author: LANE, J.

text:
    BROWN v. HARRIS COUNTY MEDICAL SOC. et al.
    (No. 7398.)
    (Court of Civil Appeals of Texas. Galveston.
    May 1, 1917.)
    1. Associations <⅜=30 — Voluntary Associations — Rui.es— “Articles of Agreement” —Binding Force.
    When persons form voluntary associations for religious, literary, social, or other purposes, and adopt rules by which to regulate their conduct and measure their rights, by the provisions of which members may be admitted and expelled, such rules are articles of agreement, to which all who have become members are parties, and must be governed thereby in then-relations to the associations.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 4-6.]
    2. Associations <S=o10 — Voluntary Association-Expulsion of Member — Exhaustion of Remedies.
    Where a voluntary association under its rules expels a member, such member must resort to and exhaust the remedies provided by the association itself through its constitution and by-laws before applying to a court of equity for relief.
    [Ed. Note. — For other cases, see Associations, Cent. Dig. §§ 10-12.]
    3. Physicians and Surgeons <§=>9 — Medical Societies — Expulsion of Member — Relief in Equity.
    If plaintiff member of a county medical association was tried by the association upon charges presented on the night on which he was tried and convicted,- he having had no notice or knowledge of the existence of such charges until after he had presented his defense to other charges of which he had notice, and his trial was in violation of the by-laws and rules of the association, while the provisions for appeal made by the association were wholly inapplicable and inadequate, and could not have afforded plaintiff any relief for his alleged unlawful conviction and expulsion from the association, he had the right to resort to a court of equity for relief.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 13.]
    ' Appeal from District Court, Harris County; J.D. Harvey, Judge.
    Suit by Dr. H. E. Brown against the Harris County Medical Society and others. From judgment dismissing the cause, plaintiff appeals.
    Reversed and remanded.
    Leonard Doughty, of San Antonio, for appellant. Earl Wharton, of Houston, for appellees.
   LANE, J.

This is an appeal from an order of the Eightieth district court of Harris county refusing to grant appellant an injunction restraining Harris County Medical Society, and its officers and all other persons, from entering upon the minutes of the society any entries showing his expulsion from the society, and from reading and approving any such entry if made, and refusing to enter an order compelling and requiring the society and its officers to restore him to membership therein, and to expunge all entries showing the action of the society upon certain charges preferred against him, and to issue to him a withdrawal card, such as may he requested by him in accordance with the by-laws of the society. In his petition appellant complains of Harris County Medical Society, an association of physicians of .Harris county, hereinafter called the “society,” Dr. J. A. Kyle, president of the society, and Dr. G. C. Lech-enger, secretary, and Drs. J. E. Hodges, M. B. Stokes, and E. D. Goar, as the board of censors of the society. Among other things he alleges:

“That the Harris County Medical Society is an association of the majority of the reputable physicians of Harris county, who have associated themselves under the charter of the State Medical Association of Texas, which is composed of the majority of the reputable physicians of this state, and which association is made up of component parts composed of the various county medical societies, including that of Harris county, sued herein, and that the state association, in turn, goes to make the American Medical Association, comprising the majority of the reputable physicians of the United States; that these societies and associations are banded together, under their constitutions and by-laws, to bring together into one compact organization the physicians of Harris county, and of the state and the United States of America, so that by frequent meetings and full and frank interchange of views they may secure such intelligent unity and harmony in every phase of their labor as will elevate and make effective the opinion of the profession,” etc.; that some years ago he became a member of the Harris County Society, and is still a member thereof and under and by virtue of the laws of the society he is a member of the State and American Associations; that an expulsion of a member from his local county society works an expulsion from memberships in the State and American Associations, and all component parts of the Medical Associations of America. He further alleges that when a member is expelled by a county society, under the by-laws he may appeal to a board of councilors of the State Association, whose power and authority extends only to allowing such expelled member to become a member of another county society, in a county other than “the county of his residence, if accepted by such society; but said board of councilors are given no power to reinstate the member in the society from which he has been expelled, however irregular or illegal his expulsion may have been. And they are given no power to quash the irregular and illegal proceedings.” He then alleges that in March, 1916, there were three charges preferred against him in the Harris County Society in due form, and that he was duly served with notice of the pendency of said charges and com- • manded to appear at a regular meeting of said society to convene on the 29th day of April, 1916, and present Ms defenses thereto.
“He then alleges that upon the meeting of the society being called at its regular session on the evening of April 29, 1916, the minutes of the previous meeting were read, according to parliamentary usage, and therein appeared the matter of the report of the board on the three charges named above; and that immediately upon such reading, the president, who was chairman, required of plaintiif that his defense to such charges be made; and that same was thereupon made, b'y presenting his written defense. He avers that at this time, it being immediately after the meeting was called, there was no large number of members present, but that to such as were present he made his defense; that he knew of no other charges whatever, and had never been notified that any other existed or would be made; that after the reading of his defense, there came into the meeting many other members of the society, who were voters on the charges, and who afterward voted, so that, in all, there were finally present, when the matter was voted on, 60 members, about 20 having come in after the reading of his defense, and who never heard it or knew of it. And thereaf-terward, in the presence of all the 60 members, the charges as preferred were read and presented; and along with them, and as additional charges to be voted on, various members of the society, led by the board of censors, and including them, presented various other charges of like nature— these additional charges being of unlawful operations alleged to have been performed by plaintiff, and of which he had never heard, and of which he was not guilty, and which were vouched for by the physicians making them. He avers that he was totally unprepared to make defense to these additional charges, and that he demanded, at least, that he be allowed to present his sworn defense to the formal charges, so that all the members present should hear same, and know that he had denied same; but this request was refused by the chairman, and the defense was not presented to as many as about 20 members present and voting, and who heard and voted upon all the charges presented against him. He alleges that a vote was taken on all the charges presented, the 3 of which he had notice, and which he had disproved, and the others, some 8 or 10 in number, of which he had no notice, as provided by the rules of the association, and that on,all such charges, a vote being taken, a sufficient number of the 60 present voted to sustain them to uphold the report and the recommendation; and a vote being taken, according to the by-laws, of whether plaintiff should be expelled on all such charges, a sufficient number voted to expel him under the bylaws. And he avers that a sufficient number were not allowed to hear even his defense to the three charges, to have changed the vote to one in his favor, had they heard it and voted favorably.” He then alleges that unless restrained the entry of his purported expulsion will be entered on the minutes, by the secretary, would be read in open meeting, according to parliamentary usage, and would thereupon be adopted by the society, and his expulsion would thereupon become final, as far as his right to be a member of the Harris County Medical Soeietj' was concerned, no authority existing within the society or the State Association to reinstate him. He then alleges his right to withdraw from the society and the great loss he will suffer if the society is permitted to expel him therefrom.
He then prays: (1) That injunction bte granted him against the society and its officers, and against the defendants and all other persons, restraining them from entering upon the minutes of the society any entry showing the expulsion of plaintiff, or from reading or adopting any such minutes, and that any such entry, if already made, be ordered expunged; and that upon final hearing such injunction be made permanent. (2) That plaintiff have judgment restoring him to membership in the society, and that mandamus issue thereunto. (3) That withdrawal card be issued to him, upon his request, in accordance with the by-laws.

The judge of the Eightieth district court of Harris county, upon such petition being presented to him, granted a restraining order as prayed for, which remained in force until June 20, 1916, at which time the cause was called for trial.. Thereupon defendants demurred generally to the petition of plaintiff, which demurrer was by the court sustained upon the grounds that plaintiff had the right and adequacy of appeal to the board of councilors of the state society and having failed to so appeal, and thereby exhausting his remedies before said board, the trial court was without jurisdiction to entertain the cause; and thereupon the cause was dismissed, upon plaintiff’s declining to amend his petition, and from this judgment of dismissal plaintiff has appealed.

Appellant’s only assignments are:

(1) “That the district court erred in holding that plaintiff was required to appeal to the board of councilors of the State Medical Association of Texas, and that such appeal was an adequate remedy, and that plaintiff therefore had no cause of action herein; it being shown and alleged that said board has no right to reverse the unlawful action of the Harris County Medical Society, nor to reinstate plaintiff as a member of said Hams County Medical Society, and no right or power to quash the irregular and illegal proceedings alleged in plaintiff’s petition; all of which power abides in the district court, and to the exercise of which plaintiff shows himself entitled in said petition.”
(2) “That the district court erred in sustaining the demurrer of defendants on the ground that plaintiff was required to appeal to the board of councilors of the State Medical Association, because the remedy which said board could grant Mm, as shown by the allegations of plaintiff’s petition, was shown to be wholly inadequate, and he was shown thereby to be entitled to have the irregular proceedings by which it was attempted to expel him from the Harris County Medical Society reversed, quashed, annulled, and set aside and wholly held at naught, none of which relief, as shown, could be granted by said board of councilors.”

It is well settled that when parties form voluntary associations for religious, literary, social, or other purposes, and adopt rules by which to regulate their conduct and measure their rights, and by the provision of which members may be admitted and expelled, such rules are articles of agreement to which all who have become members are parties and must be governed thereby in their relations to such associations. 4 Cyc. p. 302 to 340 ; 26 Cyc. 343; Manning v. San Antonio Club, 63 Tex. 166, 51 Am. Rep. 639. The Screwmen’s Benevolent Ass’n v. Benson, 76 Tex. 552, 13 S. W. 379; Ryan v. Cudahy, 157 Ill. 108, 41 N. E. 760, 49 E. R. A. 353, 48 Am. St. Rep. 305, and notes; Green v. Board of Trade, 174 Ill. 585, 51 N. E. 599, 49 L. R. A. 365, and notes; Connelly v. Masonic Ass’n, 58 Conn. 552, 20 Atl. 671, 9 L. R. A. 428, 18 Am. St. Rep. 296. In the ease last cited it is held that the decision of any kind of voluntary society or association in admitting members and in disciplining, suspending, or expelling them, are of a quasi public character, and that in such cases the courts never interfere except to ascertain whether or not the proceeding was pursuant to the rules and laws of the society, whether or not it was in good faith, and whether or not there was anything in it in violation of the laws of the land. And that if it is found that the proceeding was had fairly, in good faith and pursuant to the laws of the society, and that there was nothing in it in violation of the law of the land, then the sentence is conclusive like that of a judicial tribunal.

It is equally well settled that where an association under its rules expels a member, such member must resort to, and must exhaust, the remedies provided by the association itself, through its constitution and bylaws, before applying to a court of equity for relief. Aycock v. Clark, 94 Tex. 376, 60 S. W. 665; Levy v. Magnolia Lodge, 110 Cal. 297, 42 Pac. 890; Screwmen’s Ass’n v. Benson, supra; Bums v. Bricklayer’s Union, 10 N. Y. Supp. 916, 24 Abb. N. C. 150; Levy v. Lodge, 9 Mise. Rep. 633, 30 N. Y. Supp. 885; Johansen v. Blume, 53 App. Div. 526, 65 N. Y. Supp. 987; 26 Cyc. 343-345.

But we have found no authority for holding that where a member of a voluntary association has been convicted of an offense and expelled in violation of the rules and bylaws of the association, and where the bylaws and other laws of the association do not allow adequate relief by appeal from such conviction and expulsion, such member may not resort to a court of equity for relief. We think the uniform holding of all courts is to the contrary. In Cyc. p. 345, the rule of law is thus stated:

“As a rule the writ will not be granted until the relator has exhausted the means of relief and remedies by objection, defense and appeal * * * afforded him by the by-laws and rules of the corporation, unless such remedies are inapplicable or unreasonable, and inadequate or would prove vain and useless.”

See authorities cited under this rule.

It is apparent from plaintiff’s petition that he is insisting that he was tried and convicted upon many charges in violation of the bylaws* and rules of the Medical Association, and that the remedies allowed by appeal, as provided by the by-laws and rules of said Medical Association, were wholly inapplica'ble, inadequate, and unreasonable, and if resorted to would prove useless and furnish him no relief.

The trial court sustained a general demurrer to the plaintiff’s petition, and upon his declining to amend the same, dismissed his suit on the ground that it appeared from the petition that plaintiff had the right to appeal to the board of councilors of the State Association, from the proceeding of the Harris County Medical Society, and that such appeal makes provision for adequate relief. The cause having been disposed of by demurrer, we are not advised, nor was the trial court advised, otherwise than by the allegations of plaintiff’s petition, as to what provision was made for the trial and expulsion of the members of the Harris County Medical Society, by its by-laws and rules. Therefore we are unable to say whether or not the plaintiff was tried and convicted in accordance with the by-laws and rules of the association, or whether or not the appeal provided for would have afforded adequate relief, unless we accept the allegations of plaintiff’s petition as true. But we do know that in his petition the plaintiff has alleged that he was tried upon charges presented on the night on which he was tried and convicted; that he had no notice or knowledge of the existence of such charges until after he had presented his defense; and that his trial upon such charges was contrary to and in violation of the by-laws and rules of the association. We also know that the plaintiff alleged in his petition that the provisions for appeal made by the association are wholly inapplicable and inadequate, and would not afford him any relief for the alleged unlawful conviction and expulsion.

If the allegations of plaintiff’s petition are true, he has the right to resort to a court of equity for relief, and the trial court erred in holding to the contrary and dismissing his suit on demurrer; in other words, if plaintiff’s allegation that the board of councilors, the appellate body, had no power to review and reverse the action of the local society, in expelling plaintiff, in the event they should find that he was not tried in accordance with the by-laws and rules of the association, is true, the appeal provided by the association is inadequate and would not furnish plaintiff relief from such unlawful conviction and expulsion, and in such case he had the right to resort to the courts for relief.

We think the trial court should have overruled the general demurrer, and have heard evidence as to the facts alleged with reference to the rules of the association governing appeals, and in the event the facts alleged were established, the court should have gone further and heard evidence as to whether plaintiff was tried and expelled in accordance with the by-laws and rules of said association.

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

Reversed and remanded.
      ^r^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    BOLLS v. STATE.
    (No. 4394.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Earl BqJIs was convicted of carrying a pistol, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for unlawfully carrying a pistol, but without any bill of exceptions or a statement of facts. There is nothing to review in the absence of these. The judgment is affirmed.


author: MORROW, J.

text:
    CHEATHAM v. STATE.
    (No. 4464.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    Appeal from Tarrant County Court, Jesse M. Brown, Judge. Oscar Cheatham was convicted of an aggravated assault upon a female, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by complaint and information with an aggravated assault upon a female, and upon trial and conviction therefor his punishment was assessed at a fine of $28. Neither a statement of facts nor any bills of exception accompany the record. In the absence of these, no question is raised in such a way that it can be considered. The judgment is therefore affirmed.


text:
    HATCHER v. STATE.
    (No. 4386.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.
    Rehearing Denied May 2, 1917.)
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge. Tom Hatcher was convicted of unlawfully selling intoxicating liquors, and he appeals.
    Affirmed.
    Birmingham & Johnson, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for making ail unlawful' sale of intoxicating liquor in Lamar county after the law prohibiting the sale was in, effect therein, making it a misdemeanor, and his punishment assessed at a fine of $100 and 60 days in jail. There is no statement of facts, nor any bill of exceptions, and nothing to review ih the absence of these. The judgment is affirmed.


text:
    PACE v. STATE.
    (No. 4465.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    Appeal from Tan-ant County Court, Jesse M. Brown, Judge. Sam Pace was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Upon a plea of guilty appellant was assessed the lowest punishment for unlawfully carrying a pistol, from which he appealed. There is no statement of facts, nor bill of exceptions, and nothing raised by the motion for a new trial in such a way that it can be considered. The judgment is therefore affirmed.


text:
    SHELTON v. STATE.
    (No. 4433.)
    (Court of Criminal Appeals of Texas.
    April 11, 1917.)
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge. Prank Shelton, alias Elmer Shelton, was convicted of robbery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a judgment condemning appellant to confinement in the state penitentiary for a term of 10 years upon an indictment and conviction for robbery with firearms. The record contains neither a statement of facts nor bill of exceptions. In the absence of the evidence, the grounds set out in the motion for new trial cannot be revised. The judgment of the lower court is therefore affirmed.

PRENDERGAST, J., absent.


author: DAVIDSON, P. J.

text:
    SIMMONS v. STATE.
    (No. 4446.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    Appeal fi-om District Court, Galveston County; Clay S. Briggs, Judge. Buster Simmons was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, and allotted three years’ confinement in the penitentiary. The record is before us without a statement of facts or bill of exceptions. The matters set up in the motion for new trial are of such nature they cannot be considered, in the absence of a statement of facts and bills of exception. The judgment will be affirmed.


author: TALBOT, J.

text:
    MALAKOFF GIN CO. v. RIDDLESPERGER et al.
    (No. 6760.)
    (Court of Civil Appeals of Texas. Dallas.
    April 7, 1917.)
    Appeal’ from District Court, Henderson County; B. H. Gardner, Judge. Action by the Malakoff Gin Company against C. A. Riddlesperger and others. Prom a judgment for plaintiff for damages, but denying it injunctive relief prayed for, it appeals. Question certified to Supreme Court. Question answered. 192 S. W. 530.
    Judgment refusing injunctive relief reversed, and judgment rendered here; judgment in other respects affirmed.
    Richardson, Watkins & Richardson, of Athens, for appellant. E. P. Miller and Paulk & Paulk, all of Athens, for appellees.
   TALBOT, J.

Appellees, C. A. Riddlesperger and his brother, S. J. Riddlesperger, sold their gin in Malakoff, Tex., to the appellant, then a copartnership, for $4,000 cash in hand, and. entered into a written agreement that they, the Riddlespergers, would not go into the ginning or mill business in the community of Malakoff so long as their purchasers continued to engage in said business in said community. The Rid-dlespergers desisted from such business for about one year, when they rebuilt them a gin and engaged in competition with plaintiffs up to the time of the trial of this cause. Plaintiff in the court below, who is the appellant here, protested against the violation of their covenant with defendants, and brought suit against them for the damages done by reason of same, and prayed Üie court that the said Riddlespergers be enjoined and restrained from further continuing in said business of ginning and milling in said community. The jury found that the defendants, the Riddlespergers, had violated their contract not to so engage in said business, and found for the plaintiff in the sum of $10 as their damages. The plaintiff insisted upon its prayer that the court enter its order enjoining and resti-aining the defendants, Riddlespergers, from further violation of their said agreement, and-asked specially that the court enter its order to that effect. The court declined to do so, and the plaintiff excepted in open court and perfected an appeal to this court. The appellant presents in this court but one assignment of error, which raises the question: Was the appellant, under the facts and the verdict of the jury, entitled to the injunction prayed for, and did the trial court err in refusing it? This question was certified to the Supreme Court for adjudication, and by that court answered in the affirmative. A full statement of the facts and the verdict of the jury, upon which a decision of the question turned, will be found in the opinion of the Supreme Court, reported in 192 S. W. 530. The facts contained in that statement and the reasons given by the Supreme Court, as reported, are adopted in this opinion, and need not be set out herein. To do so, or to_ attempt to add anythifag to .what is there said, would be superfluous and useless. The ap-pellees present in their brief several cross-assignments of error, all of which relate to the same subject and are grouped. The proposition under these assignments, after reciting that the written contract upon which the suit is founded, shows that the appellees sold their gin, mill, and machinery, situated in Malakoff, Tex., to the appellant, for the sum of $4,000 cash, and guaranteed said property and the title thereto unto the appellant, its heirs, successors, and assigns, forever, and closed up with an agreement not to put up any gin or mill in the said Malakoff community as long as appellant operated said gin or mill in said Malakoff community, is that said “contract is plain and unambiguous, and construes itself, and it is improper to allow any kind of proof to be introduced that tends to change, vary, or enlarge its terms, and no proof can be properly introduced to show that the $4,000, or any part thereof, was paid for anything except the gin, mill and machinery, and it was improper for the court to charge, or allow any proof to show, that the agreement contained in the contract was binding on.any one except the parties to it, to wit, the Riddlespergers and the partnership composed of H. L. Flagg and T. A. and J. W. Bartlett; and the court should have charged that when said partnership, as a partnership, ceased to operate said gin and mill and machinery in Malakoff, they forfeited all rights contained in said agreement, and it was no longer binding on the Riddlespergers.” This proposition has been, in effect, decided against appellees by. what is said by the Supreme Court in its opinion, to which we have referred, and clearly cannot, under the facts, be maintained. The cross-assignments of error are therefore overruled. The judgment of the district court in refusing to grant appellant the relief by injunction . as prayed for is reversed, and judgment here' rendered granting such relief. The judgment of the district court in other respects is affirmed.


author: JENKINS, J.

text:
    WEST v. WEST et al.
    (No. 5780.)
    (Court of Civil Appeals of Texas.
    April 11, 1917.)
    Appeal from District Court, McLennan County; E. J. Clark, Judge. Suit between Lula West, a minor, by her guardian ad litem, and G. S. West and others. Judgment for the latter, and the former appeals.
    Affirmed.
    Jas. P. Alexander, of Waco, for appellant. Oltorf & Oltorf, of Marlin, for appellee Glisson. D. A. Kelley, of Waco, for appellee West.
   JENKINS, J.

This is a suit for partition, the proper disposition of which depends upon the construction of a will made by Mrs. Fannie Calvert, deceased. This will was construed by us in West v. Glisson, 184 S. W. 1042, in which case a writ of error has been denied by our Supreme Court. The trial court entered judgment herein in accordance with construction given to said will in West v. Glisson, supra. We adhere to our former decision as to the construction of said will, for which reason the judgment of the trial court herein is affirmed Affirmed.


author: YANTIS, J.

text:
    MAGNOLIA WAREHOUSE & STORAGE CO., Inc., v. DAVIS & BLACKWELL.
    (No. 2521.)
    (Supreme Court of Texas.
    May 30, 1917.)
    1. Evidence <®^411 — Pabol Evidence -to Explain Ambiguous oe Incomplete Oon-tbact.
    Where a written instrument is ambiguous or incomplete on its face, parol evidence is admissible to show what the real contract was to the extent necessary to remove the ambiguity and make the contract complete.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874^-1899.]
    2. Evidence <&wkey;411 — Pabol Evidence to Explain Ambiguous oe Incomplete Con-tbaot.
    Contract for excavating and "hauling dirt held, to be incomplete and contradictory, and to show on its face existence of parol agreement as to certain provisions, justifying admission of. explanatory evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1899.]' .
    3. Evidence <&wkey;450(7) — Pabol Evidence to Snow Real Contract.
    Where contract for excavating and hauling dirt failed to show which party was to furnish cars, parol evidence held admissible to establish the real contract.
    4. Contracts <&wkey;198(5) — Construction — “Tools and Appliances.”
    Plaintiff’s agreement to furnish “tools and appliances” for excavation did not necessarily include ears on which dirt was to be loaded.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 871.
    For other definitions, see Words and Phrases, First and Second Series, Tools.]
    5. Contbacts &wkey;>198(5) — Construction — “Transport.”
    Plaintiff’s agreement to “transport” excavated earth “to points that had been indicated,” which it was necessary to explain by parol evidence, and to load dirt on cars, did not exclude the cars as points of delivery, the word “transport” being used according to its ordinary significance, in which sense it means to convey from one point to another without reference to distance between points, although it may have an enlarged meaning when used in a technical sense as applied to the special, calling of conducting a railroad business. The contract by its language implied that there was to be no transportation of dirt by plaintiff except to load it on the cars.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 871.
    For other definitions, see Words and Phrases, First and Second Series, Transport.]
    Phillips, C. J., dissenting.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Suit by Davis & Blackwell against the Magnolia Warehouse & Storage Company, incorporated. Judgment for plaintiff, and defendant appealed to Court of Civil Appeals for Eighth District, where judgment was affirmed (see 153 S. W. 670), and defendant brings error.
    Affirmed.
    John Charles Harris and Harris & Harris, all of Houston, for plaintiff in error. Lewis, Boyd & Norton and John B. Warren, all of Houston, for defendant in error.
   YANTIS, J.

This suit was instituted to recover damages for the breach of an existing contract between Davis & Blackwell, as partners, who were plaintiffs in the district court, and the Magnolia Warehouse & Storage Company, a corporation, which was defendant in. the district court. The contract required Davis & Blackwell to excavate .and move about 20,000 tubic yards of earth from a certain lot situated near Harrisburg, about four miles south of the city of Houston, upon which lot the plaintiff in error, the Magnolia Warehouse & Storage Company, desired to erect a warehouse. Davis & Black- . well, who are defendants in error here, sought to recover damages for the refusal of the plaintiff in error to permit them, in accordance with said contract, to do the excavating provided for therein, which refusal is alleged to have resulted to them in the loss of large profits under said contract. _ There was a jury trial. The-verdict was favorable to Davis & Blackwell, the defendants in error. Appeal was,taken by the plaintiff in error from said judgment. The case on such appeal was decided by the Court of Civil Appeals for the Eighth District, which court affirmed the judgment of the district court. A writ of error was granted by this court on the petition ‘of the Magnolia Warehouse & Storage Company, plaintiff in error.

The original petition of the defendants in error alleged the terms of the contract, but did not allege the 'contract to be in writing. The plaintiff in error, in its answer, alleged that the contract was in writing, and that the defendants in error were bound by the written contract, which was quoted in said answer. By supplemental petition the defendants in error admitted the written contract, but alleged that it showed on its face that other agreements had been made by the parties to it, which were not incorporated therein, and to which the said written contract specifically referred; that the real agreement between the parties was partly in writing and partly verbal; that the plans and specifications mentioned in said contract were verbal specifications; and that article 8 of said written contract showed that the parties were contracting with reference to the removal 'of the earth from the place of excavation to points that had been agreed upon between them verbally, and that the contract showed upon its face that the parties had agreed upon a distance to which the dirt would have .to be hauled, but said contract did not set forth the place or the distance to-which the earth should be hauled by the defendants in error, on all of which questions the defendants in error were entitled to make proof of said agreements by parol testimony. The defendants in error also alleged that prior to the execution of said contract, and at the time the plaintiff in error was asking for bids upon the work contemplated, the--latter designated as'one point' at'which to deliver the dirt a certain gully :near the said lot, and designated cars as another point •of delivery, to be placed by it on the railroad track nearest to their lot upon which the remainder of said dirt was to be loaded; that the points to which the said earth was to he removed' had been indicated and designated by the plaintiff in error as being on the cars and in the gully mentioned.

The trial court permitted the defendants in error to prove by parol testimony, over the objection of the plaintiff in error, that the points which were designated to which the excavated earth was to be removed was a gully adjacent to the lot, and on cars adjacent to the lot, which were to be furnished by the plaintiff in error. Objection was made to the introduction of this evidence, on the .ground that it tended to vary, contradict, alter, add to, change, and explain away the terms of said written contract by oral testimony, and that there was no allegation in the defendants in error’s petition of any accident, fraud, or mutual mistake in making said written contract, for which reasons it was ■and is claimed that the evidence was inadmissible, and should have been excluded by the trial court.

The general rule is that parol testimony •cannot be received to contradict, vary, add to, or subtract from the terms of a valid written contract. But one of the exceptions to the general rule is that if the written instrument itself shows to be .either ambiguous or incomplete, parol testimony is admissible to show what the real contract was to the extent necessary to remove the ambiguity, and to make the contract complete in its terms which show to be incomplete. The exception to the general rule is as well settled as is the rule itself. Jones, Commentaries on Evi-, dence, § 434.

We think the evidence objected to was admissible. Section 8 of the contract provides that Davis & Blackwell agree to “furnish the tools, appliances and labor necessary to excavate- the earth * * * and transport the same to points that have been indicated.” This clearly indicates that the parties had agreed upon the points tq which the earth should be carried. But such points are not named in the written contract. In this respect the contract is incomplete, and parol testimony was admissible to locate these points which had been agreed upon as indicated. Again, while section 8 states that the points to which the earth is to be carried have been indicated, section 23 contradicts, this statement by providing that the earth shall be hauled into such place as may be designated by the owner, which was the plaintiff in error. Section 8 is silent as to the location of the points for delivering the dirt, but states that the points “have been indicated,” while section 23 leaves it to the owner'to .designate subsequent to the execution of the contract the location, of said .points. Section 20 states that:

“The contractor has examined the plans and the site of the work and understands, the distance to which the earth will have to be hauled.”

But it fails to state the distance it is to be hauled, or the points to which it is to be hauled. This section also provides that there should be no payment for overhaul, which again indicates that the parties had agreed upon the distance the dirt should be hauled, and the points of delivery. This again shows the written contract to be incomplete, in that it fails to provide for the length of the haul, or the points of delivery. Said sections 8, 23, and 20, referred to, are as follows:

“Art. 8. The contractor agrees to furnish the tools, appliances and labor necessary to excavate the earth on the west side of the property where it is proposed to build a warehouse and transport the same to points that have been indicated. It being the purpose to grade the property to a uniform and true plane. The total number of cubic yards to be moved is estimated at twenty thousand.”
“Art. 23. In consideration of the completion of the work embraced in these plans and specifications, and in conformity with the conditions herein, the Magnolia Warehouse & Storage Company agrees to pay to the contractor 22% cents per cubic yard for each cubic yard excavated and hauled into such place as may be designated by the owner, and 22% cents per cubic yard for each cubic yard excavated and loaded on cars.”
“Art. 20. The grading work shall be paid for by the cubic yard excavation measurement only. No payment for overhaul will be allowed. The contractor has examined the plans and the site of the work and understands the distance to which the earth will have to be hauled.”

The written contract in fact made and agreed upon shows upon its face to be incomplete and some of its terms are contradictory, as stated, and we think there was no error in allowing parol testimony to be introduced on these points.

We are also of opinion that it was proper to allow parol testimony to establish what the real contract was as to which party to it was to furnish the cars mentioned in section 23. It is there provided that the plaintiff in error would pay to the defendants in error 22%' cents per cubic yard “for each cubic yard excavated and hauled into such place as may be designated by the owner, and 22% cents per cubic yard for each cubic yard excavated and loaded on cars.” From this it plainly appears that it had been agreed that one of the parties to the suit should furnish the cars upon which a portion of the dirt should be loaded. But the written contract fails to state which party to it was to furnish the cars. This showed the contract to be incomplete also in this respect, and rendered admissible the evidence which was introduced to the effect that the plaintiff in error agreed to furnish the cars.

The defendants in error had agreed in section 8 to furnisii tlie tools, appliances, and labor necessary to excavate the earth and to transport tbe same to tlie points that had been indicated. But we do not think the term “tools and appliances” necessarily included the cars that were to he loaded. And especially is this true if the cars were but points which had been agreed upon on which to place the dirt that was to be excavated. And since section 8 plainly shows that the points to which the earth should be transported had been agreed upon, then it was permissible to supplement the written contract by parol testimony to determine what points were to receive lie dirt, and it is beyond our power to declare that the cars could not have been agreed upon between the parties as points of delivery. We do not think the word “transport” as used in section 8 excludes the cars as points of delivery. We think this word is to be used according to its ordinary signification, in which sense it means to convey from one point to another without reference to the distance between the points. If the word were used in a technical sense, as applied to the special calling of conducting a railroad business, it might have an enlarged meaning. But we think the contract upon its face shows that the word “transport” was not used in a technical sense, but in its ordinary sense, for it will be observed that in section 23, and again in section 20, the word “hauled” is used instead of the word “transport,” which is used in section 8; and again in the latter portion of section 23 it is provided that the plaintiff in error will pay to Davis & Blackwell 22% cents per cubic yard for the dirt hauled into such place as may be designated by the owner, and 22%. cents per cubic yard for each cubic yard excavated and loaded on cars. This strongly implies that there was to be no transportation of the dirt by the defendants in error except to load it on the cars. So we think that by the use of the words and terms employed in the written contract the intention of the parties to it was to use the word “transport” in its ordinary meaning, and not in a technical sense.

We conclude that there was no error in permitting the defendants in error to introduce parol evidence upon the points indicated ; in order to remove ambiguity from the written contract, and in order to make complete the terms of the contract which were incomplete as written.

The judgments of the Court of Civil Appeals and of the district court should he affirmed; and it is so ordered.

PHILLIPS, C. J., dissents.
      tfte=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests a,nd Indexes


author: PHILLIPS, C. J.

text:
    BOSTIC v. COUNTY JUDGE OF ROCKWALL COUNTY.
    (No. 3970.)
    (Supreme Court of Texas.
    May 30, 1917.)
    Courts <&wkey;207(4) — Mandamus — Supreme Court — Issuance Against County Judge-Statute — '“Officer oe State Government.”
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1526, giving the Supreme Court original jurisdiction to issue mandamus against any district judge, or Court of Civil Appeals, or judge of a Court of Civil Appeals, or officer of tlie state government, except the Governor, excludes power to award the writ against a county judge, who is not to be regarded as an officer of the state government.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 756.
    For other definitions, see Words and Phrases, First and Second Series, Officer.]
    Mandamus by Dodd Bostic against the County Judge of Rockwall County. On motion for leave to file petition for mandamus.
    Motion denied.
    H. M. Wade, of Rockwall, for relator.
   PHILLIPS, C. J.

This case and two companion eases are .before us on motions for leave to file petitions for mandamus against the county judge of Rockwall County so as to require him to accejit pleas of guilty offered by the relators, and assess the proper fine, in certain misdemeanor prosecutions pending against them in the county court of that county.

This court has original jurisdiction in proper cases to issue a mandamus against “any district judge, or court of civil appeals or judge of a court of civil appeals, or officer of the state government, except the governor.” Art. 1526, Sayles’ Civil Statutes. The enumeration in the statute of district judges and judges of the courts of civil appeals as the classes of judicial officers against whom this court may issue the writ of mandamus in the exercise of original jurisdiction excludes any power in the court to so award the writ against a county judge, unless he may, be regarded as an “officer of the state government.” He is not such an officer in the sense in which that term is used in the statute. Travis County v. Jourdan, 91 Tex. 217, 42 S. W. 543.

We have no jurisdiction of the proceeding, and the motion is accordingly denied.
      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. FRENDERGAST, J. MORROW, J.

text:
    RUDY v. STATE.
    (No. 4440.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.
    On Motion for Rehearing, May 23, 1917.)
    1. Indictment and Information <&wkey;106 —' Requisites and Sufficiency.
    Generally an indictment following the language of the statute is sufficient, but where a written instrument enters into an offense as a part or basis thereof or when its proper construction is material, the instrument should be sot out in the indictment.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. § 283.]
    2. Threats &wkey;>5— Indictment — Requisites and Sufficiency.
    An indictment charging the offense of sending an anonymous letter the words and tenor of which reflected upon the chastity, good, character, and reputation of the recipient, without setting out the letter, but merely alleging that the words and tenor violated the statute, is insufficient.
    [Ed. Note. — For other cases, see Threats, Cent. Dig. §§ 9, 10.)
    Prendergast, J., dissenting.
    On Motion for Rehearing.
    3. Criminal Daw <&wkey;372(l) — Evidence—Admissibility.
    In prosecution for sending anonymous letter reflecting on chastity and good reputation of recipient, another anonymous letter alleged to have been written by defendant and received by the same person was admissible in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834.]
    4. Criminal Law <&wkey;491(l) — Expert Testimony-Typewritten Letters.
    In prosecution for sending anonymous letter reflecting on chastity and good character of recipient, testimony of experts that another letter and a communication known to have been written by accused were written upon the same typewriter was admissible under the rules of comparison of handwriting.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1080.]
    Appeal from Montague County Court; Homer B. Latham, Judge.
    J. L. Rudy was convicted of the offense of sending an anonymous letter, and he api-peals.
    Reversed, and cause dismissed. On motion for rehearing. Motion overruled.
    Lattimore, Bouldin & Lattimore, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the offense of sending an anonymous letter, and his punishment assessed at a fine of $250.

The information was under article 1182, P. C., and charges:

“That heretofore, to wit, on and about the 15th day of October, 1915, in said county and state, one J. L. Rudy did then and there unlawfully send and cause to be delivered to Miss Lydia Harmon an anonymous typewritten letter in English, which said letter, according to its words and tenor, reflects upon the chastity, virtue, good character, and reputation of the said Miss Lydia Harmon, to whom said letter was sent and caused to be delivered and intended for,” etc.

The sufficiency of the information was assailed in the lower court upon the following grounds: (a) It was uncertain; (b) that the letter was not set out in hsec verba; (c) that it was not described by date or otherwise; and (d) that it contained the conclusions of the pleader as to the effect of the letter. And on proper assignments the alleged error of the trial court overruling the motion to quash the information is here for revision.

From Vernon’s Code of Criminal Procedure (note to article 474) the following statement is taken:

“Notwithstanding, the general rule is that in describing the offense in an indictment it is sufficient to follow the language of the statute, there are instances which form exceptions to this general rule and in which more certainty is required either from the obvious intention of thq Legislature or from the application of known principles of law.”

The correctness of this statement of the law is shown by the following authorities: State v. Campbell, 29 Tex. 44, 94 Am. Dec. 251; Horan v. State, 7 Tex. App. 183; Alexander v. State, 29 Tex. 495; Williams v. State, 1 Tex. App. 94, 28 Am. Rep. 399; Hoskey v. State, 9 Tex. App. 203; Kerry v. State, 17 Tex. App. 179, 50 Am. Rep. 122; Thompson v. State, 16 Tex. App. 159; Dixson v. State, 21 Tex. App. 517, 1 S. W. 448; Willis v. State, 24 Tex. App. 400, 6 S. W. 316.

In the application of this exception to the general rule in instances where a written instrument enters into an offense as a part or basis thereof, or when its proper construction is material, the instrument should be set out in the indictment. White v. State, 3 Tex. App. 605; Horan v. State, 7 Tex. App. 183; Hoskey v. State, 9 Tex. App. 202; Coulson v. State, 16 Tex. App. 189; Tynes v. State, 17 Tex. App. 125; Bishop’s New Crim. Proc. p. 1733; Wharton’s Crim. Law, § 1982; 25 Cyc. p. 577, subd. 8, note 18, and cases cited therein. Application of this rule has been made in this state in swindling cases (State v. Baggerly, 21 Tex. 757; Baker v. State, 14 Tex. App. 332; May v. State, 15 Tex. App. 430; Dwyer v. State, 24 Tex. App. 132, 5 S. W. 662, and others cited in Vernon’s Ann. P. C. p. 912; Wilson v. State, 193 S. W. 669, decided February 28, 1917), and in cases where swindling was charged to have been accomplished in part by the use of chattel mortgages (Ferguson v. State, 25 Tex. App. 451, 8 S. W. 479; Hardin v. State, 25 Tex. App. 75); also in forgery cases (Vernon’s Ann. P. C. pp. 500, 501; Fischl v. State, 54 Tex. Cr. R. 58, 111 S. W. 410); also in criminal libel and slander cases (Rogers v. State, 30 Tex. App. 462, 17 S. W. 548; Conlee v. State, 14 Tex. App. 222; Wiseman v. State, 14 Tex. App. 74; Hammers v. State, 13 Tex. App. 344); and in the fraudulent disposition of mortgaged property (McElroy v. State, 67 Tex. Cr. R. 603, 150 S. W. 797).

Bradfield’s Case, 73 Tex. Cr. R. 353, 166 S. W. 735, is one in which this exception to' the general rule appears to have been overlooked. The general rule that it was sufficient to follow the language of the statute even in cases where a written instrument entered into the offense was held to obtain in that case. Reaching this conclusion, the court cites Foreman v. State, 31 Tex. Cr. R. 479, 20 S. W. 1109, wherein it was held that in a prosecution for disturbing the peace by the use of loud, vociferous, vulgar, or indecent language, or cursing and' swearing, it was not necessary to set out the language. Both by the statute and the decisions construing it, however, it is shown that in the offense of disturbing the peace it is not so much the purport of the language as the manner of its use that is involved. Jones v. State, 50 Tex. Cr. R. 211, 96 S. W. 29; Crain v. State, 53 Tex. Cr. R. 618, 111 S. W. 150. The Bradfield Case, supra, also cites Jones v. State, 35 Tex. Cr. R. 565, 34 S. W. 631, which is one in which the prosecution was for the fraudulent disposition of mortgaged property. There was no motion to quash the indictment, but on objection to evidence the court discussed the indictment and held it sufficient,to admit the evidence, using the following language:

“In this character of case, we do not understand 'that it is necessary to set out, according to its tenor, the mortgage in question. Satchell v. State, 1 Tex. App. 438; Glass v. State, 23 Tex. App. 425 [5 S. W. 131].”

An examination of the two cases cited in the above quotation from the Jones Case clearly demonstrates their failure to support the language of the quotation. The opinion in the Satchell Case, 1 Tex. App. 438, does not show whether the .chattel mortgage was or was not set out in the indictment. . The indictment was ■ held defective for failure to aver that the mortgage was unsatisfied. In the opinion in the Glass Case, 23 Tex. App. 425, 5 S. W. 131, it 'appears that the mortgage was set out and the motion to quash the indictment overruled. The opinion shows that the indictment was in strict accord with Willson’s Criminal Forms, No. 519. In Willson’s Criminal Forms, No. 519, the mortgage is set out. White’s Ann. P. C. p. 1496, art. 950. The Jones Case, 35 Tex. Cr. R. 565, 34 S. W. 631, is not supported by any decision holding that where a written instrument enters into an offense it .is not necessary to set it out in the indictment charging the offense.

The correct rule is aptly stated in Tynes v. State, 17 Tex. App. 125, which, after stating the-general rule that it is sufficient to follow the statute, uses the following language:

“A different rulo prevails where the offense consists in the sending of a threatening letter with the purpose of extorting money. In such a case it is not sufficient to charge the offense alone in tho statutory words. The composition —that is, the letter itself — should have been set out, or such a description given of it that the court; upon inspection, could have judged I of its character, and whether or not it was what is alleged to be a threat for the purpose of extorting money. It was also essential that it should be set forth in order to identify the transaction and apprise and enable the defendant to know what he had to meet, and with that certainty as would enable him to plead his conviction or acquittal in bar to another prosecution for the same offense. State v. Hanson, 23 Tex. 233. In the statute the leading object is the thing written and whether it shows that it was written with a purpose of extorting money. The general rule seems to be that when a written instrument enters into an offense as a part or basis thereof, or when its proper construction is material, the instrument should be set out in the indictment.”

Tested by the principles contrblling the last-cited case and many others referred to above which follow it, the information in the present case must of necessity be held insufficient. The offense consisted in sending an anonymous letter the words and tenor of which reflected upon the chastity, virtue, good character, and reputation of the party named in the information. Neither the words nor the tenor were set out in the information. The court, called upon to inspect the information and judge from the composition whether or not the chastity, virtue, good character, and reputation of the party n,amed were reflected upon, was left in ignorance of the contents of the letter he was thus called upon to construe. The appellant, called upon to answer the information, was not advised thereby of the description either by date or otherwise of the letter that he was. charged with sending, nor was the letter relied upon distinguished from any other letter that might have been written or sent in a manner that would enable the defendant to identify his conviction or acquittal under this information in'a plea in bar to another prosecution for the same offense. The information merely states the- conclusion of the pleader of the effect of the words used in- the letter.

There are many bills of exception touching questions of. practice which doubtless will not arise in the same form upon another trial. We do not think the bill of exceptions shows disqualification of the .trial judge.

Because the information is insufficient, the judgment of the lower court is reversed, and the cause dismissed!

FRENDERGAST, J.

(dissenting). The statute making it an offense to send, etc., an' anonymous letter reflecting upon the chastity, etc., of any person, is a recent one, having been enacted in 1909. The first time it became necessary for this court, to determine what was a sufficient indictment or information to properly charge that offense, and whether or not it was necessary to copy such letter in the pleading, came up in the case of Bradfield v.. State, 73 Tex. Cr. R. 357, 166 S. W. 734, in 1914.

Upon thorough investigation and mature deliberation, this court in a unanimous opinion in said Bradfield Case held it was not necessary to copy the letter.. This court did not then “overlook,” or otherwise fail to. fully consider, any of the principles, nor any of the cases now mentioned in the majority opinion herein. On the contrary, it thoroughly considered and was fully mindful of all of them. And it correctly held in said Bradfield Oase, in full accordance with the statutes therein quoted and principles therein announced, that it was not necessary to copy the letter in any of the leadings. I have no doubt oi the correctness of the opinion and holding in that case, and it should he followed in this case. It is no more necessary, under the' statute prescribing this offense, to set out in hEec verba the evidence nor any material part of it than it would be in an indictment for murder.

The complaint and information herein are undoubtedly in accordance with, our statutes and clearly and amply sufficient, and it should be so held. I respectfully dissent.

On Motion for Rehearing.

MORROW, J.

This case was reversed and dismissed on account of an insufficient indictment. The state, without asking a review of that question, suggests that in view of another trial some of the other questions raised in the record be passed on.

Bill of exceptions No. 3 complains of the introduction in evidence of the anonymous letter received by the same person as that described in the indictment, insisting that the introduction 'of the letter was viola-' tive of the rule inhibiting the proof of other offenses. We think under the facts as disclosed by the record there was no error in admitting this letter. It was referred to in the letter on which the prosecution was founded; at least that letter contained language which might be so interpreted; and in the conversation testified to by the injured party she claims that appellant referred to the letter in question. We think under all the circumstances the letter which was objected to was admissible under the rule of res gesta?, and further, in view* of the other facts was admissible as one of the circumstances identifying, or tending to identify, appellant as the writer of the letter upon which the prosecution was founded.

Complaint is made to bill of exceptions No. 4 of testimony to the effect that the letter of August 15th and that upon which the prosecution is founded were written upon the same typewriter as a letter admittedly coming from appellant. The witnesses were sufficiently qualified to give opinions, and under the rules of comparison of handwriting we think there was no error in refusing to sustain appellant’s objections to this testimony.

The motion for rehearing is overruled.
      <S==>Fo.’ other oases soe same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ROBERTS v. STATE.
    (No. 4441.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    1. Indictment -and Information &wkey;>137(2)— Objections to Grand Juey — Motion to Quash.
    « Although the defendant did not object to the array of grand jurors, he is not too late in presenting that question after the return of the indictment.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. § 481.]
    2. Constitutional Law &wkey;221 — Equal Protection oe Laws — Race Disorimination.-
    The equal protection of the laws is not denied to colored persons, where the state Constitution and laws make no discrimination against the colored race in terms, merely because the discretion granted to officers in the selection of grand and petit jurors might in fact be used to the abridgment of the right of colored persons to serve on such juries, when it is not shown that their actual administration is evil, but only that evil is possible under them.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 724.]
    3. Criminal Law &wkey;35G9 — Selection oe Jury— Evidence — Sueeicienoy.
    Where both defendant and deceased were ne-groes, evidence held not to show race discrimination, as alleged by the defendant, in selecting grand and petit jurors, in that no negroes were selected; it being claimed by the officials, that there were no competent negroes to be selected.
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Jeff Roberts, alias Dickey, was convicted, of mur'der, and appeals.
    Affirmed.
    Clark Owsley, of Denton, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and Ms punishment assessed at 30 years’ confinement in the penitentiary.

The case is before us without statement of facts and with one bill of exceptions. That bill presents only the question of race discrimination. It is shown by the bill that' one negro killed another negro. Race discrimination is alleged by defendant in selecting grand and petit jurors. The bills show that the grand jury and the petit jury were selected from jurors selected by jury commissioners and were composed of white men exclusively. The state contends that, inasmuch as the defendant did not object to array of grand jurors, he is therefore too late in presenting that question after the- return. of the indictment. This question was decided adversely to the state in Carter’s Case, 177 U. S. at page 442, 20 Sup. Ct. 687, 44 L. Ed. 839.

With reference to the discrimination, there were two witnesses testified; one of these apparently was -a negro, and the other one was one of the jury commissioners, who selected all of the jurors for that term of the court — grand and petit. The negro witness stated, in a general way, facts lie thought discriminated against the selection, of negro jurors in Denton county. There was no particular fact upon which he predicated this view, except that none had been selected for a number of years. He also indicates in his testimony that he thought a negro might have a better opportunity, where some of the jurors were negroes, than he would where they were all white jurors. He said, also, there were quite a number of negro men in the county who were qualified to sit on the jury under the law, but that he knew of none having so served for years. The white witness testified that he was one of the jury commissioners, and was furnished with a list of jurors of the county out of which the commissioners were to select jurors for the term of court at which appellant was indicted and tried; that they were instructed by the court to select competent jurors. He further stated that they did this; that they understood their duty under the instructions given by the court; that the list of jurors furnished the commissioners from which to make these selections to serve at the term of court contained a few negroes, consisting in proportion of about 1 to 50; that he, as commissioner, did not select any negro on the jury, and did not believe any of them competent; that, where he was not informed as to the competency of a juror on the list, he did not select Mm; that he did not know whether these negroes were competent, and had no knowledge in regard to the matter, and therefore he did not select any of them. His testimony indicates he made this rule general, not only as to negroes, but as to white men; but he also stated that he did not make a selection of any negro and did not believe them competent. He also stated, in answer to a question, that he did not believe, where one negro was charged with killing another, that the defendant would get a better jury from among white men than from among the negroes; that the white men were more favorable in the trial of negro cases than were negro jurors, so far as he knew, or this was his experience. He also stated that he did not discriminate so far as the negro jurors were concerned, and never thought about whether he was discriminating against them or not; that he did not take that matter into consideration, unless it be that he did not believe those negroes on the list to be competent jurors.

If the facts showed that there was an intentional discrimination against the negro race in the selection of jurors, where there were competent negro jurors, it might raise a serious question, and perhaps would require a reversal; but, unless this is shown, this court would not feel justified, under the ruling of the Supreme Court of the United States, to grant a reversal. That high court has drawn a distinction in their opinions as to when discrimination is intentional, and its operation from that viewpoint, and where it may operate as a discrimination, but was with no evil purpose or intent. This rule was fully discussed and laid down in Williams v. Mississippi, 170 U. S. 214, 18 Sup. Ct. 583, 42 L. Ed. 1012. The syllabus of that opinion states fairly its holding in the following language:

“The equal protection of the laws is not denied to colored persons by a state Constitution and laws which make no discrimination against the colored race in terms, but which grant a discretion to certain officers, which can be used to the abridgment of the right of colored persons to vote and serve on juries, when it is not shown that their actual administration is evil, but only that evil is possible under them.”

It occurs to us that the utmost the defendant could claim in this case would be that, by reason for quite a number of years no negro jurors had been selected, therefore it was a discrimination. But this case seems to indicate that it is brought within the rule laid down by the Supreme Court in the Williams Case, and the evidence of the jury commissioner is to the effect that there was no discrimination; that the jurors who were on the list from which he selected, whom he did not know, he did not consider competent jurors. There was no specific examination into the history of those matters prior to this particular drawing of jurors, except, in a general way, that no negro had been selected on any of the juries for quite a number of years. Our laws, both constitutional and statutory, do not discriminate against the negro. It places the qualification of all jurors on the same basis, without any reference to color or previous condition. If there was any discrimination, it would not be legal; but it would be the act of the local officers and. authorities, who make the selection of jurors. In or'der to bring this matter within the rule of discrimination, the facts must show, or ought to show, that the race discrimination occurred in that particular locality, brought about by officers charged with the duty of selecting jurors. In this case that was not shown, as we understand the testimony. That negroes had not sat on juries seems to be a fact, but that they were discriminated against is denied, and they were not selected because they were not thought to be competent.

This evidence is of a most general nature; no specific matters are stated. We are of opinion that the point appellant makes, under the authorities an'd under this record, is not well taken.

The judgment is therefore affirmed.

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


text:
    PICKERELL v. STATE.
    (No. 4439.)
    (Court of Criminal Appeals of Texas.
    May 16, 1917.)
    Rape <&wkey;'ol(l) — Sueeiciency oe Evidence.
    Evidence held insufficient to sustain a conviction of rape.
    [Ed. Note.' — Eor other cases, see Rape, Cent. Dig. § 71.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    E. E. Pickerell was convicted of rape, and appeals.
    Reversed and remanded.
    J. W. Crudgington, C. E. Gustavus, and Reeder & Dooley, all of Amarillo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged by indictment with rape by force, threats, and fraud. As there was no evidence of threats and fraud, those issues passed out of the ease. The court submitted the theory of force, as well as assault with intent to commit rape.

The evidence for the state is shown by the prosecutrix. She was a girl about 18 years of age, and at her request was employed by appellant as a clerk in his jewelry store. In this jewelry store was a Mr. Truelove, who was the watch repairer. She began work for appellant in August, 1915. She says that on a certain Saturday night about November, 1915, appellant, in the back room of his jewelry store, after working hours, had carnal intercourse with her over her objections and resistance. The details of the matter would serve no useful purpose. It is sufficient to say that under her testimony the jury might have been justified in convicting of rape by force. Her testimony makes a case of rape by force, or at least actual sexual intercourse against her will and over her protests and resistance. He denied the transaction in toto. His evidence is to the effect that on several occasions she tempted him, laying her head on his shoulder, putting her arm around his neck, and other acts of affection, and finally by sitting in his lap, after working hours and the store had closed, and that on the last-mentioned occasion he placed his hand on her breast. She immediately unbuttoned her dress and exhibited her breast to him. He then made an agreement to have sexual intercourse, but about the time they began to get ready a light was flashed in the store, and they became a little uneasy for fear they were being watched. Thinking perhaps later that it was accidental, they again began to prepare for the act, and the light flashed again. They then abandoned the store, and undertook to secure a place at an assignation house. He says this was declined, and their project was abandoned. He denied altogether ever having intercourse with the girl at any time or place.

Truelove testified that on one occasion in the store, in the absence of appellant, the girl pulled up her dress and threw her leg over his lap in a tempting way. Supposedly like Joseph of Bible fame, he did not fall into the temptation. The girl testified that in December appellant ravished her again under the same circumstances, and again in January, 1916; that he did not undertake it again, and those were the three acts of intercourse between them. She began work, as before stated, in August, 1915, and severed her connection with the store in June, 1916. There is quite a lot of testimony of her familiarity with traveling men, and in a way that reflected upon her reputation for chastity. Finally she disappeared from Amarillo, and her mother, after employing the services of a detective or policeman, located her in Oklahoma. Upon getting her home, her mother, who lived in Oklahoma, discovered the pregnancy of prosecutrix. She became very much outraged and humiliated, and demanded an explanation, which the girl gave by stating that she had been seduced by one Claude Powell in June, 1916. Returning from Oklahoma to Amarillo with her daughter, they preferred a charge for seduction against Claude Powell about the 21st of October, 1916. The girl at that time was something like four or five months advanced in pregnancy.

At the examining trial the prosecutrix testified that Claude Powell had seduced her under a promise of marriage, and by reason of that promise had intercourse with her on more than one occasion, resulting in her pregnancy; that he was the first and only man who ever had intercourse with her. After her testimony in the examining trial her mother was made aware of the fact tliat there were rumors to the effect that she had not been chaste, and, among others, connected appellant’s name with her in a compromising way. She was also told at that time that this would prevent conviction of Powell. She approached the daughter in reference to it, who then stated that appellant had enticed or tempted her, indicating that he had not had intercourse with her, but had aroused her passions to the extent that she subsequently fell into disgrace with Powell. However, later she stated to her mother that appellant had outraged her, and this occasioned her subsequent going wrong. Her mother then had the matter investigated by the grand jury, and this indictment was returned, and also one was returned against Powell for adultery. Her mother was informed of the fact, if there had been previous intimacy between prosecutrix and other men, Powell could not be convicted for seduction. There is testimony indicating that she demanded damages or pecuniary remuneration from Powell on account of his conduct with her daughter, but when the matter came up with reference to appellant, then the question came as to the fact that appellant should' pay her $2,000. There is a conflict in the testimony as to whether she made the proposition, or he did, with reference to the $2,-000. Nothing came of it, it seems, and the prosecution was' carried on. She seems to have agreed to leave the state, and carry her daughter off, if the $2,000 was paid.

The record of the testimony is very voluminous. It would serve no useful purpose to burden the opinion with the facts. After a careful review of the case, we are impressed with the fact that this conviction should not have been obtained on the testimony. There are many errors pointed out in the record by bills of exception to the court’s charge and refusal to give special instructions. These will not be discussed, in view of the fact we think the evidence does not support the conviction.

The judgment is reversed, and the cause remanded.

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


text:
    MILLER v. STATE.
    (No. 4317.)
    (Court of Criminal Appeals of Texas.
    May 16, 1917.)
    1. BURGLARY <&wkey;2S(5) — INDICTMENT—REQUISITES.
    Pen. Code, art. 1303, provides the offense of burglary is constituted by entering a house by force, or fraud at night, or by entering a house at any time, and remaining concealed therein, with the intent in either case of committing a felony. Article 1304 provides he is also guilty ■of burglary who, with intent to commit a felony or theft by breaking, enters a house in the daytime. Article 1305 provides that the offense of burglary of a private residence is constituted by entering a private residence by force or fraud .at night, or in any manner by entering a private residence at any time, and remaining concealed' therein until night, with the intent in either case of committing a felony. Article 1312 provides the punishment for burglary of a. private residence shall be by imprisonment in the penitentiary for any term of years not less than five. Article 1313 provides nothing in articles 1305 and 1312 shall be construed to alter or in .any manner repeal articles 1303 and 1304, nor any part thereof, but shall be construed to make burglary of a private residence at night a separate and distinct offense from burglary, as defined in articles 1303 and 1304. Held that, the statute with reference to burglary of a private house being independent and separate, the ordinary burglary indictment will not support a conviction for breaking a private residence, nor will an indictment .for breaking a private residence sustain a conviction for any other burglary.
    [Ed. ' Note. — For other cases, see Burglary, Cent. Dig. § 71.
    For other definitions, see Words and Phrases, First and Second Series, Burglary.],
    ■2. Criminal Law (&wkey;814(l) — Instructions— CoNEORMITY TO INDICTMENT.
    The charge of the court must follow the g.1legations in the indictment and submit only'for the consideration of the jury such allegations.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1980.] .
    3. Burglary <&wkey;28(3) — Indictment>-Re¡qui-SITES.
    Nighttime burglary of a private residence being a separate offense from’ other burglaries, an indictment must conform to the definition and charge a private residence burglary at night with a purpose or intent of committing a felony or theft, and shooting into a house to injure it does not charge a felony.
    [Ed. Note. — For other eases, see Burglary, Cent. Dig. § 69.]
    4. Burglary <&wkey;9(2) — Statutes—Construction.
    Pen. Code, art. 1307, defining “entry” as used in burglary, is not to be read into articles 1305, 1312, and 1313, as to burglary of a private residence.
    5. Burglary &wkey;>3 — Breaking oe Private Residence — Elements.
    Breaking a house for the purpose of engaging in a fist fight or committing a misdemeanor, except the crime of theft, would not be within the contemplation of the definition of burglary of a private residence at night.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 24-27.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Martin Miller was convicted of an offense, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Jos. V. .Ffnka, of Columbus, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment charges that appellant did unlawfully by force, and at night, discharge firearms, to wit, a gun, into the house of Walter Hill with the intent to injure him, the said Walter Hill, who was then and there in said house; the said house being then and there occupied and actually used by the said Walter Hill as a private residence, against the peace and dignity of the state.

It will be seen from the allegations that the pleader was undertaking to charge a violation of the statute which prohibits burglary at night of a private residence.

The statute provides that the punishment for this offense shall not be less than five years, fixing no maximum. The indictment is assailed in various ways, but substantially that it does not charge the elements of burglary of a private residence. Article 1305, Revised Penal Code, reads as follows:

“The offense of burglary of a private residence is constituted by entering a private residence by force, threats or fraud, at night, or in any manner by entering a private residence at any time, either day or night, and remaining! concealed- therein until night, with the intent, in either case, of Committing a felony, or the crime of theft.”

It will be noticed this statute limits the offense intended to be committed to a felony or theft.

Article 1313 of the Penal Code provides:

“Nothing in articles 1305 and 1312 shall be construed to alter or in any manner repeal articles 1303 and 1304, nor any part thereof, but shall be construed to make burglary of a private residence at night a separate and distinct offense from burglary, as defined in articles 1303 and, 1304.”

Article 1303 punishes burglary when committed by entering a house by force, threats, or fraud at night, or by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or .the crime of theft.

Article 1304 punishes a daytime burglary by breaking with intent to commit a felony or theft.

So it will be seen that the statute with reference to burglary of a private house is an independent and separate offense from any other burglary. Branch, Crim. Law, § 159. The ordinary burglary indictment will not support a conviction for breaking a private residence, nor will an indictment for breaking a private residence sustain a conviction for any other burglary, either day or night, and this by express terms of the statute. The definition of a private residence is set out in article 1314 of the Penal Code. The decisions hold that daytime burglary of a private residence is not affected by the act of June 5, 1899, relating to burglary of a private residence at night, but is left as an offense under the old statute defining burglary of a house. Branch, Crim. Law, § 159. These cases are collated also by Mr. Branch in his valuable Annotated Penal Code, on page 1289 and section 2354. It is also held that, where a private residence is burglarized in the daytime, it is an ordinary burglary, and punishment therefor is the same as for ordinary burglary. These cases are collated in the same section; and it is also the law that burglary of a private residence at night is a separate and distinct offense from the burglary at night of a house other than a private residence as defined by article 1303 of the Penal Code, and is a separate and distinct offense from burglary committed in the daytime by breaking and entering a house, whether a private residence or not, as defined by article 1304 of the Penal Code. Sustaining this, Mr. Branch, in the same note, has collated a great number of authorities. It was also held in Jones v. State, 47 Tex. Cr. R. 128, 80 S. W. 530, 122 Am. St. Rep. 680, and Martinus v. State, 47 Tex. Cr. R. 528, 84 S. W. 831, 122 Am. St. Rep. 709, that where the proof shows, without controversy, burglary of a private residence at night, a conviction for ordinary burglary will be set aside; the two offenses being separate and distinct. It was also held in the Jones Case, supra, and Rodgers v. State, 59 Tex. Cr. R. 146, 127 S. W. 834, that, where the proof shows there was a burglary of a private residence at night, the court should not charge ordinary burglary. Of course, the charge of the court must follow the allegations in the indictment, and submit only for the consideration of the jury such allegations.

We are cited to the cases of Garner v. State, 31 Tex. Cr. R. 22, 19 S. W. 333; Rail-ey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576; Windham v. State, 59 Tex. Cr. R. 369, 128 S. W. 1130; and Gradington v. State, 69 Tex. Cr. R. 595, 155 S. W. 210-in support of the sufficiency of the indictment and the ruling of the court in sustaining it. All of these cases, except Railey v. State, charged that the burglary was committed with the intent to commit a felony, but none except the Windham Case were charged as private residences. The Wind-ham Case was burglary of a private residence at night with the intent to commit murder, which was a felony. The Railey Case was a burglary under the daytime statute, and he was charged with shooting into a house with intent to injure; the other cases with intent to commit a felony. The Rail-ey Case, supra, is not in point in this ease under terms of the statute. It alleged a daytime burglary — not a nighttime burglary of a private residence. The statute makes these distinct and different offenses, and the decisions all hold that a conviction for daytime burglary cannot be had under an indictment charging a nighttime private residence burglary, and vice versa. So the Railey Case is not authority here. The Railey Case holds that article 841 was “but an addition to articles 838 and 839,” and thereby read article 841 into articles 838 and 839. A private residence night burglary, is an entirely new and distinct offense, and old articles 838 and 839 (now 1303 and 1304) should not be read into these articles creating night burglary of the residence. They have no application to night burglary of a private residence.

If the statute is upheld as the language imports, then, a nighttime burglary of a private residence being a distinct and separate offense from other burglaries, the allegations must conform to the definition, and in order to do so it must charge a private residence burglary at night with the purpose or intent of committing a felony or theft. Shooting into a house to injure does not charge a felony. If the proposition is to be maintained correctly under the language of intent to injure, then any shooting into a private residence at night would be a violation of the burglary law, the other ingredients being present, whether it was a felony or not. The writer has never so understood the law to be, not even under the opinion in Railey v. State, supra. Inasmuch as the statute defining burglary of a private residence limits it to nighttime and the intent to commit a felony or the crime of theft, it occurs to the writer that under that statute in order to constitute this offense the indictment must charge nighttime burglary for the purpose of committing some felony or theft. It would not do to say, under that statute, that to commit a misdemeanor would be a violation of that statute, unless it be theft.

Article 841, now 1307, is not a part of nor to be read into article S39a, now 1305, and articles , 1312 and 1313. Breaking a house for the purpose of engaging in a fist fight or committing a misdemeanor, except the crime of theft, would not be within the contemplation of the definition of burglary of a private residence at night. There must be the purpose to commit a felony or the crime of theft. Therefore it occurs to the writer that this indictment does not charge a burglary under the private residence statute, and the motion should have been sustained, and the indictment quashed. •

The judgment therefore will be reversed, and the prosecution ordered dismissed.
      ©=»For other eases see same topic and-KEY-NUMBERin all Key-Numbered Digests and Indexes


text:
    STATE ex rel. NICHOLSON, County Judge, et al. v. HUMPHRIES, District Judge, et al.
    (No. 4327.)
    (Court of Criminal Appeals of Texas.
    May 16, 1917.)
    Prohibition <@=313 — Scope of Review.
    Where application for writ of prohibition to prevent interference with enforcement of statute was granted and temporary writ issued, but before the hearing on the permanent writ was given the statute had been declared void, it was unnecessary to consider the questions involved on the application, and it would be dismissed.
    [Ed. Note. — For other cases, see Prohibition, Cent. Dig. § 62.]
    Prohibition by the State, on the relation of A. 0. Nicholson, County Judge, and others, against Hugh L. Humphries, District Judge, and others.
    Proceeding dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This proceeding was filed in the Court of Criminal Appeals by A. C. Nicholson, county judge of Collingsworth county, and others, charging that Hugh L. Humphries, judge of the district court of the Forty-Seventh judicial district of Texas, had issued a writ of injunction restraining the relators, including the county judge, county attorney, and sheriff of Collingsworth county, from proceeding against Wiles & Cunningham, a partnership composed of Dick Wiles and John Cunningham, for violating the provisions of chapter 74 of the Acts of the Thirty-Third Legislature, known as the “Pool Hall Law”; said relators seeking from this court a writ of prohibition commanding the said Hugh L. Humphries, judge of the Forty-Seventh judicial district, to take no further proceeding in the said injunction matter.

On' presentation of the petition to this court on December 8, 1916, an order was issued as follows:

“The clerk will file and docket this petition. The writs prayed for are granted. The clerk will at once issue them as prayed, and also give notice to said parties to appear before this court in open session on January 3, 1917, to show cause why said parties should not be prohibited and said writs and older should not be perpetuated and made final. A. C. Prendergast, Presiding Judge.”

At a later date of the present term, in the case of Lyle v. State, which is reported in 193 S. W. 680, chapter, 74 of the Acts of the Thirty-Third Legislature was declared void, and in consequence of this decision it becomes unnecessary to consider the application in this case or further discuss any questions of practice involved.

It is directed that the order made in this cause December S, 1916, and copied above, be set aside, and this proceeding dismissed from the docket of this court.


text:
    CURFMAN et al. v. STATE.
    (No. 4472.)
    (Court of Criminal Appeals of Texas.
    May 16, 1917.)
    1. Bail <@=370 — Bond on Appeal — Authority op Court.
    After the adjournment of court in C. county, where a defendant was convicted, and while the same judge was holding court in another county, the judge had authority to approve a bail bond on appeal, since, when court adjourned in C. county, the court had no further jurisdiction to enter a recognizance in that county, and could not enter -one in that case while holding court in another county.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 287.]
    2. Bail <@=388 — Proceedings to Forfeit Bond — Citation.
    Under Code Or. Proc. 1911, art. 491, providing relative to a citation to show cause why the forfeiture of a recognizance, or bail bond should not be made final, that it shall contain certain requisites, including a statement, that the recognizance or bond has been declared forfeited, naming the court before which the forfeiture was taken, the time when taken,- and the amount for which it was taken, a citation which did not state the amount for which the forfeiture was taken was insufficient.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 376, 377.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Scire facias proceeding by the State against J. D. Curfman and others. From a final judgment, the defendants appeal.
    Reversed and remanded.
    Adams & Stennis, of Dallas, for appellants. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This appeal is prosecuted from a final judgment in a scire facias proceeding. The principal, H. W. Ferguson, was convicted of forgery. On appeal to this court that judgment was affirmed. Pending the appeal he gave an appeal bond. The case was affirmed and the mandate sent down. Upon receipt of the mandate the clerk issued a capias for the arrest of the principal, Ferguson. The judgment recites that he was not to be found, but had “run off.” Judgment nisi was entered and citation issued.

The appeal bond given by Ferguson to prosecute his appeal to this court was taken after adjournment of the court at which he .was convicted and while the same judge was holding court in Nacogdoches county. The sheriff and the judge both approved the bond. The court, as before stated, was not in session in Oherolsee county where the forfeiture occurred. We are of opinion that the proposition urged by appellants, that the judge had no authority to do this is not well taken. Had the court been in session in Cherokee county, the proposition would have been sound. When court adjourned in Cherokee county the court had no further jurisdiction to enter recognizance in that county, and he could not enter one in this case while he was holding court in Nacogdoches county. This is not like the case of Laird v. State, 184 S. W. 810, recently decided by this court, .and it is thought unnecessary to discuss that case and the difference between that and this case.

The judgment nisi seems to have been reasonably in accord with the law. The citation was issued and served upon all of the sureties, perhaps, but one, and was not served upon the principal. It seems under the law it is not necessary to serve the, principal. The case as to the surety not served was dismissed.

The main proposition and one it seems to us to be .well taken is appellants’ attack in their answer on the citation. The citation recites the fact that appellants entered into an appeal bond, naming the sureties, in the sum of $2,500, conditioned that the defendant, who stands charged with the offense of forgery, a felony, and who had been convicted of the offense of forgery on the 5th day of February, 1916, shall appear before the court from day to day and term to term, and that on the 27th day of June, 1916, before the district court of Cherokee county then in session, defendant was called to abide a judgment of affirmance in 'the cause by the Court of Criminal Appeals, but he failed to appear and answer, and his bond was forfeited. It was further ordered that the judgment be made final, unless good cause should be shown at the next term of the court why the defendant did not appear. Then follows the commands to the sheriff to summon the sureties to appear before the district court of Cherokee county at its next term to be begun and holden on the 11th day of December, 1916. This is the citation.

The answer set up: First, that the defendants excepted generally to the citation, bond, and judgment nisi because same fail to state a cause of action against these defendants, or either of them; second, for answer these defendants deny each and all the allegations by the state and call for proof of same. The third ground of the answer is to the effect that the bond was illegal because it was executed by the principal and sureties after an alléged conviction of the principal in the district court of Cherokee county-, and the bond was executed while the court was in regular session in another county, and not in vacation, and was not executed in open court, and was not approved by this court, and said bond was invalid and a nullity, and should be held for naught. The fourth ground sets up the fact that the sureties have been diligent in their efforts to bring before the court the principal, H. W. Ferguson.

We are of opinion that appellants’ contention should have been sustained with reference to the citation because it is not in compliance with the statute. Article 491 of the Code of Criminal Procedure provides that the citation must contain seven requisites. The fifth ground or requisite of that article is the one upon which appellants rely. It is in the following language:

“It shall state that such recognizance or bail bond has been declared forfeited, naming the court before which the forfeiture was taken, the time when taken, and the amount for which it was taken against each party thereto.”

The sixth requisite is it shall notify the sureties to appear at the next term of the court and sho\y - cause why the forfeiture should not be made final. Recurring to the citation, it will be noticed that the amount for which the forfeiture was taken is not stated in the citation. The statute so requires it. It was not done. The citation serves the double purpose of a petition and a citation, and, of course, must set out all the necessary matters to be adjudicated when the parties are brought into court. Cowen v. State, 3 Tex. App. 380; Brown v. State, 43 Tex. 349. That the citation must set out the amount of the judgment rendered, see article 491, C. C. P., already mentioned. State v. Cox, 25 Tex. 404. This has been the rule both by statute and decision in the history of our Code of Criminal Procedure. These matters were pretty thoroughly investigated in these different cases, and it is thought not necessary to collate a greater number of them. The general denial puts in issue all material and issuable allegations in the citation. Short v. State, 16 Tex. App. 44; Houston v. State, 13 Tex. App. 560; Holt v. State, 20 Tex. App. 271; Baker v. State, 21 Tex. App. 359, 17 S. W. 256. That the citation performs the double office of petition and citation many cases might be cited, but see Arrington v. State, 13 Tex. App. 554; State v. Cox, 25 Tex. 404; Brown v. State, 43 Tex. 349; Goodin v. State, 14 Tex. App. 443. Appellants’ contention should have been sustained in the court below, and a new legal and proper citation issued.

The judgment .will be reversed, and the cause remanded. '
      ©soFor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes