source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    WINDHAM v. STATE.
    (No. 3420.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    1. Homicide <&wkey;308 — Prosecution — Evidence— Sufficiency.
    In a prosecution for homicide, evidence held to raise the issue of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dee. Dig. &wkey;30S.]
    2. Homicide <&wkey;>340 — Appeal—Harmless Error.
    Though the evidence did not raise the issue of murder, the submission of that question was harmless, where accused was only convicted of negligent homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dee. Dig. &wkey;340.]
    3. Homicide &wkey;>309 — Evidence — Prosecution.
    Evidence held to raise the issue of negligent homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. &wkey;309.]
    4. Homicide <S=»309 — Prosecution—Instructions.
    Charges that accused should be acquitted, if the jury had a reasonable doubt whether he intended to kill or at the time he pointed his gun knew it was loaded or cocked, affirmatively present the issue of accidental homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <&wkey;309.]
    5. Criminal Law <&wkey;829 — Instructions — Refusal.
    The refusal of requests covered by the charges given is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;>829.]
    Appeal from District Court, Nacogdoches County; L.- D. Guinn, Judge.
    John Windham was convicted of negligent homicide, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with murder; when tried he was convicted of negligent homicide of the second degree, and his punishment assessed at 12 months’ imprisonment in the county jail, and a fine of $1,000.

The state’s evidence would have authorized a finding that appellant and deceased engaged in gambling some two or three weeks before the homicide, and that deceased won a pistol from appellant on that occasion; that a few days before deceased was killed they met at Sacul, and appellant asked what he had done with the gun, and, when deceased replied it had been torn up, appellant told him he had to get, it. Deceased replied he could not get it, as he had thrown it away, when appellant said, “I am coming down there to-night after you.” This was introduced to show ill will, animus, and motive. The evidence further shows that on the day of the killing appellant and Henry Ward, who had been hunting, went to the home of deceased’s father and took dinner with the family; that the guns of appellant and Ward were unloaded by James Jenkins, a brother of deceased. It further appears that deceased left and went to work, and shortly thereafter appellant, Henry Ward, and James Jenkins went to a house near where deceased was at work. James Jenkins testifies that appellant reloaded his gun while on the way to this house. When they were all at this house, deceased came up to the house, and upon entering the house appellant raised his gun and said: “Stop! If you take another step I will kill you.” Deceased replying, “You will have it to do,” when the gun fired; both barrels being discharged. The shot entered the neck, severing the windpipe, and caused the death of the .deceased.

Appellant insisted that this testimony did not raise the issue of murder, and excepted to the charge as a whole, and to each paragraph thereof on the issue of murder — not that the charge on murder, or any paragraph thereof, was erroneous, if a charge on murder was authorized, but only that such a charge was unauthorized under the testimony. We do not think the court erred, under the above state of case, in overruling such exceptions. Again, as appellant was only found guilty of negligent homicide, if the evidence did not call for such a charge, the fact that the court submitted the issue of murder would not present reversible error.

The defendant’s testimony presents the theory that he and Henry Ward had been hunting, and stopped at deceased’s father’s for dinner; that James Jenkins did unload the guns, and he says he never reloaded his gun, and did not know it had been reloaded; that he, Henry Ward, and James Jenkins did go to the house near where deceased was at work, and while there he says he, Henry Ward, and George Ward were playing with the guns, “just pranking with each other.” Defendant testifies:

“I didn’t intend to kill Jeff when I threw the gun up. As to how come me to shoot him, I didn’t know the gun was loaded. I had been pranking with the gun just before that; had snapped it, and had been playing with it, and did not know it was loaded when I pulled the trigger.”

The testimony for the defendant would show that as he raised the gun he said, “Hold up, there! if you don’t, I am going to shoot you,” when deceased replied, “Well, you will just have to shoot.” That they were all laughing and talking.

Appellant also excepted to the charge for submitting the issues of negligent homicide in the first and second degrees—not that there was error in the charge as drawn, but it was improper to authorize the jury to find the defendant guilty of negligent homicide, for he contends that this evidence only presented accidental homicide.

If the jury believed under all the testimony that defendant had reloaded the gun, and knew it was loaded when he threw the gun on deceased and said, “Hold up there! if you don’t I am going to shoot you,” and by his negligence and carelessness the gun was discharged, even though it was not his intention to shoot it, the issue of negligent homicide would be presented, and the court did not err in submitting the issue to the jury.

Of course, the defendant also had the right, under his theory of the case, to have the issue of accidental homicide submitted, and this the court did submit in the following language:

“If you have a reasonable doubt as to whether the killing was accidental or not, yon will give the defendant the benefit of such doubt and acquit him. If you believe that the defendant killed the deceased, but have a reasonable doubt as to whether or not he intended to kill him, or whether the defendant knew at the time that he.drew the gun on the deceased, if he did so, that the gun was loaded, or that the gun was cocked, you will give the defendant the benefit of such doubt and acquit him.”

In the transcript there are no exceptions reserved to the introduction of any testimony, and in the exceptions to the charge the only exception, other than the court erred in submitting the issues of murder and negligent homicide, is an exception contending that the court did not submit the issue of accidental homicide affirmatively. The above excerpt from the charge shows this ground not to be well taken.

There were four special charges requested, the first two requesting peremptory instructions of not guilty. The court did not err in refusing to give such instructions. The other two special charges, in so far as they presented the law of the case, were fully covered by the court’s main charge.-

The judgment is affirmed.

      £as>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    WILSON v. STATE.
    (No. 3427.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    Criminal Law <&wkey;>1182—Appeal—Statement oe Facts—Necessity.
    Where there was no question which could be reviewed without a statement of facts, a conviction must be affirmed, where the record on appeal contains no such statement.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3203-3214; Dec. Dig. <&wkey; 1182.] .
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Mollie Wilson was convicted of murder in the second degree, and she appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen.-, for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder in the second degree, and the lowest punishment prescribed by law assessed.

This is a companion case to that of Chant v. State, 166 S. W. 513. There is no statement of facts. In the absence of this, no question is raised which can be reviewed.

The judgment is therefore affirmed.


text:
    CASSANOVA v. STATE.
    (No. 3417.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    Criminal Law <&wkey;1124^-ApPEAL—Record.
    Denial of new trial because the verdict 'is contrary to the law and the evidence is not reviewable, where no statement of the evidence is in the record.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-294S; Dec. Dig. &wkey;1124.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    G. Cassanova was convicted of crime, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault with intent to murder, and his punishment assessed at two years’ confinement in the state penitentiary. .

The only ground in the motion for a new trial claims that a new trial should be granted “because the verdict of the jury is contrary to the law and the evidence.” As no statement of the evidence heard on the trial accompanies the record before us, we cannot review that ground.

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


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

text:
    STRAUSS v. STATE.
    (No. 3381.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.
    Dissenting Opinions, Feb. 16, 1915.)
    1. Municipal Coepoeations @=590 — Charter — Police Powee.
    Loe. & Sp. Acts 31st Leg. e. 31, incorporating the city of Ft. Worth, with a commission form of government, and providing that the commissioners should have the power of making ordinances, not inconsistent with the Constitution, on any subject witbin its local government, to enact police regulations and enforce them by fines of not over $200, and, by subchapter 9, § 4, giving it the general police powers of a city, the enumeration of certain powers not to be limitations on its general powers, gave to the city all the police power of the state as to acts which might be made minor offenses; there being no constitutional provision prohibiting it.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1309; Dec. Dig. @= 590.]
    2. Municipal Coepoeations @=598 — Police Power — Ordinance—'Validity.
    An ordinance of the city of Ft. Worth, which under its special charter was given all the police power of the state as to acts which could be made minor offenses, making it unlawful for any white person and any negro to have sexual intercourse with each other within the city limits, each act to be a separate offense, and declaring its violation a misdemeanor, punishable by fine not exceeding $200, was a valid exercise of the police power.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1326; Dec. Dig. @= 598.]
    3. Municipal Coepoeations @=>592 — Ordinance — Conflict with Laws op State— “Adultery” — 1 ‘Fornication.”
    Such ordinance was not invalid, as conflicting with Pen. Code 1911, art. 490, declaring that “adultery” is living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman when either is lawfully married to some other person, nor with Pen. Code 1911, art. 494, declaring that “fornication” is living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried, since one act alone between such white person and negro constitutes an offense, whether one or both are married to another, or neither is married.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ Í311-1314; Dec. Dig. @=592.
    For other definitions, see "Words and Phrases, First and Second Series, Adultery; Fornication.]
    4. Constitutional Law @=206, 215 — Ordinance — Constitutionality — Discrimination — Color.
    Such ordinance is not invalid, as making the violation thereof depend solely on color.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 625-648, 714, 716, 717, 719, 721; Dec. Dig. @=206, 215.]
    5. Municipal Corporations @=3590 — Charter — Police Power.
    The state can authorize its municipal corporations to make acts an offense therein under the police power, even though it does not make the same act a state offense.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1309; Dec. Dig. @=590.]
    6. Criminal Law @=368 — Ordinance—Prosecution-Res Gestíe.
    In a prosecution for violation of an ordinance of the city of Ft. Worth making it unlawful for any white person and any negro to have sexual intercourse, each act to constitute a separate offense, punishable by fine not to exceed $200, evidence that, as soon as admission was gained to the room where defendant and the white man were locked in, both of them undressed, and the bed ruffled up, the white man said to the officer that he had not had intercourse with defendant, was admissible as part of the res gestse.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. @=368.]
    7. Criminal Law @=417 — Evidence—Competency-Whole Act or Declaration.
    In such prosecution, where the white man was permitted to testify that he had not had intercourse with defendant, his testimony as to what he was intending to do if the officers had not entered the room when they did was admissible, within Code Cr. Proc. 1911, art. 811, providing that, when part of an act, declaration, etc., is given in evidence by one party, the whole act or declaration may be inquired into by the other party.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. @=417.] Davidson and Harper, JJ., dissenting in part.
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Minnie Strauss was convicted of a misdemeanor, and she appeals.
    Reversed and remanded.
    Mays & Mays, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

By a special act of the Legislature, approved and in effect March 10, 1909 (Special Laws, p. 227), Ft. Worth was incorporated as a city of more than 10,000 inhabitants with the commission-form of government. It had been before then an incorporated city under such special charters. In said act, which is its charter, it and its governing commissioners are given special power and authority to do many things unnecessary to mention, but among others are these provisions:

“The board of commissioners of said city shall be vested with the power and charged with the duty of making all laws or ordinances not inconsistent with the Constitution of this state, touching every object, matter and subject within the local government instituted by this act.”
“The board of commissioners shall have the power to pass, amend or repeal all ordinances, rules and police regulations not contrary to the laws and Constitution of this state, for the good government, peace and order of the city and the trade and commerce thereof that may be necessary or proper to carry into effect the powers vested by this charter in the corporation, the city government or any department or officer thereof; to enforce the observance of all such rules, ordinances and police regulations and to punish violations thereof by fines, penalties and costs; but no fine or penalty shall exceed two hundred dollars ($200).”

Then, chapter 9 of the charter, headed “Additional Powers of the City of Ft. Worth,” says:

“Said city of Ft. Worth shall have the pow-gj* # % #
“Sec. 4. To enact and enforce ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove nuisances of all kinds and descriptions, and to preserve and enforce the good government, order and security of said city and of its inhabitants, and have and enjoy general police powers of a city; and the enumeration of other powers elsewhere herein and the specifications of same shall not be regarded as limitations upon thé general powers herein conferred upon the city by this section.”

Under this power and authority said city by its commissioners, duly enacted, and had in force, when this offense was alleged to have been committed, this ordinance:

“An ordinance prohibiting sexual intercourse between white persons and negroes and providing a penalty.
“Be it ordained by the city commissioners of the city of Ft. Worth:
“Section 1. It shall hereafter be unlawful for any white person and any negro to have sexual intercourse with each other, within the corporate limits of the city of Ft. Worth. Each act of intercourse shall constitute a separate offense.
“Sec. 2. Any person violating the provisions of this ordinance shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined in any sum not exceeding two hundred dollars.”

By proper complaint appellant was charged with the violation of this ordinance, in that she, a negro woman, on May 11, 1914, in said city, unlawfully had sexual intercourse with W. A. Randall, a white man. She was first tried and convicted in said city court, and on appeal to the county court was again convicted, and now appeals to this court.

She attacks said ordinance on these grounds, because: (1) It contravenes and is in direct conflict with the state law of adultery and fornication; (2) it is broader than legislative authority; (3) neither express or implied authority is given in the charter to enact it; (4) it discriminates between the races; (5) it makes the violation thereof depend solely on color; and (6) it contravenes the Constitutions of both Texas and the United States. We will not discuss each of these grounds separately. But what we have to say embraces all of them.

In our opinion the ordinance is valid, and no ground of her attack can be sustained. The provisions of said charter quoted above, especially the last, gives said city, for its local government, as to all acts which can be made minor offenses, all the police power of the state, In clear and unmistakable language. We think it could not be made clearer. We have no constitutional provision whatever which, either directly or by implication, prohibits or prevents this. It was not necessary for the charter to specially name any or all of the specific acts. The city could make an offense embraced in the police power under said charter provisions. The provisions themselves show clearly the Legislature intended to confer, and did confer, on said city, all police power of the state, as to all acts which could be made a minor offense, which could be given to one of its municipal corporations for its local self-government. This could not be construed to mean the power to make acts felonies. Judge Dillon says:

“Under authority ‘to ordain and publish such acts, laws, and regulations, not inconsistent with the Constitution and laws of the state, as shall be needful to the good order of the city,’ it can, says Howard, J., ‘subject to these restrictions and certain statute regulations, establish all suitable ordinances for administering the government of the city, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations.’ ” 2 Dill. Mun. Corp. (5th Ed.) § 718.
“Power ‘to ordain and publish such acts, laws, and regulations, not inconsistent with the Constitution and laws of the state, as shall be needful to the good order of the city,’ authorizes the city to establish all suitable ordinances for administering the government of the city, the maintenance of peace and order, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations. Reasonable ordinances for these purposes are necessary, and they are generally sustained by the courts, * * * though passed by virtue of general charter power, or authority conferred by the general welfare clause.” McQuil-lin, Mun. Ord. § 434.

In section 433 he says;

“Generally, cities may make'and enforce within their limits all such local police, sanitary, and other regulations designed to promote the health, safety, comfort, convenience, and welfare of the local community, which are not in conflict with Constitution or the general laws. Crowded urban populations require numerous police regulations which would be unreasonable in rural districts or sparsely populated territory. This difference was quickly recognized, and from the first establishment of local corporations, invested with civil government, the local community has been empowered to enact and enforce all sorts of such regulations which restrict more or less the liberty of the individual, his personal movements, and the use of his property. These are absolutely essential to life in crowded centers. From the beginning their necessity has been sanctioned by the public authorities, and they have been sustained generally by the courts. The police power primarily inheres in the state, but if the state Constitution does not forbid the Legislature may delegate a part of such power to the municipal corporations of the state, either in express terms or by implication.”

It is also said:

“Tlie proposition cannot be denied that organized government has the inherent right to protect health, life, and limb, individual liberty of action, private property, and legitimate use thereof, and provide generally for the safety and welfare of its people. Not only does the right exist, but this obligation is imposed upon those clothed with the sovereign power. This duty is sacred, and cannot be evaded? shifted, or bartered away without violating 'a public trust.” MeQuillin, Mun. Ord. § 430.

It would be a useless task to undertake to cite all the authorities establishing what is embraced in the police power. Many decisions of this court give definitions and instances of it. None of them would exclude the idea that such an offense as prescribed by said ordinance was not within such power, and none of them intimate it would not be. As illustrative of what all the authorities establish as police powers as applicable to municipal corporations, we will quote 1 Abbott on Mun. Corp. p. 202 et seq.:

“Government should have for its end the welfare, convenience, and advantage of the people, and the advancement of all their material, intellectual, and moral interests. One of its important ob.iects, if not the most important, is the protection and preservation of life and limb and the property and good morals of the public. That particular and inherent power of the state which has for its purpose the accomplishment of these results is termed the ‘police power.’ It includes and comprehends within its exercise all these general laws and internal regulations which are necessary to secure the peace, good order, health, and comfort of society. It is that power of the state more than all others 'which affects most intimately the private and personal interests and relations of each individual. It is to a certain extent an indefinable power, and the limits of its exercise are never clearly established. No general principle of law can be stated which will even with reasonable accuracy define its application or its exercise. Certain purposes or certain results are to be accomplished by the state; a certain exigency arises affecting the peace, the health, or the comfort of society; and to the Legislature directly or as it may lawfully delegate the power is given the large discretion of passing such measures as are necessary to effect the desired result, restricted only by constitutional limitations. What may be necessary, and proper to accomplish this result at one time may be unnecessary and improper at another. The exercise of the power belongs properly to the lawmaking or legislative branch of the sovereign, and it is not within the power of any court to prescribe or say what rules and regulations are needful or necessary to the peace, health, safety, and morals of the state. The power belongs to the Legislature to be exercised within constitutional limitations. It is our theory of government that, controlled only by constitutional provisions, its three great branches, the executive, judicial, and legislative, are co-ordinate and coequal. It is within the power as well as the discretion of the lawmaking branch to determine what rules and regulations are best calculated to accomplish the great results comprehended and included within the exercise of the police power. As was said by the court in an Ohio case: ‘The making of laws is committed to the General Assembly; it is the judge of the wisdom and policy of all its enactments, and no court has the right to overrule its judgment, even as to the extent of its own powers, unless it has clearly and beyond doubt exceeded the legislative functions with which it is invested by the Constitution. This is so generally recognized as true as to be regarded as axiomatic upon all questions as to the power of a Legislature to enact a given law.’ The state has the power to select its agent for exercising the police power or the manner in which it itself shall do this. It is clearly constitutional for the sovereign to delegate to a subordinate public agency, a public (municipal) corporation, the right to exercise this power, and it has been suggested in some cases that the power exists in a municipal corporation proper, independent of any express delegation of the same by the state. It follows, as this is a governmental power, no public (municipal) corporation, not even the state itself, can waive or bargain away the right to exercise it.”

Further, on page 244, lie says:

“The good morals of the community should be an especial care of the public authorities, and all regulations or laws passed by the proper authorities, looking to this end, come within a valid exercise of the police power.”

All civilized nations have always legislated against immoral sexual intercourse as “offenses against public morals, decency and chastity,” as designated by our Code, title 10.

The offense made by said ordinance is neither in conflict with, nor antagonistic to, our adultery or fornication statutes. On the contrary, it is in harmony therewith and with other of our statutes.

“ ‘Adultery’ is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman when either is lawfully married to some other person.” P. O. art. 490.
“ ‘Fornication’ is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried.” P. O. art. 494.

Said ordinance is:

“It shall * * * be unlawful for any white person and any negro to have sexual intercourse with each other. * * * Each act of intercourse shall constitute a separate offense.”

No single act alone can be either adultery or fornication. To make adultery the man and woman must live together ■ and have one or more acts; or, if not living together, then the acts must be more than one — of such frequency, and at such short intervals, as to amount to “habitual.” Fornication is precisely as adultery on those points. The only difference between them is that, if either the man or woman is married to another, it will be adultery; if neither is married, it will be fornication. And it makes no difference whether one or both — the man or woman-are white or a negro. Whereas by the ordinance one must be white, the other a negro, and one act alone between such negro and white person constitutes the offense, whether One or both are married to another, or neither is married.

Our laws have all the time recognized, and legislated upon, the difference between negroes and whites. Their validity cannot be questioned because of that fact. For instance: Under said title 10 of our Penal Code, prescribing some “offenses against public morals, decency and chastity,” article 483 not only makes it a penitentiary offense for a white person and negro to knowingly marry in this state, but also, when they haye married out of the state, to continue to live together as husband and wife after coming to this, and makes both parties punishable. Prior to the revision of our Code in 1879, the statute restricted the punishment to the white person only — did not authorize the negro to be punished. The validity and constitutionality of said law as it existed prior to 1879 was sustained by this court in a most exhaustive and able opinion by Presiding Judge Ector in Frasher v. State, 3 Tex. App. 263, 30 Am. Rep. 131, and reaffirmed by an opinion of Presiding Judge White in Francois v. State, 9 Tex. App. 144. There can be no question of the correctness of those decisions.

Again: Our Code (title 18, c. 15) requires all our common carriers to provide separate coaches or compartments for whites and negroes, and makes it an offense if they fail or refuse to do so. Our law also requires the railroads to provide separate waiting rooms at their stations for said races. There can be no question of the validity of such laws. It is needless to cite other instances.

It is true the state has never yet made it an offense for a negro and white person to have one act of sexual intercourse. It unquestionably has the right and power to do so. Perhaps the necessity therefor has not appeared to the Legislature to make such offense for the whole state, like it has to the city of Ft. Worth for the protection of the morals and good order of the inhabitants of that city.

However, there can be no question but that the state can authorize its municipal corporations to make acts an offense therein under the police power, even though it does not make the same act a state offense. Numerous instances of this might be cited. This principle has been repeatedly held by this court.

In Ayres v. City of Dallas, 32 Tex. Cr. R. 610, 25 S. W. 631, this court, through Judge Simkins, the “judges all present and concurring,” held:

“The object of the power conferred by the charter and the purpose of the ordinance itself was not to punish an offense against the criminal law of the state, but to provide a police regulation for the enforcement of good order and peace within the limits of the municipal corporation. It is not a valid objection that the ordinance makes that act an offense which is not defined in the Penal Code of the state. In the preservation of the life, health, good order, and: public morals, many acts not unlawful in themselves, or not defined nor punished by the Penal Code, may be prohibited by the ordinances, because, in the judgment and discretion of the corporate authorities, they are injurious to the general welfare of the city.”

Again, in Ex parte Hughes, 50 Tex. Cr. R. 618, 100 S. W. 160, this court held:

“So the question is simply, in the absence of any state law on the subject, Can the Legislature authorize a municipality by ordinance to make penal the sale of railroad tickets by others than the agents of such railroads? There is nothing in the Constitution' prohibiting the exercise of this power, if it is only a delegation of such legislative power as may be exercised by a municipality. While as a general rule the Legislature cannot delegate its power to make laws, yet as a well-recognized exception to this is the delegation of such police power as may be properly exercised by cities. Cooley on Const. Lim. pp. 138, 226; Smith's Mod. Law of Mun. Corp. vol. 2, §§ 1319 to 1324, inclusive; also section 498.”

This brings us to the questions in the trial of this case. There are but two other questions raised by her bills necessary to pass upon. In one she complains the court should have permitted her, upon cross-examination of the state’s witness Flippen, to have him testify that as soon as he gained admittance to the room where she and the white man, Randall, with whom she is alleged to have had intercourse at the time, were locked in, and both of them undressed and the bed ruffled up, that Randall said to him he had not had intercourse with her. We are inclined to believe this was res gestee and admissible. Its exclusion, under the circumstances of this case, might not present reversible error.

We copy her bill No. 3 in full, after omitting only the number, style of the case, and court:

“Be it remembered that upon the trial of the above numbered and entitled cause, and while the witness W. A. Randall, the party with whom it is alleged that defendant had intercourse, was testifying for and in behalf of the defendant, and after it had been proved and shown by the witness Flippen, the witness Knight, and partly by the witness Randall, that said Randall, when said officers entered, had his shoes off and was putting on his pants, after such had already been testified to, and in order to account for sucli condition in the way of dress of the witness Randall, and in order to rebut the presumption that they had already had intercourse, and that the said Randall was then dressing, said defendant’s attorney propounded the following question to said witness Randall: ‘What were you intending- to do if the officers had not entered the house when they did?’ — which question was then and there objected to by the county attorney, and which objection was by the court sustained, to which action of the court the defendant then and there in open court excepted for the reason that, if said witness was permitted to answer said question, he would say in answer thereto that if the officers had not entered the house so quickly that they, defendant and witness, would have had intercourse; that he was undressing for the purpose, but when they .heard the officers coming he began to redress"; that they were getting ready to have intercourse, but they in fact had not had such an act of intercourse as charged in the complaint. (2) If permitted to make such answer, which said witness would do, if allowed, it would account for the partially undressed condition of defendant and witness; that the state relied upon such fact — that is, upon the fact of being partially dressed — to show that they had already had intercourse, and that the witness Randall was dressing when the officers came, whereas, if said witness would be permitted to answer said question, as he would have done as above stated, it would rebut said presumption and thereby account for their condition of dress.. The court sustained the state’s objection to said question, and he was not allowed to answer the same; that if he had been permitted to answer, he would have testified as above stated, to which action of the court the defendant then and there excepted, for the reasons above stated, and here now tenders this, his bill of exception No. 3, and prays the court to examine, approve, and allow the same, and order same filed as a part of the record in this cause. Examined and approved this the 29th day of October, 1914. Jesse M. Brown, Judge County Court, Tarrant County, Texas.”

We think it clear, both from the statute and the many decisions of this court, that said evidence was admissible, and the court erred in excluding it. C. C. P. art. 811; section 337, Branch’s Crim. Law, where he collates some of the cases.

For this error of the court in excluding this evidence the case must be reversed and remanded.

HARPER, J.

I do not agree that bill No. 3 presents error. The witness Randall was permitted to testify that he had not had intercourse with the woman. Then the question was asked by defendant:

“What were you intending to do if the officers had not entered the house when they did?”

I do not think what he would testify he intended to do would be admissible, tie was permitted to testify to all the facts within his knowledge, but I do not agree that what he would say was his intention thereafter to do would be admissible. And while agreeing that the ordinance is valid, I am of the opinion the case should be affirmed.

DAVIDSON, J.

I concur in the reversal on ground stated. But I am of the opinion the ordinance is void (cases collated in Branch’s Crim. Law, § 207 et seq.), and will write later.

DAVIDSON, J.

(dissenting). On a former day of the term the judgment herein was reversed on the grounds stated in the opinion by Presiding Judge PRENDERGAST. I concurred in the reversal on the grounds stated. I respectfully enter my dissent, however, to the conclusion reached by the majority opinion that the ordinance is valid. That ordinance reads as follows:

“Be it ordained by the city commissioners of the city of Ft. Worth:
“Section 1. It shall hereafter be unlawful for any white person and any negro to have sexual intercourse with each other, within the corporate limits of the city of Ft. Worth. Each act of intercourse shall constitute a separate offense.”

There are several points of attack made by appellant. I had thought we had reached a stage in our jurisprudence where it was unnecessary to cite authorities to show that a city cannot pass a criminal ordinance unless authority is granted in the charter itself to do so. The authority to create this ordinance is not to be found in the charter of the city of Ft. Worth. It is a fundamental proposition that a city can exercise no authority except that granted in its charter. For collation of authorities see Branch’s Crim. Law, § 209. A charter of a municipal corporation is its organic law and furnishes the measure of its powers. It can exercise no power which the charter does not grant in express words, or which is not necessarily or fairly implied or incident to the powers expressly granted, or which is not essential to the declared objects and purposes of the corporation. Garza v. State, 28 Tex. App. 383, 13 S. W. 779, 19 Am. St. Rep. 846. The above is a condensed statement of the rule by Mr. Branch. It aptly and correctly states the law. If there is no authority in the grant or charter to the city to pass the ordinance, it is void. Ogden v. State, 43 Tex. Cr. R. 531, 66 S. W. 1100; Powell v. State, 43 Tex. Cr. R. 391, 66 S. W. 298; Garza v. State, 28 Tex. App. 381, 13 S. W. 779, 19 Am. St. Rep. 845; Grace v. State, 9 Tex. App. 381; Campbell v. State, 22 S. W. 1020; Smith v. State, 51 Tex. Cr. R. 395, 102 S. W. 115; Smith v. State, 51 Tex. Cr. R. 466, 102 S. W. 1124. There being no authority granted the city of Ft. Worth to pass this ordinance, it would be void from this viewpoint.

Again, the power granted a city to legislate is strictly construed, and in favor of the granting power as against the grantee, and the courts adopt a strict rather than a liberal construction in passing upon the granted power to municipal corporations. Heidleberg v. State, 51 Tex. Cr. R. 581, 103 S. W. 395; Ginnochio v. State, 30 Tex. App. 587, 18 S. W. 82; Grace v. State, 9 Tex. App. 385; Flood v. State, 19 Tex. App. 588; Lynn v. State, 33 Tex. Cr. R. 159, 25 S. W. 779; Powell v. State, 43 Tex. Cr. R. 398, 66 S. W. 298. The charter of the municipal corporation, being its organic law, contains the only authority by virtue of which ordinances may or can be created. Where doubt exists as to that power, it must be resolved adversely to the corporation. Mantel v. State, 55 Tex. Cr. R. 459, 117 S. W. 855, 131 Am. St. Rep. 818; Lynn v. State, 33 Tex. Cr. R. 159, 25 S. W. 779. And the same rules of construction apply to the amount of power whether conferred by general laws or special act. Bohmy v. State, 21 Tex. App. 597, 2 S. W. 886. Nor can special authority granted be enlarged by the general welfare clause. Powell v. State, 43 Tex. Cr. R. 399, 66 S. W. 298. It is also the rule that an ordinance broader than the legislative authority granted is invalid. Heidleberg v. State, 51 Tex. Cr. R. 583, 103 S. W. 395; McNeil v. State, 29 Tex. App. 48, 14 S. W. 393. It has also been held that the courts cannot ingraft upon a law something that has been omitted which the courts believe should have been embraced. This would be judicial legislation forbidden by the Constitution. Article 2, § 1; Chase v. Swayne, 88 Tex. 225, 30 S. W. 1049, 53 Am. St. Rep. 742. The courts are powerless to supply an omission in the law, or to create a duty which the Legislature has not imposed. Caven v. Coleman, 100 Tex. 470, 101 S. W. 199.

Again, the ordinance is in conflict with the state law, and for that reason it is void. The state law provides punishment for illicit intercourse in various and sundry ways; among other things, it is provided adultery and fornication shall be punished. Of course, we understand that fornication and adultery can only be committed by illicit intercourse between the sexes, and where the state law has provided a definition in the punishment, the city is powerless to pass an ordinance in conflict with it, and the Legislature is powerless to authorize the city to do so. This seems to be fundamental, as well as contained in the Constitution. It has been held in an unbroken line of authority that, if the city ordinance conflicts with the state law, the ordinance must yield and is void. Mantel v. State, 55 Tex. Cr. R. 459, 117 S. W. 855, 131 Am. St. Rep. 818; Flood v. State, 19 Tex. App. 589; Sundstrom v. State, 25 Tex. App. 158, 8 S. W. 207; Lynn v. State, 33 Tex. Cr. R. 153, 25 S. W. 779; Slaren v. State, 3 Tex. App. 662; Gregory v. State, 1 Tex. App. 753. It is the rule, without exception, that an ordinance is invalid which prescribes a greater or less penalty than the state law, where the act or omission covered by the ordinance is an offense against the state. McHenry v. State, 103 S. W. 393; Cross v. State, 44 Tex. Cr. R. 376, 71 S. W. 289. It was held that an ordinance which permitted merchants to sell on Sunday at different hours than those permitted by the state law is void, because in conflict with the state law. Flood v. State, 19 Tex. App. 587; Bohmy v. State, 21 Tex. App. 597, 2 S. W. 886; Angerhoffer v. State, 15 Tex. App. 613; Fay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603; Arroyo v. State, 69 S. W. 503. And it has been also held that power, when expressly granted to regulate acts or omissions which are offenses against the state, must be legally exercised by the city in harmony with the criminal laws of the state. Bell v. State, 32 Tex. Cr. R. 310, 22 S. W. 1040, 40 Am. St. Rep. 778.

The Constitution seems to be all-sufficiently clear on this question, without even having cited cases. Article 11, § 5, reads as follows:

“Cities having more than five thousand inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter, or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state,” etc.

This Constitution, it occurs to me, ought to control legislative acts and judicial determination. Whatever the courts may think about policies or deficiencies in the law, they cannot add to or detract from the organic law, and the Legislature is as much bound by these provisions of the Constitution as are the courts. It may be well enough occasionally to go back and look at first principles, and it may be well enough occasionally to get on speaking terms with the organic law. It may remind us that the three co-ordinate branches of this government are created by the Constitution, and are legally supposed to conform to the law of their creation. Heretofore it has been understood that the Constitution is the superior law, and when attempted legislation conflicts with its restrictions, and purports to make a law which is thereby prohibited, it is clearly the duty of the courts to declare such legislation void and to give it no effect. Williams v. Taylor, 83 Tex. 667, 19 S. W. 156; Galveston, etc., Ry. Co. v. Gross, 47 Tex. 428; Higgins v. Rinker, 47 Tex. 381; Watson v. Aiken, 55 Tex. 536.

It has also been held by the former great judges of this court that the provisions of the Constitution cannot be abrogated or restricted by legislative enactment; they must remain intact as part of the supreme law of the land, in favor of any person accused of crime in this state, until they shall be abolished or altered by the sovereignty of the state exercised in conformity with the Constitution of the United States. Huntsman v. State, 12 Tex. App. 619. It has been held in some decisions by our great judges of the past that the provisions of the Constitution are mandatory upon the courts. State v. Durst, 7 Tex. 74. It has also been held that constitutional provisions are mandatory, not directory. State v. Sims, 43 Tex. 521; State v. Durst, supra; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Holley v. State, 14 Tex. App. 505; State v. Connor, 86 Tex. 133, 23 S. W. 1103; Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770; Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742; Willis v. Owen, 43 Tex. 41; Storrie v. Cortez, 90 Tex. 283, 33 S. W. 154, 35 L. R. A. 666; Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884; Cannon v. Hemphill, 7 Tex. 184; Giddings v. San Antonio, 47 Tex. 548, 26 Am. Rep. 321; Hunt v. State, 7 Tex. App. 212; Taylor v. State, 14 Tex. App. 345; Hunt v. State, 22 Tex. App. 396, 3 S. W. 233; Hawaii v. Mankichi, 190 U. S. 197, 23 Sup. Ct. 787, 47 L. Ed. 1016; Powell v. State, 17 Tex. App. 345; Cline v. State, 36 Tex. Cr. R. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850; Hatch v. State, 10 Tex. App. 515; Ginnochio v. State, 30 Tex. App. 584, 18 S. W. 82; Davis v. State, 15 Tex. App. 479; Whitener v. Belknap, 89 Tex. 273, 34 S. W. 594; Lynn v. State, 33 Tex. Cr. R. 153, 25 S. W. 779; Titus v. Latimer, 5 Tex. 433; Sun Vapor Electric Light Co. v. Keenan, 88 Tex. 197, 30 S. W. 868.

The Legislature has no authority to empower the city to suspend any state law or pass any ordinance that may conflict with the state law. The Legislature alone has the power of suspending the operation of general laws, and in exercising the power must make the suspension general, and cannot suspend general laws for individual cases, or for particular localities, nor delegate authority to a city to suspend certain laws of the state as to certain individuals in certain localities. McDonald v. Denton (Civ. App.) 132 S. W. 823. So it was held, under article 361 of the Penal Code, that an ordinance of the city of Dallas regulating, colonizing, and segregating the keepers of bawdyhouses within a specified district was void. Brown Cracker Co. v. Dallas, 104 Tex. 290, 137 S. W. 342. Under the Penal Code of Texas bawdyhouses are prohibited everywhere; therefore the Supreme Court held in Brown Cracker Co. v. Dallas, supra, that the Legislature could not empower the city of Dallas to regulate, or colonize, or segregate bawdyhouses in restricted districts. This is in strict conformity to the provisions of article 11, § 5, of the 'Constitution heretofore quoted. It has been held under all the authorities that an ordinance of a city authorizing the opening of saloons and the sale of intoxicants on Sunday, except during certain hours, is in contravention of the state law and void. Fay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603; Arroyo v. State, 69 S. W. 504. The Legislature cannot delegate to a municipal corporation authority to suspend a state law of Texas. Const. art. 1, § 28; Burton v. Dupree, 19 Tex. Civ. App. 277, 46 S. W. 272; Arroyo v. State, 69 S. W. 504; Curtis v. Railway Co., 26 Tex. Civ. App. 305, 63 S. W. 149; Ogden v. State, 43 Tex. Cr. R. 532, 66 S. W. 1110; Ex parte Coombs, 38 Tex. Cr. R. 648, 44 S. W. 854; Ex parte Powell, 43 Tex. Cr. R. 391, 66 S. W. 298; Fay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603; McDonald v. Denton (Civ. App.) 132 S. W. 825; Denton v. McDonald, 104 Tex. 206, 135 S. W. 1148, 34 L. R. A. (N. S.) 453. See, also, Harris’ Ann. Constitution, pp. 209-212.

This ordinance prescribes different punishment for prostitution or illicit intercourse in the city of Ft. Worth from that under the state law. It also defines differently from the state law. The city of Ft. Worth had no express authority granted it to pass an ordinance with reference to adultery between the races, or fornication, as the ease may be, different from what the state law would be on the same subject. Under the state law it would be either fornication or adultery, if the facts were sufficient. This ordinance defines adultery in the city of Ft. Worth, or fornication, as the case may be, between the negro and the white race, and limits it to one act, and makes each act a separate offense. Under the adultery statute one act may be sufficient under certain circumstances. It would hardly, therefore, be debatable that this ordinance is in direct conflict with the state law; therefore in violation of all the decisions and of the plain provisions of the Constitution. I do not know whether the city commissioners of Ft. Worth passed this ordinance under the theory that it would be a violation for a negro woman to have intercourse with a white man, or a negro man with a white woman, as a discrimination against the intercourse between a white man and a white woman. Under the state law they are all put in the same class; it does not stop to inquire whether he or she is black or white, brown or yellow. The criterion is, under the state law, that a man and woman must not live in or commit adultery or fornication. It does not punish one class of women and men, and exonerate another class of men and women.

Perhaps I have written more than is necessary, and more than I ought to have written in view of the plain constitutional provisions and the unbroken jurisprudence; .but as Judge Roberts once aptly said:

“A frequent recurrence to first principles is absolutely necessary in order to keep precedents within the reason of the law.”

It is well enough to remind our courts that Judge Roberts stated a great truth, and in dilfting times of political excitement and judicial flights it is well enough to occasionally go back to first principles and take our reckoning. He uttered another great truth, with which I close:

“Whoever undertakes to determine a case solely by his own notions of its abstract justice breaks down the barriers by which rules of justice are erected into a system, and thereby annihilates the law.” Duncan v. Magette, 25 Tex at pages 254, 255.

I have thought, in view of these matters, it well enough to briefly review these questions and bring up the authorities once more.

For the reasons indicated, I agree with the reversal of the case, but have stated these reasons why I cannot agree with the majority of the court holding the ordinance valid. It is so clearly invalid that it ought not to be the subject of debate or discussion.

HARPER, J.

(dissenting). I do not think this case should be reversed, but should be affirmed. It is reversed on the ground that the court erred in sustaining the objection of the state to the following question propounded to the witness W. A. Randall:

“What were you intending to do if the officers had not entered the house when they did?”

The bill is voluminous about what was ex-pécted to be proven, had the objection to this question not been sustained; but none of the things alleged in the bill would have been a legitimate answer to the question propounded. The answer alleged is that, after denying having intercourse with the woman, if the officers had not come, he would have answered he would have had intercourse with the woman. This would have been a complete answer to the question, and the other matters alleged would not and .could not have been elicited by the question propounded, and what he intended to do would not be admissible. It is said in the .bill that it was desired to elicit from him why he had his shoes off, why he was putting his pants on, etc. If that is the information he desired to elicit, proper questions should have been propounded to elicit such information, and doubtless, if such questions had been propounded, the court would have admitted the evidence, as the state had proven he had his shoes oft' and was putting on his pants when the officers entered the room. But the question in fact propounded could not and would not inform the court that it was these matters they wanted an explanation of given, and such explanation could not have been legitimately given in answer to the question to which the court sustained the objection. To say now they would have gone further if the court had not sustained the objection to this question, and propounded other questions that would have elicited testimony explanatory of the condition in which he was found, does not render admissible the answer to an improper question. What he intended to do if he had not been eaiight is the statement of no fact, would explain no fact in evidence, and the court did not err in sustaining the' objection to the only question propounded, because by it he could not have elicited the information he now says he desired to get in evidence. Questions to elicit such information were not propounded, and the only question we are called to rule upon is: Did the court err in sustaining the objection to that question? not, Would he have erred, had other questions been propounded, which were never propounded? No legitimate answer to the question propounded would have been legally admissible. This is the only question upon which my Brethren agree that the case should be reversed, and to this I enter my dissent. For authorities, see section 857, White’s Ann. Proe.

On the other question discussed I agree to the conclusion reached by Presiding Judge PRENDERGAST, that the ordinance is valid. Of course, "in so doing I agree with Judge DAVIDSON that the authority to enact this ordinance must be found in the charter, and think Presiding Judge PREN-DERGAST so holds; but I do not agree with Judge DAVIDSON that no such authority is found in the charter of the city of Ft. Worth. Presiding Judge PRENDERGAST copies enough of the provisions of the charter to show that ample authority is therein contained. If there was no such authority in the charter, then the authorities cited by Judge DAVIDSON would be in point, and I would agree that the ordinance was invalid.

I do not agree that the ordinance is in conflict with any state law. If it was in conflict with a state law, then I would agree that it was invalid. Judge DAVIDSON says it conflicts with the laws defining adultery and fornication. I do not think so. Adultery and fornication are defined to be habitual carnal intercourse, or intercourse while living together. This ordinance defines as an offense one act of intercourse between a white person and a person of the negro race. If under the adultery or fornication statute you should allege that A. B., a white man, or a man, had one act of intercourse with G. A., a negro woman, or a woman, upon proof of that fact a conviction could not be had either under the adultery or fornication statute. In fact, an information charging only those facts, and no other, would be quashed on motion; therefore the ordinance in no wise conflicts with the state law as to adultery and fornication. It denounces as an offense a single act of intercourse between a white person and a negro person, a matter about which the state had not legislated, except to prohibit the intermarriage of such persons. Article 483 of the Penal Code provides, if any white person and negro shall knowingly intermarry with each other in this state, they shall be punished by confinement in the penitentiary; and article 484 provides the term “negro” includes also a person of mixed blood descended from negro ancestry. That such a law is violative of no provision of the Constitution, state or federal, has been specifically held by this court in the cases of Frasher v. State, 3 Tex. App. 263, 30 Am. Rep. 131, and Francois v. State, 9 Tex. App. 144. The opinion of Judge DAVIDSON that such an act is unconstitutional is supported by but one authority. That is Burns v. State, 48 Ala. 195, 17 Am. Rep. 34, and that ease was overruled by the Alabama Supreme Court in the case of Green v. State, 58 Ala. 190, 29 Am. Rep. 739.

What was the object and purpose of prohibiting intermarriage between the races? It was to prevent there being children born of mixed blood. The city of Ft. Worth has taken one step further than the state; it prohibits a single act of intercourse when not married, to carry out the general policy of the state — prevent the birth of children of mixed blood. That an ordinance of the city must not conflict with a state law is not denied, and we agree to that rule of law as announced by Judge DAVIDSON, and the authorities quoted by him; but this ordinance is not in conflict with any state law, but is dealing with an evil about which the state has enacted no legislation, under the authority granted the city by its charter, and this, cburt had specifically held (Ayres v. Dallas, 32 Tex. Cr. R. 610, 25 S. W. 631) that a city may enact an ordinance which defines as an offense an act which is not defined in the Penal Code, where authority to do so is conferred upon the city. This is what the city of Ft. Worth has done, and nothing more. The legal propositions asserted by Judge DAVIDSON are correct, except wherein it is held that such an act would be unconstitutional ; but they have no application to the facts in this case, as shown by the record on file and tile charter of the city of Ft. Worth, of which we are required by the act to take judicial notice.

I am of the opinion the judgment should be affirmed, and I respectfully enter this my dissent.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    HAYS v. STATE.
    (No. 3428.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    1. Pee juey <g=>25 — Indictment — Materiality of Testimony.
    An indictment, alleging that it was a material inquiry on a trial whether T. sold and delivered a pint of whisky to accused, and whether accused paid T. a dollar therefor, that accused was sworn as a witness, and testified that he did not remember whether or not he bought a pint of whisky from T., or whether T. delivered it to him, or whether he paid therefor, or whether T. sold and delivered whisky to him at another time, or whether he paid for that whisky, that such statements were material, whereas in truth and in fact accused did remember whether T. sold and delivered such whisky, and that he paid T. a dollar in each instance therefor, was defective, since while such testimony might become material, and the subject of perjury, under appropriate allegations, and if accused knew of the transaction about which he was testifying and refused to state the facts on the ground that he did not remember, when in fact he did remember, his testimony might be materially false, it was nqt material, under the allegations contained in the indictment, that accused’s memory was treacherous, or that he failed to remember the transactions about which inquiry was made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. <§=25.]
    2. Perjury <§==>33 — Evidence — Weight and Sufficiency.
    On the trial of a person for testifying falsely that he did not remember whether he purchased whisky from another person, evidence held insufficient to support a conviction, under the rule that perjury must be proved by two credible witnesses, or one credible witness with strong corroborative circumstances.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. <§=33.]
    3. Criminal Law <§=784 — Instructions — Circumstantial Evidence.
    On the trial of a person for testifying falsely that he did not remember whether he purchased whisky from T., where there was nothing to show that he did remember, and nothing to show that T. ever sold him any whisky, except accused’s own statement before a justice of the peace prior to T.’s trial that he purchased whisky from T., the court should have charged on circumstantial evidence, as his statement before the justice was but a circumstance if admissible at all.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. <§=784J
    4. Criminal Law <@=8d0 — Instructions — Definition of Terms.
    On a trial for perjury, the court should have defined the words “willfully and deliberately.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. <®=800.]
    Appeal from District Court, Titus County; H. F. O’Neal, Judge.
    Judson Hays was convicted of perjury, and be appeals.
    Reversed.
    Rolston & Rolston, and T. C. Hutchings, all of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of perjury, his punishment being assessed at two years’ confinement in the penitentiary.

The indictment alleges that it was a material question and inquiry, in a case tried in the district court where Thompson was defendant and the state plaintiff, to know whether Thompson sold and delivered a pint of whisky to appellant, and whether appellant paid Thompson a dollar for it. There are several matters set out of the same nature, all looking to the supposed transaction between appellant and Thompson, wherein it was sought to prove appellant had bought whisky from Thompson. After stating the above, it is alleged appellant was sworn as a witness and testified he “did not remember whether or not” he bought a pint of whisky from Thompson on the 3d of May, 1913, and he “did not remember whether or not” Thompson delivered to him a pint of whisky at that date, and that he “did not remember whether or not” he paid Thompson a dollar for the pint of whisky, and he “did not remember whether or not” Thompson sold and delivered to him a pint of whisky at another date, and that he “did not remember whether or not” he (appellant) paid Thompson a dollar for that pint of whisky. Without repeating more of it, this is the substance of the alleged testimony. The traverse is, in substance, as follows: That said statements so made by the said Judson Hays were then and there material to the issue in said cause, whereas in truth and in fact he, the said Judson Hays, “did remember whether or not” Thompson sold and delivered to him two pints of whisky, one on the 3d of May and the other on the last Saturday in April, and that he paid Thompson a dollar in each instance for the whisky.

Motion was made to quash the indictment because the matters and things set out were not material. We think this contention should have been sustained. It was not material, under the allegations contained in the indictment, that appellant’s memory was treacherous, or that he failed to remember the transactions about which inquiry was made of him as a witness. Under appropriate allegations, testimony of this sort might become material and the subject of perjury. If the witness knew of the transaction about which he was testifying and refused to state the facts on the ground that he did not remember, when as a matter of fact he did remember, his testimony might be materially false. If the witness should answer truthfully to criminative facts, then it might become material. We are of the opinion, therefore, as alleged in the indictment, the matters stated were not material.

It is contended, also, that the evidence is not sufficient. The facts show that on the trial of Thompson, who was charged with pursuing the occupation of selling intoxicating liquors in Titus county without a license, appellant was used as a witness. The indictment against Thompson charged appellant bought whisky from Thompson on two occasions. Appellant was sworn as a witness in the Thompson Case, and, when asked about the transactions, said he did not remember whether he bought the whisky or not, or whether Thompson sold him the whisky or not. There seems to have been no question of the fact that he so testified. Each witness was asked in regard to appellant’s testimony, and his manner and demeanor on the stand, and each witness state# he did not know whether or not appellant remembered anything about the transaction. Each witness testified he knew nothing about it, but heard appellant testify that he did not remember whether or not he bought whisky from Thompson or that Thompson sold whisky to him. They confronted appellant on that trial, which testimony is also in this record, that he testified before the justice of the peace, in substance, that he did buy whisky from Thompson; but when confronted with that in the Thompson trial he said he did not remember whether he bought whisky from Thompson or not, that he was drunk at the time he testified before the justice of the peace. There is some evidence also to the effect that on the trial of Thompson appellant’s manner was of such a nature as to show he was irrational or drunk, that there was something unusual about him. This is, in substance, the case on the facts. We are of the opinion this testimony does not prove the case as alleged in the indictment. Perjury must be proved by two credible witnesses, or one credible witness with strong corroborative circumstances. The testimony is uncontroverted that he stated before the jury in the Thompson trial that he did not remember whether or not he bought whisky from Thompson. No witness here testifies that appellant did remember anything about it, and the main circumstance, if that be a circumstance, was the production of the testimony in this case that was used as impeaching testimony in the Thompson trial, to the effect that before the justice of the peace appellant stated he bought whis-ky from Thompson. Appellant did not plead guilty in this trial, but, on the contrary, he pleaded not guilty. If the testimony of appellant before the justice of the peace can be treated as testimony at all, it would be simply as a circumstance to show, at the time he testified before the justice of the peace, that he stated he had bought whisky from Thompson. It could only be a circumstance to show, if admissible for any purpose, that on the Thompson trial he ought to have recollected it, but it is not proof of the fact that he did; it is but a circumstance. It could not be used to convict Thompson, because it was only impeaching testimony of a state’s witness supposedly introduced on the theory that the state was surprised at 'appellant’s testimony in the Thompson trial. So we are of the opinion the testimony is not sufficient; that it does not meet the requirements of the statute.

The charge was criticized because of its failure to charge on circumstantial evidence. We have stated enough of the case already to show this exception was well taken. The fact that appellant stated before the justice of the peace that he had bought whisky from Thompson, and that Thompson had sold whis-ky to him, was but a circumstance, if admissible at all, to show on the trial of his perjury case that he might have recollected on the Thompson trial what he testified before the justice of the peace; but there is nothing in the record to show that he remembered1 it, and there is nothing in the record to show that Thompson ever sold any whisky to appellant, except that statement of appellant before the justice of the peace. A charge on circumstantial evidence should have been given.

Another error is assigned on the failure of the court to define the words “willfully and deliberately.” This was called to the attention of the court properly, and upon another trial those terms should be explained, and especially in view of this record. See Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309.

The judgment is reversed, and in the judgment of the writer the prosecution ought to be dismissed.
      <g=»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PHILLIPS, J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SANDERS et al.
    (No. 2339.)
    (Supreme Court of Texas.
    Feb. 24, 1915.)
    1. Trial <©=>252 — Instructions — Applicability to Evidence.
    Where a telephone lineman received a shock which was transmitted through a wet rope which came in contact with an electric light wire, instructions submitting the issue of the master’s negligence in furnishing a wet rope, or allowing’ it to become wet, were not warranted, where the evidence showed that the rope was dry when furnished, and that its condition was caused by the acts of the lineman and his fellow servants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 506-612; Dec. Dig. <©=>252.)
    2. Appeal and Ebbob <©=>1066 — Review — Harmless Ebbob.
    An instruction submitting an issue of negligence not raised by the evidence is prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <©£=>1066.]
    3. Master and Servant <@=>107 — Injuries to Servant — Safe Appliances.
    While a master must use ordinary care to furnish reasonably safe tools and appliances, and to keep them in repair, he is not liable for a defective condition in an appliance produced solely by the act of the employs or others.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. <@=>107.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by G. L. Sanders against the Southwestern Telegraph & Telephone Company and another. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (138 S. W. 1181), and the defendant named brings error.
    Reversed and remanded.
    A. P. Wozencraft, of Dallas, and Scott, Sanford & Ross, of Waco, for plaintiff in error. W. A. Morrison and T. S. Henderson, both of Cameron, for defendants in error.
   PHILLIPS, J.

The suit was instituted by G. L. Sanders, one of the defendants in error, against the Southwestern Telegraph & Telephone Company and the Cameron Water, Light & Power Company, to recover damages on account of personal injuries sustained by him while engaged in the service of the company first named, and resulted in a judgment in. his favor against that company alone.

At the time of his injury Sanders, with other employés of the telephone company, was engaged in removing a dead wire from its poles in the city of Cameron. The poles and light wires of the light company stood upon the same side of the street and in line with the poles of the telephone company; the poles of one company being located between those of the other, and the wires of the telephone company being more than 10 feet above those of the light company, and something over 30 feet from the ground. Sanders was engaged in the particular work under the direction of a vice principal of the telephone company, and, with two other employés, was furnished with a rope to be employed in the work, and instructed to remove the wire. The work was to be performed, in part, by one of the men ascending a telephone pole and fastening the rope to the end of the wire, which was to be pulled to the adjoining pole by another one of the crew, the rope being dropped when the ware reached the latter pole, and being then picked up and carried to the next pole, where the operation was repeated. In the progress of the work Sanders, while upon one of the poles, dropped the rope in order that it might be taken up by the employé on the next pole. In being dropped, it became entangled with an electric light wire of the light company beneath the telephone company’s wires and an awning. It was a part of Sanders’ duty to relieve the rope of this entanglement, and in doing so he ascended a pole of the light company, stepped off on the awning, and caught the rope with one of his hands, whereupon he received an electric shock causing his injury. The insulation upon the light company’s electric wire with which the rope had become entangled had become worn and defective. The rope had become wet in the course of the work, it having rained the .night before, which made it a conductor of electricity, and its contact in this condition with the charged electric light wire subjected Sanders to the current. An arrangement existed between the two companies whereby the light company, if it ha.d been so requested by the telephone company, would have cut off the current from its wires while Sanders and his coemployes were engaged in their work. Negligence was charged against the telephone company because of its failure to have the current cut off from the light company’s wires while the work was being performed, and on account of the wet condition of the rope; it being alleged in this latter connection that it had permitted the rope to be exposed to dampness and moisture the night before, and to be dragged through the wet streets of Cameron to the place of the work before it was begun, and-while in use in the progress of the work.

The statement we have made of the case is a summary of the findings of the Court of Civil Appeals.

The testimony appears to be without dispute that the rope was dry when furnished by the telephone company to Sanders and his coemploy és, and in this condition was safe for use in the work, though subjected to contact with a live light wire. It was found by the Court of Civil Appeals that its wet condition “was caused by the rope’s having been dragged on the wet ground by the plaintiff and Ms fellow servants in tlie performance of the work referred to.”

Among other instructions given the jury in the charge of the court was the following:

“You are instructed that, if you find and believe from the evidence that the plaintiff was in the employ of the defendant telephone company, and that it was part of his duty to go upon the telephone poles and handle and use the rope mentioned in the pleadings in this case, in the manner alleged in taking down said wires, and you further believe that said rope became entangled with an awning in front of a building adjoining to where he was required to work, and that it was a part of his duty to disentangle said rope, and that he went upon said awning in the course of his employment for the purpose of disentangling said rope, and that said rope had been permitted by said defendant telephone company to become wet, and that in such condition it would transmit a current of electricity, and that, without any fault or negligence on the part of the .plaintiff, the said rope did come in contact with one of the exposed wires of the defendant light company, and that by reason thereof a current of electricity was caused to pass through said rope into his body, and caused him to fall from said awning, and that he was injured thereby, then you are instructed, if you believe from the evidence that both of said defendants were guilty of negligence in the respects as herein submitted to you, and that both of their said negligent acts co-operated or combined to cause the injuries to the plaintiff, and that he was injured as alleged by him, then you are instructed, if you so believe and find, the plaintiff would be entitled to recover against both of said defendants, and you will in that event find a verdict in his favor against both of them. But, on the other hand, if you believe that the plaintiff was injured, but that his injuries were the direct and proximate result of the negligent acts of only one of said defendants, then you are instructed that he would be entitled to recover a judgment against only the said defendant whose negligent acts cause his said injuries; and in that event the other defendant will be entitled to go free.”

Another part of the general charge was to the following effect:

“But, on the other hand, if you believe from the evidence that the plaintiff was not guilty of contributory negligence, as hereinbefore defined, and that he was injured as alleged, and that his said injuries were not caused by, and did not result from, the risks ordinarily incident to his employment as hereinbefore defined, and you further find the defendant telephone company failed to exercise ordinary care, as here-inbefore defined, to furnish the plaintiff with reasonably safe appliances with which he was required to work, if he was so required, or that the defendant, or either of them, failed to exercise ordinary care to discover the exposed condition of the said electric light wire, if you believe it was exposed, and that thereby it became dangerous, and likely to divert a current of electricity, and that said current was diverted from said wire to said rope and into or through the person of the plaintiff, and that the defendant telephone company did furnish said wet rope to the plaintiff, if it was so furnished, and that said rope was likely to, and did, transmit said current of electricity into the plaintiff, and that the doing and failure on the part of said defendant, or either of them, to do, or perform, the things herein mentioned, if they did so do and did fail to so do and perform them, and that such doing and failure on their part, or on the part of either of them, constituted negligence, and that such negligence was the direct and proximate cause of the injury to the plaintiff, if any, you should find a verdict for the plaintiff.” '

To warrant the first of these instructions, it was necessary that there be some evidence that the wet condition of the rope was due to some act or omission on the part of the telephone company, since the charge necessarily assumed there was evidence “that the rope had been permitted by it to become wet.” To support the other, it was likewise necessary that there be some evidence that the telephone company furnished to Sanders a wet rope. Instead of there being any testimony to such effect, the undisputed proof appears to have been that the rope, when furnished by the company to Sanders and his coemployés for their use in the work, was dry and perfectly safe for the work, and that its becoming wet was due solely to the subsequent act of Sanders and his fellow servants in dragging it upon the wet ground, in the absence of the vice principal, and of which the latter had no knowledge. In this state of the evidence the wet condition of the rope could not be attributed to any fault of the company, and an instruction which permitted its being held responsible for such condition was plainly unauthorized and prejudicial.

It is equally clear that the submission of the issue of the company having furnished Sanders with a wet rope was erroneous; there being no evidence that it had done so.

It is the duty of a master to use ordinary care to provide the servant with reasonably safe tools and appliances for the work in which he is engaged, and to use like care to keep them in repair. But it would be the announcement of a manifestly harsh and unjust rule to say that, where he has furnished his employé with a safe appliance, in a safe condition when furnished, he is nevertheless liable for a defective condition, though produced solely by an act of the employé or others, for which he is not responsible and of which he had no knowledge, and which condition he had no opportunity to remedy.

The judgments of the district court and the Court of Civil Appeals are affirmed as to the judgment rendered in favor of the Cameron Water, Light & Power Company, and are reversed as to the judgment in favor of G. L. Sanders against the Southwestern Telegraph & Telephone Company, and the cause is remanded for further trial as between the last-named parties.
      <g=>3Tor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SPENCER et al. v. SCHELL.
    (No. 2387.)
    (Supreme Court of Texas.
    Feb. 24, 1915.)
    1. Homestead <@=>115 — Surviving Wife — Mortgages — Validity.
    Notwithstanding Const, art. 16, § 52, prohibiting partition of a homestead during the lifetime of the surviving husband or wife, a lot dedicated by a widow as a homestead after the death of her husband may be mortgaged by her, and though she has minor children, and is occupying it as a homestead, the mortgage can be foreclosed.
    [Ed. Note. — Eor other cases, see Homestead, Cent. Dig. §§ 183, 184, 186-190; Dec. Dig. <@=> 115.]
    2. Witnesses <@=>129 — Competency—Parties to Action by I-Ieib.
    An action by one as surviving widow and sole heir of her deceased husband, though she be entitled to half the proceeds sued for as survivor, is within Rev. St. 1911, art. 3690, prohibiting parties to a suit brought by or against administrators, heirs, or representatives of a deceased from testifying to transactions with him, and defendants may not testify to payments made to the deceased.
    [Ed. Note. — For other cases,' see Witnesses, Cent. Dig. §§ 556-560; Dec. Dig. <@=>129.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Bessie Schell against Eloise Spencer and others. A Judgment for plaintiff was affirmed in the Court of Civil Appeals (142 S. W. Ill), and defendants bring error.
    Affirmed.
    W. P. Linthicum and Allen & Allen, all of Dallas, for plaintiffs in error. Cockrell, Gray & Thomas and R. Delbert Jones, all of Dallas, for defendant in error.
   PHILLIPS, J.

Eloise Spencer gave to Wallace Schell, the husband of defendant in error, certain notes, executed also by Edwin Spencer, her son, and, for their security, a deed of trust lien upon certain real estate. Schell died intestate and without children. The notes being community property, Bessie Schell brought the suit, as his heir and as community survivor — not, however, as a qualified community administratrix — to recover upon them and for foreclosure of the lien. It was pleaded in defense, among other things: (1) That the notes had been paid to Schell; and (2) that the lien was void, because at the time of its creation the real estate constituted the homestead of Mrs. Spencer and her minor children.

The notes and deed of trust were executed by Mrs. Spencer as a feme sole. The property was dedicated by her as a homestead after the death of her husband. The testimony is that she bought and paid for it, and, so far as the record discloses, her children had no interest in it.

Proof was offered by Mrs. Spencer that the property was the homestead of herself and her minor children at the time of the creation of the lien, but the court refused to hear it. This was a proper ruling, since, under our laws, there can be no doubt of the full power of a surviving husband or wife to mortgage the homestead owned as his or her separate estate, or the community homestead to secure a community debt, although it constitutes, at the time, the home of other constituents of the family. Smith v. Von Hutton, 75 Tex. 625, 13 S. W. 18; Watts v. Miller, 76 Tex. 13, 13 S. W. 16; Moore v. Poole (Civ. App.) 25 S. W. 802; Lee v. Mortgage Co., 25 Tex. Civ. App. 481, 61 S. W. 134; Echols v. Mercantile Co., 38 Tex. Civ. App. 65, 84 S. W. 1082; McGee v. Tinner (Civ. App.) 129 S. W. 866.

As the mortgage was valid, the property was subject to sale; and the plaintiff’s right to a foreclosure and possession was not subordinate to any right of occupancy of the property in Mrs. Spencer. Lee v. Mortgage Co., supra. In Harle v. Richards, 78 Tex. 80, 14 S. W. 257, a widow, having minor children, gave a mortgage upon the community homestead, whether to secure a community debt or her separate debt does not appear from the opinion. It was there held by the Commission of Appeals, apparently with the approval of this court, that, while the mortgage was valid and entitled to foreclosure, it was subject to the right of the widow and the minor children to occupy the property as a home; it being stated that the property was not subject “to partition during its occupancy by either the widow or minor children.” Lacy v. Rollins, 74 Tex. 566, 12 S. W. 314, and Smith v. Von Hutton, supra, are cited in the opinion in support of the ruling, but neither of those cases announces such a rule as applicable to a like condition, or even discusses that question. The correctness of that holding may be seriously questioned, for, if the lien was valid, what warrant is there in the law for denying its owner the ordinary incidents of a foreclosure? The provision against partition of the homestead during the lifetime of the surviving husband or wife, so long as the survivor or the guardian of minor children, under the order of the probate court, may elect to so use it, embodied in section 52 of article 16 of the Constitution, which was evidently in the mind of the writer of that opinion, was not intended as a regulation of the rights of creditors; it relates to the rights of heirs and the surviving husband or wife, as between themselves, to the homestead property. Ford v. Sims, 93 Tex. 586, 57 S. W. 20.

But no question of partition arises here, for the children of Mrs. Spencer are not shown to have had any interest in the property. She could have passed the title and possession under a sale of it. The lien created by her being valid, the judgment of foreclosure and a sale should be given the same effect. Watts v. Miller, supra; Savings & Loan Co. v. Bristoll (Civ. App.) 131 S. W. 641.

In the course of the trial, the defendants offered the testimony of the defendant Edwin C. Spencer to establish the payment of certain sums upon tlie notes to the decedent, Wallace Schell, to which objection was sustained upon the ground that it was within the inhibition of article 3690, which forbids the testimony of a party as to any transaction with the decedent in actions by executors, administrators, heirs, or legal representatives in which judgment may be rendered for or against thorn as such, unless called for by the opposite party. This action of the trial court is made the subject of a further assignment of error.

As has been noted, Mrs. Schell was the plaintiff in the suit in a dual capacity; that is, as the heir of her husband and in her own right as community survivor. As a party plaintiff in her own right, the testimony was admissible against her. As against her in the capacity of the heir of her husband, it was inadmissible under the statute. If the suit were one for the recovery of distinct and severable interests, so that the testimony could be limited and applied to the interest against which it was properly admissible, as, for illustration, where one sues in his own right and is joined by heirs, each seeking the recovery of a separate interest, the question would not be one of difficulty. The rule announced in Harris v. Warlick (Civ. App.) 42 S. W. 356, Field v. Field, 39 Tex. Civ. App. 1, 87 S. W. 726, Evans v. Scott (Civ. App.) 97 S. W. 116, and cases of like character, would then apply. But here the interests upon which the recovery is sought are not severable. They are joined in the same person, and the right to their enforcement constitutes an indivisible cause of action. It would be impossible, for instance, as a practical proposition, to limit the effect of this testimony simply to the interest in these notes of Mrs. Schell as the community survivor. It was not proposed to be shown by the proffered testimony that the payments to which it related were made to Wallace Schell otherwise than upon the notes generally. There could be, accordingly, no warrant for applying them solely to either Mrs. Schell’s community interest or her inherited interest. From its nature, the testimony would necessarily affect both interests, and its effect is incapable of limitation.

The correct solution of the question is not unattended with difficulty, for there is apparent force in the contention that, with the suit being prosecuted by the plaintiff equally in her individual capacity, its character as an! action for the enforcement of rights held in her representative capacity should not operate to bring it within the statute. It seems to us, however, that only by a plain contravention of the statute can the testimony, under the conditions present in this ease, be held competent.

The test furnished by its provisions embraces not alone the capacity of the parties, but equally the effect of the judgment of which the suit admits. If the suit be one by or against an heir in which “judgment may be rendered for or against him as such,’'' the statute applies. In determining the scope of its operation, it is evident from its language that no account is to be taken that the judgment may operate for or against the heir in some other capacity. That the judgment may so operate is not by statute recognized as the test of its application. But what it constitutes as the test and inquiry is: May such a judgment be rendered as will operate for or against him in the capacity of an heir? If so, unless called by him, the adverse party is rendered an incompetent witness as to transactions with or statements by the decedent. The clause in the statute, “in which judgment may be rendered for or against them as such,” means this, or it means nothing. To hold the adverse party a competent witness as to such testimony in a suit like the present one would necessitate that the statute he construed as operative in actions by or against heirs, only where judgment might be rendered for or against them exclusively as such, the effect of which would be to ingraft an additional provision upon it.

In determining the effect of a statute, the decisions of other jurisdictions upon statutes not similar in terms, though of the same general nature, are rarely helpful. The question presented has not been heretofore determined by this court. It does not appear to have been passed upon by any of the Courts of Civil Appeals, except the Court for the Fifth District in this case. Nor have we been able to find any adjudication of it elsewhere, except in two cases: Taylor v. Mayhew, 11 Heisk. (Tenn.) 596, and Dixon v. Edwards, 48 Ga. 142.

In the former, Mayhew, being the administrator of Conn’s estate, brought suit in his own right and as such administrator upon a bond in which he and Conn were co-obli-gees. He was held incompetent to testify to any transaction with or statement by Conn, the decedent, in the following language:

“Mayhew was plaintiff in his own right, being one of the obligees in the bond, as well as the administrator of Conn. the other obligee, and brought the suit for himself and as administrator. The obligation was to pay him and Conn the sum of $300, and the action having been brought in his own right, and as administrator, judgment might have been rendered for or against' him as administrator of Conn, and under the modification of the statute removing incompetency to become a witness by reason of being ,a party to the suit, or interested in the result of it, we are of opinion that Mayhew was incompetent to testify as to any transaction with or statement by intestate. Tenn. Stat. § 3813a.”

In the latter case Dixon was sued as administrator of the estate of Hall, and individually upon a note executed by Hall and himself, as surety. A statute of the state of Georgia provided:

“Where one of the original parties to the contract or cause of action in issue or on trial is dead, or where an executor or administrator is a party in any suit on a contract of his testator or intestate, the other party shall not be admitted to testify in his own favor.”

The plaintiff proposed to testify in the case respecting the defense interposed by Hall, and was permitted to do so over Hall’s objection. In passing upon the admission of his testimony, the court said:

“Hall, one of the original parties to the contract sued on, is dead, and his administrator is a party to the suit on that contract of his intestate, and the statute declares, in express terms, in such cases, that the other party to the contract shall not be admitted to testify in his own favor, and such has been the construction given to the statute by this court. Leaptrot v. Robertson, 44 Ga. 46. The fact that the defendant, who is sued as administrator of the intestate, signed the note as security for the intestate, and is sued as such in the same action with the administrator of the intestate, does not alter or change the rule. It was said, on the argument, that to exclude the plaintiff from testifying in his own favor in this class of cases, under the'provisions of the Constitution of 1868, where the defendant makes oath to his plea, and thereby devolves the burden of proof on the plaintiff, will operate as a great hardship on him; that may be so, but it is not the business or duty of the courts to make the law; their duty is to administer and enforce it as it exists. The statute does not make this particular class of cases an exception to its operation when one of the parties to the suit is dead, and the courts cannot do so.”

The case of Blair v. Breeding, 57 Tex. Civ. App. 147, 121 S. W. 869, by the Court of Civil Appeals for the Hirst District, relied upon by the plaintiff in error, is to be plainly distinguished. The suit of Mrs. Breeding was solely in her own right.

Upon a careful consideration of the question, we are of the view that the learned trial judge and the Court of Civil Appeals, each, correctly ruled the testimony to be incompetent.

The judgments of the district court and of the Court of Civil Appeals are accordingly' affirmed.
      <gEs>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes