author: FLY, C. J.

text:
    SAN ANTONIO & ARANSAS PASS RY. CO. v. SCHAEFFER.
    (No. 5837.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 11, 1917.
    Rehearing Denied May 2, 1917.)
    1. Railroads <¿=>348(1, 6) — Crossing Accidents — Evidence—Juey Question.
    In an action for damages to an automobile struck at a crossing by defendant’s locomotive, evidence held to warrant a finding that defendant was negligent, and that the driver of the motor car was not contributorily negligent.
    [Ed. Note. — For other cases, see Railroads, Cent.'Dig. §§ 1138, 1140, 1141,1144,1149.]
    2. Appeal and Error <©=>207 — Presentation oe Grounds oe Review in Court Below— > Necessity.
    Defendant, who failed to move to exclude improper argument which was excluded on motion of plaintiff, cannot attack the verdict on appeal on the ground that it was the result of passion and prejudice, particularly where it also in claiming that plaintiff was contributorily negligent pointed out that the jury must have been convinced of that fact as they awarded only one-half of the damages proven.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1500.]
    Appeal from Bee County Court; T. M. Cox, Judge,
    Action by A. R. Schaeffer against the San Antonio & Aransas Pass Railway Company. From, a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 179 S. W. 540.
    Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. John Baker, B. D. Tarlton, Jr., and H. S. Bonham, all of Bee-ville, for appellee.
   FLY, C. J.

This is a suit instituted by ap-pellee to recover damages to an automobile Which came into' collision with a locomotive belonging to appellant. The cause was tried by jury, and resulted in a verdict in favor of appellee for $500.

The evidence showed that a car of appellant stood on the side of a crossing on a street in the town of Beeville; that it projected perhaps half its length into the street; that it obscured the main track so that a train’ or locomotive moving along it towards the south could not be seen. The driver of appellee’s automobile came across the side track on which the car was standing, going in an easterly direction, and as he ran around the end of the projecting car a locomotive pushing a flat car darted out in front of him, on the main track, and although he had released his .clutch and put on his brakes the momentum of the automobile carried it into and against the locomotive, and the automobile was wrecked. The chauffeur swore that he looked and listened before he ran around the end of the car, and neither saw nor heard the locomotive. The automobile was moving at a speed of about eight miles an hour when it went around the car projecting into the crossing. The cars on the siding track obscured the main track toward the north, and the occupants of the automobile could not see the approaching locomotive and car until they ran out in front of them. The occupants of the car, two persons, did not see or hear the approaching locomotive and car until they were crossing the side track about nine feet from the main track, when the car suddenly appeared. Every effort was made to stop the automobile, but it could not he done. No whistle or hell was heard by the two persons in the car.

The jury was justified in finding that-the accident was the proximate result of the placing of the cars on the siding so as to obstruct the view of persons using the street, and the running of the locomotive at a rapid rate of speed on a street in a town, without keeping watch at crossings, and that the driver of the automobile was not guilty of contributory negligence. The evidence showed that after the driver of the automobile discovered the car, rapidly pushed by the locomotive, he used every means,to stop the automobile. * The cars on the siding were placed In such a position as to make it impossible for persons approaching the main track from the west to see a locomotive moving on the main track from the north. The train was moving too swiftly for the situation on a street in a large town. Warning should have been given the occupants of the automobile of the approach of the locomotive and car. It was not shown that the noise of the “cut-out” on the automobile prevented the driver from hearing the locomotive. Although a conductor was walking about near the crossing he seemed to keep no watch for approaching vehicles, and made no effort to warn them, although he was close to the crossing and had a clear view of the street along which the automobile was running. He pretended to he guarding the crossing. He was charged with knowledge of the dangers of the crossing, but failed to,keep a proper outlook. These conclusions of fact dispose of the first, second, third, fourth, and fifth assignments of error.

The verdict does not evidence any prejudice or passion on the part of the jury, although under the sixth assignment of error it is contended that the passion and prejudice of the jury were aroused by the remarks of counsel for appellee. In another portion of the brief, however, in endeavoring to show that the jury was convinced of the contributory negligence of appellee’s chauffeur, it is argued that the jury found for a little more than half of the damages proved by appel-lee. The language , of which complaint is made was, although strong, justified by the facts. Appellant placed its car in the street, obscuring the vision, in at least one direction, ^of those using the street. There was considerable argument objected to according to the bill of exceptions, but the only language of which complaint is made in this court is that stating that appellant had robbed the city of a part of the street crossing. That language was promptly withdrawn from the jury, and they were instructed by the court not to consider it. Appellant made no effort to have the remarks of counsel excluded from consideration, But it was done at the request of counsel for appellee.

The judgment is affirmed.
      <gs?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    COHN v. SAENZ et al.
    (No. 5835.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 18, 1917.)
    1. Judges @=>15(1) — Special Judges — Authority.
    Acts 34th Leg. c. 45, authorizing appointment of a special judge where sickness or other reasons render it impossible for the disqualified judge to exchange with a regular judge, permits an appointment only when the exchange is impossible in fact.
    [E'd. Note. — Eor other cases, see Judges, Cent. Dig. §§ 48-50.]
    2. Judges @=>15(1) — Special Judges —Authority.
    Under Acts 34th Leg. c. 45, authorizing appointment of a special judge when a disqualified judge finds it impossible to exchange with a regular judge, the disqualified judge’s conclusion that it was impossible to exchange is not conclusive, and his desire to try other cases is not a reason rendering an exchange impossible.
    [Ed. Note. — Eor other cases, see Judges, Cent. Dig. §§ 48-50.]
    3. Judgment @=⅞ — Special Judges — Validity oe Acts.
    Where the appointment of a special judge was unauthorized, orders made by him, including a judgment based thereon, were void.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Action by Rufino Saenz and others against M. D. Cohn. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    J. O. Scott, of Corpus Ohristi, and W. W. McCampbell, of Alice, for appellant. Jas. M. Taylor, of Corpus Christi, and Jno. A. Pope, of Laredo, for appellees.
   SWEARINGEN, J.

This is a suit by ap-pellees against appellant to recover damages for personal injuries suffered by Josefina Saenz, the wife of Rufino Saenz, ■

The case was tried with a jury and with a practicing attorney, appointed for the trial of this cause by the Governor, after notice that the regular judge was disqualified by reason of having been previously one of the counsel for one of the parties to the litigation, and that the parties could not appoint a special judge by agreement. No effort was made to order an exchange of districts by judges of adjoining districts, for the reason that the regular judge of the district having venue of this cause notified the Governor that an exchange would be impossible. The jury returned a verdict in favor of appellees for $5,350, upon which judgment was rendered.

The first assignment of error attacks the authority of the special judge to preside.

When a judge of the district court is disqualified to try any cause because of having been of counsel for one of the parties to the cause, and the parties to the suit cannot appoint a proper person to try the case by consent, the Constitution (article 5, § 11) provides that a competent person may be appointed to try the same in such manner as may be prescribed by law; and the same section of the Constitution further provides that district judges shall exchange districts and hold court for each other when required by law. Authorized by the above constitutional provision, and for the purpose of carrying it into effect, the Legislature enacted the law relating to disqualification of district judges. Chapter 45, p. 86, General Laws of Texas, 34th Leg. 1915. There is no other law that can confer authority upon a person to act as special judge in Texas except the one above mentioned. This law requires that some district judge in an adjoining district exchange districts with the disqualified judge and try the case. This is mandatory. No person can be empowered to sit in the place of a regular judge who is disqualified and try a case unless sickness or other reasons render it impossible for the disqualified judge- to exchange with a regular judge of an adjoining district — only when the exchange is impossible in fact. Whether or not, in fact, an exchange is impossible can be inquired into.

The conclusion of the disqualified judge that it was impossible to exchange is not conclusive. The evidence in the present record show^s that the reasons which the disqualified judge concluded were sufficient to render the exchange impossible were that he desired to try other cases than the one at bar at .that term. Without undertaking to define the -word “impossible,” as used in this law, or to give illustrations of what the word, as used, does mean, we are of the opinion that the desire of the disqualified judge to try other causes pending before him is not a reason that renders the exchange of districts impossible, and the conclusion of the disqualified judge that it did, cannot, and does not, authorize the Governor to confer the power of a special district judge upon the practicing attorney who presided over the trial of this cause, splendid and upright lawyer though he is, as the members of this court personally know.

The special judge having no power of a district judge every order made by him, including the judgment, is void. Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 376; Pickett v. Michael, 187 S. W. 426; Dunn v. Home Nat. Bank, 181 S. W. 700; Miller v. State (Tex. Cr. App.) 91 S. W. 582; Summerlin v. State, 69 Tex. Cr. R. 275, 153 S. W. 892; Abrams v. State, 31 Tex. Cr. R. 449, 20 S. W. 987.

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


author: DUNKLIN, J.

text:
    RHOME MILLING CO. v. GLASGOW.
    (No. 8525.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 17, 1917.
    Rehearing Denied April 21, 1917.)
    1. Master and Servant <§=>278(5) — Injury to Servant — Evidence—Sufficiency.
    In a gin _servant’s action _for injuries caused by blow on head from a pulley detached from its fastenings by tightening of belt which caught and wound around line shaft on floor below, alleged to have been caused by. negligent use of wooden wedge to tighten pulley on line shaft, evidence held to show negligence in use of such wedge.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 961.]
    2. Master and Servant <§=3276(4) — Injury to Servant — Evidence—Sufficiency.
    Evidence held to sustain a jury finding that defendant’s negligence was the proximate cause of plaintiff’s injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959.]
    3. Master and Servant <§=3276(4) — Injury to Servant — Evidence—Sufficiency.
    Evidence held to sustain a jury finding that the Wedge or key caused the belt to wind and catch on the line shaft, and that it would not have so caught but for the presence of the wedge.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959.]
    4. Trial <®=>260(S) — Action for Injuries — Special Issues.
    A given instruction ’ as to the meaning of negligence as used in the special issue “that it was the duty of defendant to exercise ordinary care to keep its belts, pulleys, and line shaft in-a reasonably safe condition, so as to avoid injury to plaintiff, and if it failed of such duty, such failure would be ‘negligence,’ and if you believe from a preponderance of the evidence that it failed of such duty you will answer issue No. 3 in the affirmative, and if you do not so believe from the evidence you will answer said issue in the negative,” was as comprehensive as a refused requested instruction, “You are instructed that, in considering and answering issue No. 3 given you in the main charge, the term ‘negligence,’ as there used, means the doing of something that a person of ordinary care-would not have done under the same or similar circumstances or the failure to do something that a person of ordinary care would have done under the same or similar circumstances,” and hence the refusal was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 657.]
    5. Appeal and Error <§=3230 — Preservation oe Ground oe Review — Objections — Issues.
    Under direct provisions of Vernon's Sayles’ Ann. Oiv. St. 1914, art. 1971, an objection to-submitted special issue not urged at the trial, but urged for first time in motion for new trial was waived.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. § 681.]
    6. Appeal and Error <§=1062(1) — Review— Harmless Error — Issues.
    As the only finding on the special issue as to defendant’s negligence was that it was negligence to permit the wedge to be in the position-it was, that portion of the submitted special issue relating to the duty of the defendant concerning the condition of the belts and pulleys was rendered abstract, and was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 4212.]
    7. Master and Servant <§=3270(1) — Injury to Servant — Evidence— Sueeicienoy.
    Evidence held to sustain a jury finding that it was not one of plaintiff’s duties to see that the machinery was kept in a proper state of re- , pair.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950, 954.]
    8. Master and Servant <§=3280 — Injury to Servant — Evidence—Sueeioiency.
    Evidence held to sustain a jury finding that the catching of the belt on the line shaft was not an ordinary incident of such a gin which was known to plaintiff and the risk of which was assumed by him.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 981, 9S6.]
    9. Trial <§=3351(5) — Issues—Submission—Requests.
    The special issue submitting the defense of contributory negligence being a fair presentation of the question, there was no error in refusing the further issue requested by the defendant upon the same defense.
    [Ed. Note. — For other cases, see Trial, Cent.. Dig. § 834.]

      Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Suit l>y J. W. Glasgow against the Rhome Milling Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    R. E. Carswell and L. D. Ratliff, both of Decatur, for appellant. McMurray & Gettys, of Decatur, and H. E. Lobdell, of Bridgeport, for appellee.
   DUNKLIN, J.

J. W. Glasgow, while employed as a laborer in tire gin of the Rhome Milling Company, sustained personal injuries, and instituted this suit to recover damages therefor. A trial before a jury resulted in a verdict and judgment in plaintiff’s favor for the sum of $1,500, from which the Rhome Milling Company has prosecuted this appeal.

On the lower floor of the gin was a line shaft. A belt around a pulley upon this line shaft extended to the upper floor and around a pulley at the end of another shaft which turned the condenser situated on the second floor. The power for the operation of the gin was applied to the line shaft on the lower floor. While plaintiff was attending to the operation of the condenser it became choked with cotton, and this caused the belt to be thrown from the condenser pulley, and as the belt dropped it also ran off the lower line shaft pulley and onto the lower line shaft itself. Plaintiff then un-choked the condenser and replaced the belt upon the condenser pulley. When he did this the belt became so wrapped on the line shaft below as to become taut ■ and to jerk from its fastenings the condenser pulley, and as that pulley fell it struck the plaintiff upon the head and injured him.

In his petition he alleged that the pulley on the lower line shaft was improperly adjusted, in that it fitted too loosely, and that in order to tighten it a key or wedge of wood had been driven in between the line shaft and the pulley, and that one end of such wedge had been allowed to extend for several inches along the line shaft, and that on the occasion of the accident the belt caught on the protruding end of that wedge, and thereby became so entangled as to cause the belt to jerk from its fastenings the condenser pulley as a result of which plaintiff was injured. It was alleged that the act of the defendant in leaving the end of the wedge protruding, as it was, along the line shaft in such a manner that the belt when it slipped off the line shaft pulley would come in contact therewith and catch thereon was negligence, which was the proximate cause of plaintiff’s injuries.

The evidence shows that the wedge driven under the pulley on the line shaft was put in by Kaker, the defendant’s manager, and the jury found that the defendant was guilty of negligence in permitting the same to be in that condition at the time of the ae-cident, and that such negligence was the proximate cause of plaintiff’s injuries.

Appellant insists that the evidence was insufficient to support the jury’s finding of negligence, or the finding that such negligence wias the proximate cause of plaintiff’s injuries, or the finding that the wedge or key caused the belt to wind and catch on the line shaft, and that it would not have so caught but for the presence of the wedge. The evidence shows without contradiction that immediately after the accident the belt was found wound tightly around the lower line shaft, layer upon layer, until it formed almost a perfect disk which covered the wedge, that the belt was three inches in width, and that the wedge protruded three or four inches beyond the outer edge of the pulley on the line shaft. The evidencel further shows, that the slipping of the belt from the condenser pulley would happen whenever the condenser became choked, that but for such slipping the cogs of the condenser would be broken, and that the machinery was so designed as to allow the belt to be so thrown whenever the condenser, became choked, in order to save such injury to the machinery. Appellant has cited the testimony of several witnesses tending strongly to show that the entangling of the belt on the lower line shaft was not caused by catching upon the wedge driven under the pulley, but that the accident resulted from the lapping or folding of the belt after slipping from the two pulleys in such manner as to cause it to wind tightly around the lower shaft. The evidence cited by appellant tends strongly to show further that, if the belt did catch upon the wedge used to tighten the pulley on the line shaft, no xierson of ordinary prudence could have foreseen such a result. But, according to other testimony, the line shaft had a smooth surface; that during a long period of the operation of the gin prior to the placing of the wedge under the line shaft pulley the belt had never wound around the line shaft before the accident, although the slipping of the belt from both of the pulleys was a common occurrence. Furthermore, the witness Black .testified that he examined the belt immediately after the accident and found it wound so tightly that he had to prize it off with ,a plank, and, when he did so, he found a scar on the belt which showed “that it had been hung on the wooden key.” He further testified as follows:

“I noticed, the wooden key then. The key caught the belt after it slipped off the pulley and caused a tightening of the belt which resulted in, throwing the condenser pulley, boxing and bolts through the wood. The belt was wrapped around the line shaft and on top of the wooden key doubled over the wooden key. * * * The wooden pin was about a quarter of an inch thick, and was of hard wood, and I don’t know how much of it was hidden under the pulley, but there was about three or four inches of it sticking out and protruding along the line shaft. I unwound the belt from the line shaft. * * * There was about four or five feet of the belt wrapped around the shaft. The belt was scarred, and I think had to be replaced on account of the lacing being stretched.”

The testimony of Black, in connection with the facts related ahoye, was the only proof offered by the plaintiff to show that the belt did catch upon the wooden pin and thereby cause the accident, and while there was other testimony tending to discredit him, it was within the province of the jury to accept his testimony as true. In view of such proof all assignments presenting the contentions above stated are overruled.

Following is issue No. 3 submitted by the court to the jury:

“Was it negligence on the part of defendant to permit said wooden key to be and remain in the position it was in on the occasion in question? Answer ‘Yes’ or ‘No.’ In this connection I instruct you that it was the duty of defendant to exercise ordinary care to keep its belts, pulleys, and line shaft in a reasonably safe condition, so as to avoid injury to plaintiff, and if it failed of such duty, such failure would be ‘negligence,’ and if you believe from a preponderance of the evidence that it failed of such duty you will answer issue No. 3 in the affirmative, and if you do not so believe from the evidence you will answer said issue in the negative.”

Appellant assigns error to the refusal of the following requested instruction:

“You are instructed that, in considering and answering issue No. 3 given you in the main charge, the term ‘negligence,’ as there used, means the doing of something that a person of ordinary care would not have done under the same or similar circumstances or the failure to do something that a person of ordinary care would have done under the same or similar circumstances.”

The criticism presented as a basis for this assignment is as follows:

“The court nowhere in its charge defines negligence or instructs the jury what is meant by ordinary care.”

We are of the opinion that the explanation of what was meant by the term “negligence,” as used in the issue submitted by the court, was as comprehensive as that given in the requested issue, with the added advantage of its specific application to the facts of the case.

Appellant complains further of issue No. 3 submitted by the court upon the ground that, as the negligence charged in plaintiff’s petition was the act of maintaining the wedge between the pulley and the line shaft, there was no basis for the submission of any issue of negligence with respect to the condition of the belts and pulleys.

That objection was not urged upon the trial, of the cause, but is urged for the first time in appellant’s motion for a new trial; hence it was waived under and by virtue of the terms of article 1971, Vernon’s Sayles’ Texas Civil Statutes. See G., T. & W. Ry. Co. v. Dickey, 187 S. W. 184.

Besides, the only finding of the jury to that issue was that it was negligence on the part of the defendant to permit the wedge to be and remain in the position it was in on the occasion of the accident, and the remainder of the instruction in connection with that issue was in the nature of an abstract statement of the legal duty of the defendant with respect to such an appliance.

It is insisted, in effect, that the evidence shows conclusively that it was one of plaintiff’s duties under his employment to see that the gin plant and all of its machinery was kept in proper condition of repair, and that the finding of the jury in the negative upon that issue was without evidence to warrant it. There was testimony, direct and specific, that ICaker, the defendant’s superintendent, inserted the wedge between the pulley and the line shaft after the beginning of the ginning season, and that plaintiff knew nothing of it until after the accident happened; that at the time of the accident he was employed in operating the condenser and was not then engaged in looking after the repairs of the machinery, although he had been employed to assist ICaker, the superintendent, in such repairs before tbe beginning of the' ginning season of that year.

It is contended further that the evidence conclusively showed that the catching of the belt on the line shaft is an ordinary incident of the operation of such a gin, which was known to plaintiff, and the risk of which was assumed by Mm, contrary to the finding of the jury in the negative upon that issue. This assignment must be overruled, for, as stated already, there was testimony supporting the finding that the belt caught on the wedge, that it would not have caught but for the presence of the wedge, and that it 'ivas negligence to place and maintain the wedge therein, and there was no evidence tending to show that it was usual and customary to tighten the pulley on the line shaft in that manner.

The issue presented by the court submitting the defense of contributory negligence on the part of the plaintiff was a fair presentation of the question, and hence there was no error in refusing the further issue requested by the defendant upon the same defense.

Furthermore, we are unable to concur in appellant’s contentions that the findings of the jury upon the controlling issues in the case were so contrary to the overwhelming preponderance of the evidence as to show bias or prejudice on the part of the jury against the defendant, and thereby require a reversal of the judgment.

All assignments of error are overruled, and the judgment is affirmed.
      §=3For other oases see same topio and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    McBRIDE v. STATE.
    (No. 4443.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Ceiminal Law <&wkey;806(2) — *Trial—Instructions.
    Under the rule requiring the court to avoid repetition in its charge in a prosecution for an assault, it was not error to refuse to give more than one of three requested charges on the issue of self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1973.]
    2. Criminal Law <&wkey;1137(3) — Appeal and Error — Instructions.
    In a prosecution for assault, defendant could not, on appeal, complain of an instruction on self-defense given at his request, even though it was erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3009.]
    Appeal from Lee County Court; John H. Tate, Judge.
    John McBride was convicted of simple assault, and he appeals.
    Affirmed.
    Thos. W. Thompson, of Giddings, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from the judgment convicting appellant of simple assault and assessing his punishment at a fine of $5.

The prosecution was for aggravated assault with a knife, alleged to have been a deadly weapon. The injured party had in his possession a gun at the time of the difficulty, which gun was not loaded. The appellant was not aware of that fact, however, and cut the injured party with the knife. The facts raised an issue of self-defense, and the court in its charge failed to submit that issue. No exception, however, was reserved to the charge, but appellant submitted three special charges, each undertaking to present the issue of self-defense. One of them was given and the other two refused. Neither of the special charges accurately stated the law of self-defense. The court would not have been justified in giving more than one of them, because to have done so would have been violative of the rule which requires the court to avoid repetition in his charge. The special charge on self-defense which was given submitted the issue to the jury and directed an acquittal in the- event the jury found that appellant assailed the injured party to protect himself against real or apparent danger. Under these circumstances we cannot hold the trial court in error either in refusing the two special charges or in giving the one that he did submit-to the jury. Carbough v. State, 49 Tex. Cr. R. 454, 93 S. W. 738; Moxie v. State, 54 Tex. Cr. R. 529, 114 S. W. 375; Branch’s Ann. P. C. § 1946, p. 1089; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Vernon’s Ann. C. C. P., art. 743, p. 518, note 3, sub. 49.

Finding no reversible error in the record, it is ordered that the judgment of the lower court be affirmed.


text:
    NOLAN v. STATE.
    (No. 4447.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law <&wkey;958(3) — New Trial — Affidavit — Sufficiency.
    Whore defendant pleaded guilty, and error is assigned to failure to grant a new trial on the ground of newly discovered evidence that the watch stolen was worth less than $50, in the absence of a statement in the affidavit to support the motion of a sufficient reason for failure to produce the alleged new evidence at the trial, the appellate court is not authorized to order a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2399, 2400.]
    2. Criminal Law <&wkey;1144(18) — Appeai>-Re-view — Presumptions.
    Where it appears from an order overruling a motion for new trial that the court heard evidence as to an alleged agreement with the assistant district attorney that if appellant would plead guilty, no opposition would' be made to his application for a suspended sentence, and that on the trial there was a failure to comply with the agreement, in the absence of a bill of exceptions or statement of facts bringing such evidence before the appellate court, it will be presumed that the conclusion of the trial court that the allegation was not sustained was correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036.]

      3. Criminal Law <&wkey;1182 — Review—Record.
    As appellant’s assignments present no error, and no fundamental error appears in the record, the judgment of the lower court must be affirmed.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3202-3214.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Jesse Nolan was convicted of theft of a watch, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for theft of a watch, and on Ms plea of guilty his punishment was assessed at two years’ confinement in the state penitentiary.

There are no bills of exceptions, but in a motion for a new trial appellant relied up'on newly discovered evidence to the effect that the value of the watch was less than $50. Attached to the motion is what purports to be an affidavit of a witness who would testify that the value of the watch in his opinion was not more than $30. The jurat to the purported affidavit is not signed by any officer, but aside from that there is a failure to give any sufficient reason for the absence of the testimony on the trial. The indictment charged the value of the watch to be $65, and in the absence of a sufficient reason for failure to discover and produce the alleged new evidence at the trial this court would not be authorized to order a reversal on this assignment. Branch’s Ann. P. C. § 2490, p. 1348; Vernon’s Ann. O. O. P. art. 837, p. 779, and cases cited.

It is also stated in the motion for a new trial that appellant went to trial upon an agreement with the assistant district attorney that if appellant would enter a plea of guilty, no' opposition would be made to appellant’s application for a suspended sentence, and that the assistant district attorney agreed to explain to the jury the suspended sentence law in an impartial manner, and that on the trial there was a failure to comply with the agreement. This allegation of fact is not supported by either sworn, pleading or evidence so far as disclosed by the record. It appears from the order on the motion for a new trial that the court heard evidence, and in the absence of any bill of exceptions or statement of facts bringing the evidence thus heard before this court, the presumption must be indulged that the conclusion reached by the trial court that the .allegation was not sustained was correct.

Appellant’s assignments present no error, and, no fundamental error appearing in the record, the judgment of the lower court must be affirmed; and it is so ordered.
      <S=»For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    ARMENDARIZ v. STATE.
    (No. 4442.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law <&wkey;1090(19) — Appeal — Preservation oe Exceptions.
    The court on appeal cannot, in the absence of bill of exceptions or statement of facts, 'consider objections made only in the motion for new trial to the court’s charge and the introduction ctf some testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2804:, 3204.]
    2. Intoxicating Liquors <&wkey;208 — Illegal Sale — Information—Sufficiency.
    An information charging that on a certain day, defendant was the agent of another who was a licensed retail liquor dealer in a county other than where local option was then in force, and that accused unlawfully between 9:30 p. m. Saturday and 6 a. m. Monday following, opened the saloon and sold intoxicating liquors, is sufficient under Pen. Code 1911, art. 615, as amended by Acts 33d Leg. c. 75, defining the offense.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 228, 261.]
    3. Indictment and Information <&wkey;125(20)— Joining Charges — When Proper.
    Where several ways by which an offense may be committed are set forth in the same statute and they are embraced in the same general definition and arc punished in the same manner and to the' same extent and not repugnant to each other, they are no distinct offenses, but different phases of the same offense, and may be charged conjunctively in the same count.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 351.]
    4. Intoxicating Liquors <&wkey;223(5) — Illegal Sale — Elements oe Offense.
    Under Pen. Code 1911, art. 615, as amended by Acts 33d Leg. c. 75, defining the crime of keeping open a saloon on Sunday and stating several ways in which the offense may be committed, proof of any one way sustains conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig, § 273.]
    5. Criminal Law <&wkey;1144(13) — Appeal—Presumption.
    On appeal from conviction of keeping open a saloon on Sunday, where there is no statement of facts nor bill of exceptions, the court must conclusively presume that the state proved a violation of one or more of the phases of the offenses prescribed by Pen. Code 1911, art. 615, as amended by Acts 33d Leg. c. 75, under which the prosecution was brought.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, '3031.]
    Appeal from El Paso County Court; Adrian Pool,. Judge.
    Dick Armendariz was convicted of unlawfully keeping open a saloon on Sunday, and lie appeals.
    Affirmed.
    Weeks & Owen, of El Paso, for appellant. E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully keeping open a saloon on Sunday and fined $200.

There is no statement of .facts nor any bill of exceptions in the record. In his motion for new trial only does he complain of some parts of the court’s charge and the introduction of some testimony. These questions only thus attempted to be raised cannot be considered, in the absence of a bill of exceptions or a statement of facts. Hence it is unnecessary to here state them. The only question which is raised is the sufficiency of the complaint and information. The prosecution was under article 615, P. C., as amended by Act March 31, 1913, p. 141, which as to this offense is:

“EVcry person or firm having a license, who may be engaged in or who may hereafter engage in the sale of intoxicating liquors to be drunk on the premises (in any locality of this state other than where local option is in force) * * * shall close and keep closed their houses and places of business and transact no business therein or therefrom from and after nine thirty o’clock p. m. on Saturday until six o’clock a. m. of the following Monday of each week, and any such person or firm or his or their agent or em-ployé who shall open or keep open, or permit to open or permit to be opened or kept open, any such house or place of business, for the purpose of traffic or who shall sell or barter any intoxicating liquor of any kind, or who shall transact or permit to be transacted therein or therefrom any such business between the hours aforesaid shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than fifty dollars nor more than two hundred dollars or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment.”

The information is based upon and follows the complaint. After tbe usual and proper preliminary allegations, the information avers that on or about August 13, 1916, and before the filing thereof, appellant “was then and there the agent of C. E. James, who was then and there a retail liquor dealer, having a license as such, and being then and there engaged in the sale of intoxicating liquors to be drunk on the premises, said premises being situated in the city and county of El Paso, Tex., said city and county of El Paso being a locality in this state other than where local option was then and there in force, and did then and there unlawfully between the hours of 9:30 o’clock p. m., Saturday, August 12, 1916, and 6 o’clock a. m., Monday, August 14, 1916, open, and permit to be kept open, the said place of business for the purpose of traffic, and did then and there barter and sell intoxicating liquors, to wit, whisky and beer in quantities of one gallon and less, and did then and there transact and permit to be transacted therein and therefrom such business, against the peace and dignity of the state.”

A comparison of this pleading with the said statute shows that it was strictly in accordance therewith, and unquestionably sufficient to charge a violation thereof of all the several matters made an offense under the statute, and was clearly sufficient.

It is well established that where several ways by which an offense may be committed are set forth in the same statute and they are embraced in the same general definition and are punished in the same manner and to the same extent and not repugnant to each other, they are not distinct offenses, but different phases of the same offense, and may be charged conjunctively in the same count. 1 Branch’s An. P. O. § 50S, p. 262. And in such event it would be unnecessary to prove all of them. Proof of any one would be amply sufficient to sustain a conviction.

As there is no statement of facts nor bill of exceptions herein, wé must conclusively presume that the state proved a violation of some one or more, if not all, of the phases of the offense prescribed by the statute and alleged.

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


text:
    PRICE v. STATE.
    (No. 4434.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law &wkey;>814(l) — Trial — Instructions — Conformity with Evidence.
    In prosecution for assault with intent to murder, the charge must be confined to the issues raised by the pleadings and evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1979, 1980.]
    2. Homicide <&wkey;310(2) — Instructions—Conformity with Evidence.
    Evidence hold to require submission of issue of simple assault in prosecution for assault with intent to murder; so that submission of assault with intent to murder and of aggravated assault alone was error. .
    [Ed. Note — Eor other cases, see Homicide, Cent. Dig. § 658.]
    Appeal from District Court, McLennan County; J. D. Willis, Special Judge.
    Pete Price was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Williams & Williams, of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Indicted for assault with intent to murder, appellant’s conviction was for aggravated assault condemning him to confinement in the county jail for two years.

Appellant and George Gerald, the alleged injured party, are negroes, and there is evidence that on the occasion of the difficulty both had been drinking intoxicating liquors; that they were strangers to each other; that they met at night; that appellant approached Gerald, using an expression current among the negroes in the neighborhood, inviting him to gamble; that Gerald did not understand the purport of the language; that appellant slapped Gerald on the face or body; that appellant had in his possession a gun, and there was evidence that there was some talk about whether the gun would fire or not. Appellant pointed it at the ground and fired it. Gerald struck appellant on the head or face with a bottle of whisky, breaking the bottle and dazing appellant Gerald ran away, and appellant, after recovering from the blow, fired his gun several times. Appellant was enraged and expited by the blow. Gerald testified that after he hit appellant he did not see him do anything, but heard shots. He says:

“I tried to get out of the way, and he commenced shooting; I guess it was him; it was several shots made at mo; something like 10 or 12 shots, maybe 12 or 15; I could not tell exactly.”

Another witness testified that he only saw appellant fire one shot, and that he fired in the ground. Other witnesses testified that when Gerald ran he immediately got into a ditch; that the firing by appellant was in a different direction from that in which Gerald ran; that he fired two or three times; and that when appellant shot Gerald was out of his sight.

The court submitted the issues of assault with intent to murder and aggravated assault, and refused to submit simple assault, the appellant reserving exceptions both to the general charge and to the refusal of the special charges. Complaint is made of that part of the court’s charge on aggravated assault wherein the following paragraph occurs:

“An assault becomes aggravated when committed with premeditated design and by the use of weapons calculated to inflict great bodily injury.”

Appellant insists that there was no evidence of premeditated design, and in this we think he is correct. So far as there is any evidence that appellant tried to shoot Gerald, it relates to what happened after appellant received the blow, and the circumstances negative the idea of premeditated design. The charge must be confined to the issues raised by the pleadings and evidence (McMurtry v. State, 38 Tex. Cr. R. 521, 43 S. W. 1010; Parks v. State, 29 Tex. App. 597, 16 S. W. 532; Whitcomb v. State, 30 Tex. App. 269, 17 S. W. 258; Taylor v. State, 17 Tex. App. 46); and under this rule the use of the language quoted has frequently resulted in reversals (Kouns v. State, 3 Tex. App. 13; Anderson v. State, 16 Tex. App. 132; McGee v. State, 5 Tex. App. 492; Ferguson v. State, 4 Tex. App. 156). See, also, cases cited in Vernon’s Ann. P. O. art. 1022, p. 575. In these cases the charge complained of has 'under similar circumstances been declared misleading and harmful. The circumstances under which the gun was first fired, we think, raised the issue of simple assault. Bean v. State, 49 S. W. 394; Pastrana v. State, 48 Tex. Cr. R. 224, 87 S. W. 347; Ivory v. State, 48 Tex. Cr. R. 279, 87 S. W. 699; King v. State, 61 Tex. Cr. R. 190, 134 S. W. 687. The blow or slap on the face or body that was given by appellant would also raise this issue in our judgment, and there was error in the failure of the court to instruct the jury on the law of simple assault.

The other assignments have been considered and do not, in our judgment, show reversible error.

Eor the error pointed out, it is ordered that the judgment of the lower court be reversed, and the cause remanded.
      <gEs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILSON v. STATE.
    (No. 4453.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law &wkey;>369(l) — Evidence—Admissibility.
    In a prosecution for unlawfully carrying a pistol, the fact that defendant was at the time of trial charged in the district court with assault with intent to murder was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 822.]
    2. Criminal Law <&wkey;719(3) — Trial — Argument oe Counsel.
    The prosecuting attorney was unwarranted in stating from his own knowledge facts that defendant was at the time of trial charged in the district court with assault with .intent to murder.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669.]
    3. Criminal Law <&wkey;1037(2) — Trial—Argument oe Counsel — Waiver.
    Error in making such statements, where the statement would be inadmissible in evidence and is damaging, is not waived by failure to request a special charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645.]
    Appeal from Bosque County Court; W. A. York, Judge.
    Harry Wilson was convicted of unlawfully carrying a pistol on and about his person, and he appeals.
    Reversed and remanded.
    Word & Word, of Meridian, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Charged by information, with the offense of unlawfully carrying a pistol on and about his person, judgment on the jury verdict assessing appellant’s punishment at a fine of $100 and 60 days’ confinement in the county jail is the basis of this appeal.

The county attorney in his closing argument to the jury used the following language, as- shown by the bill of exceptions:

“I am going to take the liberty to testify further that this very negro is now charged with assault with intent to murder in the district court of this county.”

This fact was not in evidence, and would not have been admissible in evidence upon the trial of the case. Morgan v. State, 62 Tex. Cr. R. 120, 136 S. W. 1065; Haney v. State, 57 Tex. Cr. R. 158, 122 S. W. 34; Schwen v. State, 37 Tex. Cr. R. 370, 35 S. W. 172; Branch’s Ann. P. C. p. 99, and cases cited.

In Branch’s Ann. P. C. p. 205, § 363, are cited a number of cases to the effect that the prosecuting attorney is unwarranted in stating from his own knowledge facts not proven before the jury, particularly when the fact was a damaging one which would not have .been admissible in evidence. Marshall v. State, 76 Tex. Cr. R. 386, 175 S. W. 154; Turner v. State, 39 Tex. Cr. R. 329, 45 S. W. 1020, and other cases there cited.

The error in making such statements where the statement would be inadmissible in evidence and is damaging is not waived by failure to request &, special charge. Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; Davis v. State, 54 Tex. Cr. R. 250, 114 S. W. 366, and other cases cited in Branch’s Ann. P. C. p. 204. In the same volume (page 214, § 303) it is said that the error committed in the proof of other offenses when not admissible is not cured by their withdrawal. However, there was no withdrawal in this instance. Collins v. State, 75 Tex. Cr. R. 534, 171 S. W. 730; Haney v. State, 57 Tex. Cr. R. 158, 122 S. W. 34; Henard v. State, 46 Tex. Cr. R. 93, 79 S. W. 810; Welhousen v. State, 30 Tex. App. 626, 18 S. W. 300.

Appellant’s other assignments of error are not well taken.

For the error pointed out, the judgment oí the lower court is- reversed, and the cause remanded.
      <gz=3For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    SAVALLA v. STATE.
    (No. 4448.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law &wkey;391S(10, 11) — New Trial —Grounds—Terrorized Witnesses.
    In a criminal case where facts are known, or might have been known if counsel had been diligent, and witnesses were terrorized, or thought to be terrorized, it was the duty of counsel or defendant to call such fact to the attention of the court, so that it might use all necessary authority to secure a fair trial instead of relying thereon as ground for new trial.
    2. Affidavits <&wkey;5 — Sufficiency—Affidavit Sworn before Attorney of Party.
    ■ Affidavits in support of a motion for new trial in a criminal case, sworn to before defendant’s attorney, cannot be considered.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Augustine Savalla was convicted of assault to murder and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The statement of facts is not set up in the record. Appellant, in connection with his motion for new trial, filed affidavits alleging, not exactly newly discovered evidence, but a sort of equitable showing why certain facts were not produced before the jury. He seemed to hav^ been aware, ' or could by slight diligence 'have been aware, of the existence of these facts, and in fact the attorney who represented him swore to the statement that he was aware of their evidence at the time of the trial, and even before it. The state controverted the motion for new trial, filing the affidavit of the party whom appellant contends terrorized.' the witnesses. These witnesses could have been produced easily at the trial, and before the jury, and if their testimony was such as they say they would give upon another trial and had the court’s attention been called to it, doubtless he would have used the authority confided in him to require the truth to be stated, if it was the truth. Where facts are known, and the witnesses are terrorized, if such is the condition, or thought to be the condition, it is the duty of counsel or parties litigant to call this to the attention of the court so the court may use all necessary authority so that a-fair trial may he had. The officer against whom these charges were made denies it under oath, and the matter seems to have stopped there. There was no evidence offered so far as the record is concerned, and the court evidently 'decided the question upon the affidavits attached to the motion for new trial and the controverting affidavit. This is mentioned to show that there is no merit in the contention, even if those matters were considered.

As presented, however, the affidavits cannot be considered because all of them were sworn to before the attorney for the defendant, except that made by the defendant’s attorney. Affidavits thus made, under the authorities, cannot be considered.

There being no reversible error in the record, the judgment is affirmed.


text:
    ODAM v. STATE.
    (No. 4444.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Schools and School Districts &wkey;»16(L-Employing Child of School Agí: — Sufficiency of Information.
    Dnder Acts 34th Leg. c. 49, § 9 (Vernon’s Ann. Code Cr. Proc. 1916, art. 1207c), requiring parents and persons standing in-a parental relation to compel children between certain ages to attend school, an information is fatally defective which does not allege the child’s age, name, or relationship to accused, except that accused stood in a parental relation.
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. § 332.]
    2. Schools and School Districts <&wkey;160— Employing Child of School Age — Sufficiency of Information.
    Under Acts 34th Leg. c. 49, § 5, prohibiting the employment of certain children not excused from school attendance, an information is fatally defective which does not state the child’s age, name, when or where accused hired the child, or that child was not lawfully excused from school attendance.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 332.]
    Appeal from Houston County Court; E. Winfree, Judge.
    Cooper Odam was convicted of violating a compulsory school attendance law, and he appeals.
    Reversed, and cause dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction under our compulsory attendance school law, under Act March 13, 1915, p. 92. It seems appellant was convicted under section 5 of said act for employing a child within the age of compulsory school attendance who had not been lawfully excused from attendance upon school, and fined $1. The first section of said act in substance requires every child who is 8 and not more than 14 years old to attend the public schools for a certain length of time during the scholastic year beginning September 1, 1916. Section 2 provides for the exemption of such child from attendance for certain specified reasons, unnecessary to state. Section 5 is:

“Employment Prohibited. — No child under fourteen years of age not lawfully excused from attendance upon school shall be employed by any one during the school hours in any occupation during the period which the child is required to be in school, as provided by this act. Any person, firm or corporation found guilty of employing any child * ⅜ * who is subject to the provisions of this act shall be fined not to exceed ten dollars for each offense, and each day that said child is employed after due notice given by, any school official -that said child cannot be legally employed shall constitute a separate offense.”

So much, of section 9 as is applicable herein is this:

“Duties of Parent or Guardian. — If any parent or person standing in parental relation to a child within the compulsory school attendance ages who is not properly excused from attendance upon School for some one or more of the exemptions provided in section 2 of this act fails to require such child to attend school regularly for such period as is required in section 1 hereof, it shall be the duty of the attendance officer who has jurisdiction in the territory where said parent or person standing in parental relation resides, to warn such parent or person standing in parental relation, that the provisions of this act must be immediately complied with, and upon' failure of said parent or persons standing in parental relation to immediately comply with the provisions of this act after such warning has been given, the official discharging the duties of the attendance officer shall forthwith file complaint against such parent or person standing in parental relation to said child, which complaint shall be filed in the county court, or in the justice court in the precinct where such parent or guardian resides, and shall diligently prosecute same to its conclusion. Any parent or other person standing in parental relation upon conviction for failure to comply with the provisions of this act shall be deemed guilty of a misdemeanor, and shall be fined for the first offense five dollars, and for the second offense ten dollars, and for each subsequent offense twenty-five dollars.”

It seems that the information, which is based upon a complaint to the same effect, attempted to charge appellant with each of said offenses prescribed by said sections '5 and 9, respectively. After the proper heading of the information, and that it was made by the county attorney of said county at the February term, 1917, of the county court thereof, it alleges:

“That Cooper Odam, on or about the 12th day of December, A. D. 1916, and before the filing of this information in the county of Houston and state of Texas, did then and there unlawfully fail to require child to whom he stands in parental relation to attend school regularly, said child being then and there within the compulsory school attendance ages, and said child being then and there not properly excused from attendance upon school for any one or more of the exemptions provided for in said compulsory attendance law of the state; the said compulsory law having been put into force and effect in said county by legal order of county board of said county, which order was made by said board of school trustees on the 2d of October, 1910, and said law being then and there in effect when said offense was committed, having gone into effect by virtue of the order above mentioned on the 6th of November, 1910, and he, the said Cooper Odam, then and there having had legal warning to send his said child to school and all other things required by law to be done by said attendance officer having been done. And he, the said Cooper .Odam, hired the said child when he, the said child, should have been in school.”

Appellant attacked the sufficiency of both counts of said information, if it could be said there are two counts therein, on various grounds. It is so wholly insufficient and fatally defective in several particulars that by a mere reference and comparison thereof with, the said sections above quoted it would seem unnecessary to state them all or discuss any of them. The child’s name is not alleged. It should be. Neither is the child’s age nor the relationship of appellant to the child alleged. This should be. The mere allegation that appellant stands in a parental relation is not sufficient. It should be alleged what that relationship is, whether that of parent, guardian, or other custodian of the child. It would be better also to allege when and how and by whom the warning was given instead of the very general conclusion stated in the information.

As to the second count, if it could be called a count at all, under which it seems appellant was convicted, it fails in the less than two lines constituting it to allege when or where appellant hired said child; nor does it give the name or age of the child; nor does it allege that the child was not lawfully excused from attendance upon school when employed by appellant. It would be better, also, under said section 5 to allege that appellant had been given due notice that said child could not be legally employed, averring how, when, and by whom such notice was given.

Because of the fatally defective pleading herein, the judgment is reversed, and the cause dismissed.
      otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COLE v. STATE.
    (No. 4456.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    Unlawful Assembly &wkey;>2 — Inofobmation.
    The information must allege the persons met “with intent to aid each other by violence,” etc., to bring it within the definition in Pen. Code 1911, art. 435, of unlawful assembly.
    [Ed. Note. — For other cases, see Unlawful Assembly, Cent. Dig. § 3.]
    Appeal from El Paso County Court; Adrian Pool, Judge.
    J. W. Cole was convicted, and appeals.
    Reversed and remanded.
    M. W. Stanton and Hudspeth & Dale, all of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction of “unlawful assembly” with a fine of $250 assessed. The statutes prescribing this offense as applicable herein are:

Article 435, P. C.:

“An ‘unlawful. assembly’ is the meeting of three or more persons with intent to aid each other by violence, or in any other manner ⅛ ther to commit an offense, or illegally to deprive any person of any right, or to disturb him in the enjoyment thereof.”

And article 445, P. C.:

“If the purpose of the unlawful assembly he to prevent any person from pursuing any labor, occupation or employment, or to intimidate any person from following his daily avocation, or to interfere in any manner with the labor or employment of another, the punishment shall be by fine not exceeding five hundred dollars.”

The information, which is based upon a complaint to the same effect, after the proper and necessary preliminary allegations, was in two counts. The second, under which this conviction was had, is:

“That said 3. W. Cole did then and there unlawfully assemble and meet together with B. L. Ligón, P. T. Carmody, C. C. Smith, Sam Collins, A. J. Reynolds, H. Canfield, and three and more persons whose names to the assistant county attorney are unknown with the intent and purpose to illegally prevent Albert Kuehme and-Brown from pursuing and to deprive him and them from the enjoyment of his and their rights to pursue the labors, occupations, and employment of operativos of the street cars of the El Paso Electric Railway Company, a corporation, they then and there being engaged and employed by said El Paso Electric Railway Company as motorman and street car conductor on said car, and to intimidate said Kuehme and Brown from following and pursuing his and their said daily vocations, the same being the usual and ordinary occupations of Kuehme and Brown, and to interfere with the labor and employment of said Kuehme and Brown as street car motorman and conductor, as aforesaid, against the peace and dignity of the state.”

Appellant attacked this count of the information and moved to quash it on the ground that it failed to allege, in accordance with said article 435, that appellant, with the other persons named therein, unlawfully assembled “with intent to aid each other by violence,” etc., for the purpose of preventing said street car employés named from pursuing their labor, etc. This allegation was necessary to a valid complaint and information against appellant. The allegations made do not meet this requisite. The court therefore erred in not quashing this count of the information and in not granting a new trial [when conviction was had thereunder.

Bor this error the judgment is reversed, and the cause remanded.
      (gzs>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: PLEASANTS, C. J.

text:
    PECK v. ROBINSON & SMITH.
    Court of Civil Appeals of Texas. Galveston.
    May 16, 1917.)
    IOn motion for rehearing.
    Denied.
    For former opinion, see 194 S. W. 456.
   PLEASANTS, C. J.

Appellant, by motion led herein, asks that our judgment reversing and remanding this cause for a new trial be amended, by adding thereto an order affirming the judgment in his favor upon the claim against him set up in appellees’ answer.

As. shown in our original opinion, appel-lees by cross-bill, sought to recover damages from appellant for alleged false representations made to them by him in regard to the property which he transferred to them. The trial court instructed the jury to return a verdict in favor of appellees upon the claim asserted against them by appellant, and in favor of appellant upon appellees’ claim, against him, and upon the return of such verdict judgment was rendered accordingly. Appellees did not except to this judgment, and have not appealed therefrom, nor presented any cross-assjgnment of error complaining of any portion of the judgment. Upon this state of the record, the portion of the - judgment against appellees on their cross-bill is not, before us for review. The two judgments, though written together as one, are separate and distinct, ’and in no way dependent upon each other, and the judgment against appellees is not disturbed by our order reversing the judgment in their favor. Our reversal of the judgment and remanding the cause for a new trial only applies to the judgment against appellant on the cause of action asserted by him; the portion of the judgment against appellees on their cross-bill, as before stated, not having been brought before us for review by this appeal.


author: RASBURY, J.

text:
    McCUTCHEON & CHURCH et al. v. SMITH.
    (No. 7668.)
    (Court of Civil Appeals of Texas. Dallas.
    March 31, 1917.
    Rehearing Denied May 5, 1917.)
    1. Constitutional Law <&wkey;>186 — Retroactive Laws.
    The Legislature has no authority to enact retroactive laws which affect citizen’s rights of any character.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 526-529.]
    2. Constitutional Law <&wkey;>107 — Limitations — Retroactive Laws.
    In enacting statutes of limitation the Legislature cannot destroy a right which one person is entitled to enforce against another which exists in consequence of given facts, or the right which one person has to resist enforcement of a claim urged by another in consequence of given facts.-
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 246-251.]
    3. Constitutional Law <&wkey;26 — Grant or Limitation of Power — State Constitution.
    The authority to legislate on any ' subject not expressly or by necessary implication denied by Constitution is lodged with the Legislature.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 30.]
    4. Constitutional Law &wkey;H06 — Power to Change Remedies for Existing Rights.
    The Legislature may, because that authority is not denied it, change, modify, abolish, and establish new remedies for existing rights because the citizen has no vested right in the procedure by which his rights may be enforced,, except that his remedy may not be altogether taljen away or unreasonably incumbered so as to render it useless or impracticable, or to give an action where none existed.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 186, 212, 238-245, 252-257, 259.]
    5. Limitation op Actions <&wkey;6(5) — Retroactive Operation — Vendor’s Lien.
    Where statutes of limitation (Rev. St. 1911, arts. 5694 and 5695) as amended July 12, 1913 (Acts 33d Leg. c. 123 [Vcmon’s Sayles’ Ann. Civ. St. 1914, arts. 5693-5695]), and November 19, 1913 (Acts 33d Leg. [1st Called Sess.] c. 27 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695]), relating to vendor’s liens, in connection with article 5688, relating to written contracts, at no time left defendant-completely without remedy, but permitted him to either foreclose his vendor’s lien or recover land by virtue of superior title retained in deed, plaintiffs, who were grantees of defendant’s purchaser, never acquired a vested right by which because of a given state of facts, they could have resisted enforcement of defendant’s rights, and in action to cancel lien a judgment sustaining the lien was proper.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. § 20.]
    6. Constitutional Law <&wkey;107 — Retroactive Operation — “Vested Right.”
    A right cannot be considered as vested in relation to retroactive operation of statute of limitations unless it is something more than a mere expectation as may be based on an anticipated continuance of the present general laws; it must have beoeme a title legal or equitable to the present or future enjoyment of exemption of a demand made by another.
    [Ed. Note. — For other cases, see Constitutional Law, Cent.-Dig. §§ 246-251.
    For other definitions, see Words and Phrases, First and Second Series, Vested Right.]
    7. Limitation oe Actions «&wkey;165 — Rights Under — When Acquired.
    There can be no right gained in the running of statute of limitations until the prescribed period is complete.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 649.]

      S. Limitation oe Actions <&wkey;6(ll) — Computation oe Period — Change oe Law.
    The rule that, when a new period of limitation is substituted, the time which elapsed under the repealed law will be counted against the demand in the ratio it bears to the whole period, and the time under the new law will be computed on the basis of the ratio that the unexpired term under the old law bears to the whole time, does not apply where the statutes prescribe precise rules leaving nothing open for construction.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 31.]
    9. Statutes &wkey;>176 — Construction — Judicial Authority oe Court.
    Where a law is constitutional, the courts cannot change the plain and unambiguous meaning of the language by writing therein a rule at variance with the law itself.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. § 255.]
    Appeal from District Court, Rains County; Wm. Pierson, Judge.
    Suit by McCutcheon & Church and others against Ben O. Smith. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    W. D. Cardwell, of Dallas, for appellants. Copps, Cantey, Hanger & Short, of Ft. Worth, for appellee.
   RASBURY, J.

Appellants sued appellee to cancel the vendor’s contract lien, retained in a conveyance by appellee to Mary Todd, securing the payment of a series of promissory notes executed in part payment of 737½ acres of land in Rains county, of which appellants at the time were the owners in fee simple, on the ground that the notes were barred by the statutory period of limitation, as was also his right to recover the superior title to the land, Ibut all of which constituted a cloud upon appellants’ title. All issues presented in appellee’s brief were amply pleaded below, because of which it will not be necessary to detail same here.

There was trial without jury, whereat judgment was rendered for appellee ascertaining the amount of appellee’s debt, but rendering no personal judgment therefor against Mrs. Todd, establishing his lien on the land against all parties, and directing the issuance of proper process for its sale in satisfaction of the debt. 'From such judgment this appeal is taken.

The facts found by the court and those apparent of record necessary to be stated in considering the issues presented are these: On December 27, 1905, appellee Ben O. Smith, in consideration of $3,687.50, conveyed to Mrs. Mary Todd 737½, acres of land in Rains county. Of the consideration $487.50 was cash, the balance being represented by five promissory notes, all dated December 27, 1905, one for $500, due one year from date, and four each for $675, due respectively in two, three, four, and five years from date. The conveyance and each note retained the vendor’s lien upon the land to secure payment of the unpaid purchase price. Each of said notes provided that in the event same were placed with attorneys or sued upon 10 per cent, of the amount of the principal and interest should be added as attorney’s fees. On July 16, 1915, Mrs. Mary Todd conveyed to appellants McCutcheon & Ohureh an undivided one-seventh interest and to Wm. F. Todd an undivided six-sevenths interest in said land. On August 5, 1915, appellants MeOutcheon & Ohureh and Wm. F. Todd sued appellee for the relief stated. Appellee on October 15, 1915, answered, and by cross-action interpleaded his vendee, Mrs. Mary Todd, praying as against all parties for the recovery of the land and cancellation of the deed to Mary Todd, and in the alternative for judgment against Mary Todd on his notes, with foreclosure of his lien for the full amount thereof against Mary Todd and Mc-Outcheon & Ohureh.

The issues in this case depend upon the construction to be placed upon certain amendments to the statutes of limitations enacted by the Legislature in the year 1913, and the application thereof to the facts controlling the transactions between the parties in this suit. In such connection it was contended by appellants at trial and is vigorously maintained in this court that under said amendment and at a time prior to that when ap-pellee filed his answer and cross-bill in the court below seeking affirmative relief his right to recover the land on the ground that he retained the superior title thereto in his deed to Mrs. Todd, as well as his right to foreclose the lien retained to secure payment of the notes, was barred by the respective statutes of limitation governing both remedies, by reason of which appellants’ right to defeat appellee’s claim became a vested one. In view of such contention and the further contention that the effect of the amendments was retroactive, and hence unconstitutional, it will be of assistance to state the limitations of the legislative authority in changing, modifying, substituting, and destroying the remedy by which rights may be enforced.

It is settled law in this state, arising upon a construction of section 16 of article 1 of our Constitution, that no citizen’s rights of any character can be affected by retroactive laws, and that as a consequence of that general rule the Legislature may not, in prescribing the period of time in which rights must be enforced in courts or otherwise, 'destroy a right which one person is entitled to enforce against another which exists in consequence of given facts or the right which one person has to resist the enforcement of a claim urged by another in consequence of given facts. Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249. Applied to the present case, the rule means, simply stated, that if at any time prior to the filing of appellee’s cross-action, such a state of facts existed that upon suit filed at that time they would have been a bar to appellee’s cause of action, then any subsequent act of the Legislature would have been ineffective to restore the lost remedy, and appellee could not maintain a suit based upon such act, because retroactive.

In consonance with the rule stated, however, and sound in principle and reason, are two other rules. One is that that authority to'legislate on any subject, not expressly or by necessary implication, denied by the Constitution is lodged with the Legislature. The other is that the Legislature may, because that authority is not denied it, change, modify, abolish, and establish new remedies for existing rights. De Cordova v. Galveston, 4 Tex. 470; Parker v. Buckner, 67 Tex. 20, 2 S. W. 746; Fristoe v. Blum, 92 Tex. 76, 45 S. W. 998. The reason that the legislative power may so proceed, as said in Mellinger v. Houston, supra, is because the citizen has no vested right in the procedure by which his rights may be enforced, save that his remedy may not be altogether taken away or so unreasonably incumbered as to render it useless or impracticable or to give an action where none existed.

In the light of the rule stated we will ■now state the substance of the statute of limitations existing at the time of the amendments, appellee’s remedies thereunder, the amendments and the effect of such amendments on appellee’s remedies under the original act, and his rights under the amendments. Prior to the amendments the statutes declared that when the vendor’s lien was retained in deeds to secure the purchase price the vendor could recover the superior title at any time before the expiration of ten years after maturity of the debt. Article 5694, R. S. 1911. Such liens and debt, however, could be extended, and when extended as directed the vendor had ten years from the maturity of the debt as extended in which to sue to recover the land under the superior title. Article 5695, R. S. 1911. Prior to the amendments all actions for debt evidenced by or founded upon any contract in writing were required to be prosecuted within four years after such cause accrued. 'Article 5688, R. S. 1911. By act effective July 12, 1913, article 5694, above, was amended by providing that the right to recover any real estate by virtue of the superior title retained in the conveyance or in any vendor’s lien notes theretofore or thereafter made should be barred four years after the maturity of the debt, unless extended, provided, if several obligations were so secured, such right might be enforced at any time within four years after the last maturing obligation had matured, as to all notes not then four years overdue. By the same act article 5695 was also amended by providing, among other things, that all notes secured by the vendor’s lien or deeds of trust executed prior to July 14, 1905, and more than four years overdue when the act became effective, should be forever barred, unless enforced by suit within twelve months, and that all such obligations executed subsequent to July 14, 1905, and which were not barred by the four-year statute of limitations should be forever barred unless enforced by suit within four years or within four years from maturity, provided that the land might be recovered by virtue of the superior title if suit therefor was commenced within twelve months. General Laws 33d Leg. p. 250. Subsequently, at a special session of same Legislature án act, effective November 19, 1913 (Acts 33d Leg. [1st Galled Sess.] c. 27), was passed, further amending article 5695, by providing, among other things, that notes secured by the vendor’s lien or deeds of trust executed prior to July 14, 1905, and more than four years overdue, should be forever barred, unless enforced by suit within twelve months, and that all such obligations executed subsequent to July 14, 1905, and not barred by the four-year statute of limitation, should be forever barred unless extended or sued on within four years, but if any of such obligations were, on June 30, 1913, barred by the four-year statute of limitations, the owner should have four years within which to enforce such lien, provided that suits to recover the land by virtue of the superior title might be commenced in twelve months.

We will now consider appellants’ and ap-pellee’s rights and remedies under the old statute or before the first amendment, which became effective July 12, 1913. As we have shown, appellee’s cross-action seeking alternately the recovery of the land and a foreclosure of his lien was filed October 30, 1915. At that time under the old law all right to foreclose the vendor’s lien was completely barred by the statute of limitations of four years. Every note of the series was more than four years overdue. The last note of the series matured December 27, 1910. However, he did have the right to recover the land by virtue of the superior title which he retained in his deed. This is true because none of the notes were more than ten years overdue when he filed his cross-action. The first matured December 27, 1906. He thus had until December 27, 1916, in which to file his suit to recover the land as to all notes. With his remedy so standing, the law, as we have shown, was amended, effective July 12, 1913, which was also before his remaining remedy was lost. By the amendment the right to recover the land by virtue of the superior title was reduced from ten to four years after maturity of ⅛¾ debt. By that amendment the right of appellee on October 30, 1915, to recover the land as to the first three notes was destroyed, but preserved as to the last two, since the first three at that time were more than four years overdue. However, at the same time, July 12, 1913, the law was further amended, as we have shown, by providing that all notes executed subsequent to July 14, 1905, and not barred by the four-year statute of limitations, could be enforced at any time within four years from the time the act was effective, or July 12, 1913, which would include the last two notes, and that all those who had retained the superior title to the land in their conveyance should have twelve months thereafter to bring suit for that purpose, which included all appel-lee’s notes. Such is true because at the time the amendment was effective he had at least until December 27, 1916, to recover the land as to all notes; the net result being that appellee’s time in which to recover the land under the old law was shortened, but he was in part restored to the remedy he had formerly lost. Thus he still had a remedy at that time which he could have exercised; that is, he could have foreclosed his lien securing payment of the last two notes and he had until July 12, 1914, in.which to recover the land as to all notes. Before the -expiration of the time in which he could have exercised the remedies remaining to him a special session of the Legislature which enacted the first amendments we have just reviewed, by. an amendment effective November 19, 1913, enlarged appellee’s remedy by declaring that all notes executed subsequent to July 14, 1905, if not barred by the four-year statute of limitations might thereafter be enforced within four years, provided that, if any such obligations were on June 30, 1913, in fact barred by said four-year statute of limitations, they nevertheless could be enforced within four years after the amendment was effective, or November 19, 1913, providing also that suits to recover the land should be enforced in one year, or by November 19, 1914. Thus, then, while ap-pellee still had a remedy remaining, the Legislature, as we have shown, enlarged same by allowing him four years from the passage of the law or November 19, 1913, in which to sue upon all notes not barred, which included the last two, and four shears from the same date in which to sue upon those barred by limitation on June 30, 1913, which included the first three, or, in the alternative, to sue to recover the superior title in one year from said date. His suit, as we have said, was filed October 30, 1915, seeking both remedies. He was not entitled to recover the land, because his right to that remedy was lost November 19, 1914. He was, however, entitled to foreclose the lien on the entire series of notes, since eagh. one of them under .the provisions of the last-amended act could be declared on for that purpose at any time within four years after June 30, 1913. At no time from the date of the execution of the notes was all remedy lost to appellee by which he could have enforced his contract, either to foreclose his contract lien or to recover the land by virtue of the superior title retained in his deed to Mrs. Todd. That being true, it follows as a corollary that her transferees, appellants, never at any time acquired a vested right by which, because of a given state of facts, they could have resisted the enforcement of appellee’s rights growing out of the purchase and sale of the land.

That being true, as we have shown at another place in this opinion, the Legislature had the authority to change, modify, or abolish existing remedies and establish new and revive old ones. On that issue and considered from that standpoint it is said that:

“A right cannot be considered a vested right, unless it is something more than such a_ mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of exemption of a demand made by another.” Cooley, Const. Lim. (6th Ed.) 438.

It is also said that:

“The weight of authority in the several states, it is believed, supports the view that the bar gained by the running of the statute is a vested right which cannot subsequently be taken away by the Legislature either by creating a new right, repealing the former statute, or withdrawing a specified past period from its operation.” 8 Oyc. 922.
But “there can be no right'gained in the running of the statute till the prescribed period of limitations is completed, or according to some authorities till not only the remedy is barred, but the limitation has entirely extinguished the former right and vested title. But where only one particular form of remedy is barred, while other equivalent forms remain, there can be no objection to a removal of a bar on the first.” 8 Cyc. 923. ’

To the same effect see Power v. Telford, 60 Miss. 195; Kipp v. Johnson, 31 Minn. 360, 17 N. W. 957; Whitney v. Wegler, 54 Minn. 235, 55 N. W. 927.

Appellants also contend that the rule announced in Gautier v. Franklin, 1 Tex. 732, Odum v. Garner, 86 Tex. 374, 25 S. W. 18, and Wright v. Hardy, 88 Tex. 653, 32 S. W. 885, should be applied in this case. The substance of that rule is that, when a new period of limitation is substituted, the time which elapsed under the repealed law will be counted against the demand in the ratio it bears to the whole period, and the time under the new law will be computed upon the basis of the ratio that the unexpired time under the old law bears to the whole time; or if under the old law two-thirds of the time had expired, then one-third of the time prescribed by the new law would be allowed in which to sue. The cases cited in our opinion are constructions of provisions in the laws being considered which render the conclusions and rules there announced without application to the instant case. Without attempting a review of the act construed in Gautier v. Franklin, supra, it may be said that the rule of proportion therein adopted was by the court declared to be one of policy and equity necessary to be declared as a result of the uncertainty of the law itself concerning the period of time which had lapsed prior to the adoption of the act. As much can be said of the reiteration of the rule in Odum v. Garner, supra, and Wright v. Hardy, supra. In both those cases general statutes lengthening the period of limitations were being considered; there being in neither instance any provision in the act dealing with the time that had previously run against the act. Hence the rule .of policy and equity adopted in Gautier v. Franklin was the only basis of construction. But by the act now under construction precise rules are adopted by which every character of remedy arising before and subsequent to July 14, 1905, upon the obligations covered by the act may be determined precisely and nothing is left for construction.

In such cases, the law being constitutional, the courts are without authority to change the plain and unambiguous meaning of the language by writing therein a rule at variance with the law itself. Dodson v. Bunton, 81 Tex. 655, 17 S. W. 507; Schloss v. Railway Co., 85 Tex. 601, 22 S. W. 1014; Fire Ass’n, etc., v. Love, 101 Tex. 376, 108 S. W. 158, 810.

There are several other propositions urged by appellants and as many counter propositions urged by appellee, which we conclude are not necessary to be considered under the conclusion we have reached that at no time during the period of the two amendments had appellee lost all remedy by which to enforce his contract, and that the specific remedy of suit to foreclose within four years after June 30, 1913, was substituted finally for all other remedies was the only one he had left.

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

      É=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes