-trix of the estate, and that no guardian for the minor has been appointed; that no citation was ever issued for either of them, but they voluntarily entered their appearance.

The court concludes as a matter of law that plaintiff is entitled to a judgment against defendants E. C. Chaney and C. M. Raysor for the amount of the note, principal and interest, and we concur in this conclusion. The court further concludes that plaintiff was entitled to a judgment against Mrs. Evans individually and as administratrix and against Warner Evans, and against J. E. Evans and E. C. Hunter, upon a guaranty agreement for the sum of $194.79. We think in this conclusion the court erred.

The contention of the appellee is that the execution of the note secured by said rents severs the rents from the realty, and that the assignment of said note to appellee bank before its maturity entitled the bank to recover against the vendees of Chaney. This depends upon the effect to be given to the conveyance from Chaney to Evans. While the record shows that the rent note is dated March 28th, it was not assigned by Chaney until April 28th. In his hands it was simply evidence of a lease contract, and it did not have the effect of severing the rents from the realty until it passed out of his hands.

The deed from Chaney conveying the land to Evans is dated April 2, 1914, and while it was not acknowledged until April 28, 1914, and filed for record until May 8th thereafter, in the absence of any proof as to when the deed was delivered, the presumption obtains that it was delivered on the day of its date, viz. April 2d. Kirby v. Cartwright, 48 Tex. Civ. App. 8, 106 S. W. 742; Beall v. Chatham, 117 S. W. 492. Presuming that Chaney conveyed all interest in the land on April 2d, such conveyance also disposed of the rents. He could not, by a general warranty deed containing no recital reserving the rents, retain any interest therein by merely keeping in his possession a rent note which was simply an evidence of his lease contract with Raysor.

The general rule is that crops pass by the sale of the land if they belong to the owner of the land at the time of the sale. Jones v. Laturnus, 40 S. W. 1010; Security M. & T. Co. v. Gill, 8 Tex. Civ. App. 358, 27 S. W. 835; Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572. Neither Evans nor Brown had any notice of the execution and transfer of the rent note at the date of their purchase, and no reason is shown why the general rule above announced should not govern this case. W'e therefore affirm the judgment except in so far as a recovery is decreed against Mrs. Louise Evans, Warner Evans, Jr., Mrs. W. L. Brown, J. E. Evans, and E. C. Hunter, and in so far as the court adjudged costs against these parties. In this particular the judgment is rendered in favor of Mrs. Louise Evans, Warner Evans, Jr., Mrs. W. L. Brown, J. F. Evans, and E. C. Hunter that they go hence without day, and that they recover of the appellee bank all costs.

Affirmed in part, and reversed and rendered in part.
      <gr=?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. FELTS.
    (No. 1780.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 25, 1917.
    Rehearing Denied June 14, 1917.)
    1. Witnesses <&wkey;331:>4 — Impeachment—Collateral Matters.
    Collateral matter cannot be used as a basis for impeachment of a witness.
    2. Appeal and Error &wkey;>232(2) — Objection to Evidence — Admissibility in Fart — Impeaching Evidence.
    Where a part of witnesses’ testimony was admissible for impeachment purposes, objection to the whole of such evidence will not be sustained as ground for reversal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1430, 1431; Trial, Cent. Dig. § 223.]
    3. Witnesses &wkey;>379(l) — Impeachment — Inconsistent Statement.
    Statements inconsistent and contradictory to witness’ testimony at the trial and showing motive for his testimony were admissible for purpose of impeachment.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1209, 1247.]
    Appeal from District Court, Smith County; R. M. Smith, Judge.
    Action by E. K. Felts against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The action is by appellee against the appellant company to recover damages for personal injuries received by him while assisting his coemployés, under the direction of his foreman, in (unloading iron bolsters or draft timbers from a coal car. The negligence alleged was: (1) The failure of defendant company to furnish a sufficient number of men to lift and throw said bolsters or draft timbers from said car; and (2) the failure of defendant to use the h'oist or “dinkey” in lifting and throwing same from the car. There was a judgment in accordance with the verdict of a jury.
    Appellee was working for appellant as a member of the “scrap gang” that unloaded scrap iron, draft timbers or draft irons, and car wheels from cars. There were sometimes as many as three and sometimes as many as ten or twelve laborers in the gang. R. L. Dennis was the foreman. At the time of the injury in evidence appellee was engaged in helping to unload iron bolsters or draft timbers from a coal car the sides' of which were from three to four feet in height. The bolsters in question were about eight feet long, and were curved pieces of iron or steel tapering from something like twelve inches wide and four inches thick in the middle to eight inches wide and five-eighths inch thick at the ends. They were very heavy, weighing, according to conflicting evidence, from 275 to 500 pounds each; and ordinarily two men were required to handle them, except when,. as in this instance, they had to be lifted 'over the sides of the car before being thrown off, when three or more men were required to handle them. After he and his coworker, Tate, had unloaded several of the bolsters, appellee refused to continue unloading them without the assistance of a third man. His coworker, Moore, then to'ok hold of one end of the bolsters, Tate the other end, and-ap-pellee the middle portion, for the purpose of lifting and unloading it. .Tate and Moore were standing on the floor of the car while lifting the bolster, but appellee was obliged to stand on the pile of unloaded timbers. While they were attempting to throw the bolster out it caught on Tate’s glove, and his end of the piece dropped, causing appellee’s foot to slip on the pile of timbers, and at the same time throwing more weight suddenly and unexpectedly upon him. His thumb was mashed between the draft timber and the side of the car, and he claims bo have also sustained a rupture by reason of the jerk and sudden shifting of weight upon him. while in a strained position. There is evidence that the draft timbers were too heavy to be handled by hand in unloading them, and that the “dinkey” should have been used for unloading said draft timber on this occasion. There is evidence going to show that draft timber or bolsters of 200 pounds or over were unloaded by means of a “dinkey” or hoist used for the handling of heavier pieces. The evidence further shows that on this occasion Dennis, the foreman, was requested that the “dinkey” be used for the unloading of these bolsters or draft timbers, but that the request was refused.
    The verdict of the jury involves the finding of fact, which has evidence to support it, that the appellant was guilty of negligence, as alleged, proximately causing the injury to appellee. The evidence warrants the amount of the verdict.
    E. B. Perkins, of Dallas, and Marsh & Mc-Ilwaine, ‘of Tyler, for appellant. Simpson, Lasseter & Gentry, of Tyler, for appellee.
   LEVY, J.

(after stating the facts as above). By assignments of error numbered 1 to 11, inclusive, the appellant predicates error upon the admission of certain evidence shown in the bill .of exception. It is thought by this court that a specific part of the evidence of Alex Natlock and Elbert Huleo was upon a. collateral matter not competent to be a basis for impeachment. But, as part 'of the evidence of these two witnesses was, it is concluded, admissible for impeachment as offered, the objection to the whole of the evidence may not be sustained as ground for reversal. The evidence of the other witnesses was, it is concluded, admissible as impeaching statements to show inconsistent and contradictory statements to the witness’ testimony at the trial and motive for his testimony. Railway Co. v. Jackson, 93 Tex. 262, 54 S. W. 1023; Railway Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442; Railway Co. v. Brown, 78 Tex. 401, 14 S. W. 1034.

By assignments of error numbered 12 to 16, inclusive, the appellant predicates error upon the admission 'of certain evidence shown in the bill of exception. It is believed that a part of the evidence of plaintiff and of Colson was admissible for the purposes offered, and an Objection made to the whole of the testimony complained of may not be sustained as ground for reversal. The testimony of Mrs. Barlow was admissible for the purpose, as offered, Of impeachment of the testimony of the witness Dennis.

After reviewing the record, it is concluded that the seventeenth, eighteenth, and nineteenth assignments of error do not warrant a reversal of the judgment, and they are overruled.

Judgment affirmed.
      JSsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CALLOWAY v. BOOE & COLLIER.
    (No. 1794.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 26, 1917.
    Rehearing Denied May 31, 1917.)
    1. Appeal and Error <&wkey;1002 — Review — Findings — Conflicting Evidence.
    Where the evidence is conflicting, the jury’s findings will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937.]
    2. Venue <&wkey;l&wkey;REscissioN oe Contract— Misrepresentation.
    A suit to rescind a contract of sale on the ground of seller’s misrepresentations was properly brought in the county where the misrepresentations had been made, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 7, providing that action shall be brought where the fraud was committed.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 21, 27.]
    B. Evidence <&wkey;434(ll) — Varying Written Contract of Sale — Misrepresentations.
    In action to rescind a contract of sale on the ground of seller’s misrepresentations, evidence showing and bearing upon the alleged fraudulent statements was not inadmissible on the ground that it varied the terms of the written contract, although such evidence would have been inadmissible had the suit been bi'ought on the contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2013, 2014.]
    Appeal from District 'Court, Van Zandt • County; R. M. Smith, Judge.
    Suit by Booe & Collier against L. D. Cal-loway. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    The suit is by appellees, Booe & Collier, buyers, against appellant, the seller, to rescind the contract of sale of cattle upon the alleged ground that the sale was procured by false and fraudulent representations of the seller. The defendant filed a plea of privilege to be sued in Wood county, the county of his residence, and answered averring that a written contract of sale, which was set out, was executed and delivered to and accepted by the plaintiffs; that such contract embodied all of the terms, agreements, and representations' made by defendant to the plaintiffs; and that such representations were true. The court denied the plea of privilege, and, in accordance with the verdict of the jury, canceled the contract of sale and allowed a recovery of $1,000 paid on the contract, with interest from date of such payment.
    Appellant is a resident of Wlood county, Tex., and claimed to have and own a wild cattle claim in Sabine river bottom about 12 miles east of Mineóla, most of the cattle being branded “L. D.” on the left side and marked in the ears. The appellees live at and run a beef market in Grand Saline, in Van Zandt county, Tex. A sale of the wild cattle on the range was effected between appellant and appellees in Grand Saline, Tex., on November 21, 1914, for the sum of $1,000, one-half of which was paid in cash and the other half by note payable in 30 days. The note was promptly paid. According to the evidence offered by the appellees, the appellant represented to them that he had and owned as many as 75 head of wild cattle in the range, and had probably as many as 125 head of cattle there including calves; and that on this representation of appellant’s having as many as 75 head of cattle in the range, the appellees were induced to and did agree to purchase the cattle on the range and pay the sum of $1,000 therefor. After the contract of sale was completed and the money paid, appellees, according to the evidence in their behalf, went into the range to gather the cattle that they had purchased; and after diligent search, hunting the range entirely, they found only 6 head of cattle that were owned by and belonged to appellant, and that appellant did not have and own any more than that number.
    The evidence in behalf of appellant was to the effect that he owned land on Sabine river, and during several years past had been buying a few cattle at a time and placing them in his pasture. These cattle and their increase had become wild. In January, 1914, the appellant, as he says, estimated that he had and owned “at least 75 head, and possibly 100 head, of that wild bunch of cattle.” These were the cattle that appellant was selling to appellees, and which were to be delivered on the range and gathered up by appel-lees. At the time of the sale in November, 1914, appellant, according to his evidence, did not know the exact number of wild cattle that he had on the range, and informed ap-pellees of that fact, and that he could only estimate the number of cattle that he had there; and he agreed to sell, and appellees to purchase, whatever number of cattle .that might be there, whether that number be 74, or more, or greatly less than that number. Appellant offered in evidence a bill of sale, which he testified truly contained the entire representations and agreements passing between appellees and himself, and that appel-lees accepted the same at the time. The bill of sale, omitting formal parts, reads as follows:
    “All of what is known as L. D. Calloway’s wild cattle claim in the Sabine river bottoms about 10 to 12 miles east from Mineóla, Tex., most of the said cattle being branded ‘L. D.’ on the left sido and marked with ‘crop off each ear and under back in left ear’; this sale also includes 4 head of cattle bought of Will Moody, about one year ago, branded unknown; it also includes one steer bought of Jodie Dodson, about three years ago, branded ‘J’ on hip; it also includes whatever unmarked and branded cattle that runs with and belongs to me running wild in the said bottoms of Sabine river, as ■aforesaid.
    “It is understood and agreed to by and between the parties hereto that in making above sale of his wild cattle and the cattle specified, the said L. D. Calloway has estimated that he has running wild in the said bottoms about 75 head of cattle, but he, the said L. D. Calloway, in no manner guarantees that said estimate is correct and that whatever number is secured by the purchasers herein, bo it more or less, the same shall be in full liquidation of the said consideration of $1,000, paid by the purchaser, as aforesaid.
    “It is also understood and agreed to by and between the parties hereto that above sale does not include the following cattle belonging to the said L. D. Calloway, to wit: [Here follows description],
    “It is expressly understood and agreed to by and between the parties hereto that the said L. D. Calloway is to round up all his cattle, not included in this sale, above mentioned, and put a bar under the ‘L. D.’ on all of bis said cattle that are so branded, and that said L. D. Calloway shall hereafter mark and brand his cattle in a new brand and mark to be hereafter selected by him.
    “It is also understood and agreed to by and between the parties hereto that the said L. D. Calloway shall have nothing whatever to do with rounding up and delivering any of the wild cattle sold herein by him.”
    Appellee’s evidence was to the effect that the appellant did not tell them that he did not know how many cattle he had on the range, but definitely represented that “now,” at that time, he had not less than 75 head of cattle, and possibly as many as 125 head; that “there is that many or more cattle there”; and that “upon those representations that there were not less than 75 head of cattle on the range I agreed to pay him the money, and paid him the money under that agreement that there was not less than 75 head of cattle.” At the time the bill of sale was presented to them by appellant, the ap-pellees, according to their evidence, refused to accept same aud pay the money, because ■of the clause in the instrument making uncertain the number of cattle sold and on the range at the time. The appellees testified that they stated to appellant that he had represented to them that there were 75 or more head of cattle on the range, owned by him, and they would not accept the bill of sale- and purchase the cattle unless that statement was correct. The appellant, as appellees say, then replied that there were then “75 head of cattle, and probably 125 head of cattle, in my bunch there; * * * there is that many or more cattle there now”; that he did not have time to rewrite the bill of sale; that rather than rewrite it Mr. Oumbie and Mr. Collier might be called as witnesses to hear the statement as to the number of cattle there; and that appellant then made the same statement in the presence of the said witnesses. Appellees then paid the money, upon the representation so made as correct.
    The verdict of the jury involves the finding of fact that the sale was procured by false and fraudulent representation of fact on the part of appellant that he had and owned 75 head of wild cattle on his range, and that appellees relied upon such representation and were induced to buy the cattle. As the evidence is conflicting, the findings of the jury must be sustained.
    J. Matt Williams and Jones & Jones, all of Mineóla, for appellant. Wynne, Wynne & Gilmore, of Wills Point, and Crawford & Carlisle, of Grand Saline, for appellees.
   LEVY, J.

(after stating the facts as above). If the sale was procured by false and fraudulent representations of the seller, as alleged and as found by the jury, then the venue of the suit was properly in Van Zandt county where such alleged fraud was shown by the evidence to have been committed. Article 1830, subd. 7, Vernon’s Sayles’ Statutes; Howe Grain & Mercantile Co. v. Galt, 32 Tex. Civ. App. 193, 73 S. W. 828; Day v. Steverson, 145 S. W. 1062; Trust Co. v. Cowart, 173 S. W. 588. The appellant’s assignments of error in this respect are overruled.

If the suit had been on the contract of sale, then appellant’s objection to the evidence, complained of in the several bills of exception, should have been sustained by the-court upon the ground that it varied the terms of a written contract. But the petition sought rescission of the sale upon the ground, that it was procured by false and fraudulent representations of the seller, and therefore the evidence was admissible as showing and bearing upon the alleged false and fraudulent representations that procured the sale. 1 Black on Rescission and Cancellation, §§ 68, 69, and 111. The cases of Luckenbach v. Thomas, 166 S. W. 99, and Box Co. v. Spies, 109 S. W. 432, relied on by appellant, are distinguishable from the case here. The Luckenbach Case was to the effect that where there was a breach of warranty in a contract of sale before the delivery of the deed, the purchaser accepting the deed containing the warranty, with knowledge of the breach, could not rescind, but could merely recover damages for the breach. The Spies Case was upon the contract for breach of it, and the defense was the instrument left out and did not include certain stipulations.

The charge of the court correctly submitted the law applicable to the case, and sufficiently presented the defenses authorized by the proper issues. The assignments of error relating to objections to the charge and the refusal of special charges should be, it is concluded, overruled as presenting no reversible error.

The judgment is affirmed.
      <®a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. NELSON.
    (No. 1801.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 18, 1917.
    Rehearing Denied June 15, 1917.)
    Carriers &wkey;>266 — Carriage of Passengers— Invalids.
    The regulation of defendant railroad company provided that sick or injured persons on cots or stretchers accompanied by an attendant might ride in the baggage ear on orders from the superintendent. Plaintiff, a paralytic, obliged to use an invalid’s chair, bought a round-trip ticket and rode in the baggage car in his chair to his destination without having obtained a permit from the superintendent. On his return he was not allowed to ride in the baggage ear, and sued for damages. He had made similar trips five or six times a year for ten years, but had obtained a permit from the superintendent only twice. Held, that the fact that he had been so allowed to ride was an accommodation merely, which could be discontinued at any time, and to the continuance of which plaintiff had no legal right.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1049-1055.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by G. T. Nelson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Appellee is paralyzed in his lower limbs, and is obliged to use an invalid’s chair as a means of locomotion. Appellant has a regulation allowing “sick or injured persons on cots or stretchers, accompanied by an attendant,” to ride in the baggage car, and then “only on orders from the superintendent.” On the occasion in question the appellee purchased of appellant’s agent a round-trip ticket from Celeste to Greenville. 1-Ie rode in the baggage car on the trip from Celeste to Greenville, but had no permit from the superintendent so to do. The baggage agent in control of the baggage car refused to allow appellee to ride in the baggage car from oreenville to Celeste without a permit from the superintendent. Appellee did not ask or attempt to ride elsewhere in the train, and did not make the return trip on the train. He sues for damages for the refusal to permit him to ride in the baggage car.
    The petition predicates liability upon the following:
    “For a period of ten years immediately preceding September 5, 1914, he had been traveling as a passenger over the defendant’s line of railway from Celeste to Greenville and return in the following manner: He would buy a round-trip ticket from Celeste to Greenville, and the-defendant, acting by its agent, would accept him as a passenger and bring him to Greenville and return in the baggage car while sitting in his invalid’s chair; » » * that the defendant, acting by and through its authorized agent at Celeste, knew at the time he sold the plaintiff the round-trip ticket from Celeste to Greenville and return plaintiff’s condition, and knew that plaintiff was customarily carried in said baggage car, and knew that plaintiff would have to return in said baggage car or in some other part of the train while seated in the invalid’s chair; and plaintiff was thereby led to believe when he purchased the tipket from the defendant and was placed in the' baggage car at Celeste by the defendant’s agent that ho would be entitlec] to return to Celeste on any train of defendant cai--rying passengers between said points upon which plaintiff might choose to return.”
    The jury returned a verdict in favor of the appellee.
    Appellee had, it appears, been traveling for 'some' years as a passenger on appellant’s-road from Celeste tj> Greenvillé. I-Iis testimony shows that he was not a frequent passenger. He went something like five or six times a year. According to his own evidence,, each time appellee rode in the baggage car-in his invalid’s chair. He had a regular permit to ride in the baggage car on two occasions, but the remaining trips he did not seek or obtain such permit to go in the baggage-car. The evidence authorizes the conclusion that on each of the two trips the employés of appellant merely allowed appellee to sit in his chair in the baggage car. There is no evidence showing that appellant commonly permitted passengers to ride in the baggage car.
    Chas. C. Huff, of Dallas, and Dinsmore,. McMahan' & Dinsmore, of Greenville, for appellant. Evans & Shields, of Greenville, for appellee.
   LEVY, J.

(after stating the facts as above). Appellant requested and the court refused to-give a peremptory instruction to the jury to-return a verdict in its favor. It is believed, in view of the evidence, that such instruction should have been given. It does not appear-from the pleading and evidence that appel-lee had acquired a special contract right to-be carried in the baggage car as a passenger on the occasion in question. Appellee was-not in the class permitted by the terms of the-regulation in evidence to ride in the baggage car, and the proof relied upon by the ap-pellee respecting his previous trips as a passenger in the baggage car shows mere acts of accommodation, to him on the part of the em-ployés operating the train. The mere fact, that such acts off accommodation had been sometimes permitted by the employés of appellant, not in obedience either to duty or contract, but as a matter of indulgence to appellee, could not legally compel their continuance, and such mere accommodation could be discontinued at any time. 29 A. & E. Ency. p. 365. And in the absence, as here, of a special arrangement by its authorized agents for appellee to ride in the baggage car as a passenger, it is concluded that there is not entailed upon the railway company any liability for the violation of a duty.

Of coúrsé, appellee, in virtue of his ticket, was entitled to ride on the train in a passenger car, and the conductor, in taking up his ticket, could not rightfully have refused him permission so to ride. ■ Appellee, though, does not base his suit upon refusal to permit him to ride on that train in the regular passenger coach.

The judgment is reversed, and judgment is here rendered in favor of the appellant, with costs of the trial court and of this appeal.

       Forother cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WATSON.
    (No. 1809.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 1, 1917.
    Rehearing Denied June 21, 1917.)
    COMMERCE <&wkey;27(8) — INJURY IN INTERSTATE Commerce.
    A railroad section hand, injured while assisting the assistant foreman of the section crew in taking ties unloaded on the right of way to a stack near the toolhouse for convenience, and to keep them in good shape for future use, was not injured in interstate commerce, though the branch of the railroad on which the ties were afterwards used was employed by the road in handling interstate freight.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Suit by J. W. Watson against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    On the 8th day of April, 1915, the appellee, J. W. Watson, while in the performance of his duties as a section hand in appellant’s service at Floyd, Tex., sustained bodily injuries for which he claims damages in this suit. At the time of the injury, appellee was ■engaged in helping to stack on the right of way creosoted pine ties which had been unloaded that morning from cars and thrown beside the track. The section men were working on this occasion two men to a tie, but appellee claims that on previous occasions the same character of work was done with three or four men to the tie. The ties were carried beyond a side track and stacked by the toolhouse until they should be needed in the track at some future time, at which time they would be loaded on a push car and transported to the place where they would be used in the repair of the track. According to appellee’s testimony, he, under the direction o'f the assistant foreman of the section crew, took up one end of a tie, and the assistant foreman took up the other end, for the purpose of carrying same to the place where it was to be stacked. He testified that he had had very little experience in stacking ties; that he did not know the weight of the tie he was directed to help stack; that he expected the tie to weigh from 80 to 100 pounds, which is the ordinary weight of pine ties, but that it was in fact a creosoted green pine tie and much heavier than he had anticipated; and that the assistant foreman, after raising his end of the tie and before appellee had entirely straightened up and without notice or warning to him, .suddenly let his end of the tie drop, which jerked the appellee down, seriously and permanently injuring him. There is evidence showing that the tie was afterwards weighed, and that its weight was found to be 240 pounds. It is alleged in the petition that appellee was injured as the proximate result of the negligence of the foreman in failing to designate a sufficient number of men to handle the tie in question with safety, or that his injuries were caused by the negligence of the assistant foreman in dropping his end of the tie without notice or warning. The defendant answered by denial and pleaded contributory negligence and assumed risk, and specially pleaded that the work being done by the plaintiff was connected with interstate commerce, and that the liability of the defendant should be determined by the act of Congress applying to the situation; and by plea that the injury plaintiff was suffering from was solely due to disease existing prior to the time of the alleged injury. There was a trial to a jury, and verdict for the plaintiff. There is involved in the verdict, which is supported by the evidence, the finding of fact that Charles Nolan, an employé of appellant, was guilty of negligence in turning loose the tie, as alleged, proximately causing permanent injury to the appellee, and that the injury to appellee is not, in point of fact, the result of any assumed risk as a consequence of his conduct or in the performance of the work he was doing. The evidence supports the amount of the verdict.
    Chas. C. Huff, of Dallas, ■ and Dinsmore, McMahan & ’Dinsmore, of Greenville, for appellant. Evans & Shields, of Greenville, for appellee.
   LEVY, J.

(after stating the facts as above). The court instructed the jury upon assumed risk, and conditioned the finding against the appellee upon whether or not a person of ordinary prudence would have undertaken the work and have continued in the service with a knowledge of the defect and danger. The charge follows the definition of assumed risk as given in article 6645, R. S. The appellant predicates error in the instruction upon the ground that the evidence shows that the plaintiff in assisting in carrying the tie in question to the stack was engaged in interstate commerce, within the meaning and terms of the federal Employers’ Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]) and as-sumecl risk, as defined by tbe state statute, is not applicable. It is believed that the state law as to assumed risk governs the case, and that the objection to the court’s charge may not avail in this case. According to the evidence, about 6 o’clock on the morning of April 8th a tie train of appellant was carried into Eloyd, and the train crew, assisted by the section crew, unloaded the ties on the right of way. About 6 o’clock p. m. of the same day, and after the section crew had come in from their usual work on the section, the work of stacking the unloaded ties was begun. These ties were not being carried and put immediately into the track, but were being carried by hand and put into a stack near the toolhouse for convenience and to keep them in good shape for future use. The duty of the section crew was only to remove the ties from the right of way and stack them at a place from which they' could be taken as thereafter required for use. The section foreman testified:

“These ties that were being stacked there were for the purpose of being used in the track, and they were afterwards used in the track of the Missouri, Kansas & Texas Railway Company's McKinney branch.”

The evidence as to use of appellant’s road consists of the testimony of the witness Russell, as follows:

“I live in Greenville, and am local freight agent for the Missouri, Kansas & Texas Railway Company of Texas, and was in April of last year. In April of last year, the Missouri, Kansas & Texas Railway Company of Texas handled freight and passengers from Texas points to other states and from other states to Texas points over its McKinney branch.”

It is concluded that the proof does not show that the appellee was injured while engaged in interstate commerce. The case of Railway Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, has similar facts, and, it is believed, is decisive of the question involved in the case here.

It is believed that the allegations in the petition are broad enough to admit the evidence of Dr. I-Ianchey, as complained of in the fifth assignment of error. Railway Co. v. McMannowitz, 70 Tex. 73, 8 S. W. 66.

The evidence complained of in the sixth, seventh, eighth, and ninth assignments of error was competent evidence in the case, and there was no error in admitting it.

In view of the entire record, it is believed that reversible error may not be predicated upon the admission of the evidence complained of in assignments of error numbered 10 to 17, inclusive.

If the testimony of the appellee and that of Dr. Smith as to the injury and extent of it be taken as establishing the extent of injury suffered by appellee, then it may not be said by this court that the jury were not authorized to find the amount of the verdict as compensation for the injury sustained.

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


author: WILLSON, C. J.

text:
    TEXAS MIDLAND R. R. v. COMBS.
    (No. 1805.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 18, 1917.
    Rehearing Denied June 5, 1917.)
    1. Appeal and Error <&wkey;215(l) — Reservation oe Exceptions — Waiver.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, providing that the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, and all objections not so made and presented shall be considered as waived, and article 2061, providing that the rule of the court in the giving, refusing, or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles, where appellant did not object to a charge on the ground of omissions he waived his right to do so on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Trial, Cent. Dig. § 683.]
    2. Railroads <&wkey;351(6) — Crossings — Instructions.
    Where plaintiff was injured by Ms horses taking fright while at a railroad crossing from which the planks had been removed and near which piles of lumber and a hand car were located, the section man having told him to “come ahead,” an instruction to find for plaintiff if the section man had removed some of the planks and ballast rendering the crossing dangerous and if defendant’s foreman told him that he could cross and if by ordinary care the defendant’s emploj’és could have left a comparatively safe way and they failed to do so, such failure was negligence on their part, and if when plaintiff undertook to drive over the crossing his team became frightened and he was injured as alleged, was not affirmatively erroneous.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1199.]
    3. Damages &wkey;> 132(7) — Excessive Damages— Personal Injuries.
    A verdict for $3,000 held not excessive, where a man 45 years old, while driving over a railroad crossing under repairs was injured in the kidneys and both legs, resulting in piles and Bright’s disease, in consequence of which he could live but a few years.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 378.]
    Appeal from District Court, Hunt County; A. P. Dolioney, Judge.
    Action by Henry P. Combs against the Texas Midland Railroad. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Between 9 and 10 o’clock of the morning of April 29, 1915, appellee, while traveling in a wagon drawn by borses over a public road where it crossed appellant’s track, suffered injury to his person. It appeared from the testimony that appellant’s section men in repairing the track, having removed plank used in constructing the crossing over the public road, had taken the dirt from between the rails and ties, leaving holes between tbe ties and the space between the rails unfilled. The section men were at work at the crossing as appellee approached it. When he reached a point 60 or ,90 feet from the crossing, he stopped his team, and, being unable to see the condition of the crossing, called to the section men and ashed if he “could cross all right.” One of the section men replied, “Yes, come ahead,” and some of the men, who, it seems, were then on the crossing, stepped to one side of it, and some to the other. “When they told me to come ahead,” appellee testified:
    “I just slapped my horses and started on. It was going uphill at that point. The horses went on all right. They had their heads up and were looking, and I was watching them until they got to where they were ready to step off the first rail. Then they got scared and made a lunge, and I jerked them and seesawed them to keep them from running, and then they jumped across, and that hit me in the side against the spring seat and on the right hip and jerked me in the back, and it seemed like it tore me in two in the side, and it jerked me back and forward on the seat and up and down. At the time this happened, my wagon was going across the railroad. When I got on the crossing my horses got frightened. I discovered that the planks had been taken out of the crossing and the dirt removed to some extent between the ties. I looked down. Of course, I did not have time to look down much. I was excited, my team jolting about so. When the team became frightened, the heads of the horses were right at the railroad, right at the first rail, just ready to step over the rail. I suppose the team became frightened by the condition of the track there, by looking down and seeing how it was between the rails. There was a handcar there. There was a lot of lumber piled up on the left-hand side of the track, and a lot on the right-hand side, and a hand car was setting on the north of the crossing on the road. I judge that this handcar was 5 or 6 feet from the middle of the road, probably. It is a fact that the planks on this railroad crossing had been removed. Yes, sir; as well as I remember, all the planks on the crossing had been removed, not those on one side only, but all the planks had been removed, and there was nothing at all there ekeept the rails and the dirt and the ties.”
    In his petition appellee alleged that his horses were frightened by the handcar placed near the crossing, and by their stepping on the edges of ties and into holes between same, and that the section men were guilty of negligence in leaving the handcar so near the crossing, in tearing away the entire crossing instead of leaving a part of same undisturbed while they repaired the other part thereof, or having torn it all away, in not providing in its place a temporary way for travelers to safely cross over the track, and induce him, by assuring him that he could safely do so, to attempt to cross over the track. The answer of appellant to the petition was a denial of the truth of the allegations it contained. The appeal is from a judgment in appellee’s favor for $3,000.
    S. W. Marshall and Ooke & Coke, all of Dallas, and Dashiell & Coon, of Terrell, for appellant. Evans & Shields and Sherrill & Starnes, all of Greenville, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The fourth paragraph of the charge to the jury, -which appellant objected to before it was given in the court below, and which by the first assignment it • here attacks as erroneous, was as follows:

“If you believe from the evidence that on or about April 29, 1915, while the defendant’s crew was engaged in repairing the road crossing in controversy, they removed some of the planks and ballast, which render said crossing dangerous for a person with a wagon and team, and that when plaintiff approached said crossing he was unable to see from his position on his wag;on the condition of the crossing between the rails, and that he asked if he could cross, and that defendant’s foreman in charge of said section crew told him that he could cross, and you further believe from the evidence that by the exercise of ordinary care in the prosecution of the work of repairing .said crossing the defendant’s employes could have left a portion thereof intact, or left a comparatively safe way for the use of the public in passing over said crossing while said work was going on, and they failed to do so, and that such failure, *if any, was negligence on the part of said employés, or that the foreman was negligent in telling the plaintiff that he could drive across, if he did, and that such negligence, if any, in either respect was the proximate cause of the plaintiff’s injuries, if any, and if you further find from the evidence that the plaintiff did undertake to drive over said crossing, and in doing so his team became frightened and he was injured as alleged in his petition, you will find for the plaintiff and assess his damages according to the rule hereinafter given you.”

The objection in the court below was to the part of the instruction “with reference to the plaintiff’s team becoming frightened,” and the ground of the objection was that “it imposed a greater responsibility on the defendant for the fright of the team than the law does.” The contention here is that said part of the instruction was erroneous, in that it “failed to restrict the liability of defendant for the fright of the team to the negligence of the defendant.” It will be noted that the complaint in the court below was that the instruction contained something it should have omitted, while the complaint here is that it omitted something it should have contained; in other words, the complaint in the trial court was that the instruction was affirmatively erroneous, while the complaint here is that it was negatively so.

If the instruction was only negatively erroneous, in that something it should have contained was omitted from it, appellant should, of course, have directed the attention of the trial court to the omission by requesting a special charge supplying it. Whether the instruction was so erroneous or not need not be determined, for appellant did not object to it on that ground, and therefore is in the attitude of having waived its right to do so. Articles 1971 and 2061, Vernon’s Statutes.

That the instruction was not affirmatively erroneous we think is clear. It did not tell the jury that appellant was liable for consequences to appellee of fright of the horses not caused by its negligence, and there was no testimony tending to show that the fright of the horses was due to some-tiling appellant was not responsible for. In saying this, we are not to be understood, as intimating that it would have been error, had there been such testimony, for the court to have told the jury to find for appellee if they believed a proximate cause of the injury to him was negligence as charged on the part of appellant, notwithstanding they also believed that fright of the horses not caused by appellant’s negligence was a concurring cause of such injury. If the record presented such a question, probably it should be answerd to the contrary of appellant’s contention. Railway Co. v. Gillenwater, 146 S. W. 590.

The assignment attacking the verdict as excessive must be overruled. Appellee was 45 years old at the time he was injured. 1-Ie testified to injuries to his back, to one of his kidneys, and to both of his legs, resulting in piles and in suffering and a greatly decreased capacity to labor from the time he was injured to the time .of the trial, more than a year afterwards. The jury had a right to believe his testimony as to the nature and consequences to him of the injuries he suffered. If those injuries were as serious as he testified they were, we ¡think the verdict was not excessive. If they were as serious as his physician, Dr. Hanchey, testified they were, certainly it was not excessive, for he testified that appellee, among other things, was suffering from Bright’s disease as a consequence of the injuries, and would “not live but a few years at the best, even if he has the best treatment.”

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


text:
    BUTCHER v. SMITH.
    (No. 1799.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 16, 1917.
    Rehearing Denied May 31, 1917.)
    Evidence &wkey;457 — Contracts — Construction.
    Under contract of sale of “saw timber,” such words are descriptive of the subject-matter of sale, and have no legal signification, and it is proper to hear evidence to disclose their meaning.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2104, '2107, 2108.]
    Appeal from District Court, Wood County; R. M. Smith, Judge.
    Action by W. M. Smith against Paul D. Smith and another, wherein defendant named filed a cross-action against John E. Butcher. From a judgment for the cross-complainant, Butcher appeals.
    Reversed and remanded.
    W. M. Smith sued Paul D. Smith and John F. Butcher, and Paul D. Smith filed a cross-action against John F. Butcher. The appeal pertains alone to the cross-action. The cross-action was upon a contract to recover the purchase price of $2 per thousand feet for certain saw timber on 400 specially described acres of land. The written agreement has the provision that:
    “The party of the first part (Paul D. Smith) agrees to sell party of the second part (John F. Butcher) all of the ash and oak, also hickory and elm saw timber on the tract of land now owned by him, purchased from Mr. Ray, consisting of 400 acres, for the sum of $2 per thousand for oak, elm, ash and hickory. It is further agreed by the party of the first part that all the wood and tie timber is to be included in this consideration.”
    And the single issue of fact made on the trial was as to the amount of oak, elm, ash, and hickory “saw timber” there was on the land at the date of the contract of sale of December 11, 1912. The appeal is by the defendant Butcher.
    E. A. Tharp, of Mineóla, and M. D. Oarlock, of Winnshoro, for appellant. Jones & Jones, of Mineóla, for appellee.
   LEVY, J.

(after stating the facts aS above). The witnesses John F. Butcher and Miss ■Wheeler, who were present when the contract in suit was made, would have testified, if the court had not sustained the appellee’s objection thereto, that the parties to the contract, during the negotiation, discussed and agreed that “saw timber” meant and described only growing timber 14 inches or over at the small end and at least 12 feet in length. The words “saw timber,” as used in the contract, are words of description of the subject-matter of sale, and have no legal signification, and it was proper to hear evidence to enable the jury to know in what sense the parties to the contract used the words. Kelly & Roberts v. Robb, 58 Tex. 377. And proof of the local meaning Of terms having no well-defined signification may be made to show the true meaning of the parties. 1 Greenleaf, § 292; 10 R. O. L. § 268. The evidence in the case was confined to a local understanding of the term “saw timber,” and which understanding did not show a uniform and commonly accepted meaning of the words. The witness Laforee testified:

“Anything at all that I considered would measure 10 inches at the stump was merchantable saw stuff for our plant, though now I would say that I could not go to work and saw that would be a standard merchantable rule. * * * When I go out to estimate a bunch of pine, timber I look for 10 inches and better, but as to whether that would be every man’s practice, or not I could not say. * * * We consider timber that will scale 8 inches saw timber.”

And the evidence of other witnesses goes to shoiw respectively that timber scaling at the stump 6 inches, 8 to 10 inches, and 12 inches constitutes “saw timber” was 14 inches and above that at the stump. In this state of the evidence there was no certain and established local usage of the term “saw timber,” and the evidence as to size of timber that the parties themselves had in mind and understood at tlie time of tlie contract was to be cut as “saw timber” was, it is concluded, admissible to explain the meaning the parties attached to the words “saw timber.” In view of the record there was reversible error, it is believed, in not admitting and allowing the jury to consider the- evidence complained of.

The judgment is reversed, and the cause remanded for another trial.
      &wkey;jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    CONRAD et al. v. HUGHES et al.
    (No. 7360.)
    (Court of Civil Appeals of Texas. Galveston.
    May 5, 1917.
    Rehearings Denied June 7, 1917.)
    1. Deeds @=^112(1) —■ Peoeebty Conveyed— Reference to Othee Deed.
    An instrument signed by P. transferring all his right “to tlie within deed,” being recorded immediately after a deed to P., may be found to have been indorsed on such deed, and to be a conveyance of the land described in that deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 323.]
    2. Evidence <®==>372(7)— Ancient Deeds — Re-COEDING — PbEEIMINAEY PEOOE.
    The record of a deed more than 30 years old, no claim adverse or inconsistent with that evidenced by the deed having been asserted within ten years after such record was made, is under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3700, admissible without proof of execution of the deed, .though the deed was not acknowledged or proven for record, and though attacked by affidavit of forgery.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1621.]
    Appeal from District Court, Ft. Bend County; Sam’l J. Styles. Judge.
    Suit by Peter Conrad and others against W. P. Hughes and others. From an adverse judgment, plaintiffs appeal.
    Reversed and remanded.
    D. R. Peareson, of Richmond, and Cobbs & Cobbs and J. M. Eskridge, all of San Antonio, for appellants. Searcy & Botts, of Brenham, for appellees.
   PLEASANTS, C. J.

This is a suit brought by the heirs of Frederick Cole, deceased, against appellee and other defendants to set aside a judgment of the district court of Ft. Bend county rendered on November 7, 1908, in a suit brought by appellee Hughes agaipst Peter Conrad and a number of other defendants to recover a tract of 567% acres of land, a part of the Peter -Conrad one-fourth league grant in said county.

The petition of appellants is in the form of a motion for new trial filed in the suit last mentioned, and in addition to the allegations of the grounds upon which the judgment is sought to be set aside and a new trial granted, alleges ownership of an undivided one-half of the 567% acres of land, and prays recovery of title and possession thereof against defendants. All persons in possession of the land claiming under said judgment were named as defendants, and served with citation upon said motion or petition. This petition was filed on June 30, 1914. On the 10th day of November, 1914, W. P. Hughes filed a reply to the motion for new trial, in which he denied all and singular the allegations made in said motion. (1) He denied that Frederick Cole ever owned any interest in the Peter Conrad one-fourth league of land; (2) denied that Frederick Cole was the son of Jeremiah Cole and Elizabeth Cole, as alleged in the petition; (3) denied that Frederick Cole was of unsound mind; (4) that since the rendition of the judgment in the case of W. P. Hughes v. Peter Conrad et al., he had sold the land to C. F. Helmuth, I. Artmann, Fred L. Tesch, and Charles F. Tesch. The other defendants Helmuth, Art-mann, and Tesch filed an answer in reply to said motion for a new trial, adopting the answer filed by W. P. Hughes. The defendant C. F. Helmuth filed an affidavit charging that the original instrument purporting to be a deed from Peter' Conrad to Jeremiah Cole was a forgery.

The undisputed evidence in support of the allegations of the petition excusing the delay in bringing the suit to set aside the judgment in the ease of Hughes v. Conrad, shows that Frederick Cole, who was one of the parties defendant in said' suit was a nonresident of this state, and was cited by publication. 1-Ie was non compos mentis from his childhood, and died intestate in an asylum in Maine on January 9, 1913, and he was not represented upon the trial of said cause except by an attorney ad litem appointed to represent all of the nonresident defendants. The appellants are his heirs at law. The overwhelming evidence shows that he was a son of Jeremiah and Elizabeth Cole, who died in 1839 and 1841, respectively. As the son of said parties he inherited one-half of their estate. In support of their claim of title to a one-half interest in the land in controversy, appellants, after filing affidavit of loss of the original instrument, offered in evidence the record of the original grant from the commissioners of Austin’s Colony to Peter Conrad of the one-fourth league of land of which the land in suit is a part as shown in Record Book A of the Deed Records of Ft. Bend county. The record of this grant was No. 57 in said record book. Immediately following the record of this grant in said book was the following record numbered 58, which was also offered in evidence by appellants:

“Republic of Texas, County of Brazoria.
“That Peter Conrad at present of the county and republic aforesaid have this day sold, alienated and released unto Jeremiah Cole of the county and republic aforesaid all my title, interest and claim as well for myself, heirs and legal representatives to the within quarter league of land' for and in consideration of the sum of sixteen hundred and fifty dollars, the receipt of which I hereby acknowledge.
“Given under my hand and seal this 29th day of January, 1S38. Peter Oonrad. L.-t.
“Test: Willis A. Paris. Thos. Oole. G. W. Cummings. Robert H. Grimes.
' “The foregoing transfer from Oonrad to Cole in the original is attached to the translation of the original grant to Oonrad, and was entered of record the 11th day of May, 1838.
“Joseph H. Barnard,
“County Clerk and Recorder.”

These records -were offered in evidence under the following agreement of attorneys representing the parties:

“That the record of the instrument offered in evidence shown in Book A, pages 55, 56 and 577, Deed Records of Pt. Bend county, Texas, and the said indorsement following as recorded in said Deed Book A is in the handwriting of Jos. H. Barnard, who was then county clerk of Pt. Bend county, Texas, and that the said book is the original book of entry as originally transcribed from the original instrument by said clerk. * * * The undersigned parties for the purpose of saving expense have and do hereby agree with each other that either party may use in evidence either the record or a certified copy thereof, or the original of any instrument of record without filing among the papers of this case either the original or certified copy thereof and give three days’ notice thereof, and without accounting for the oiiginal of such instrument, provided always that such instrument offered would be admissible in evidence if the party offering; same had complied with the provisions of article 3700, Revised Statutes of Texas. Either party reserves the right to object to any instrument when offered in evidence upon any grounds other than those waived by section 1 of this agreement.”

The defendants objected to this record as evidence upon the following grounds:

“(a) We desire to interpose an objection to the introduction of that deed what purports to be a deed from Peter Gonrad to Jeremiah Cole. In the first place, the deed, we claim, has no such description of the property attempted to be conveyed that is sufficient to make a valuable deed; in other words, that the deed itself simply says, or what purports to be a deed, that he transfers the within quarter of league of land, and that that of itself is insufficient to convey the title because it can refer to any quarter league of land as well as to the Oonrad quarter league.
“(b) We object to the memoranda that the clerk attempts to make with reference to that deed, for the reason that he had no authority to make it; it was not within his duty to make a memoranda of that sort — the law required him to make a copy of the instruments that were filed in his office that had been properly acknowledged, and any private memorandum or notation that the clerk may have on his docket with reference to any instrument that he recorded, a certified copy of it could not be used in evidence.
“(c) We further object to it for the reason that it was not acknowledged or proven as the law required instruments at that time to be proven in order to be admitted to record. The statute at that time required an instrument that was admitted to record that could be recorded by the clerk to be proven by some subscribing witness.
“(d) Now, to restate the position that we take with reference to that deed, the first is that it insufficiently described the land, they claim that by reason of the memorandum, which they say was made by the clerk at the recording of the deed, which we object to, that that goes hack-to the other instrument. Now, those were two separate and distinct instruments, and they have separate file marks, and they have separate numbers; that instrument don’t say that it was attached to anything; the instrument says that it transfers the within quarter league, not that it transfers the attached quarter' league, but it transfers the within quarter league, indicating that it was written upon the back of some other deed.”

When said, objections were made and while the same were being argued it was suggested to the court and in accordance therewith the court withheld the ruling, and took the objections along with the evidence in'the case to be passed upon after hearing the evidence, all parties consenting thereto, that is, consenting that the ruling of the court could be held in abeyance until he heard testimony on the objections.

In addition to the agreement before set out, appellants, after showing by certified copy from the general land office that on May 1, 1857, Peter Conrad was granted by the Mexican government, acting by the commissioners of Austin’s Colony, a one-fourth league of land in Ft. Bend county, of which the land in controversy is a part, introduced in evidence the inventory of the estate of said Peter Oonrad filed in the probate court of said county December 29, 1838, which inventory does not show any land belonging to or claimed by said estate. It was further shown that there was no other grant to Peter Conrad of land in Ft. Bend county. The Peter Clonrad one-fourth league of land in Ft.- Bend county was inventoried as a part of the estate of Jeremiah Cole on November 27, 1859, asl shown by the probate records of said county. In 1860 W. J. Cole, a son of Jeremiah Cole, executed an instrument, which was duly recorded in the deed records of Ft. Bend county, in which he recites that, acting for himself and his brother, who is of unsound mind, he has contracted with Thomas W. Masterson to institute suit against the administrator of his father’s estate and his bondsmen and recover whatever amount may be due by said administrator, and binds himself to transfer and deliver to said Masterson 'one-fourth of all real and personal property that he may recover. In 1861 Wm. J. Cole executed a power of attorney to John Adriance, authorizing him to take possession of, sell, and convey all lands owned by the donee in the state of Texas.

Under these instruments a number of transfers and retransfers have been made of land on the Peter Conrad one-fourth league survey. There is no evidence of any conveyance of land by persons claiming under Peter Conrad other than persons claiming through and under Jeremiah Cole. It was shown that Joseph H. Barnard, the county clerk of Ft. Bend county who made the record in Record Book A before copied, has been dead a number of years. At the conclusion of the introduction of the evidence the objections to the introduction in evidence of the record in Record Book A, before copied, were again presented and were sustained. After sustaining these objections the court rendered the following judgment:

“W. P. Hughes y. Peter Conrad et al. No. 6843.
“In the District Court of Et. Bend County, Texas.
“On this day, March 28, 1916, in regular order came on the second amended motion of the petitioners, Daniel E. Cole et al., for a new trial of this cause, which amended motion was filed herein on - day • —, 1916, with permission of the court, and the court having heard said application and having heard the evidence and argument of counsel relating thereto took the matter under advisement, and on April 17, 1916, did announce its decision, and does on said date overrule and deny said application and motion for a new trial to all of which actions and judgment of the court the said petitioners did except and in open court did then and there give notice of appeal from said decision to the Court of Civil Appeals of the First Supreme District of Texas, to be holden at Galveston. Texas.’’

Under sufficient assignments of error the appellants complain of the ruling of the trial court sustaining appellees’ objections to the introduction in evidence of the record shown in Record Book A of the Deed Records of Et. Bend county before set out. One of the questions presented by these assignments was before this court in the case of Herndon v. Vick, 33 S. W. 1011, in which suit the instruments under consideration were offered as a deed to Jeremiah Cole, the party under whom appellants in this suit claim title. The case went to the Supreme Court upon writ of error, the opinion of that court adopting the opinion of the dissenting justice of this court, holding that the instruments should have been admitted in evidence, is reported in 89 Tex. 469, 35 S. W. 141.

The instrument in this case, which it is claimed should be regarded, when read in connection with the record of the grant immediately preceding it on the pages of the record book, as a conveyance of the land described in the grant, was not acknowledged or proven for record as was the instrument under consideration in the case of Herndon v. Vick, but this record was made 70 years ago, and no claim adverse to or inconsistent with the one evidenced by such instrument was asserted until more than 10 years after such record was made. We think under article 3700, Vernon’s Sayles’ Statutes, the record or a certified copy thereof was admissible without proof of the execution of the instrument; and such record being more than 30 years old, it was admissible notwithstanding an affidavit of forgery was filed by one of the defendants. Holmes v. Coryell, 58 Tex. 680.

The ruling of the court sustaining the objection to the introduction in evidence of the instruments in question conclusively shows that he did not consider said instruments in reaching the conclusion that plaintiffs’ petition for a new trial should not be granted, and in thus disposing of plaintiffs’ claim of title to the land in controversy. Our conclusion that this ruling was erroneous requires that the judgment be reversed, and the cause remanded, and it has been so ordered.

Reversed and remanded.
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author: HIGGINS, J.

text:
    TOWNSEND v. EDDLEMAN.
    (No. 707.)
    (Court of Civil Appeals of Texas. El Paso.
    May 3, 1917.
    Rehearing Denied May 31, 1917.)
    Error from Shackelford County Court; J. A. King, Judge.
    Action by S. D. Eddleman against R. H. Townsend. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    W. L. Morris, of Albany, and Theo. Mack, of Ft. Worth, for plaintiff in error. A. A. Clarke, of Albany, for defendant in error.
   HIGGINS, J.

This is a suit upon a contract by Eddleman against Townsend resulting in a judgment in Eddleman’s favor. The only error assigned is to the overruling of a general demurrer to the petition, based upon the ground ■that a breach of the contract is not alleged. We think the allegations of the petition show a breach.

Affirmed.


author: FLY, C. J.

text:
    DORMAN v. BOEHRINGER.
    (No. 5863.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 15, 1917.)
    Sales <@^>417 — Evidence—Sufficiency.
    In action for breach of contract for the sale of corn, evidence held not to show the difference between the contract price for No. 2 corn and the market price for such com at the time it should have been delivered.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 1173.]
    Appeal from Maverick County Court; Ben V. King, Judge.
    On rehearing.
    Former opinion set aside, and judgment of the trial court reversed, and cause remanded.
    For former opinion, see 195 S. W. 669.
    Sanford & Wright, of Eagle Pass, and Chambers & Watson, of San Antonio, for appellant. J. E. White, of Eagle Pass, and T. J. Murray, of San Antonio, for appellee.
   FLY, C. J.

The court on its own motion sets aside the former judgment in this case and grants a rehearing, for the reason alone that we have become convinced that there was no evidence as to the market values of No. 2 sacked white corn at Eagle Pass, which was the kind of corn which appellant agreed to deliver at Eagle Pass. There is no testimony on the subject except that appellee’s agent bought corn in the open market at $1.05% to $1.07% a bushel. The evidence did not in any manner tend to show that kind of corn was bought, but it did appear that ap-pellee concluded he wanted No. 3 instead of No. *2 corn, and that No. 3 is worth more than No. 2 corn. The No. 3 corn could only be bought in Texas at that time. Which did he buy in the open market? The evidence fails to show. While, as held in our former 'Opinion, it might be presumed that the market price was paid for the corn, but what 'Class we cannot presume, especially as ap-pellee wanted No. 3 corn and had so telegraphed to appellant. The case was not developed, and upon a reconsideration we do not feel disposed to affirm the judgment on .the loosely constructed and uncertain testimony.

There is but one proposition of law stated in our former opinion, and that is as to principals and agents, and that proposition is elementary, and could not possibly be in conflict with any opinion by any court. The motion to certify is overruled. We adhere to our former opinion as to every matter except as to the sufficiency of the evidence to show the difference in the contract price for No. 2 com and the market price of such corn in Eagle Pass at the time the corn should have been delivered.

Tire judgment is reversed, and the cause remanded.
      @a=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    CHARLES v. STATE.
    (No. 4501.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Rape <&wkey;59(20, 21) — Instructions—1Grade ob Degree oe Ofeense — Necessity.
    Although an indictment for rape included offense of assault with intent to rape, a request, submitting the lesser charge, was properly refused, where the evidence did not raise the question, the defendant absolutely denying claim that assault was made, and the state’s theory being that the crime was fully accomplished.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 99.]
    2. Rape <&wkey;16(l) — “Assault with Intent to Rape.”
    An “assault with intent to rape” involves an assault upon a woman with intent to gratify defendant’s passion at all events, notwithstanding resistance on her part; but, when the assailant succeeds in accomplishing his purpose, the assault with intent to rape passes out, and the crime becomes rape.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 15.
    For other definitions, see Words and Phrases, First and Second Series, Assault with Intent to Commit Rape.]
    S.Rape <&wkey;46 — Admission of Evidence — Incriminating Circumstances.
    In a prosecution for rape, it was proper to admit proof describing the ground and the finding of the woman’s comb on the day after the offense was alleged to have been committed.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54.]
    4. Criminal Law <&wkey;412(8) — Evidence—Admission of Accused.
    The declaration of defendant, claiming it was a colored woman and not a white woman that he had pushed into a gulley at the time in question, was admissible in a prosecution for rape.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 911-917.]
    5. Witnesses c&wkey;40(l) — Competency—Children.
    A negro boy, who was close to the transaction testified to by the injured party and defendant in a prosecution for rape, held a competent witness.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 97.]
    6. Witnesses <&wkey;79(3) — Competency—Question for Court.
    It is a general rule of evidence that the competency of children as witnesses is for the court’s determination, this rule being also stated in Vernon’s Ann. Code Or. Proe. 1916, art. 788, providing that children who, after being examined by the court, appear not to possess sufficient intellect to relate transactions, or who do not understand the obligation of an oath, are incompetent to testify.
    [Ed. Note. — For other cases, - see Witnesses, Cent. Dig. § 203.]
    7. Rape <&wkey;62 — Evidence of Complaining Witness — Consideration.
    In prosecutions for rape, and in cases of like character, the court will scrutinize with extreme care the testimony of the injured female, but such rule will not be used where her testimony is sufficiently corroborated.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 103, 104.]
    8. Rape <&wkey;54(2) — Corroboration of Female-Sufficiency of Evidence.
    Evidence corroborating complaining witness’ testimony held sufficient to justify conviction for rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 84.]
    Appeal from District Court, Washington County; R. J. Alexander, Judge.
    Edmund Charles was convicted of rape, and appeals.
    Affirmed.
    Albert Stone and T. B. Botts, bqth of Bren-ham, for appellant. Mathis, Teague & Mathis, of Brenham, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Upon a sufficient indictment duly returned, appellant .was tried and convicted of rape, and his punishment assessed at death. He was a negro and was living at the home of Wilson Glover. He and Glover’s son, a negro boy about 12 years old, were on their way to a neighbor’s, and the route they were traveling intersected that upon which the injured party, Mrs. Koester, was walking. About the time appellant and the boy reached the point at which they came to the woman, the boy on appellant’s suggestion stopped to wait for him at a gate. Appellant followed and overtook the woman and talked with her, exhibiting a knife, according to her testimony, and threatened to kill her if she made any demonstration. She, according to her testimony, was frightened and walked fast, but appellant kept pace with her, and when they reached a point in the road at which there was a bridge and gully, which point was some distance from where the boy stopped, the rape, according to her testimony, took place. The boy said that when she reached this point he heard her hollo, and saw appellant grab her and back her into the gully, on the happening of which the boy turned and ran home and told his father of the occurrence. When appellant returned to Glover’s house, the father of the boy mentioned the report that the boy had made. Appellant denied catching a white woman, and said it was a colored woman. Appellant remained at Glover’s house until his arrest two or three days after the date of the alleged offense. According to Mrs. Koester’s testimony, when they reached the place near the bridge, appellant jumped on her and threw her down when she was exhausted with her efforts to escape him. She claimed to have exerted herself in struggling with and resisting him and to have cried out for help, and that, appellant put his hand on her mouth, tried to choke her, and threatened to kill her if she made further outcry, and that, overpowering her, he had sexual intercourse with her. She gave positive testimony as to penetration. After the occurrence she .went to her home, meeting a witness by the name of Nordt about 300 yards from the bridge, and this witness testified that she was pale and had scratches on the face and chin, grass on her Jrnck and coat, as though she had been lying down. She had no conversation with him, but on reaching home told her husband of the assault, but did not immediately tell him that appellant had succeeded in actual penetration. She said she was afraid to tell her husband the negro had had intercourse with her at that time, but she later in the night did do so. Her husband was not a witness. Appellant was fully identified, and testified to meeting a woman and following her, and to the fact that the boy stopped, but denied any assault on her, claiming that as soon as he saw she was a .white woman he turned and fled. He claimed that he did not touch her; that when following her he thought she was a colored woman; that he did not go nearer than 100 yards to the culvert. There was testimony that the next day the ground near the culvert was examined; that the weeds were mashed down, and there were tracks on the ground and holes in the ground such as would be made by toes, shoe prints, and that at this point a comb belonging to Mrs. Koester was found.

The court’s charge fairly presented the issues, and .was not excepted to. Appellant, however, requested the court by a special charge to submit the issue of assault with intent to rape. The indictment for rape included the offense of an assault with intent to rape, but the court would not be required to give, nor justifie'd in submitting to the jury, that issue unless the evidence was such as to raise it. Boyd v. State, 72 Tex. Cr. R. 521, 163 S. W. 67; Wharton’s Crim. Law, § 747; Shields v. State, 32 Tex. Cr. R. 498, 23 S. W. 893; Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343. An assault with infent to rape involves an assault upon a woman with intent to gratify his passion at all events, notwithstanding resistance on her part; but, when the assailant succeeds in accomplishing his purpose, assault with intent to rape passes out, and it becomes rape. In this case from the appellant’s testimony and theory there was no assault made. Erom the state’s testimony and theory the assault .was made and the purpose fully accomplished. The refusal of the charge was not error. Dusek v. State, 48 Tex. Cr. R. 519, 89 S. W. 271.

We think there was no error in admitting the proof describing the ground and the finding of the comb on the day after the offense is charged to have been committed. Rodgers v. State, 30 Tex. App. 529, 17 S. W. 1077; Sharp v. State, 71 Tex. Cr. R. 636, 160 S. W. 369.

The declaration of appellant, denying that he had pushed a white woman in the gully, as reported by Glover’s son, and claiming that it was a colored woman, was, in our opinion, admissible. May v. State, 33 Tex. Cr. R. 74, 24 S. W. 910; Huffman v. State, 28 Tex. App. 174, 12 S. W. 588; Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366; Wharton’s Crim. Ev., §§ 429, 683.

Appellant insists that, taking into consideration the youth of the boy who testified and the fact that he had been instructed as to the consequences of perjury, and that he testified on cross-examination that he had talked the matter over with his father and the officers several times, and that he said that he did not tell it exactly alike every time, and the alleged fact that Mrs. Koester’s identification of the appellant was not positive, and that in her first statement of the occurrence she did not report the penetration, the evidence is rendered insufficient to support the verdict of the jury.

There is nothing in the record which impresses us as indicating that the negro boy was not a competent witness. The question of his competency .was committed to the court by our statute (Vernon’s Ann. Code Or. Proc. 1916, art. 788), and this is the general rule of evidence. Wharton on Ev. § 366; Branch’s Grim. Law, § 554; Vernon’s Ann. O. O. P. 699. We have carefully read his testimony, both on direct and cross-examination, and we have discovered nothing therein which throws such suspicion or doubt on it as to justify us in sustaining appellant’s contention. His proximity to the transaction is testified to both by the injured party and the appellant. Immediately after the assault he ran home and reported the matter to his father, and his subsequent detail of' it on the trial is entirely consistent with the truth of his story.

In cases of this character this court and courts of other jurisdictions have uniformly scrutinized with extreme care the testimony of the injured female. Pefferling v. State, 40 Tex. 487; Wharton’s Crim. Law, § 733; Price v. State, 36 Tex. Cr. R. 143, 35 S. W. 988; Perez v. State, 48 Tex. Cr. R. 226, 87 S. W. 350. The soundness of this rule is beyond question, and it ought not to be departed from, but it is not to be used to prevent a conviction on her testimony when there is nothing in her conduct to discredit her or in cases in which her testimony is sufficiently corroborated. Coates v. State, 2 Tex. App. 16; Goss v. State, 40 Tex. 520; Gazley v. State, 17 Tex. App. 267; Montresser v. State, 19 Tex. App. 281; Dove v State, 36 Tex. Cr. R. 105, 35 S. W. 648; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 772; Hamilton v. State, 41 Tex. Cr. R. 599, 58 S. W. 93.

In this case the prosecutrix is not discredited, but is corroborated. The fact that appellant was present at the commission of the offense and made an assault upon the prosecutrix was corroborated in the admission of the appellant in his testimony on the stand, in the testimony of the boy that he saw the appellant seize the woman and push her into the gully, in his running home and making the report to his father, and appellant’s declaration to the host’s father shortly after the occurrence, denying that he made an assault upon a .white woman, but admitting an assault upon a negro woman at the time and place described by the boy. That there was force, bona fide resistance and want of consent was corroborated by the appearance of the woman, the blood on her face as described by the witness Nordt, the dirt on and disarray of her clothes, her prompt report to her husband and her outcry heard by the boy. These facts and others developed on the trial, finding the comb at the place of the alleged assault, and the condition of the ground and weeds, constitute such corroboration of her testimony as under the authorities mentioned would not warrant us in holding that the conclusion reached by the jury and approved by the trial court was not supported by sufficient evidence.

Fully conscious of the gravity of the case, and after its most careful investigation, we are constrained to order the affirmance of the judgment of the lower court.
      <gE5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    TURMAN v. STATE.
    (No. 4474.)
    (Court of Criminal Appeals of Texas.
    May 16, 1917.
    On Motion for Rehearing, June 13, 1917.)
    1. Criminal Law <&wkey;1086(8) — Appeal and Error— Sufficiency oe Record.
    Where an indictment is the basis of a criminal prosecution, the record on appeal must contain it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. •§§ 2746-2748, 2760, 2751, 2770.]
    2. Indictment and Information <&wkey;l — Necessity.
    A complaint and information in the county court or an indictment in the district court are necessary to sustain a conviction.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 1-3.]
    On Motion for Rehearing.
    3. Bail &wkey;>71 — Appeal and Error — Recognizance.
    Where one convicted of a misdemeanor entered into a bond after adjournment of court, but did not enter into a recognizance during term time, the bond does not comply with the law requiring a recognizance, and his appeal will be dismissed.
    Appeal from District Court, Mason County; N. T. Stubbs, Judge.
    Jim Turman was convicted of carrying a pistol, and appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of carrying a pistol; his punishment being assessed at a fine of $125.

The transcript is somewhat peculiar. It recites on the 5th of October, 1916, the grand jury returned the indictment. On the 9th of March, 1917, there was a judgment entered assessing a fine of $125; and there is a judgment on March 10th overruling the motion for new trial, and entering notice of appeal, and granting 20 days after adjournment of court in which to make up and file statement of facts and bills of exception. This is all of it. There is no caption to the transcript; it does not show what court tried the case, or when it opened and adjourned. The indictment is not in the record. The statement of facts and bills of exception are not included, if any were filed. Without the indictment being in the transcript, there is no basis for the prosecution. Where an indictment is relied upon as a basis of the pro'secution or charge upon which the party is tried, it must be sent up in the record. Under our law, constitutional, statutory, and decisions, it is necessary and prerequisite to a prosecution and conviction of a citizen of this state that he either have a complaint and information, if in the county court, filed against him, or, if in the district court, by an act of the grand jury an indictment. Without these necessary papers the state has preferred no charge against appellant, and there is no basis for the prosecution..

The judgment ■ will be reversed, and the prosecution ordered dismissed.

On Motion for Rehearing.

At a former day .of the term the judgment herein was reversed, and the prosecution dismissed, as shown by the original opinion. In a motion for rehearing filed by the state it is made to appear by proper transcript that an indictment was returned to' form the basis of the prosecution, and the motion therefore to reinstate the case will be granted and disposed of on the record as now before the court.

There are neither bills of exception nor a statement of facts in the record. This is a misdemeanor conviction for violating the pistol law. After the adjournment of court appellant entered into a bond, but did not enter into a recognizance during term time. The bond cannot be regarded as a compliance with the law requiring a recognizance where the party desires to appeal, and for this reason the appeal will be dismissed.


text:
    GARCIA v. STATE.
    (No. 4509.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Criminal Law &wkey;>1144(14) — Review—Presumptions.
    In absence of a statement of facts, a charge submitting the offense stated in the information will be presumed on appeal to have charged the law applicable to the evidence.
    [Ed, Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2767, 2901, 3032.]
    2. Criminal Law <S=ol092(5) — Review—Exceptions — Time of Filing.
    A bill of exceptions purporting to preserve evidence in a criminal case on an assignment in the motion for new trial charging misconduct of the jury filed subsequent to the adjournment of &e term at which, accused was tried cannot be considered. (
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847.]
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Manuel Garcia was convicted of theft, and he. appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the .State.
   MORROW, J.

Under an indictment for theft, appellant’s conviction condemned him to two years’ confinement in the state penitentiary.

The record is without a statement of facts. The indictment is regular. There are some exceptions to the court’s charge which, in the absence of a statement of facts, we must assume were not well taken. Vernon’s C. C. P. art. 743, p. 521, § 56; Ruiz v. State, 48 Tex. Cr. R. 470, 88 S. W. 808; and other cases listed in the note mentioned.

A bill of exceptions purporting to preserve evidence on an assignment in the motion for new trial charging misconduct of the jury is in the record. It seems to have been filed subsequent to the adjournment of the term of court at which appellant was .tried, and for that reason, under the ruling in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, cannot be considered. For other cases to the same effect see Tarleton v. State, 62 S. W. 748; Reinhard v. State, 52 Tex. Cr. R. 59, 106 S. W. 128; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421. We have read the bill, however, and if it was in condition authorizing its consideration we would not hold that the trial court erred in its ruling.

The judgment of the lower court is affirmed.
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