text:
    WESTERN UNION TELEGRAPH CO. v SMITH et al.
    (No. 5502.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 20, 1915.)
    1. Contracts <3&wkey;128 — Agreements — Validity.
    An agreement by a creditor who had charged the debtor with crime to receive the amount of the debt and stop prosecution would be illegal and void.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 633-653; Dec. Dig. <&wkey;>128.]
    2. Telegraphs and Telephones &wkey;>48 — Transmission oe Messages — Conversion oe Monet.
    A cousin of one charged with crime wired to the prosecuting attorney of the county to know whether there was any case against accused. The telegraph agent, posing as the prosecuting attorney, replied that the case was with the grand jury, and the cousin offered to pay the claim, which was the basis of the prosecution, in case it was stopped. The telegraph agent obtained possession of this money. Held that, as the condition of the agreement was illegal and void, and as title to the money did not leave accused’s cousin until prosecution was stopped, the creditors of accused, who instituted prosecution, had no right of action against the telegraph company for the conversion.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Gent. Dig. § 30; Dec. Dig. i&wkey;> 48.]
    Appeal from Brazoria County Court; J. W. Munson, Judge.
    Action by J. G. Smith and T. L. Smith, doing business as Smith Bros., against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    Geo. H. Fearons, of New York City, and Hume & Hume, of Houston, for appellant. Masterson & Rucks, of Angleton, for appel-lees.
   CARL, J.

Appellees, J. G. and T. L. Smith, doing business in Brazoria county under the name of Smith Bros., sued the Western Union Telegraph Company in the justice court and recovered. The case was, on appeal, again tried in the county court, resulting in a verdict for appellees for $125; the costs of that appeal being adjudged against appellees.

It is alleged that one R. G. Lightfoot was appellant’s agent and operator, and while such, in the discharge of his duties, received and sent the following telegrams:

“Sept. 14th, 1907. To Prosecuting Attorney, Brazoria County, Brazoria, Texas. Any case in your hands against Charles Clayton wire. Answer my. expense. C. T. Hayes.”
“Received at 9 coll. Brazoria, Tex. Sept. 15th, 1907. C. T. Hays, Hannibal, Mo., Sept. 15th, 1907. Matter with grand jury no report yet. R. C. Lightfoot.”
“Sept. 15, 1907. To Mr. Lightfoot, Prosecuting Attorney, Brazoria, Texas. Will payment to Smith satisfy Smith and you and stop prosecuting. C. T. Hays.”
“Received at 17 coll. Brazoria, Texas, Sept. 16th, 1907. C. T. Hays, Hannibal, Mo. One hundred twenty five dollars draft to my order will satisfy Smith and stop proceedings. Answer. Lightfoot.”
“Sept. 16th, 1907. To Lightfoot, Prosecuting Attorney, Brazoria, Texas. Draft tomorrow. See letter. Telegram received after banking hours. C. -T. Hays.”

The letter referred to in 'the last telegram is as follows:

“Mr. Lightfoot, Prosecuting Attorney, Bra-zoria, Texas — Dear Sir: Confirming telegram of last night, I inclose New York exchange for $125 for liquidating the claim of Smith Bros, against Chas. Clayton and stopping prosecution against him.
“I am a cousin of Mr. Clayton. I want to say that this money has been raised for this purpose at considerable sacrifice. I therefore request of you and Smith Bros, that you make no mention to Mr. Clayton of this payment. And I would esteem it a special favor if Smith Bros, would make some attempt to collect from Mr. Clayton and forward me any collections they may be able to make.
“Thanking you for your courtesies in this matter, I remain, Yours truly C. T. Hays.”

Smith Bros, allege that Charles Clayton owed them $125, which the draft was intended to pay; but Lightfoot falsely and fraudulently represented himself to be' the prosecuting attorney of Brazoria county, obtained the $125, and converted it to his own use and benefit, thereby preventing them from collecting the debt Clayton owed. It. is not alleged that the prosecuting attorney of the county would have dismissed the prosecution of Clayton upon receipt of the $125; but negligence is alleged in the company in failing to deliver the telegrams to the parties intended and in concealing the fraud of Lightfoot in representing himself to be such prosecuting officer.

Hays sent the money, and sent it with a condition attached to it, even if it had reached the prosecuting attorney. This condition was that the prosecution be dismissed against Charles Clayton. Until that was done 'Smith Bros, had no claim on the money. It would not even have been subject to garnishment by them because Clayton is the man who owed them the debt, and this money was sent by Hays and belonged to him until delivered according to proposed contract by the prosecuting attorney. For that matter the condition attached to the delivery of the money was illegal and contrary to public policy, but that fact did not make it Smith Bros.’ money. Hays may have had a cause of action against the company for failing to deliver his messages, and later when Lightfoot converted his money, but this could not have afforded appellees a cause of action. If Clayton owed them $125, that debt was not discharged, and no act of appellant has put them in a worse attitude than they were before Hays parted with his money. There never was anything Smith Bros, could have stood upon to recover this money so sent, because it was never intended they should have it until the condition attached was complied with, and this condition they could not in law cause to be complied with, because it was illegal and void.

Too often the criminal courts of this state are sought to be used as collecting agencies, the aggrieved creditor rushing to the prosecuting attorney and making complaint, but later significantly suggesting to the culprit or his relatives that he really believes there is yet some good in the man, and if his money is paid, he will be satisfied and will-stop the prosecution. And it is well that people know that the criminal courts are for one purpose, and the civil courts for a very different purpose. It is not intended by this to intimate that appellees have indulged in this reprehensible practice, but the writer has met this trouble so often in the office of prosecuting attorney that he could not refrain from saying something about it; and the court very kindly permitted the same.

The briefs of the parties contain no authorities, but on the subject of fraud of telegraph agents we have found very interesting reading in the following: Usher v. W. U. Telegraph Co., 122 Mo. App. 98, 98 S. W. 84; W. U. Telegraph Co. v. Uvalde Nat. Bank, 97 Tex. 219, 77 S. W. 603, 65 L. R. A. 805, 1 Ann. Cas. 573; W. U. Telegraph Co. v. Schriver, 141 Fed. 538, 72 C. C. A. 596, 4 L. R. A. (N. S.) 678.

It is therefore our conclusion that appel-lees had no cause of action against appellant, and the judgment should be reversed, and judgment here rendered in favor of appellant; and it is so ordered.

Reversed and rendered.
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source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    LOCKWOOD INV. CO. v. GEISELMAN.
    (No. 479.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 21, 1915.)
    1. Boundaries <&wkey;37 — Actions — Evidence.
    In an action involving disputed boundary, evidence held to show that the plat, as made, was the result of a mistake of the draftsman, and that it was not intended to include in the addition in which plaintiff bought property un-platted property not belonging to plaintiff’s grantor.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184r-194; Dec. Dig. <@=537.]
    2. Vendos and Purchaser <@=»239 — Bona Fide Purchaser — Rights oe.
    Where the question was solely one of boundary, and plaintiff was not in possession of the land which it claimed, the bona fides of plaintiff’s purchase or want of notice does not give him additional rights.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dee. Dig. &wkey;239J
    Appeal from District Court, Harris County ; J. W. Woods, Special Judge.
    Trespass to try title by the Lockwood Investment Company against M. P. Geiselman. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    H. F. Ring, of Houston, for appellant. Fisher, Campbell & Amerman and W. F. Tar-ver, all of Houston, for appellee.
   HIGGINS, J.

Appellant brought this suit in trespass to try title to recover lots 1, 2, 10, 11, and 12 in block 49- in Foster’s Second North addition to the city of Houston. It was alleged that the south line of block 49 was 410 feet north of the north line of blocks 106, 107, and 108 in the S. F. Noble addition to said city. Appellant has record title to the lots mentioned, and appellee, Geiselman, has record title to block 54 in said Foster addition. Block 54 is in the south tier of blocks of the Foster addition, and block 49 lies just north of 54 in the next tier of blocks. Appellant claims that the south line of the addition should be located further south than is claimed by appellee.. If located as by appellant contended, it would fix the south line of the addition at the point alleged by appellant, and the lots claimed by it would be located on property claimed by and in possession of Geiselman. The question involved is one of boundary, the point at issue being the location of the south boundary line of the Foster addition. The land in controversy is situate in the S. M. Harris grant. ' In 1852 Sarah Noble became the owner of a 100-acre tract in the southwest corner of the grant. Its north line ran east and west 260 varas. Its east line ran north and south 2,237 varas, and its west line was parallel thereto, and coincident with the west line of the grant. Upon the south it was bounded by Buffalo bayou. In 1867 all of the tract was platted and laid off into lots, blocks, and streets, except 7 or 8 acres of the north end; this unplatted portion being 260 varas east and west by 450 feet north and south. On February 28, 1874, James E. Foster became the owner of a 100-acre tract lying immediately north of and adjoining the Noble tract. It was rectangular in shape, 260 varas wide and 2,759 varas in length; its east and west lines being coincident with prolongations of the corresponding lines of the Noble tract. In November, 1874, there was filed for record the map of said Foster’s Second North addition. There is no statement thereon to indicate what particular tract of land was intended to be platted, but it undoubtedly referred to the 100-acre tract which he had acquired lying north of the Noble addition. From the distances indicated on the map, it will be seen' that the tract platted by said map was 6,030 feet in length by 722Vi0 feet in width, or 2,170Vio varas in length by 260 varas in width, which comprises exactly 100 acres in area.

The draftsman who prepared the plat of Foster’s addition attempted to indicate thereon other additions which adjoin the same on the south and west, and in such manner indicated that the north tier of blocks of the Noble addition, as platted, lay immediately south of the Foster addition. The draftsman made no indication on the plat of the unplatted strip of the Noble tract lying between' the Foster 100 acres and the Noble addition as platted, but indicated that the Foster addition came as far south as the Noble addition, which would place the Noble unplatted acreage within the land covered by the Foster addition plat.

The controlling question in the case thus reduces itself: Was the Foster addition, as shown by the recorded map, located immediately north of the Noble addition and covering the unplatted 7 or 8 acres in the northern part of the Noble tract, as is claimed by appellant, or was it located wholly upon and within the 100-acre tract then owned by Foster immediately north of "the Noble 100-aere tract?

In the court below the issue was resolved against appellant, and the sufficiency of the evidence to support this finding is raised by the first three propositions subjoined to the only assignment of error presented in this court. An examination of the evidence bearing upon the issue abundantly supports the finding. The only fact supporting appellant’s contention is that the plat of the addition shows that it adjoins the northern tier of blocks in the Noble addition. This was a manifest and evident error on the part of the draftsman who drew the map of the . Foster addition. . It is quite apparent that after preparing the plat he simply undertook to indicate surrounding additions, and in referring to the Noble addition failed to indicate thé unplatted portion in the north end of the tract. A number of similar mistakes were made with reference 1» other adjacent additions. Considering all the facts and surrounding circumstances as reflected by the record, we have no doubt that the plat of the Foster addition was intended to cover only the 100-acre tract which he owned, and that' the south line thereof did not ex: tend further south than the north line of the Noble tract.

If we correctly interpret the remaining propositions of appellant, they are to the effect that he is entitled to recover the land in controversy as a purchaser without notice. We cannot see how any such question can be involved in this case. The issue is one of boundary alone, and, in the absence of recognition of line, or estoppel otherwise arising, it is not apparent to us how the bona lides of appellant’s purchase, or his want of notice, can in any wise arise or be material.

Affirmed.
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author: HARPER, J.

text:
    MOORE et al. v. TOYAH VALLEY IRR. CO. et al.
    (No. 492.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 14, 1915.
    Rehearing Denied Nov. 4,1915.
    On Motion to Reinstate, Nov. 4, 1915.)
    1. Appeal and Errob &wkey;>76 — Judgments Ap-pealable — “Final Judgment.”
    Where a judgment did not dispose of certain interveners, nor of the subject-matter sued for by them, and there was no order of dismissal as to them, the judgment was not such a “final judgment” as would support an appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426-428, 430, 431, 435-443; Dec. Dig. <S&wkey;76.
    For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    2. Parties <&wkey;40 — Proper Parties.
    Where, in a suit for an injunction, certain parties filed a petition in intervention setting up that they were jointly interested with plaintiff in the lands and waters in controversy, they were under the allegations of their petition proper parties to the action.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 60-63, 65-67; Dee. Dig. &wkey;40.]
    On Motion to Reinstate.
    3. Judgment &wkey;>297 — Correction and AmendmentsFailure oe Entry to Conform to Judgment Rendered.
    Where the judgment actually rendered disposed of the rights of all parties to an action, but the judgment, as entered, did not correctly reflect and evidence the judgment rendered and failed to dispose of the rights of certain parties, the court had authority to correct its minutes so as to show the judgment actually rendered.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 581, 584-586; Dec. Dig. <§=» 297.]
    4. Judgment <§=>1—“Rendition” and “Entry” of Judgment.
    The “judgment” of a court is what the court pronounces; its “rendition” is the judicial act by which the court settles and declares the decision of the law upon the matters at issue; and its “entry” is the ministerial act by which the enduring evidence of the judicial act is afforded.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. jj§ 1, 3, 4; Dec. Dig. <§=1.
    For other definitions, see Words and Phrases, First and Second Series, Entry; Judgment; Rendition of Judgment.]
    5. Judgment <§=>299—Amendment or Correction—Tíme for Amendment.
    Under Rev. St. 1911, art. 2015, providing that, where there shall be a mistake in the record of any judgment, the judge may in open court, and after notice of the application therefor to the parties interested, amend the same, and article 2016, providing that, where in the record of any judgment or decree there shall be a mistake, miscalculation, or misrecital of any sum or sums of money, or any names, and there shall be among the records any verdict or instrument of writing whereby the judgment may be safely amended, it shall be the duty of the court and the judge thereof in vacation on application of either party, to amend the judgment, where the judgment actually rendered disposed of the rights of all of the parties, but the judgment, as entered, did not dispose of the rights of certain parties, the correction of the judgment entry to conform to the judgment rendered could only be made at a subsequent term, and not in vacation; as article 2016 is limited to the particular errors in the record of the judgment therein indicated.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 583-586; Dec. Dig. <§==>299.]
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by Mrs. J. L. Moore against the Toyah Valley Irrigation Company and another in which J. T. Moore and others intervened as plaintiffs. Judgment for defendants, and plaintiffs appeal.
    Appeal dismissed.
    Hefner & Cooke and J. W. Parker, all of Pecos, for appellants. Ross & Hubbard, W. A. Hudson, E. C. Canon, J. A. Buck, and J. E. Starley, all of Pecos, Capps, Cantey, Hanger & Short, of Ft. Worth, and J. A. Drane and Harry 'MacTier, both of Pecos, for ap-pellees.
   HARPER, J.

This suit for injunction was instituted by Mrs. J. L. Moore, originally, against the Toyah Valley Irrigation Company and A. J. Carpenter. Afterwards J. T., W. E., and E. A. Moore intervened in the case, in person or through Mrs. J. L. Moore, who is alleged to be their guardian (the petition does not exactly reveal which), setting up that they were jointly interested with plaintiff Moore in the lands and waters in controversy, and they filed pleadings and adopted those filed by Mrs. J. L. Moore.

The decree entered by the trial court' after hearing is not such a final judgment as-is required by law to confer jurisdiction upon this court, in that it does not dispose of the parties (intervener) nor the subject-matter sued for by such parties. The parties J. T., W. E., and B. A. Moore have not been disposed of by the decree, nor by any order of dismissal; nor has the subject-matter of their suit been disposed of as to them by the judgment.

Under the allegations in their petition in intervention, the said J. T., W. E., and E. A. Moore were proper parties to this action (Foster v. G., C. & S. F. Ry. Co., 91 Tex. 631, 45 S. W. 376), and, to make the decree final, there must be an order entered of record disposing of them as parties (Mendoza v. A., T. & S. F. Ry. Co., 62 S. W. 418 ), and likewise the decree of the court, in order to be such final judgment as will give this court jurisdiction to consider and determine the questions involved, must dispose of the pleas and issues of law and fact (Railway Co. v. Weld & Neville, 95 Tex. 278, 66 S. W. 1095).

It is therefore ordered that this cause be dismissed at the cost of appellants.

On Motion to Reinstate.

By motion appellants ask that their appeal, dismissed for want of a final judgment, be reinstated, for the reason that since the order of dismissal was entered a final judgment has been entered nunc pro tunc in the trial court, and further asks for a writ of certiorari to the clerk of the district court' of Reeves county, Tex., to certify the record of the judgment as corrected.

The record filed in support of the motion shows that since the order of dismissal the appellants filed a motion in the district court containing the following:

“That * * * at the November term, 1914, * * * said cause was tried, and final judgment rendered, as appears from the docket entries and papers filed in said cause, disposing of the parties to said cause and the issues of law and fact raised by the parties thereto, that thereafter, and during the same term of said court, said judgment was duly recorded, but there was a clerical error in the record of said judgment, as so made, in this, that the said judgment does not dispose of the interveners, Mrs. J. L. Moore, as guardian, and the said J. T., W. E., and E. A. Moore, and does not dispose of the issues made by the pleading of said interveners, in that the record of said judgment omits the names of said interveners and omits reference to the issues made by their pleadings.”

And by prayer they asked the court to amend or correct the judgment as indicated; Thereafter the judge in vacation, October 15, 1915, caused the judgment to be corrected as indicated.

It appears from the record that the judgment originally rendered actually disposed of the rights of the interveners, and as a matter of fact, a final judgment was rendered. But the judgment, as entered, does not correctly reflect and evidence the judgment actually rendered. The distinction between the rendition of a judgment, and the entry thereof is stated by Judge Phillips in Coleman v. Zapp, 105 Tex. 491, at page 494, 151 S. W. 1040, at page 1041, as follows:

“The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which the enduring evidence of the judicial act is afforded.”

In the same case, 105 Tex. on page 496, 151 S. W. on page 1042, it is said by Judge Phillips:

“To correct in the trial court, after adjournment of the term, a judgment as rendered, an independent action is necessary, as its jurisdiction of the case is at an end. In the latter instance [i. e., a proceeding to correct or supply, the minutes of the court so as to have them truly recite a judgment actually rendered] the court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry, because the inherent power that it possesses as a court over its own records endures for the sake of their verity.”

It is thus seen that the trouble' in this case is not that the court did not render a final judgment, hut that it failed to enter a final judgment. The latter being the case, it is clear, under numerous authorities, that the court has authority to correct its minutes so as to show the judgment actually rendered. Hamilton v. Joachim, 160 S. W. 645, at page 647, and authorities there cited, and also Yarbrough v. Etheredge, 163 S. W. at page 999.

It remains therefore only to be determined whether the correction of the minutes can be made in vacation, or must it be made by a nunc pro tunc order entered during term time. The only authority to amend a judgment entered in vacation is contained in articles 2016 and 2017, where it is provided that:

“Where in the record of any judgmqpt or decree of any court there shall be any mistake, miscalculation, or misrecital of any sum or sums of money, or of any name or names, * * * it shall be the duty of the court in which such judgment or decree shall be rendered” to amend same.

Plainly, this cause does not fall within the terms of that article, because it is not any mistake, miscalculation, or misrecital of any name or names; but it is a plain case of failure to incorporate in the judgment entry a disposition of the rights of interveners. Construing article 2016, our courts in several cases have, in effect, held that only clerical errors may be corrected in vacation by virtue of this statute. See Mansel v. Castles, 54 S. W. 299; Railway Co. v. Haynes, 82 Tex. 448, 18 S. W. 605; Hinzie v. Kempner, 82 Tex. 617, at page 621, 18 S. W. 659; and Taylor v. Doom, 43 Tex. Civ. App. 59, at page 63, 95 S. W. 4.

The statute which controls is article 2015, which reads that, where there is a mistake in the record of any judgment or decree, the judge may, in open court, and after notice of the application therefor has been given to the parties interested in such judgment or decree, amend the same according to the truth and justice of the case, and thereafter the execution shall conform to the judgment as rendered. This statute is a very much broader one than article 2016, and gives the trial judge unlimited authority to correct any mistake in the record of any judgment or decree, but it must be made in open coui;t. As has been indicated, article 2016 has reference to corrections which may be made in vacation, and is limited to the particular errors in the record of the judgment therein indicated. So it is plain that the remedy of the parties in this case is to have the judgment entry corrected by an order made in open court nunc pro tunc at a subsequent term, under article 2015.

It appears from the motion in this case that all parties would prefer to have this case disposed of upon the present appeal. We at this time see no reason why it should not be done after a nunc pro tunc entry is made in the trial court, properly correcting the entry of the judgment, so as to dispose of all issues and parties, upon a motion which may be thereafter seasonably presented to reinstate the appeal.

The motion is in all things overruled.

       Reported in full in the Southwestern Reporter; reported as a memorandum decision without opinion in 94 Tex. 650.

      ®=3For other eases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes

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


author: HENDRICKS, J.

text:
    LOCKNEY STATE BANK v. DAMRON.
    (No. 829.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1915.)
    1. Principal and Agent <@=>171 — Unauthorized Acts — Acceptance op Benefits.
    A person or corporation cannot retain an advantage secured by fraud of one of its agents and accept the benefits of bis act, without also adopting the means by which the advantage was procured, though the principal had no knowledge at the time what those means were.
    [Ed. Note — For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. <@==>171.]
    2. Cancellation op Instruments <@=>47 — Gbounds poe Denial op Relief — Feaud by Plaintiff.
    A woman suing for the cancellation of a note for $3,306 given to a bank, who at the time it was signed was about 70 years old, ignorant, uneducated, and practically unable to read and write, testified that the cashier of the bank, who accompanied her grandson to her home to obtain her signature to the note, represented that it was for $1,700; that lie had also signed the note; that if she would sign it he would stand between her and all danger; that she had confidence in him, knew his position as cashier, and thought he was reliable and possessed property; that she understood he was representing the bank; and that she told them when she signed the note that she would not pay it, and they took it with the understanding that she was not to pay it. Meld that, assuming that an agreement that she would not he legally bound as a maker of the note would be fraudulent as to the bank and preclude equitable relief, the testimony was open to the construction that she understood that she was not to pay the note because of the cashier’s agreement and representations that he would stand between her and all danger, in connection with her belief in his solvency, and, if such was the understanding, the contract was not fraudulent as to the bank, especially as, had it not been for the cashier’s fraudulent representations, her obligation to the bank would not have been affected by this agreement, and the bank could not have been injured thereby.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 102, 103; Dec. Dig. <©=>47J
    3. Evidence <©=>441 — Paeol Evidence to Vary Writing.
    The terms of a promissory note are conclusive of the contract, and cannot be changed by parol evidence that the note was executed with an understanding between the parties that it was never to be paid.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. <©=>441.]
    4. Bills and Notes <©=>103 — Validity — Fraud.
    That the cashier of a bank to which a woman 70 years old, ignorant, uneducated, and practically unable to read and write, executed a note for $3,300, represented to her that it was for $1,700, that he had also signed the note, and that if she would sign it he would stand between her and all danger, constituted sufficient grounds for the cancellation of the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 233-240; Dec. Dig. <©=> 103.]
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    Suit by Mrs. S. A. Damron against the Lockney State Bank. Decree in favor of plaintiff, and defendant appeals.
    Affirmed.
    Crudgington & Works, of Amarillo, for appellant. T. T. Bouldin, of Matador, for appellee.
   HENDRICKS, J.

The appellee, Mrs. S. A. Damron, instituted this suit against the appellant, the Lockney State Bank, for the purpose of canceling a note on its face for the sum of $3,300, which at the time of the institution of the suit had not matured. Mrs. Damron, who signed the note, with her mark as signature, at the time was about 70 years of age, ignorant, uneducated, and practically unable to read and write. At the time of the execution of the note D. F. Jones, the grandson of Mrs.’ 'Damron, was indebted to the Lockney State Bank, and, with Garrison, cashier of the bank, visited the home of Mrs. 'Damron, several miles in the country, for the purpose of obtaining the signature of his grandmother upon the particular note. Mrs. Damron testified that antecedent to the ex•ecution of the note Mr. Garrison, the cashier of the bank, represented to her that the note was for $1,709, and that he had also signed the note, and that if she would sign it he would stand between her and all danger, and that if such representations had not been made by Mr. Garrison she would not have executed the paper, that they (evidently meaning Jones and Garrison) represented to her that this was an extension of another note, and that they simply wanted a little longer time upon the obligation and had plenty of cattle to settle the same. She said that she had confidence in Mr. Garrison, knew the position that he held in the bank at Lockney as cashier, and thought he was reliable and possessed of some property, that she understood that Mr. Garrison was representing the bank, and that she signed the note in order that Mr. Garrison could get the amount of money represented by the note from the bank, and further testified:

“I told them when I signed it [the note] that I would not pay it at all, and they took it with that understanding — that I was not to pay for it.”

The trial court, without the assistance of a jury, canceled the note, and the assignment which we will discuss is one, in effect, that, Mrs. Damron having testified that she had an understanding that she was not to pay the note when they took it, and knowing that said note was being executed for the purpose of securing money from the bank for Garrison, she was guilty of such fraud as to preclude a recovery. The authorities principally cited to sustain this view are Jines v. Astle, 170 S. W. 1081,. Rushing v. Bank, 162 S. W. 469, and Hawkins v. Bank, 175 S. W. 166, with the additional case of Cotton v. Rand, 93 Tex. 7, 51 S. W. 842, 53 S. W. 343, decided by the Supreme Court; the first three cases having been decided by this court.

Appellant also, as a subsidiary proposition under the above assignment, contends that Garrison having an interest in the appellant bank, that no representations or fraud of Garrison could be imputed to the bank.

There may' be a phase of this case that Garrison, reckoning it upon the representations he made to Mrs. Damron, if he informed her, and she so believed, that this was his note to the bank, and he was individually obtaining the money, such antagonism of interest, if it were true, might exist. However, in passing upon appellant’s secondary proposition, there exists the applicable principle that a person or a corporation cannot retain an advantage secured by fraud of one of its agents and accept the benefits of his act without also adopting the means by which the advantage was procured, although the principal may have had no knowledge at the time what those means were. American Nat. Bank v. Cruger, 91 Tex. 446, 44 S. W. 278; Allen v. Garrison, 92 Tex. 546, 50 S. W. 335; Cowboy State Bank & Trust Co. v. Guinn, 160 S. W. 1105; Commonwealth Bonding & Casualty Co. v. Bomar, 169 S. W. 1063.

Assuming argumentatively only that an agreement,- as construed by appellant to bave been made in this case, is one tbe tendency of wbicb is to permit tbe perpetration of a fraud as to preclude equitable consideration of rights by a participant, however, we think, resolving the testimony presumptively as the trial court resolved it, and the transaction, considering the evidence as a whole, that the authorities cited and the principle attempted to be held applicable are not pertinent. Appellant’s construction and theory is, as we view it, that Mrs. Dam-ron agreed with Garrison, and Garrison with her, that she would not be bound, in so far as any legal obligation is concerned, as a maker of the note. Such a construction is deducible from the testimony. However, there is another construction that Mrs. Dam-ron understood that she was not to pay said note on account of the agreement and representations by Garrison with her belief in his solvency that he would stand between her and all danger upon the obligation, and for that reason she would not pay it.

“It is a well-established rule of construction that language in a contract which is susceptible of two constructions, one of which would render the contract illegal, and the other would make it lawful, that contract which would conform the contract to the law must be adopted.” Foard County v. Sandifer, 105 Tex. 424, 151 S. W. 524.

Chief Justice -Brown also said in that case, quoting from Clark on Contracts:

.“Where a' particular word, or the contract as a whole, is susceptible of two meanings, one of which will render the contract valid, and the Other of which will render it invalid, the foi-mer will b.e adopted so as to uphold the contract.”

. It is clear to us that, if Garrison agreed with Mrs. Damron that she would not have to pay the note, on account of the assumption by him, as between them, of the whole liability for the paper, such contract had not a fraudulent tendency, nor, as far as this record suggests, would violate any rule of public policy to the extent that the same would be void, and constitute fraud upon the bank.

Again, as presented in this record, could such a contract operate as a fraud upon the Lockney State Bank? The terms of a promissory note are conclusive of the contract and cannot be changed by parol evidence that the note was executed with an understanding between the parties that it was never to be paid. Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321; Roundtree v. Gilroy, 57 Tex. 176, 180; Self v. King, 28 Tex. 552, 553; Bailey v. Rockwall County Nat. Bank (Civ. App.) 61 S. W. 530, 531.

If it were not for fraudulent representations Mrs. Damron could not impeach this note upon the character of agreement which appellant claims was made. Her obligation to the bank would be unequivocal, and stripped of the fraud that permits the woman to cancel the note, the bank could not have been injured in law. If the representations had not been made, the mere agreement, if it existed as the appellant construes it, that she was not to be bound upon the note, would be unavailing as to deprive the bank of any rights whatever in law. If so, how could such contract have a tendency to operate as a fraud in law upon the bank? Without deciding it upon the consideration last suggested, we think, upon an interpretation of the record, susceptible of two meanings, and resolving it presumably as the trial court construed it, the assignment should be overruled., Other assignments we think unnecessary to discuss and are overruled.

The trial court resolved the testimony as to representations of Garrison against the bank which constitute sufficient grounds for the cancellation. Stacy v. Ross, 27 Tex. 3, 84 Am. Dec. 604.

Affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HUFF, C. J.

text:
    MORRIS v. McSPADDEN et al.
    (No. 825.)

    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1915.
    On Motion for Rehearing, Nov. 6, 1915.)
    1. Judgment <&wkey;256 — Conformity to Special Findings — Immaterial Findings.
    The issue found by the jury must or should respond to the issues presented by the pleadings, and, if they do not so respond, the issues so found should be regarded as immaterial, and not be considered in rendering the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. &wkey;>256.]
    2. Trial &wkey;>366 — Special Issues — Requests —Exceptions Bad in Part.
    Where five special issues were requested on one paper, and refused as a whole, and an exception taken to the refusal of all five, and throe of such issues were given substantially as requested, an assignment complaining of the refusal of the other two would not be considered.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 875-878; Dec. Dig. &wkey;366.]
    3. Trial <&wkey;366 — Special Issues — Requests —Exceptions Bad in Part.
    A general exception to the refusal to give special charges en masse will be overruled, where part of them were embraced in the main charge as given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 875-878; Dec. Dig. &wkey;366.]
    On Motion for Rehearing.
    4. Judgment <&wkey;256 — Suit for Accounting-Conformity to Findings.
    Where, in a suit for an accounting between partners, the jury found the expenses paid out, who paid them, and what each paid, the losses sustained, the amounts received by each partner, and that defendant had received $11,196.83%, which had not been accounted for, and further found that there was $6,820.98 belonging to the partnership that had not been divided by agreement of the parties, though it had not been specifically ■ pleaded that the partners had by agreement divided part of the funds, thereby requiring a division only of the remainder, the issue as to the amount not divided by agreement was immaterial, and the finding thereon could not defeat a verdict or recovery upon the amount found by a true accounting, and a judgment against defendant for the amount due, as shown by the other findings, was not erroneous.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. &wkey;>256.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by W. A. McSpadden against R. A. Morris and another. From a judgment against defendant Morris, he appeals.
    Affirmed.
    Lumpkin & Harrington, of Amarillo, and Cooper & Merrill, of Houston, for appellant. J. H. Synnott, of Dallas, and R. E. Underwood, of Amarillo, for appellees.

      Application for writ of error -pending in Supreme Court.

   HUFF, C. J.

W. A. McSpadden brought suit against R. A. Morris and Mike C. Le Master, alleging the existence of a partnership between, the three parties in certain cattle transactions, and that certain profits were realized from their dealings, asking for an accounting, and to recover his proportional part of the partnership, which he alleges is one-third of the net profits. Le Master answered, denying under oath that he was one of the partners. R. A. Morris answered, admitting partnership between himself and McSpadden, alleging that he was to receive two-thirds and McSpadden one-third of the net profits, and also asking for an accounting. The case was tried before a jury and submitted upon special issues, which issues and answers thereto are as follows:

“First. Was the defendant Mike C. Le Master, a member of the partnership firm of Morris & McSpadden? Let your answer be ‘Yes’ or ‘No.’ Answer: No.
“Second. What were the gross receipts, or total in money, of the partnership of Morris & McSpadden, received from the sale of contracts and cattle? Let your answer be in figures of dollars and cents. Answer: Total gross receipts, $100,835.00. Total gross profits, $13,447.50.
“Third. What sum of money paid out and expended by each one of the partners, as expenses, on account of several lots or herds of cattle contracted for or not contracted for, for the firm? Answer: Morris, $1,135.66%. McSpadden, $210.00.
"Fourth. How much were the total commissions paid out for and on account of the cattle contracted for and sales made of same on account of the firm? Answer: Commissions, $382.50.
“Fifth. What were the losses, if any, incurred on account of cattle contracted for for the firm? Answer: $1,000.00.
“Seventh. What other sums, if any, were expended and paid out by each individual member of the firm for and on account of the firm business? Answer: $47.50 paid for steer, paid by Morris.
“Eighth. What amounts have been received by the individual partners, composing the firm of Morris & McSpadden, from the partnership fund? Answer: Morris, $12,332.50 — $1,135.66% =$ll,196.83y3. McSpadden $1,115.00.
“Ninth. Are there any cattle bought for the firm of Morris & McSpadden yet unsold that are likely to ever be realized upon? If so, how many and what is their probable value? Answer : No.
“Tenth. Are there any funds belonging to the partnership that have not been divided by agreement of the parties? If yes, what is the amount? Answer: Yes; $6,820.98.
“Eleventh. Was an accounting and settlement of said partnership intentionally delayed or refused by either of the partners? If yes, which one of them delayed the settlement? Answer: Yes; Morris.
“Twelfth. What was the earliest date that an accounting and settlement of said partnership could reasonably have been had between the interested parties? Answer: October, 1913.
“Thirteenth. How much, if any, of the funds received on account of the partnership has defendant Morris received and not accounted for to said joint business? Answer: $11,196.83%.”

Both parties moved for a judgment on the findings. The trial court rendered judgment on McSpadden’s motion, and on the findings of the jury, for the sum of $2,806.98, being the principal and interest against Morris. The facts and admissions are sufficient to warrant the court in finding that there was a partnership between Morris and McSpad-den and that McSpadden was entitled to one-third and Morris two-thirds of the net profits.

Appellant’s first and second assignments are to the effect that the court erred in rendering judgment upon the special findings of the jury, and ignoring their findings as to special issue No. 10, because the judgment is in conflict and not based on said issue. We find no allegation that there was any division of partnership funds by agreement of the partners, and therefore the issue submitted by No. 10 was immaterial in considering the settlement of the partnership accounts. The finding of the jury that there were $6,820.9S on hand,' which had theretofore been undivided by agreement, is doubtless unintelligible, for the reason that the jury took into consideration a division by agreement not pleaded, and deducted that amount from the fund found to be in Morris’ hands belonging to the partnership. The issue found by the jury must or should respond to the issues presented by the pleadings, and, if they do not so respond, the issues so found should be regarded as immaterial, and should not be considered in rendering the judgment. Ætna Accident & Liability Co. v. White, 177 S. W. 162; Krenz v. Strohmeir, 177 S. W. 178. The other findings of the jury support the judgment of the court; in fact, there is no complaint made as to the other findings of the jury, or that the judgment of the court is not supported thereby, further than that it should hare been rendered in accordance with the jury’s finding on issue No. 10. Assignments Nos. 1 and 2 are therefore overruled.

The third and fourth assignments complain of the action of the court in refusing to submit special issues Nos. 3 and 4. These special issues were requested with three others, which were given by the court substantially as requested, and in fact the two issues assigned as not being submitted are substantially covered by other issues submitted by the court The appellant’s bill of exceptions shows that all five of these issues were requested on one paper and refused as a whole, and the exception taken to the action of the court in refusing to give all five of the issues. Where a general exception is taken to the refusal of the court to give special charges en masse, the exception will be overruled, where it appears part of them are embraced in the main charge of the court given to the jury. Hovey v. Sanders, 174 S. W. 1025. The appellees’ exceptions to these assignments will be sustained. We believe, however, the main charge submitted the issues requested by special issues Nos. 3 and 4, and that they are so nearly .substantially the same that no injury is shown, even if we considered the assignments.

The fifth and sixth assignments are overruled, for the reasons given in overruling the first and second assignments. We find no such error assigned as will require a reversal of the case.

Affirmed.

On Motion for Rehearing.

As suggested by appellant, this suit was simply a case of accounting between partners. The issue thereby presented was the net profit in the business and a proper division of the same, and, to ascertain this, the losses sustained, the money paid out by each, and the amount each partner had in hand of the partnership funds were the issues included in the pleadings. '

The jury, by their findings, found the expenses paid out in the partnership, and who paid them, and what each paid. They found the losses that had been sustained in certain transactions, and the amount which was then on hand, and they found and answered to the thirteenth issue the amount that Morris then had on hand Of the partnership funds, which he had not accounted for to the partnership. These findings clearly gave appellee a right to the amount of the judgment rendered. In an accounting, he should have paid, according to the findings of the jury, the amount of the judgment to appellee. If the partners had, by an agreement, divided part of the funds, which should not have been taken into an accounting, thereby requiring a division only of the remainder, after deducting the amount divided by agreement, this agreement should have been specifically pleaded, and in the absence of such a pleading it was not an issue for the jury, and should not have been submitted, and, as submitted, it was upon an immaterial issue, and the findings could not affect the true balance found upon a true accounting of the partnership affairs. Such findings upon án immaterial issue, when not in the case pleaded, ought not to defeat a verdict or a recovery upon the amount found by a true accounting. In the case of Kelley v. Ward, 94 Tex. 289, 60 S. W. 311, the Supreme Cburt said:

“The finding of immaterial tacts cannot be made ground for reversal, if the judgment is not in conflict with the findings upon material issues.”

See, also, Railway Co. v. Bender, 32 Tex. Civ. App. 568, 75 S. W. 561; Coons v. Lain, 168 S. W. 981.

The motion will be overruled.
      <g^wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: DAVIDSON, J.

text:
    LOCKHART v. STATE.
    (No. 3679.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Criminal Law <&wkey;>1090 — Matters Reviewable — Reservation of Grounds.
    Where there is neither statement of facts nor bill of exceptions, and the only ground of a motion for new trial is that the verdict is contrary to the law and evidence, the ruling thereon cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2S25-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@^>1090.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Dennis Lockhart was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $50 and 30 days’ imprisonment in the county jail.

This record is before us without a statement of facts or bill of exceptions. The only ground of the motion for new trial is that the verdict of the jury is contrary to the law and against the evidence. This cannot be revised or reviewed in the absence of the evidence.

The judgment is affirmed.


text:
    GARZA v. STATE.
    (No. 3693.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Criminal Law <&wkey;1114 — Appeal — Matters Review able — Preservation of Grounds.
    Where the record on appeal contains no statement of facts, bill of exceptions, or motion for new trial, no question is presented which can be reviewed by the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dee. Dig. &wkey;> 1114.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    P. T. Garza was convicted of aggravated assault, and he appeals.
    Affirmed.
    •O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $100 and 90 days’ imprisonment in the county jail.

The record is before us without a statement of facts or bill of exceptions, nor does the record contain a motion for new trial.

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


author: DAYIDSON, J.

text:
    LAWSON v. STATE.
    (No. 3681.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Criminal Law <&wkey;1090 — Record on Appeal —New Trial.
    Where the record on appeal contains neither statement of facts nor bills of exceptions, but there is a motion for a new trial based upon erroneous ruling on facts and evidence, no question is presented which can be reviewed by the court, since a statement of the evidence is necessary for ruling on the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey; 1090.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Sirs. S. E. Lawson was convicted of violating the local option law, and she appeals.
    Affirmed.
    See, also, 179 S. W. 557.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of violating the local option law; her punishment being assessed at one year’s confinement in the penitentiary.

This record is before us without a statement of facts or bill of exceptions. There are two grounds set up in the motion for new trial why the judgment is erroneous: First, that the court erred in refusing defendant’s motion to return a verdict of not guilty for the want of sufficient evidence, because it is shown that the prosecuting witness, Payne, was drunk at the time of the transaction charged against appellant, and to such an extent that his mind was incapable of stating sufficient facts connectedly that show a sale, and the other evidence showed there was in law no sale of intoxicating liquors by defendant to Payne. Second ground of the motion is that the verdict is not sustained by the evidence and is contrary to the law. In the absence of the evidence, we are unable to revise these two grounds.

As the matter is presented, the judgment will be affirmed.


text:
    LAWSON v. STATE.
    (No. 3680.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Mrs. S. E.- Lawson was convicted of selling liquor in prohibition territory, and she appeals.
    Affirmed.
    See, also, 179 S. W. -557.
    C. G. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

The indictment charges appellant with selling liquor in prohibition territory. When tried, she was adjudged guilty. As the record contains neither a statement of facts nor any bill of exceptions, the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    LAWSON v. STATE.
    (No. 3682.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Mrs. S. E. Lawson was convicted for unlawfully selling intoxicating liquor in prohibition territory, and she appeals.
    Affirmed.
    See, also, 179 S. W. 557.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Mrs. Lawson appeals _ from a conviction for unlawfully selling intoxicating liquor in prohibition territory, wherein her punishment was assessed at the lowest prescribed by law.

There is no statement of facts or bill of exceptions in the record, and no question is raised which can be considered in the absence of these.

The judgment is therefore affirmed.


text:
    DIETER v. STATE.
    (No. 3692.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    1. Assault and Battery <@=>97 — Verdict— Specifying Degree of Offense.
    Where on a trial for assault the court submitted both aggravated and simple assault, and the jury imposed a fine of $25, which would be the maximum for simple assault, and the minimum for aggravated assault, they -should have specified in the verdict the degree of which accused was convicted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 151; Dee. Dig. <&wkey;>97.]
    2. Criminal Law <&wkey;622 — Separate Trial of CODEFENDANTS — IilGIIT TO SEVERANCE.
    Where an application by a person charged with assault for a severance in order that an important witness for defendant, who was separately charged with the same offense, might be first tried, was in accordance with the law, it should have been granted, and its denial was reversible error, as the court had no authority to decide in advance whether the jury would acquit such witness.
    [Ed.’ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 13S0-1383, 1385, 1386, 1388-1390; Dec. Dig. &wkey;622J
    8. Criminal Law <&wkey;419, 420 — Evidence — Provocation — Hearsay.
    On a trial for assault it was error to exclude defendant’s testimony that he assaulted the prosecuting witness because he was informed by his wife and others that the prosecuting witness had committed 'rape on her, it appearing that the wife told him about this only a few days before the trouble arose, and that the trouble arose at the first meeting after defendant learned of the rape, as insulting conduct towards a female relative can be shown by this character of testimony, and the rule of hearsay does not apply, especially as the statute itself provides in regard to such conduct that a killing must occur at the time of the happening of such conduct if defendant is present or as soon as he meets with the insulting party after being “informed” thereof.
    [Ed. Note. — Eor other eases, see Criminal Haw, Cent. Dig'. §§ 973-983; Dec. Dig. &wkey;419, 420.]
    Appeal from Floyd County Court; E'. P. Thompson, Judge.
    George Dieter was convicted of assault, and he appeals.
    Reversed and remanded.
    Graham & Graham, of Plainview, for appellant. C. C. McDonald, Asst Atty. Gen., for the State.
   DAVIDSON, J.

The jury failed to specify in their verdict whether defendant was convicted of aggravated or simple assault ; both being submitted by the court. A fine of $25 would be the maximum for simple assault, and the minimum for aggravated assault. The punishment was assessed at $23 in this case. The court submitted both degrees of assault in his charge to the jury. He was correct in submitting these two phases of the law under the evidence. Upon another trial this should not be permitted. The jury should specify of what degree appellant is convicted. We note this in passing, so that it may not again occur.

When the case was called for trial, appellant filed his application for severance. Another party, whose name is Viegel, was separately charged with the same offense, and the evidence shows that he was present at the time of the assault by appellant upon the alleged injured party, whose name is Ratjen. The motion for severance was in accordance with the law, and should have been granted. If we go to the statement of facts, we find the state’s contention was that Viegel, being present, was encouraging the defendant to malte the assault. This was denied by the defendant, and testimony introduced to show this was not true. This developed on the trial of the case in the introduction of evidence, but, be that as it may, the jury, ufader the facts, could easily have acquitted Viegel, and may have done so. In any event, the court had no authority to decide this question on motion for severance in advance. Viegel should have been tried first, and, had a verdict of not guilty occurred in his case, he would have been a very important witness for the defendant, because he was present and saw the whole transaction. It is further shown in the record that Viegel was offered as a witness, and on the state’s objection his testimony was not permitted to go to the jury because of the pendency of the prosecution against him for this same offense. This necessarily requires a reversal of the judgment.

While appellant was testifying in his own behalf, he was asked why it was that he made the assault on Ratjen. The court sustained the state’s objection, and appellant was not permitted to answer. Had he been permitted to answer, h'e would have stated that he was informed by his wife and others that Ratjen had been guilty of rape on her (his wife); that his wife told him about it only a few days before the trouble arose. This was their first meeting after he had learned of the rape of his wife, which testimony was excluded by the court. The defendant urged objection. The court approves this bill, with the statement that the jury was withdrawn, and the questions propounded to the witness and the answers elicited showed that the testimony was purely hearsay, and the court thereupon sustained the objections by the state on the ground and excluded the testimony. The court was in error. Insulting conduct towards a female relative can be shown by this character of testimony. All the authorities so hold wherever the question has arisen. The statute itself provides that in regard to insulting conduct the killing must occur at the time of the happening of the insulting conduct, if defendant is present and witnesses it, or as soon as he meets with the insulting party after being informed of that fact. The rule of hearsay does not apply. 1 The statute makes an exception with reference to this character of testimony.

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


text:
    WHITFIELD v. STATE.
    (No. 3666.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    1. Indictment and Information <&wkey;128 — Different Counts — Same Offense.
    It was permissible for an indictment to charge in one count a theft from two persons and in another count a theft of the same property from one of such persons, in order to meet any phase of the evidence that might be introduced with reference to the ownership, control, and management of the stolen property, and there was no merit in the contention that the two counts charged a felony, because the aggregate value of the property, as stated in the two counts, was $55.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 403-413; Dec. Dig. &wkey;>128.]
    2. Criminal Law <&wkey;737 — Issues—Venue.
    Where on a trial in M. county for theft the evidence showed that the property was taken at id., in that county, by some one, and that defendant, when the property was taken from his person in G. county, said that he got it from a “kid” at rA, there was no question of venue in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1703, 1704, 1706; Dec. Dig. &wkey;737.]
    3. Criminal Law <&wkey;829 — Instructions — Requests — Possession of Stolen i-eopebty and Explanation.
    Oh a trial for theft the court refused an instruction that possession alone was not sufficient to warrant a conviction for theft; that possession of property recently stolen was only a circumstance which might be considered in arriving at a conclusion as to defendant’s guilt or innocence, but that, in order to .justify conviction upon such evidence alone, the possession must bo recent after the theft, must be the personal and exclusive possession of defendant, and involve a conscious assertion of ownership by him, and must be unaccompanied by any reasonable explanation by defendant of such possession ; that if the stolen property was found in defendant’s possession recently after the theft, and if, when such possession by him was first called in question, he gave an explanation of such possession that was natural, reasonable, and probably true, it devolved upon the state to show that such explanation was false; and that, if the state failed to show this beyond a z-easonable doubt, defendant must be acquitted. The court gave an unobjectionable charge on circumstantial evidence, and, at defendant’s request, charged that,, although stolen property was found in defendant’s possession, that fact would not be sufficient to convict him; that defendant had a right to give a reasonable explanation of his possession, and if the jury found from the evidence that he gave a reasonable'explanation, they should acquit him; and that, if they believed the property was stolen by either defendant or B., but had a reasonable doubt whether the defendant or B. took it, they should acquit. Meld, that the. instructions given sufficiently presented this issue to the jury.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. &wkey;»829J
    4. Larceny <&wkey;77 — Instructions — Possession of Stolen Property and Explanation.
    It is the safer and better way to apply the law to the identical explanation given by accused of his possession of stolen property, and to charge that, if the jury believe that accused obtained the property as he stated he did, by purchase, trade, or otherwise, or if they have a reasonable doubt of it, they should acquit.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. &wkey;77.]
    5. Larceny <&wkey;27 — Receiving Stolen Property — Criminal Liability.
    A person not connected with the original taking of property is not guilty of theft, even though he received the stolen property knowing it to have been stolen.
    [Ed. Note. — For other cases, see Larceny,' Cent. Dig. §§ 55-57; Dec. Dig. &wkey;27.]
    Appeal from Madison County Court; Joe E. Webb, Judge.
    Douglass Whitfield was convicted of theft, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment contains two counts; one charging the theft from Ben Payne and Bob Payne. The second charges the theft from Ben Payne. The property alleged to have been stolen is the same in each count, to wit, one watch of the value of $15, another watch of the value of $10, and a locket of the value of $2.50. This was proper pleadings to meet any phase of the evidence that might be presented with reference to the consent of the owner of the property, or the person in exclusive control and management of it. There is, therefore, no merit in the contention of appellant to the effect that the two counts charged a felony, in that the aggregate amount was $55. The property in each count is the same, and the counts were intended to meet any phase of evidence that might be introduced with reference to the ownership, control, and management. There is also a contention that the transcript from the district to the county court is irregular; among other things, that it did not have the signature of the district judge, and .was not filed, etc. On examination of the transcript we think it is in compliance with the law.

The question of venue was sought to be raised in the case by charges and in motion for a new trial. We do not think there is any merit in either proposition. The usual rule is prescribed by statute that, unless the question of venue forms an important issue on the trial of the case before the jury, it will be presumed to have been proved, and, unless it becomes an issue on the trial before the jury as to the question of venue, then the record must show by proper bill of exceptions the matters as sought to be presented in order to take advantage of that question. From any standpoint we do not believe, under the facts of this case, it was a question in the case. The evidence is clear that the property was taken in Madison county by somebody. There was *a ball game in the little town of Zulch, which is in Madison county. The Payne Bros, owned a drug store, and Ben Payne was manager of it, and had been for three years. The morning after the game had been played Payne discovered the fact that his watches and locket were gone. He and the officers at once became alert and went to Shiro, in the adjoining county, Grimes, where it seems defendant lived. Leaving Shiro on another road, they met appellant in the road, perhaps in Grimes county, but it may be conceded that he was not in Madison county at the time they met him. From his person they took one of the watches and the locket. At the time they arrested him for the theft of this property he asked them why they were arresting him. They told him, and he then made the statement that he got the watch from a “kid” at Zulch. This was where the theft occurred. We do not think the question of venue is in such position here as to be considered in the nature of, a reversible error. The property was taken in Madison county. Appellant admitted he was in possession of it in Madison county, at Zulch, explaining his possession by stating he got it from a boy whom he denominated a “kid.” The court therefore was not in error in any of these matters complained of as to the question of venue.

Appellant requested the court to instruct the jury:

“That possession alone is not sufficient to warrant a eonvietion of a person charged with theft. Possession of property recently stolen is only a circumstance which may bo considered by the jury in arriving at the conclusion as to the guilt or innocence of the defendant; but in order to justify a conviction upon such evidence alone, such possession must bo recent after the theft, must be the personal and exclusive possession of the defendant, and involve a conscious assertion of ownership hy him, And must be unaccompanied by any reasonable explanation by the defendant of such possession; and, if the property of Payne Bros., as described in the indictment, was stolen, and the defendant was found in possession of same recently after the theft, if, when such possession by him was first called in question, he gave aq explanation of such possession thát was natural, reasonable, and probably true, it then devolves upon the state to show that such explanation was false, and, if the state fails to show same to be false beyond a reasonable doubt, the defendant must be acquitted, and you will so say by your verdict.”

This was refused. The court gave a charge on circumstantial evidence, to which no objection was urged, and also gave the following special charge at the request of appellant:

“That, although the-stolen property was found in the possession of the defendant, that fact would not be sufficient to convict him, and that the defendant had a right to give a reasonable explanation of how he came in possession of the said stolen property. Therefore, if you find from the evidence that defendant gave a reasonable explanation for his possession of the stolen‘property, you will acquit the defendant, and so say by your verdict.”

He also gave the following charge at the request of appellant:

“You are instructed that, if you find from the evidence beyond a reasonable doubt that the property alleged, to have been stolen was taken from the owner without his knowledge or consent, and you further find from the evidence that the defendant or Erank Bay took said property, but have a reasonable doubt whether the defendant or Frank Bay took same, you will acquit the defendant, and say by your verdict not guilty.”

We think these charges sufficiently presented this issue to' the jury. Appellant’s explanation did not specify from whom he obtained the , goods, but his statement was that he got it from a kid at Zulch. This court, in quite a number of decisions, has approved the form of special charge given by the court'at appellant’s request, instead of the lengthy one refused by the court. It has been held, however, that such' matters can he presented by such a charge as requested by áppellant and refused by the court, but it has also been held that, where the charge given more pertinently and directly presents the question, it is sufficient without giving the other, and in fact the briefer, shorter, and more terse charge has been approved, as being correct and less confusing, or as being less calculated to confuse the jury with reference to the law of such a state of case. We are still of the opinion that the safer and better way to present the question to the jury is by applying pertinently the law to the identical explanation given by the accused where that is an issue. If he says he bought the property from some one, it would be sufficient to say to the jury, if they should believe that appellant obtained the property as he stated he did, either by purchase or trade, or whatever, the explanation may be, or if they had a reasonable doubt of it, then they should acquit. No jury could be misled by such a charge,, and an intelligent jury would readily comprehend such a charge. ' If appellant bought the property, or obtained it from another party, and was not connected with the original taking, of course, he would not be guilty of theft, even though he might have received stolen property knowing it to have been stolen. So a pertinent application of the law to the facts that he did so receive it from the other party after it was stolen would be sufficient, whether he was guilty of receiving it, or whether he bought it in good faith, or whether he bought it at all in any faith. The proposition is that he was not connected with the original taking. If not connected with the original taking in a guilty manner, he could not be guilty of theft, and this would be true whether he received the stolen property, knowing it to have been stolen, or whether he acquired it innocently after such knowledge. The accused citizen must be tried under the allegations of the indictment, and not on some other statement of fact not in accord with and supporting the allegations of the indictment.

Finding no reversible error in the record, the judgment is affirmed.
      <g&wkey;F0r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^»For other eases see same topic and KEY-NUMBER in aii Key-Numbered Digests and Indexes


author: DAVIDSON, J.,

text:
    GOLSON v. STATE.
    (No. 3731.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    Criminal Law <&wkey;2G0 — Appeal from Justice —Final Judgment.
    Where, on. a complaint charging accused with boarding a freight train with intent to obtain a free ride and without lawful business thereon or the consent of the conductor, he was convicted in justice court and a fine imposed, there was a final judgment, warranting appeal to and trial de novo the county court.
    [Ed. Note. — For .other cases, see Criminal Law, Cent. Dig. §§ 567-609; Dec. Dig. <&wkey;>260.]
    Appeal from Henderson County Court; C. D. Owen, Judge.
    L. E. Golsoh, being convicted in justice court of crime, appealed to thé county court, and from a judgment of dismissal, he again appeals.
    Reversed and remanded.
    Miller & Miller, of Athens, for appellant. C. Ü. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.,

This case arose in the justice court, and the conviction there occurred, and a fine of ?5 imposed and all costs of court.

The complaint charged the defendant with boarding a freight train on the track of the St. Louis & Southwestern Railway Company, 'with intent to obtain a free ride, and with- . out any lawful business thereon, and without the consent of the conductor in charge of said •train. Motion was'made in the county court to dismiss tlie appeal for want of final judgment, and sustained by the court. Notice of appeal was given to this court. The Assistant Attorney General asks this court to dismiss this ease because there was no final judgment in the justice court, and that the action of the county court in dismissing the appeal was correct. This motion cannot be sustained. The judgment is a sufficient final judgment, and the county court should have entertained jurisdiction and tried the case de novo. Terry v. State, 30 Tex. App. 408, 17 S. W. 1075; Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076; Ex parte Cox, 53 Tex. Cr. R. 241, 109 S. W. 369; Ex parte Williford, 50 Tex. Cr. R. 418, 100 S. W. 919; Ex parte White, 50 Tex. Cr. R. 474, 98 S. W. 850; Ex parte Crawford, 36 Tex. Cr. R. 182, 36 S. W. 92. Some of these eases are not directly in point, but all bear on the question, and all approve Ex parte Dickerson, supra.

For the reasons indicated the judgment is reversed, and the cause remanded for trial de novo in the county court.
      ©=yFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DIXON v. STATE.
    (No. 3711.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Criminal Law <&wkey;1097 — AppeaXt-Statement of Pacts.
    Without statement of facts, the grounds of a motion for new trial relating to the insufficiency of the evidence, to the improper conduct of counsel, and to the erroneous admission of evidence, cannot he reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey;1097.]
    2. Criminal Law <&wkey;>1184 — Trial—Sentence —Indeterminate Sentence.
    Where, contrary to the Indeterminate Sentence Law (Acts 33d Leg. c. 132, amended by Acts 33d Leg. [Ex. Sess.] c. 5), accused was sentenced to a definite term of imprisonment, the judgment will be reformed so as to comply with the law, and affirmed.
    [Ed. Note. — For other cases, see Criminal Law,Cent. Dig. §§ 3199, 3200; Dec. Dig. <5&wkey;
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.
    J. W. Dixon was convicted of rape, and he appeals.
    Reformed and affirmed.
    C. C. McDonald, Asst Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of rape, his punishment being assessed at 25 years’ confinement in the penitentiary.

Neither any bill of exceptions nor a statement of facts is incorporated in the record. The only ground of the ’motion for new trial relates to matters that cannot be considered in the absence of a statement of facts. The first ground in the motion is that the state was permitted to prove that the alleged ravished woman was of weak mind, there being no allegation in the indictment that she was a woman of weak intellect. The second ground of the motion is that, while the defendant was on the witness stand testifying in his own behalf, the district attorney, in a loud and angry tone of voice, called the defendant a liar. There is another ground, that the evidence is insufficient. There is nothing in the record to verify these statements, and therefore they cannot be considered. The court, in passing sentence, however, failed to recognize the statute with reference to the indeterminate sentence; the sentence being for 25 years. The judgment will be reformed so as to conform to the indeterminate sentence statute, and made to read that the punishment shall not be more than 25 nor less than 5 years.

The judgment is reformed and affirmed.


text:
    THOMPSON v. STATE.
    (No. 3718.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Criminal Law <&wkey;134 — Change oe Venue —Extension of Time to Contest Motion.
    It is not error to allow time to file a contest to defendant’s motion for a change of venue, nor to extend the time for verification when the contest is not at first sworn to, since it cannot in any way prejudice the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 243, 251, 252; Dec. Dig. &wkey;> 134.]
    2. Criminal Law <&wkey;134^CHANGE of Venue —Evidence.
    Where defendant, on his motion to change the venue, produced only one witness, who swore that the defendant could not get a fair and impartial trial, while another of his witnesses swore the contrary, and all of the state’s witnesses also swore that he could, it was not error to refuse the change.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 243, 251, 252; Dee. Dig. i@=vl34J
    3. Jury <®=»146 — Selection of Jury — Ab sence of Venireman — Effect.
    Where veniremen failed to appear and answer as their names were called in impaneling the jury, but were later called and examined, and the defendant exhausted only 12 of his l6 peremptory challenges, there was no error in proceeding with the trial.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 631; Dec. Dig. &wkey;146.]
    4. Criminal Law <&wkey;1121 — Appeal and Error — Matters Reviewable.
    Accused’s bill of exceptions to an order overruling his motion for directed acquittal on the ground that venue was not shown presents no question for review, where the evidence on that point is not in the bill.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dec. Dig. c&wkey;> 1121.]
    5. Criminal Law <&wkey;1144 — Appeal — Presumptions.
    Where the record omits evidence on the question of qualification of a juror, on defendant’s exception to the denial of his motion to discharge the jury for want of qualifications of a juror must be presumed to have been proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774r-2781, 2901, 3016-3037; Dec. Dig. &wkey;1144J

      6. Criminal Law <&wkey;829 — Trial — Instruc- ' tions — Requests—Self-Defense.
    Where, in a prosecution for murder, the court’s charge embraced every proper question of self-defense, instructions on the same question requested by the defendant were properly refused.
    [Ed. Note. — Eor other cases, see Criminal Raw, Cent. Dig. § 2011; Dec. Dig. <@=>829.]
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Floyd Thompson was convicted of murder, and he appeals.
    Affirmed.
    Homer L. Baughman, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and the death penalty assessed. It is unnecessary to give but a brief statement of what the evidence, with certainty, establishes.

Appellant was a young negro man just about grown. He made his home with his father, who was a farmer and lived on a farm several miles in a southeastern direction from Fairfield, the county seat of Freestone county. Appellant seemed to have no special business, had no crop .to work, or at least did not work any of his own. He seemed to have worked around in the neighborhood, hunted a good deal, and loitered around generally. Deceased, J. I. Casey, lived at Fairfield. Some time before the killing he and appellant swapped horses, whereby appellant became indebted to deceased for $55, and to secure it gave deceased a mortgage on the horse he at that time got from deceased and other property, including a crop which he claimed he was to raise during 1914. Just before the killing, which occurred on Sunday May 24, 1914, Casey ascertained appellant had no crop and was not working any that belonged to him. He thereupon on said date rode horseback down to see appellant, and did see him. He did not find him at his father’s, but at another place a few miles from his father’s. The evidence clearly justified the jury to believe that Casey, a few days before, had endeavored to get appellant to deliver said horse to him in satisfaction of the debt, which appellant refused outright to do. When Casey found him on that Sunday morning, he induced him to agree to surrender the horse to Casey in satisfaction of his debt and mortgage. The horse at the time was either at appellant’s father’s home in the pasture or in another pasture at or adjoining his father’s. When appellant and Casey separated, Casey was horseback, and had to ride arouiid circuitous roads several miles to reach appellant’s father’s, which he did, to get the horse. Appellant, however, being afoot, could cut across the fields and country, and did do so, and reach where the horse was, traveling not so far, which he did. At the house where he stayed the night before, where Casey found him, he had with him a big six-shooter. Between there and his father’s he had left at a neighbor’s a shotgun. In going to where the horse was he took this six-shooter along with him, and also went by and got his shotgun, and took that too. When Casey reached his father’s to get the horse, he found his father and his father’s wife at the house, told them his mission, and his father went with him in search of the horse wholly unarmed. The testimony clearly justified the jury to believe that appellant, knowing Casey would hunt for the horse in his father’s premises, would not find him there, but would find him in a pasture of another near by, secreted himself in an old, abandoned, vacant house, and, when Casey got in shooting distance of him, fired upon and killed him without Casey knowing he was there or intended any such act. Casey was on his horse when he was shot. Appellant shot at him twice at the time in quick succession. Casey’s horse ran some distance when Casey was shot before he fell from the horse. The testimony also clearly authorized the jury to believe and find that, when Casey fell off his horse dead, appellant in a few minutes went up to where his body was and. fired two other shots with a shotgun in Casey’s body, thereby shooting off practical!y the whole of his face and all of his teeth out, and, as some of the witnesses said, nearly shooting his head off. He then carried the body across a fence into a pasture where there was a considerable pool of water. He tied a rope around the neck of deceased and around the horn of the saddle on the horse of deceased, and dragged the body some distance to this pool of water, and then dumped the body into the pool, where the body sank out of sight. He then hid both his pistol and shotgun in the woods near where the killing occurred, where they were both found by the state’s witnesses and officers, identified and introduced in evidence on the trial of the cause. Where all these things occurred was a somewhat secluded place and in the woods. In these woods at the time appellant tied and secreted deceased’s horse, and kept him there until some time that night, when he got on him and rode him several miles in an attempt to escape, and then turned the horse loose, where he was found by a neighbor the next morning. Appellant fled and evaded arrest, although diligent search was made for him, until perhaps about the 1st of January following when he was found at Ft. Worth, going under an assumed name, arrested, identified, and taken back to Freestone county, where this trial occurred.

When Casey did not return home that Sunday night his wife became uneasy, and notified the officers and friends of her fear that he had been foully dealt with. The officers and citizens in the community near where the killing occurred, of course, became aroused, and, in different bodies, began searching for Casey, but did not find bis body until some time Monday. When Casey left home he had $30 or $40. When his body was found his pockets had been turned inside out, and no money could be found. The neighbors and officers then began a search over the whole community for appellant, but did not find him. Among other negroes, they arrested his father and confined him and them in jail for awhile. It seems after an investigation they turned him and all the others out, and became satisfied that appellant was the guilty party. Still later his father was killed. On the trial appellant claimed that he first shot Casey or at him twice in self-defense, and that his father, not he, afterwards went to the body of Casey where it had fallen and' shot the shotgun into his body, with the result as described, and that his father, and not he, dragged the body and put it in the pool of water. His claimed self-defense was submitted by the court’s charge in the most favorable light to him, and the jury found against him, as they unquestionably should have done under the circumstances. The state also clearly disproved that his father shot the last two shots into the body of deceased, and that his father dragged the body and put it in the pool, but, on the contrary, established with certainty that he, and not his father, did this. He fled the country; his father did not. Appellant, as stated, was arrested about January 1, 1915, taken back to Fairfield, placed in jail, and kept there until his trial occurred on April 22, 1915.

When the case was called for trial appellant made a motion to change the venue. When this was presented, the state asked for time to file a contest, which the court allowed. It seems the contest was not at first sworn to. When this was shown, the state again asked the court for time to do this, which the court granted. There was no error in the court’s action, and no possible Injury to appellant is shown by his action. Raw v. State, 33 Tex. Cr. R. 24, 24 S. W. 293.

The court then heard the testimony on his said motion. He introduced but a few witnesses. Only one of the witnesses on this hearing testified that, in his opinion, appellant could not get. a fair and impartial trial; while another one of his witnesses as distinctly swore the reverse. The state introduced more than a dozen witnesses, all of whom testified the reverse of appellant’s contention. There can be no question but that the state proved the reverse of appellant’s contention, and the judge, under the evidence, without doubt, correctly overruled his motion for a change of venue and all the questions incident thereto.

During the progress of impaneling the jury several veniremen failed to appear and answer when their names were called. Appellant, in effect, thereupon objected to proceeding further until these absent veniremen were produced in the order in which their names appeared on the list. The court, in approving appellant’s bill on this subject, stated that in each instance the court ordered an attachment for the juror, and that later each of the jurors who were absent when their names were called were produced and passed upon in the usual way; that the defendant exhausted but 12 of his 15 peremptory challenges. As held in all the cases, unnecessary to collate, the court’s action was correct and presented no error whatever.

When the state closed its evidence in chief, appellant made a motion for an instructed acquittal, because the state had not proved venue. The bill in no way states what this evidence was, and is wholly insufficient on that account to present any error. However, the evidence as a whole, without any question, was clearly sufficient to prove venue. Besides, one witness swore positively the killing occurred in Freestone county.

Appellant also made a motion, it seems after the jury had been duly organized and the trial proceeded with, to discharge the jurors and jury because he claimed that one of them was not a qualified juror. The court heard evidence on this subject and overruled his motion. What that evidence was is in no way disclosed by the record. Doubtless, if it had been, it would have clearly required the court to overrule the motion. We must presume, under the law, that the court’s action was correct.

Appellant requested several special charges on the subject of his claimed self-defense. The court correctly refused to give any of them because, as stated by the judge, his main charge embraced every question on the subject which was necessary or proper for the court to give. We think it entirely unnecessary to'copy any of his special charges or that of the court, for, as stated above, the court submitted his claimed self-defense in a most favorable light to him on every point which the evidence would have authorized or suggested.

This being a death penalty case, we have given the record, the statement of facts, and appellant’s brief thorough consideration. We think the evidence establishes without any sort of doubt appellant’s guilt; that the case was in every way fairly and carefully tried without any error against him having been committed.

It is therefore our duty to affirm the case, which we do.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©asoFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    DODD v. STATE.
    (No. 3720.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Cbiminal Law <&wkey;1069 — Appeal—Finality of Judgment.
    No appeal can be taken in criminal cases until sentence is pronounced, since sentence is tbe final judgment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. <S=> 1069.]
    2. Criminal Law &wkey;>1023 — Judgment and Sentence — Entry in Vacation.
    Where accused gave notice of appeal, before sentence, and the court then adjourned and the judge sentenced the defendant in vacation, the sentence is not a final judgment, upon which an appeal can be rested, since the judge in vacation is not authorized to pronounce sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. <S&wkey; 1023.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Jim Dodd was convicted of burglary, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst Atty. Gen., for the State.
   DAVIDSON, J.

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

The term of court at which appellant was tried adjourned without a sentence. In vacation and in chambers the judge entered the sentence. This under our statute is the final judgment, and an appeal to this court cannot lie until sentence has been pronounced. Sentence must be pronounced during the term of the court at which the judgment is rendered, or, if not then done, at a subsequent term -of the court. The court cannot sentence a defendant in vacation. When court adjourned his authority over the case ceased, where notice of appeal had been given to this court, except in cases specially provided by statute. This pronouncing of sentence is not authorized in vacation, nor is it authorized at any time except during a term of the court. The Assistant Attorney General moves to dismiss the appeal for this reason, and it must be sustained.

The appeal therefore is dismissed.