author: BROOKE, J.

text:
    McGOVERN v. WOOLLEY et al.
    (No. 296.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 2, 1918.
    Rehearing Denied Jan. 30, 1918.)
    Homestead <&wkey;113 — Conveyance.
    Acts 33d Leg. c. 32, regulating marital rights, does not invalidate a husband’s conveyance of homestead property to his wife.
    Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge.
    Trespass to try title by Will McGovern, guardian, against G. W. Woolley and Miriam McGovern. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    B. L. Aycock, of Kountze, for appellant. Singleton &'B.evil, of Kountze, for appellees.
   BROOKE, J.

This was a suit in form of trespass to try title, filed by the appellant as guardian for the minor, Sam McGovern, against G. W. Woolley, in the district court of Hardin county for lots 3 and 4 in block 28% in the town of Kountze.

Defendant Woolley answered that he was holding lot 3 by rent from Mrs. Miriam McGovern, and deposited rent money in the registry of the court, and prayed that Mrs. McGovern be impleaded. 'Mrs. McGovern, who now resides in Louisiana, voluntarily a answered, and specially pleaded her title to lot 3, and disclaimed as to lot No. 4 in said block.

Plaintiff, by a supplemental petition, alleged title to these lots, and also to lots Nos. 1 and 2 in the same block, to which she held a deed executed January 7, 1914, by her late husband Sam McGovern. The deed covered lots 1, 2, and 3, made direct to her, and was acknowledged by him before notary public and recorded in Hardin county. Plaintiff also claimed that the deed was a security for money loaned to her late husband, Sam McGovern, and invalid for that reason.

The case was tried at the spring term, 1917, when judgment was rendered for Mrs. McGovern, and for the money deposited in the 'registry of the court. The trial judge filed his findings of fact and conclusions of law, as follows:

“Findings of Fact.
“(1) I find that Will McGovern is the duly qualified and acting guardian of the person and estate of the minor Sam McGovern.
“(2) I find that Sam McGovern, Sr., died in Hardin county, Tex., on May 9, 1915, leaving a will by which he bequeathed to Sam McGovern, Jr., all property left at his death after paying his debts, and that D. F. Singleton is the duly qualified and acting administrator of the estate of Sam McGovern, deceased.
“(3) That of the property involved in this suit lot 4 was inventoried as a part of the estate of Sam McGovern, and that lots 1, 2, and 3 were not so inventoried.
“(4) That some years prior to his death the said Sam McGovern, Sr., duly and legally adopted Sam McGovern! Jr.
“(5) That on January 7, 1914, the family of Sam McGovern, Sr., now deceased, consisted of himself and wife, who is now defendant Mrs. Miriam McGovern, and the adopted son, Sam, and the family homestead then consisted, among other property, of lots 1, 2, and 3 and 4 of block 28% of the J. J. Allums first addition to the town of Kountze, in Hardin county, Tex.
“(6) That on January 7, 1914, the said Sam McGovern, now deceased, by warranty deed duly executed and acknowledged by him, for a valuable consideration, conveyed to his wife, Miriam McGovern, lots 1, 2, and 3 said block 28% of J. J. Allums addition to the town of Kountze, and by the express terms of said deed made said lots her separate property, which said deed was recorded in Deed Records of Hardin County, Tex., on the 9th day of January, 1914.
“(J) That the storehouse on lot 3 was rented to G. W. Woolley by Mrs. Miriam McGovern at $20 per month, and he has paid into the registry of the court $80 covering the rents from December, 1916, to April 15, 1917.
“(8) That Mrs. Miriam McGovern prior to December 15, 1916, surrendered her home on, to wit, lot 4 to the administrator of estate of Sam McGovern, and removed from Texas to the state of Louisiana, where she has since resided.
“Conclusions of Law.
“I conclude that by the deed dated January 7, 1914, lots 1, 2, and 3 involved in this suit, with all improvements thereon, vested absolutely in the defendant Mrs. Miriam McGovern, and constituted no part of the estate of Sam McGovern at his death, and therefore the plaintiff is not entitled to recover anything in this suit, except lot 4, disclaimed by the defendants and the defendant Mrs. Miriam McGovern is entitled to judgment for lots 1, 2, and 3 and the rent and judgment is accordingly rendered.”

As only one -question is involved in this appeal, the assignments will be considered together, viz.:

(a) “The court erred in rendering judgment for defendant Miriam McGovern because there was no legal testimony to support the judgment.”
(b) “The court erred in sustaining Sam McGovern’s deed to homestead lots 1, 2, and 3 to his wife.”
(c) “The court erred in not rendering judgment for plaintiff in his capacity as guardian of Sam McGovern, a minor, for the title and possession of lots 2, 3, and 1, block 28%, and for the rents in the registry of the court.”

The propositions under the foregoing assignments are:

(a) “The court erred in sustaining Sam McGovern’s deed to homestead lots 1, 2, and 3 to his wife.”
(b) “Under the law as made by statute amending laws regulating marital rights by Thirty-Third Legislature, husband cannot make a valid deed to his wife to the homestead.”

We have carefully considered the assignments of error, together with the propositions thereunder, and we are of opinion that there is no merit in the contentions made,, either in the propositions or in the assign-anents themselves, and without further discussion, and without citing any authority, this court is of opinion that the judgment of the lower court was correct, and must be in all things affirmed.
      ¿^»Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    MOORE, County Judge, et al. v. COFFMAN et al.
    (No. 2971.)
    (Supreme Court of Texas.
    Jan. 30, 1918.)
    1. Counties <&wkey;178 — Bridges — Bond Elections — Stating Purpose — Validity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 606, requiring the proposition for issuance of bonds to distinctly specify the purpose, the amount, the due date, and the rate of interest, it is duty of the commissioners’ court in submitting proposition for issuance of bridge bonds to state the purpose in the order for election, and in the notice of election.
    2. Counties i&wkey;178 —Bridges —Bond Eleo-tions — Stating Purpose — Validity.
    Where commissioners’ court in submitting question of bond issues stated purpose to build bridges, and furthermore stated specific locations, the statement of locations could not be disregarded as surplusage, but erection of the bridges at the specific points named was part of the essential purpose of the bonds.
    Error to Court of Civil Appeals of Second. Supreme Judicial District.
    Suit by W. W. Coffman and others against W. M. Moore, County Judge, and others. To review a judgment of the Court of Civil Appeals (189 S. W. 94), affirming judgment for plaintiffs, defendants bring error.
    Affirmed.
    Ocie Speer and Marvin H. Brown, both of Ft. Worth, and Milam & Wheat, of Seymour, for plaintiffs in error. D. J. Brook-reson, of Benjamin, for defendants in error.
   PHILLIPS, C. J.

This suit concerns the use of the proceeds of bonds issued by Knox County for the building of two bridges across the Brazos River. The petition for the bond election presented by property owners to the Commissioners’ Court designated the places in the county on the river where it was desired the two bridges should be built —the “Brock Crossing” and the “Bill Coff-man Crossing,” each a well known location. The order of the court for the election and the notice of it likewise designated, as a part of the stated purpose of the proposed bond issue, these two crossings as the intended locations of the bridges. The result of the election was favorable to the issuance of the bonds and was duly declared. After-wards, the Commissioners’ Court determined that another place, distant five or six miles, was a more desirable location for the bridge that it was originally proposed should be erected at the Coffman Crossing, and announced its purpose to there locate it. It is agreed that this conclusion reflected the honest judgment of the court. Thereupon W. W. Coffman and a number of other property owners of the county subject to the tax for the bonds brought this action to enjoin the diversion of their proceeds to the construction of the bridge in question elsewhere than at or near the Coffman Crossing. Upon the trial, a permanent injunction to this effect was granted. This judgment was affirmed by the Court' of Civil Appeals. A writ of error was allowed by the Committee of Judges.

It was the duty of the Commissioners’ Court under the statute (Art. 606), in stating the proposition to be voted on in the bond election, to specify, both in its order for the election and in the notice of the election, the purpose for which the bonds were to be issued. The reason of this requirement is that the voters in such an election are entitled to know, beforehand, the specific use to which their taxes levied in virtue of the election are to be put. The design of the statute is that the purpose of the bonds shall be stated in such way as to fairly and fully apprise the voters of it. No particular form is proscribed for its statement, and the way in which it shall be stated so as to accord with the spirit of the statute is necessarily left to the Commissioners’ Court. In this instance, the court in defining the proposition in respect to the purpose of the bonds saw fit to declare that it was not only to construct these two bridges, but to construct them at certain designated locations. Stating the purpose in this manner contravened no law; hence the court was privileged to thus announce it. Since the court by deliberate action made the location of the bridges a part of the proposition submitted, it is fair to conclude that their erection at the locations named constituted in the court’s mind an essential part of the purpose of the bonds. If so, it must have intended that the voters in the election should understand that included in such purpose was the building of the bridges at these particular places. That the voters did so understand can hardly be denied.

If it was within the lawful power of the court to so declare the purpose of the bonds; if it intended that the voters should understand their purpose to be the erection of the bridge» at these particular crossings; and the voters cast their ballots accordingly, we think that is an end of the question. It then becomes simply a matter of keeping faith with those whose will the election expressed.

To say, as is urged, that the incorporation of the location of the bridges in the Commissioners’ Court’s statement of the purpose of these bonds was surplusage and is therefore of no effect, is to deny to those courts the power of so declaring the purpose of a bond issue of this character as a means of fully acquainting the property owning voters of a county with the exact use intended to be made of the bonds. Hor if the court had the power to include in its definition of the purpose of the bonds so material a matter as the proposed locations of the bridges, that part of the stated purpose cannot be regarded as mere surplusage. It can be so treated only upon the theory that the court in so including it transcended its authority, and for that reason is not bound by it. We decline to so hold. The specific use to which it is intended by public officials that public moneys shall be applied is always of concern to those upon whom taxation rests the burden of the expenditure. In the matter of bond issues authorized by the vote of the citizenship affected, in the submission of the proposition the law encourages, rather than frowns upon, a full and definite statement of their purpose. The location of an expensive public improvement dependent upon such bond issues is frequently of as prime importance as its construction. In such cases it is only fair to the voters in the election called to determine the matter to inform them in advance of the intended location, so that the actual merits of the given proposal, into which the question of location may largely enter, shall decide the contest. When this is done, the location is a part of the vote and is entitled to an equivalent protection. We can perceive nothing in such a course that either trenches upon or exceeds the authority possessed in these matters by Commissioners’ Courts or municipal bodies, or that amounts, as is contended, to a surrender of their duty into other hands.

A similar question was presented in Major v. Aldan Borough, decided by the Supreme Court of Pennsylvania, 209 Pa. 247, 58 Atl. 490. Under the laws of that State an increase of municipal indebtedness beyond a certain amount requires the assent of the electors of the municipality at a public election. All that is voted upon at the election is merely whether the indebtedness shall be increased, the electors having no voice in determining the purpose for which it is to be incurred. It was proposed to increase the indebtedness of Aldan Borough in such an amount as required the consent of its electors. In the ordinance proposing the increase the purpose was expressly stated. As to the authority of the borough officials to use the money voted for a purpose different from that by them thus declared and acted upon by the voters In the election, notwithstanding their power under the law, as a general rule, to determine the purpose to which such funds should be applied, this was said by the court:

“When, by an ordinance, the municipal authorities direct, in conformity to the constitutional renuirement, the submission to a popular vote of the question of the increase of the indebtedness, the purpose for increasing it is distinctly set forth, and, in the notice of (he election, this purpose again appears, and on his ticket the elector finds a brief statement of it and the amount of the increase, the borough council cannot, after the increase is authorized by a popular vote, so cast, divert the money from the purpose for which they, in the first instance, declared it was to be used. In voting for the increase the electors have a right to assume, and vote accordingly, that their representatives will expend the money for the purpose for which they asked it. To permit them to do otherwise would be to permit them to practice fraud and deception upon their trusting constituents, and when an attempt is made by those in authority to so violate faith with the people, they will be halted by a chancellor.”

The judgments of the District Court and Court of Civil Appeals are affirmed.
      <§=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MAUD, County Tax Collector, v. TERRELL, State Comptroller.
    (No. 3035.)
    (Supreme Court of Texas.
    Feb. 6, 1918.)
    1. Officers i&wkey;94 — Illegal Office — Compensation.
    A state official appointed to an unconstitutional office is not entitled to compensation for services rendered.
    2. District and Prosecuting Attorneys <&wkey;>8 — Powers and Rights — Interference by Legislature.
    Under Const, art. 5, § 21, and article 4, § 22, relating to county and district attorneys, the Legislature has no power to pass an act which will exclude them from their rights to prosecute all actions for the state, nor to force assistants upon them.
    3. Constitutional Law &wkey;>48 — Validity of Statutes — Construction.
    A statute susceptible to a constitutional construction will not be declared unconstitutional, although it would be so under other constructions ; and a general statute will be so limited as to make it constitutional.
    4. Taxation <§=545 — Interference with Rights of County Attorneys — “Sue”— “Commence Action.”
    Rev. St. 1911, arts. 7487-7502, relating to collection of taxes, is not unconstitutional as interfering with the rights of district or county attorneys, because the words allowing county tax collectors to “sue” and “commence an action” will be construed to mean to institute actions and assist where the attorneys so desire.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Commencement of Action; Sue.]
    Application for mandamus by Robert Maud, Tax Collector of Travis County, to compel H. B. Terrell, State Comptroller, to credit his account with certain disbursements.
    Application granted.
    N. A. Rector and Lightfoot, Brady & Robertson, all of Austin, for relator. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondent.
   PHILLIPS, C. J.

The right of the relator to the mandamus here sought against the Comptroller depends upon the validity of the Act of the Thirty-Fifth Legislature, Chapter 166, amending Articllp 7491 of the Revised Statutes so as to authorize — its title states— “the Comptroller to appoint and contract with persons to collect inheritance taxes.”

It appears that as authorized by the Act the Comptroller, substantially in its terms, has entered into a contract with R. B. Humphrey whereby, for the maximum compensation allowed, his services have been engaged for the doing of those things -in this relation which the Act provides. Through his offices a certain collection of such taxes has been made in Travis County. Out of the taxes collected the relator has paid him his commission therefor, but the Comptroller, on the advice of the Attorney-General, refuses to credit the relator’s account with the amount so paid. If the Act is valid, the relator is entitled to the credit. If it is invalid, the credit was properly refused, since in that event the Comptroller’s contract with Humphrey is of no force and the latter was hot entitled to the commission.

The validity of the Act is challenged upon the ground that its necessary effect is to substitute the person or persons whom the Comptroller may thus employ for the county attorneys of the State in the prosecution of suits by the State for such taxes in the district and inferior courts; and for the Attorney-General in their prosecution in the Supreme Court, supplanting them in the discharge of their constitutional duties and denying their right to perform them. This position has been very strongly presented by the able Assistant Attorney General, Mr. Smedley, who appears for the respondent.

If such is the necessary effect of the Act and its provisions in respect to the functions of the person or persons whom the Comptroller is authorized to engage for the services named are not separable, it is condemned by the Constitution. That instrument, by Section 21 of Article 5, lodges with the county attorneys the duty of representing the State in all cases in the district and inferior courts, with the right in the Legislature to regulate by law the respective duties of district and county attorneys where a county is included in a district having a district attorney; and by Section 22 of Article 4 that duty as to suits and pleas in the Supreme Court is confided to the Attorney-General. With the limitation existing in the authority of the Legislature, under Section 22 of Article 4, to create additional causes of action in favor of the State and intrust their prosecution, whether in the trial or in the appellate courts, solely to the Attorney-General, the powers thus conferred by the Constitution upon these officials are exclusive. The Legislature cannot devolve them upon others. Nor can it interfere with the right to exercise them. Brady v. Brooks, 99 Tex. 366, 89 S. W. 1052; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650; State v. International & Great Northern Railroad Co., 89 Tex. 562, 35 S. W. 1067. It may provide assistance for the proper discharge by these officials of their duties, but since in the matter of prosecuting the pleas of the State in the courts the powers reposed in them are exclusive in their nature, it cannot, for the performance of that function, obtrude other persons upon them and compel the acceptance of their services. Wherever provision is made for the services of other persons for this express purpose, it is the constitutional right of the Attorney-General and the county and district attorneys to decline them or not at their discretion, a'nd, if availed of, the services are to be rendered in subordination to their authority.

An act of the Legislature is not to be declared unconstitutional unless plainly so. The presumption is that the Legislature acted in the light of the Constitution, with the intention to observe it rather than violate it. Where, the language of the particular enactment is unambiguous and the conflict with the Constitution is hence apparent, there is. no alternative but to declare the enactment void. In such cases words cannot be read into a statute or out of it to save it. But where the language is of doubtful meaning, reasonably susceptible of different constructions, rendering the act valid if construed in. one sense and invalid if construed in another, that construction will be adopted which sustains the act rather than destroys it. Likewise, where the terms used in a statute are-general, reasonably admitting of a construction which does not condemn it, the language will be restrained in its operation so as to harmonize the statute with the Constitution though, literally, it be susceptible of a broader meaning which would conflict with the Constitution. These are just and wise rules. They are of general application. They exist because courts are not to sit as severe and anxious critics of legislative expression, or as censors of the form in which statutes are written. It is the duty of courts to see that the Constitution is observed in. the enactment of laws, and to fearlessly declare a law void which violates the Constitution. But these rules are for their guidance-as an injunction that the language used in the writing of statutes is not always precise; that frequently terms of doubtful meaning-are employed; that where this is true and the terms used reasonably admit of it, that construction is to be applied which will uphold the law; and that it is only where the language plainly contravenes the Constitution are they warranted in holding a law invalid.

The test, therefore, to be used in determining the validity of this Act is simply whether-by plain and unambiguous language it deprives the county attorneys and the Attorney-General of their authority to prosecute in the courts suits by the State for the recovery of inheritance taxes.

The statutes in relation to inheritance taxes, their collection, etc., constitute Chapter 10 of Title 126 of the Revised Statutes, being Articles 7487 to 7502 inclusive. This Act, as. stated, amends only one article of the chapter. The only reference to county attorneys in the original law was in Articles 7490 and 7491. The former, which is left unamended, provides for the bringing of suit by the district or county attorney for a penalty in behalf of the State against any executor, administrator or trustee refusing or neglecting. to comply with the article. The latter, before its amendment, in nowise related to the power of a county attorney to sue in the courts in behalf of the State for the taxes, but defined it to be his duty to report to the ■county judge estates subject to the tax, for which it was provided he should receive a stipulated compensation. By the present Act that duty is transferred to the person the Comptroller is authorized to employ. In other words, the only provision in the law relating to the prosecution of suits for the State by the county attorneys is left untouched by the Act, and the only duty expressly conferred upon them by the original law of which the Act relieves them is one which does not involve the prosecution of suits. Attention is directed to this as reflecting whether it was-the purpose of the Legislature, when it came to amend this one article of the original chapter — an article not dealing in any sense with the subject of the rights or duties of county attorneys in respect to the recovery of the taxes in the courts — to interfere with their authority to appear for the 'State in all suits necessary to enforce the law. It is not to be ignored in searching for the intent of the Legislature in its passage of- the Act. It indicates that such was not the Legislature’s purpose.

The Act in three different places refers to the duties of the person with whom the Comptroller is authorized to contract for the collection of the taxes. After the introductory part its opening sentence is:

“The Comptroller of Public Accounts of the State of Texas is hereby authorized and empowered, and it is made his duty to appoint and contract with some suitable person or persons whose duty it shall be to look specially after, sue for and collect the taxes provided by this chapter; such person in no event to receive under such contract more than ten (10) per cent, of the amount of such taxes collected hereunder, as compensation.”

Following this is the provision as to his reporting to the county judge estates subject to the tax. After the clause authorizing the payment of his compensation is this provision:

“It shall be the further duty of such person to aid in every possible way in the collection of such taxes.”

At another place it is said:

“The person appointed by the said Comptroller may represent the State in any proceeding necessary under the provisions of this chapter to enforce the collection of such taxes but without other compensation than as provided in his original employment.” Acts 35th Leg. c. 166, § 1.

These provisions do not unequivocally supplant the county attorneys and the Attorney-General in their authority to prosecute the suits of the State for the recovery of the taxes. These officers are not to be held as dispossessed of that authority by the Act unless by language to be found in the Act it is given to the Comptroller’s appointee plainly to their exclusion. There is no language in the Act which certainly has that effect. The first provision quoted, with reference to its being the duty of the person employed by the Comptroller “to look specially after, sue for and collect the taxes” may be said, literally, to empower such person to institute suits, but it does not exclude the idea that this shall be in subordination to the authority of the county attorney. There is nothing in the language indicative of an intention to confer upon such person an exclusive power. If not, it will be presumed that the Legislature intended he should act in that relation under the authority of the county attorney and in such way as not to infringe upon the latter’s powers, and the language will" be so construed. It is not unreasonable to ascribe to the Legislature the view that the county attorneys of the State, with their important general duties demanding efficient discharge, would not hesitate to avail themselves of the services of an assistant thus provided for the special purpose of enforcing the collection of these particular taxes, or to suppose it was upon such assumption that this duty was defined.

In an effort to surely ascertain the sense in which the Legislature used the term “sue for” in this provision, it should be noted that in Article 7497 of the same chapter it is declared that if the tax is not paid to the tax collector within six months after the county judge has notified him of the amount, “the collector shall eommene an action to recover the amount of such tax.” Upon its face this language would authorize the collector to file the suit, but it cannot be assumed that the Legislature so intended. It plainly means that he should cause the suit.to be filed by the official charged by law with that specific duty. There is not much difference, as was suggested in the argument, between declaring it a duty “to commence an action for taxes” and “to sue for taxes.” If the former expression in the connection in which it is used is susceptible of the meaning, as it clearly is, that the person to whom the duty is confided shall merely cause the suit to be brought, the latter, used in a similar connection and found in the same chapter, is equally open to the same construction.

It is to be here observed that the Act does not require that the person employed by the Comptroller shall be a licensed attorney, and from aught that appears in the Act he might be no more competent to institute a suit in the courts than would be a county tax collector.

Likewise, the provision that the person appointed by the Comptroller may represent the State in any proceeding necessary under the provisions of the chapter to enforce the collection of the taxes does not deny to county attorneys or the Attorney-General the right to conduct suits for the taxes. To say that such person may so represent the State is not equivalent to a declaration that it shall be to their exclusion. The language is not mandatory; it is only permissive.

The Act does not impress us as aimed at the authority of county attorneys and the Attorney-General in respect to the prosecution of the suits of the State for the taxes. Its prime concern was simply the employment of some person who would render diligent aid in their collection. The eharactdr expressly given by the Act to the person thus employed is that of an assistant for this purpose to the duly constituted public officials. It speaks of him as one “appointed and employed to assist in the enforcement of this law.” Depriving county attorneys or the Attorney-General of their constitutional authority was in our opinion foreign to its design. It undeniably is open to the construction that the person employed pursuant to its provisions may assist in the prosecution of suits for the taxes, but it cannot be said to require a construction that his action in this regard shall serve to displace those officials in the exercise of their constitutional powers.

With this true, the Act cannot he pronounced invalid. For unless those officers are by the Act supplanted in this authority, it must be assumed that the Legislature intended they should be free to exert it as aforetime. If their authority was to be left unimpaired, it must further have been intended that the services of this assistant in this relation provided for by the Act should be in subordination to it and not in anywise interfere with its due exercise. The provisions referred to are therefore to be so construed.

It follows that the relator is entitled to the mandamus as prayed for, and the writ will accordingly issue.
      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    WARD v. STATE.
    (No. 4678.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    Rehearing Denied Jan. 30, 1918.)
    Criminal LAw <@=31094 — Appeal—Depriving Accused of Statement of Fact and Bills of Exception.
    Where immediately after conviction for petty theft appellant prepared statement of facts and bills of exceptions and turned them over to the trial judge for action, and without fault on his part the judge failed to act thereon until more than a month thereafter, and on the facts shown the appellate court could not consider either bills or statement, but they would have to be struck out, judgment would be reversed because appellant was deprived of a statement of facts and bills of exceptions without fault on his part, notwithstanding no order allowing time for filing bills and statement was allowed or entered.
    Appeal from Tarrant County Court; Virgil R. Parker, Special Judge.
    Barney Ward was convicted of petty theft, and appeals.
    Reversed.
    Mays & Mays, of Ft. Worth, for appellant. Marshall Spoonts, Co. Atty., Sam J. Calla-way, Deputy Co. Atty., and Cummings & Doyle, all of Ft. Worth, and E. B. Hendricks Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for petty theft. The term at which appellant was tried adjourned on June 30, 1917. The case was tried on June 21st. Almost immediately thereafter appellant prepared a statement of facts and bills of exceptions and turned them over to the trial judge for his action. His attorneys used unusual diligence in following these up, and tried to get them acted on from that time toi July 25th, and only on the latter date could he get any action thereon by the judge. No order allowing any time for filing bills and.statement was allowed or entered. Even if such an order allowing 20 days had been granted and entered, they were not filed until long after that time would have expired. There can be no question but from the affidavits in this record showing these matters that appellant was deprived of a statement of facts and bill of exceptions without any fault on his part. The state has made a motion to strike out the bills of exceptions and statement of facts because not filed in time. But whether that was done or not, with the facts as shown as they are, this court could not consider either bills or statement, but they would have to be struck out.

The result is that this judgment must be reversed, because appellant was deprived of a statement of facts and bills of exceptions without any fault on his part; and it is so ordered.


author: MORROW, J.

text:
    GRIMES v. STATE.
    (No. 4792.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Sunday <&wkey;5 — Acts Prohibited — Business or Occupation.
    Pen. Code, 1911, art. 302, prohibits merchants from making sales or having their places of business open for the purpose of traffic on Sunday. Article 303 excepts the keepers of certain establishments, including livery stables. Held, that the rule of ejusdem generis cannot apply so as to except a dealer in automobile supplies, as that rule is effective only when there are general words following specific words, and the statute contains no general words.
    2. Livery Stable and 'Garage Keepers &wkey;>3 —“Livery Stable” — “Garage.”
    A “garage,” which is the modern substitute for a livery stable, is defined as a place for the care and storage of motor vehicles and in which such vehicles are kept for hire, and a “livery stable” is a place where horses are groomed, fed, and hired, and vehicles are kept for hire.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Livery Stable; Second Series, Garage.]
    3. Sunday <&wkey;5 —Acts Prohibited — Business or Occupation.
    Conceding that as livery stables have become practically obsolete and supplanted by garages, the term “garage” should be read into Pen. Code 1911, art. 303, in lieu of the term “livery stable,” this would not exempt from the provisions of article 302 a dealer in wares and merchandise and automobile supplies who sold engine oil on Sunday, as his occupation and acts ■were not within the scope of the business of either a livery stable keeper or the keeper of a garage, and a keeper of a garage or livery stable might also be engaged in selling merchandise, and, as such, be liable for a violation of the statute.
    4. Sunday &wkey;>7—Acts Pbohibited—Works of Necessity.
    Pen. Code 1911, art. 299, prohibits labor on Sunday, and article 300 contains certain exemptions, including works of necessity or charity. Article 302 prohibits merchants from making sales or keeping their places of business open for the purpose of traffic on Sunday. Article 303 provides that the preceding article shall not apply to markets or dealers in provisions as to sales of provisions made before 9 o’clock a. m., nor to keepers of drug stores, etc. Held, that the exception in favor of works of necessity would seem to apply only to labor and not to sales, but in any event a sale of engine oil by a dealer in automobile supplies was not excepted as a work of necessity, where there was nothing to prevent the acquisition of the oil from a provision dealer or drug store, since a necessity, voluntarily brought about, which could have been avoided by the exercise of ordinary discretion, is not a defense, even where the statute makes works of necessity a defense.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Fred O. Grimes was convicted of an offense, and lie appeals.
    Affirmed.
    Thomas Ivy, J. D. Stephenson, Collins, Morrow & Morrow, and Clarke & Clarke, all of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This prosecution is under article 302, P. C., which contains the following:

“Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement,, or the agent or employé of any such person, who shall sell, barter, or permit his place of business or * * * public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars.”

Article 303, making exemption from' the operation of article 302, supra, is as follows:

“The preceding article shall not apply'to markets or dealers in provisions as to sales of provisions made by them before 9 o’clock a. m., nor to the sale of burial or shrouding material, newspapers, ice, ice cream, milk, nor to the sending of telegraph or telephone messages at any hour of the day, nor to keepers of drug stores, hotels, boarding houses, restaurants, livery stables, bathhouses, or ice dealers, nor to telegraph or telephone offices.”

The information charged that appellant was a merchant and a dealer in wares and merchandise and a trader in automobile supplies, and did then and there sell one quart of engine oil to Abner Bryant on Sunday. Appellant claims that he is exempt from the prohibition in article 302 under a provision of article 303 which exempts livery stables. The rule of ejusdem generis could have no application for the reason that that rule is effective only when there are general words following specific words. The general words are held to include things of like or similar kind. Cyc. vol. 36, p. 1119. In the exempting statute there are no general words, thus excluding the application of this rule.

A garage, which is the modern substitute for the livery stable, is defined as a place for the care and storage of motor vehicles, and in which such vehicles are kept for hire. Cyc. vol. 28, p. 42. A livery stable is a place where horses are groomed, fed, and hired, and vehicles are kept for hire. Cyc. vol. 25, p. 1505.

If it were conceded that, owing to the fact that livery stables have become practically obsolete and garages have supplanted them, the term “garage” should be read into the statute in lieu of the term “livery stable,” it would not follow that the appellant would be exempt under the statute because it is charged that he was a merchant and dealer in wares and merchandise, and that he sold engine oil on Sunday. The occupation and acts in which he was engaged are not within the scope of the business of a livery stable keeper, nor the keeper of a garage so far as we have found them legally defined. A keeper of a garage or the keeper of a livery stable might also be engaged in the business of selling merchandise, and as such be liable for violation of the statute in question.

It is suggested, however, that the sale in question was necessary, and that this fact would constitute an exemption from prosecution. As a general rule, statutes regulating the observance of Sunday make exceptions in favor of works of necessity and charity. Cyc. vol. 37, p. 552. Our statute, article 299, prohibits labor on Sunday, and article 300 provides exemptions, among which are the following: “Works of necessity or charity.” The fact that this exemption is contained, in article 300 relating to labor and is not contained in article 303 with reference to selling goods on Sunday is suggestive of the legislative intent to limit the exemption on account of necessity or charity to the things referred to in article 299, relating to working on Sunday and to have embraced in article 303 in a specific way the matters which were intended to be exempt from article 302. If such construction was a matter of doubt, it suffices, so far as the facts of the case in hand are concerned, to say that in our opinion the sale of oil under the circumstances mentioned in the bill of exceptions was not shown to be necessary within the legal sense. Ex parte Kennedy, 42 Tex. Cr. R. 148, 58 S. W. 129, 51 L. R. A. 270; Cyc. vol. 37, p. 552; Quarles v. State, 55 Ark. 10, 17 S. W. 269, 14 L. R. A. 192; Cyc. vol. 37, p. 554, and cases cited.

The law, article 303, expressly exempts from the prohibition dealers in provisions as to sales made before 9 o’clock a. m.. and also exempts drug stores. The emergency described is not shown to have been such as would have prevented the acquisition of oil from one of these sources. A necessity voluntarily brought about which could have been avoided by the exercise of ordinary discretion is not a defense, even in a ease where the statute makes works of necessity a defense. Shipley v. State, 61 Ark. 216, 32 S. W. 489, 33 S. W. 107; State v. Stuckey, 98 Mo. App. 664, 73 S. W. 735; Bucher v. Fitchburg R. Co., 131 Mass. 156, 41 Am. Rep. 216. Judge Henderson, in writing the opinion of this court in Ex parte Kennedy, supra, uses the following language:

“We believe that our statutes, in authorizing a work of necessity on Sunday, meant something more than mere convenience. It apprehended that there must he some peculiar exigency which would authorize Sunday labor.”

In our opinion appellant’s occupation was not included in any exemptions. From Cyc. vol. 37, p. 548, we quote the following:

‘Where the statute contains no exceptions, the nature of the business of defendant is immaterial, and the fact that it is a work of necessity, or charity, or that it is not unlawful in itself, constitutes no defense. In construing the statutory exceptions, the ordinary signification ot the words used controls.”

In our opinion, the judgment of the lower court should be affirmed; and it is so ordered.
      <Efc»For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: DAVIDSON, P. J.

text:
    WAITES v. STATE.
    (No. 4775.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Bail <&wkey;68 — Appeal Recognizance — Time fob Appearance.
    Under the statute requiring an appeal obligation to fix the time, an appeal recognizance requiring appellant to appear “instanter” and from day to day, etc., before the trial court, to await the judgment of the Court of Criminal Appeals, was not more onerous than the statute authorized.
    2. Criminal Law &wkey;»608 — Motion fob Continuance-Denial.
    The denial of an application for a continuance, complying with the statutory requirements and setting out material evidence, on the ground that appellant was illegally sworn by one of his attorneys, was improper, where such fact was not mentioned at the presentation of the application, and there was no motion to eliminate the application for that reason, though on proper motion defendant could have amended and sworn to it by some other officer qualified to take oaths.
    3. Witnesses <&wkey;395 — Redirect Examination.
    The statement of a witness, on redirect examination as to whether his testimony was out of harmony with that given before the grand jury, that his testimony was practically that given before the grand jury, though very general, was not substantial error, where he had been examined as to the matter on cross-examination.
    Appeal from District court, Grayson County; C. T. Freeman, Judge.
    Leon Waites was convicted of pursuing the business of selling intoxicating liquors, and be appeals.
    Reversed, and cause remanded.
    J. A. Carlisle, of Amarillo, and B. F. Gaf-ford, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of pursuing the business of selling intoxicating liquors, his punishment being assessed at two years’ confinement in the penitentiary.

The Assistant Attorney General seeks to dismiss the appeal because of the insufficiency, or rather the illegality, of the appeal recognizance. The point of attack is the recognizance requires appellant to appear “instanter” before the trial court, to await the judgment of the Court of Criminal Appeals; it being based upon the idea that the word “instanter” is more onerous than the statute authorizes. We cannot agree with this contention. This matter has been the subject of decisions heretofore. The recognizance shows, of course, that it was taken in open court, and that it requires the appellant to appear before the court “instanter,” and from day to day and term to term, etc. The statute requires the appeal obligation to fix the time and place, and this does fix the time and the place. See Fentress v. State, 16 Tex. App. 79; Camp v. State, 39 Tex. Cr. R. 142, 45 S. W. 490. The motion to dismiss is therefore overruled.

Appellant filed an application for a continuance, setting out the names of certain parties and the diligence, as well as the materiality of the facts. The state used a witness named Simmons, who testified to certain sales made by defendant to him. Appellant moved to continue for four witnesses, by whom he could prove they were present and that he did not make any such sales. The matters are set out in detail in the application, a repetition of which is unnecessary. The affidavits of two of these witnesses were obtained and used upon the motion for new trial, in which they swore substantially as set out in the application for a continuance. This was the first application, and made but a short time after the indictment was returned. The application is sufficient, and complies with statutory requirements. The evidence was material. The court, signing the bill of exceptions, states that he overruled it because the appellant was sworn to the application by one of his attorneys. This was not mentioned at the time of the presentation of the application, nor did the state make any motion to eliminate the application for this reason. It was not called to the attention of appellant or his counsel. We are of opinion that the court was in error in overruling the application. It seems to be well settled that counsel or interested parties may not take such affidavit nor depositions. This has been the rule in the Supreme Court and in the Courts of Civil Appeals, as well as this court. In Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 567, this court followed the decisions of the Supreme Court. These cases are cited in the Maples Case. Quoting from Hall v. State, 185 S. W. 574, we find this language:

“The state also calls our attention to the fact that the motion was sworn to before one of the attorneys of appellant. This is not proper practice, and, had the state in the trial court made a motion to strike it from the record on this ground, it should have been sustained, unless appellant had amended it, by swearing to it before some officer not representing him in the trial. Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 567.”

The Maples Case is to the same effect. In the last-mentioned case affidavits were filed by the state in the contest on the motion for new .trial. The motion for new trial had alleged misconduct of the jury. There were affidavits filed by appellant, setting up these matters and supporting this ground of the motion, and a request was made to have the jurors brought before the court to testify in regard to those matters. One of counsel for the state took the affidavits of the jurors and attached them to the state’s contest of the motion for a new trial. Appellant then made a motion to strike these affidavits from the record as unwarranted, in that they could not be taken by counsel in the case. This court held the position well taken, citing Testard v. Butler, 20 Tex. Civ. App. 106, 48 S. W. 753; Rice v. Ward, 93 Tex. 532, 56 S. W. 747; Blum v. Jones, 86 Tex. 492, 25 S. W. 694; Floyd v. Rice, 28 Tex. 341; Rice v. Ward, 93 Tex. 532, 56 S. W. 747; 13 Cyc. 852, where many cases are collated. The Hall Case, supra, is in line with the authorities, and inasmuch as there was no motion made by the state to eliminate or suppress or strike from the record the application for a continuance, it will be considered. Had the proper motion been made, or the attention of counsel or appellant been called to it at the time, he could have amended, and could have sworn to it before some officer authorized to take oaths who was not disqualified.

There was also an application for a postponement, which will not be considered, inasmuch as the witnesses may be obtained upon another trial.

A bill of exceptions recites that a witness was permitted to state before the jury that his testimony was practically as that delivered before the grand jury. This witness had been cross-examined with reference to the matter, and was asked substantially if his testimony being delivered before the jury was out of harmony with that delivered before the grand jury. This is a general statement of the proposition, without going into details. Usually, wherever a witness is attacked, the party offering the witness so attacked may sustain him by showing similar statements on the same matter about which he was cross-examined. The statement was very general, as were the questions and answers on cross-examination, as shown by the bill. As presented there is no substantial error. Upon another trial the matter might be more specific, if it arises.

Because of the refusal to continue the ease, the judgment will be reversed, and the cause remanded.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    STEEL v. STATE.
    (No. 4751.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Criminal Law <&wkey;614(3) — Continuance-Absence of Witness — Diligence.
    The denial of a second continuance on account of the absence of defendant’s wife and another witness was not error, where there was a lack of diligence in procuring their attendance.
    2. Criminal Law <&wkey;614(l) — Continuance-Application — Source oe Testimony.
    A denial of an application for a second continuance was not error, where the application did not state that the testimony could not be procured from any other source, as required by Code Cr. Proc. 1911, art. 609.
    3. Criminal Law <&wkey;614(2) — Continuance-Cumulative Testimony.
    The denial of an application for a second continuance was not error where it was made to secure cumulative testimony.
    4. Witnesses <&wkey;268(l) — Cross-Examination —Browbeating Witness.
    In a trial for murder, where a witness for defendant on cross-examination testified that another witness favorable to defendant was present at the homicide, and that he .had not left the scene a few minutes before the homicide, the prosecuting attorney’s statement that he wanted to give the witness a fair show, that he could prove where such other witness was, that he wanted the witness to swear whether such other witness was there, and that he meant to have the witness indicted if he swore that such other witness was present, was objectionable. ,
    5. Criminal Law <&wkey;730(l) — Harmless Error — Cross-Examination ,
    Such objectionable cross-examination was no' ground for reversal, where the court told the jury not to pay any attention to the prosecuting attorney’s remarks.
    6. Criminal Law &wkey;>658 — Arrest oe Witness-Reversal.
    The fact that a witness was arrested during the trial on a charge of perjury, where the arrest was not made in court or under the direction of the judge, nor in the presence of the jury, did not bring it within the rule requiring a case to be reversed where the court by having a witness arrested and put in custody indicates his view of the testimony.
    7. Criminal Law <&wkey;S72 — Time Taken by Jury eor Deliberation.
    In a trial for murder, the fact that the jury brought in a conviction in about 20 minutes would not authorize a reversal.
    8. .Criminal Law <&wkey;823(6) — Self-Defense — Instruction — Cure by Other Instruction.
    In a trial for murder, a charge on self-defense, objectionable as submitting the issue of actual danger alone, was cured in a special charge at defendant’s request fairly submitted the law of apparent danger.
    9. Homicide &wkey;>31 — Instructions^-Issues— Manslaughter.
    In a trial for murder, where it appeared that defendant had gone to the house of deceased’s father to gamble, that deceased lived there with his wife, that deceased remonstrated with defendant for cursing in the hearing of his wife, and that defendant shot him while he was standing back against a drawer with both hands in his pocket, and where defendant alleged self-defense on the ground that the deceased was trying to get a weapon from the drawer, the issue of manslaughter was not in the case.
    10. Criminal Haw &wkey;>1129(3) — Appeal—Sufficiency op Objection.
    Mention of failure to charge on manslaughter contained in the brief, but not in the bill of exceptions, and reference thereto in the objections to the court’s charge, was too general to be considered.
    11. Homicide &wkey;>250 — Mubdeb—Supmtciency op Evidence.
    Evidence held to sustain a conviction of murder.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Joe Steel was convicted of murder, and lie appeals.
    Affirmed.
    Joe Hughes, of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for the murder of Burton Wiggins, his punishment being assessed at confinement in the state penitentiary for a term of 99 years.

The killing of deceased by appellant was not controverted, but he sought to justify on the ground of self-defense. The homicide took place at the residence of E. Wiggins, the father of the deceased. The son, Burton Wiggins, and his wife also resided there. All of the parties were negroes. Appellant and some others who were witnesses went to the home of E. Wigggins for the purpose of gambling. The deceased was not one of the party, but was at work at some place in the city, and returned to his home about dinner time. Appellant had been cursing in the house and in the hearing of the wife of deceased, who was in another room. Deceased, learning of the cursing, remonstrated with appellant, and was shot and killed by him: The version of E. Wiggins, father of deceased, and some of the other state’s witnesses, is that the deceased came into the room in which appellant and others were and said, “Men, don’t be cursing in there; my wife is in the kitchen,” to which appellant replied, “God damn you and your wife, too, you black son of a bitch,” deceased replying, “You don’t mean to call me a son of a bitch because I asked you not to curse before my wife.” Appellant said, “Yes; I do,” drew an automatic pistol from his pocket and fired one shot, striking deceased in the breast near the nipple, inflicting a wound from which he died in a very few moments. This witness, E. Wiggins, claimed that the parties were about five feet apart, the deceased standing with his back to the dresser with both hands in his pocket; that he did not take them out until after he was shot. He said that about the time the shot was fired appellant said, “Get away from that dresser.” He also claimed that he (witness) ran, and appellant chased him with his pistol. He claimed:

That the deceased did not speak in an angry manner, did not make any move to get anything, and did not make any move until he fell down. “From the way he acted he did not know that Joe Steel was going to shoot him; nobody wouldn’t have knowed it at the time; they wouldn’t have thought it.”

The wife of deceased gave substantially the same testimony as her father-in-law. The state’s witness Holmes testified that in a conversation between appellant and others before deceased came appellant remarked that he bet he would kill somebody before the year was out. We quote from his testimony as follows:

“Burton [deceased] came in — well, Joe was still cursing, and Burton came in there and said to Joe, ‘You’ve got to cut that cursing out and respect my wife and daddy,’ and Joe Steel called him a son of a bitch, and when deceased started in the room his father said, ‘You go on back; I will attend to everything myself,’ and he wouldn’t go back, and he came back with both hands in his pocket, just leaning up against the dresser, and he said to Joe, ‘You don’t mean to curse me for a son of a bitch because I asked you not to curse before my wife,’ and Joe shot him, and he turned clean around and fell on his face. Deceased had come to dinner and had walked in there. At the time he was shot he had both hands in his pocket. He walked up to the dresser and backed to the dresser, with both hands in his pocket, and said, ‘You don’t mean to call me a son of a bitch,’ and Joe shot him.”

Whether there was a pistol on the premises or in a bureau drawer was a disputed issue; E. Wiggins and deceased’s wife testifying that there was none. There was testimony that E. Wiggins made some effort to prevent his son, deceased, from going in the room, and that he (E. Wiggins) had made some contradictory statements. Some of the eyewitnesses for the defendant claimed that the father of the deceased remonstrated with appellant for cursing, and that appellant said he would not do so again; that when deceased came in he walked up to the dresser and pulled one hand out of his pocket and backed up to the dresser; that he did not know whether he was trying to get in the drawer or not. He claimed that when deceased came in he said:

“Let me in there; I will stop that cursing; I will kill him; let me get to that drawer; I will stop him; I will kill him.”

Appellant told him twice to get away from the drawer and stay out of it. Another witness for the defendant gave substantially the same testimony as to deceased coming in the room and saying he would kill him, and said that deceased commenced pulling on the drawer and was in the act of putting Ms hand in the drawer when appellant shot. This witness Smith said that after the shooting the father of deceased took a pistol off of deceased. We quote from him as follows:

“He goes out of the front door and Joe Steel behind him, and comes around from the back and takes a six-shooter off of this boy, out of the drawer, and comes on the front porch.”

The presence of this witness at the time of the homicide was controverted.

Appellant testified that when he was cursing in the house deceased’s father told him to stop on account of his son’s wife being in the house, and that he (appellant) apologized. E. Wiggins, deceased’s father, was called “Big Smokey” or “Smokey,” and deceased was called “Little Smokey.” We quote from appellant as follows:

“Big Smokey said, ‘Joe has started cursing, and I am going to break up the game,’ and this boy heads in the middle door, and Smokey said, ‘You go back; I will run the house,’ and he said, ‘No; I ain’t going to have nobody cursing over my wife,’ and he and his daddy tussled in the door a half a minute, and during the tussle some one knocked on the front door, and it was two women, and when he leaves this door he goes to the dresser drawer, and he said, ‘If I get to this dresser drawer, I will stop him; I will kill him,’ and after he goes to the door, and there stands Smokey there and Little Smokey over here at the dresser drawer, and here stood Babe Holmes. I knew Babe Holmes and Smokey were good friends, and Babe didn’t like me, and that is why I shot. I didn’t know whether I hit him; I didn’t care whether I hit him; I just wanted to keep him out of the dresser drawer. He made an attempt three times to get in the dresser drawer, and stood there a minute or three minutes after I shot. I could have shot him six times, but I didn’t make any attempt to shoot him any more; that is how the trouble was. He said, ‘If I get to that dresser drawer, I will stop the son of a bitch or kill him,’ and when he got to the dresser drawer he said, ‘Joe Steel you don’t mean to run over me and my family,’ and I said, ‘I am not running over your family; I did curse, and I told your daddy I wouldn’t do it any more,’ and some one said, ‘You know you wouldn’t let anybody curse over your family like this,’ and I said, ‘No; because I ain’t going to have no such a bunch as this around my family.’ When he walked up to this dresser he started to open the drawer, and I looked him so straight in the eye until he kinder checked up, and he asked me' did I mean to run over him and his family. He was trying to get in the drawer, and he had-it just about that far open; and I knew this Burton negro, I knew he would hurt a fellow, and that is why I wouldn’t take any chances. As to whether I thought there was a gun in that drawer: I knew there was one. I mighty near knew there was one in there. I shot because I thought he was going to get a gun to shoot me; that is what he said he was going to get; he said he was going to kill me, and that is all he could get out of there was a gun. I did not try to shoot Big Smokey after that. There were three men in the house that I was afraid would try to hurt me.”

Appellant sought a second continuance on account of the absence of his wife, Lillie Steel, and Charley Lowe, in which he claimed that his wife would testify that appellant went to the house where the homicide took place about 10 o’clock in the morning and remained there until after the homicide; that the testimony would become material because, E. Wiggins had testified on the examining trial that appellant, after going to the house about 10 o’clock, and after stating that he was going to kill, a man at that house before night, had left and returned about 20 minutes before the homicide. The court, in qualifying the bill, says this witness did not see the difficulty or any part of it, and her testimony was immaterial in that it was to contradict the witness that it was thought the state might use. From our examination of the statement of the facts we do not find that the state proved by the witness E. Wiggins that the appellant had made the remark mentioned in the application, or that he had left his house between his first arrival there and the homicide. It appears, however, that the appellant introduced part of the testimony of this witness given at the examining trial, to the effect that appellant came back to the house about noon; that on the introduction of this part of the evidence the state introduced the balance, wherein the witness claimed that appellant had said he was going to kill a man in the house before night. The application as to both the witnesses named fails to charge that the testimony cannot be procured from any other source. Aside from that defect, the testimony of the appellant’s wife would become material only in the event the state had proved by the witness Wiggins that the appellant had made more than one visit to the house before the homicide. The testimony of the other witness named in the application was to the effect that deceased was in the act of pulling out the dresser drawer to get a pistol when the shot was fired. The application, as above-stated, did not declare that this evidence could not be had from any other source, and in fact it was, in substance, cumulative of other testimony given on behalf of defendant by some of his witnesses. There is also a finding of the trial judge in his qualification to the bill that there was a lack of diligence to procure the attendance of the witness. Article 609, O. O. P., provides that this application should state the testimony could not be procured from any other source. Vernon’s Crim. Stats, vol. 2, p. 324; Fulkerson v. State, 57 Tex. Cr. R. 80, 121 S. W. 1111. At the same page of Vernon’s will be found a number of cases to the effect that it is not error to overrule an application for continuance to secure cumulative testimony. See Bosley v. State, 69 Tex. Cr. R. 100, 153 S. W. 878; Johnson v. State, 55 Tex. Cr. R. 134, 114 S. W. 1178, and other cases listed.

There was an order of the court substituting the indictment in the case. Article 482, C. C. P., authorizes the substitution of the indictment, and provides the procedure therefor. We are unable to discern any departure from this procedure or failure to observe its provisions, pointed out in the bill of exceptions or existing in the record. See Vernon’s C. C. P. p. 249, and cases listed.

In the cross-examination of Adam Brown, one of defendant’s witnesses, who, among other things, had testified, giving testimony indicating that another witness favorable to appellant named Smith was present and saw the homicide, the prosecuting attorney asked the witness Brown if Smith had not left the scene of the homicide a few minutes before it occurred, to which the witness gave a negative answer. The prosecuting attorney then said:

“I want to give you a fair show; we can prove where he, Mex [Smith], was. I want you to swear positively whether or not Mex was there.”

Objection was made that this manner of cross-examination was in the nature of browbeating or bluffing a witness, to which the prosecuting attorney answered that he was not bluffing, but meant to have Brown indicted if he swore that Smith was present. The court told the jury not to pay any attention to the remarks of the attorneys. The witness did swear that Smith was present as shown by the bill, and did not in response to the remarks of the district attorney change or modify his statements so far as the bill shows. The proceeding was not such as ought to have occurred. 40 Cyc. 2517. As disclosed in the bill, however, it does not appear to have been harmful, and consequently not reversible. Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Siars v. State, 63 Tex. Cr. R. 567, 140 S. W. 777; and cases cited in Vernon’s C. C. P. p. 710.

Complaint is made of the fact that the witness Will Smith was arrested during the trial. An inquiry as to the facts was developed and is made part of the bill, from which it appears that a complaint was made .against Will Smith charging him with perjury; that it was not made in court or under the direction of the judge, nor in the presence of the jury, and so far as shown by the bill the jury was not aware of the fact. 'The circumstances do not bring it within the rule which requires the case to be reversed where the court, by having the witness arrested or put in custody, indicates his view of his testimony.

In his motion for a new trial the appellant complains that the jury did not give .sufficient consideration to his case, in that it brought in a verdict in about twenty minutes. The facts relating to the matter are not verified by any bill of exceptions. Assuming them to be correct, however, our attention has been directed to no precedent which would authorize us to reverse the case upon that ground alone.

The court’s charge on self-defense is criticized on the ground that it submitted the issue of actual danger alone. This criticism is correct so far as the main charge is concerned, but was cured in a special charge given at the request of appellant, which fairly submitted the law of apparent danger.

The issues in the case were murder and self-defense. Manslaughter, we think, was not involved. Ford v. State, 40 Tex. Cr. R. 284, 50 S. W. 350; Dougherty v. State, 59 Tex. Cr. R. 471, 128 S. W. 402; Luster v. State, 63 Tex. Cr. R. 541, 141 S. W. 214, Ann. Cas. 1913D, 1089; Johnson v. State, 74 Tex. Cr. R. 179, 167 S. W. 736; Lamb v. State, 74 Tex. Cr. R. 301, 168 S. W. 534; Lamb v. State, 75 Tex. Cr. R. 75, 169 S. W. 1158; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Blount v. State, 58 Tex. Cr. R. 509, 126 S. W. 570; Hardeman v. State, 61 Tex. Cr. R. 113, 133 S. W. 1057. The failure to charge on manslaughter is mentioned in the brief, but not in any bill of exceptions. The reference to it in the objections to the court’s charge is of a character held too general. Branch’s Ann. P. C. p. 1131, § 2004.

We have carefully reviewed the record, and finding the evidence supporting the state’s theory, if believed to be true, sufficient to support the verdict, and no reversible error being committed in the trial, the judgment of the lower court is affirmed.
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text:
    COFFEY v. STATE.
    (No. 4699.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    On Motion for Rehearing Jan. 16, 1918.)
    1. Assault and Battery <&wkey;54^-STATUTES— Application to Prior Offenses.
    As Acts 35th Leg. c. 207, § 35, relative to aggravated assault .by gross negligence of operator of motor vehicle, did not become effective until July, prosecution begun in January preceding could not be thereunder.
    On Motion for Rehearing.
    2. Assault and Batteet <&wkey;49, 54 — Elements of Offense — Intent.
    Where a collision between defendant’s automobile and that in which the injured party was riding was an accident brought about by defendant's negligence and without intent to commit an assault, there could be no conviction under statute defining assault and battery and aggravated assault.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Ezra Coffey was convicted of an aggravated assault, and appeals.
    Reversed and remanded.
    Wood & Wood and W. W. Hagebush, all of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction was for aggravated assault. Appellant was tried before the court; without a jury. There are no bills of exception in the record.

There were two counts. The first attempted to charge an aggravated assault upon a female by an adult male. This count was defective in failing to allege the date of the offense within the period of limitation. The second count charged the offense to have been committed by running an automobile into and against another automobile in which the injured party was seated, inflicting upon her serious bodily injury.

It is suggested in the brief and record that this is an attempt to prosecute under section 35 of chapter 207 of the Acts of the Thirty-Fifth Legislature, p. 484, which declares an injury resulting from a collision between motor vehicles on the public highways of the state, brought about by gross negligence, shall be an aggravated assault. TBis position is, we think, not tenable, as the act in question was not approved until April 9, 1917, and did not become effective until July 1,1917, while this prosecution was begun in January, 1917. It is under the general law by which assault becomes aggravated when serious bodily injury is inflicted upon the person assaulted. Article 1022, subd. 7, Branch’s Ann. P. O. p. 931. It is in the class with Perkins v. State, 62 Tex. Or. B. 508, 138 S. W. 133, wherein the offense was committed by running against the injured party with a buggy and horse, inflicting serious bodily injury.

Appellant sought a motion for new trial on the ground that there was no intent to inflict the injury proved. In this character of offense the absence of intent is, generally speaking, defensive (Vernon’s P. 0. art. 1009, p. 564); and, the evidence in this ease-disclosing that appellant inflicted upon the .party named in the iildictment a serious bodily injury, the intent will be presumed in the absence of evidence to the contrary, of which there is none introduced. Thompson v. State, 89 S. W. 1081.

The judgment of the lower court is affirmed.

On Motion for Kehearing.

Beeonsidering this! ease, we are of opinion that we were wrong in affirming it. The evidence, we think, does show want of intent on the part of appellant to commit an assault. The collision between his automobile and that in which the injured party was riding appears to have been an accident brought about by the negligence of appellant, but without intent, to do so, and we were mistaken in concluding that under the statute defining assault and battery and aggravated assault, in force at the time of the occurrence, the appellant was guilty of the offense charged. Perkins v. State, 62 Tex. Cr. R. 509, 138 S. W. 133; Ward v. State, 68 Tex. Cr. R. 154, 151 S. W. 1075.

Section 35 of Acts of 1917, c. 207, is as follows:

“If any driver or operator of a motor vehicle or motorcycle upon the public highways of this state shall willfully or with gross negligence, collide with, or cause injury'to any other person upon such highway, he shall be held guilty of aggravated assault, and shall be punished accordingly, unless such injuries result in death, in which event said party so offending shall be dealt with under the general law of homicide.”

This act became effective subsequent to the time that the injury upon which this prosecution is based occurred, and is indicative, we think, of the legislative view that the statutes on aggravated assault previously existing would not embrace an accidental occurrence such as that upon which this prosecution is founded.

For these reasons, the motion for rehearing is granted, the judgment affirming the case set aside, and the judgment of the lower court reversed, and the cause remanded.
      <@=;Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DALTON v. STATE.
    (No. 4817.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    Criminal Law <&wkey;101(2) — Indictment and Information — Jurisdiction.
    As an indictment must be presented in the district court, the county court can only acquire jurisdiction by an order of transfer as required by statute.
    Appeal from Delta County Court; J. N. Viles, Special Judge.
    J. B. Dalton was indicted, and appeals from the judgment.
    Judgment reversed and cause remanded.
    Newman Phillips, of Cooper, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This case was tried in the county court on an indictment. There is no order of transfer from the district to the county court. This'is necessary. There is no authority in our law for presenting and filing an indictment in the county court. It must be presented in the district court, and in order to secure jurisdiction in the county court there -must be a proper order of transfer entered as required by the statute.

The judgment will be reversed, and the cause remanded.


author: MOBBOW, J.

text:
    SIMPSON v. STATE.
    (No. 4825.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    Burglary <&wkey;41(l) — Sufficiency of Evidence.
    Evidence held sufficient to sustain a conviction of burglary.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Bennie Simpson was convicted, and appeals.
    Affirmed.
    John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MOBBOW, J.

Appellant was convicted of burglary, and his sentence fixed at two years’ confinement in the state penitentiary. There are no bills of exception found in the record. While other questions are touched upon in the brief, the only one raised in the record is the sufficiency of the evidence. It is meager, and we cannot say it is insufficient. The state’s theory' was that the appellant broke into a house and stole a pair of shoes. There was evidence that the house described in the indictment was broken open and the pair of shoes was missing; that appellant was found in possession of them and admitted getting them, stating that he would return them if the injured party would not have him arrested, and that when the injured party declined to make this agreement appellant fled. A witness testified to closing the house and going away, and on returning found the house broken into, and appellant was leaving the proximity of the house with a bundle under his arm, and the shoe’s which had been left there gone. Appellant denied the transaction, and claimed that the witnesses were prejudiced against him, and denied the admission that he had the shoes and had broken in the house.

In this state of the record we have no alternative but to order an affirmance, which is accordingly done.
      <S=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 200 S.W. — 25


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

text:
    Ex parte GOLDBURG.
    (No. 4639.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Municipal Corporations <&wkey;622 — Ordinances — Prohibition op Business.
    A business authorized by the state law cannot be directly or indirectly prohibited by a city ordinance, and cannot bo regulated by the city otherwise than by the grant of power to it in its charter, or otherwise than according to the state law, and cannot conflict with the state law or any constitutional provision.
    2. Municipal Corporations &wkey;>592(3) — Ordinance — Penalties.
    Penalties under ordinances which are the same as tho state law must conform strictly to penalties prescribed by the state law, and cannot exceed them, and must not conflict with the state law or the Constitution.
    3. Municipal Corporations t&wkey;624 — Ordinances — Penalties—General Statute.
    Municipal ordinances on a subject as to which there is no state law cannot prescribe penalties, unless so authorized by the state law and specified in the charter, and in no instance beyond the granted power, and if there is no express authority in the charter to levy penalties, but there is a general statute authorizing penalties for city ordinances, the ordinance must conform to the general statute.
    4. Municipal Corporations <&wkey;624 — Ordinance — Pawnbrokers—Penalty. .
    The city of El Paso, having no express charter authority to regulate or penalize the occupation of junk dealers, but having specific authority to control pawnbrokers, by ordinance prescribed a penalty of not less than $5 nor more than $2Q0 for the violation of an ordinance which required pawnbrokers to keep records, make returns to the chief of police, not to buy property under certain conditions, fixing hours of business, etc. Pen. Code 1911, art. 641, provides that if any pawnbroker receive any article in pledge or sell it without complying with the laws regulating pawnbrokers, he shall be punished by fine of not less than $25 nor more than $100. Held, that the ordinance was invalid as to the penalty for its violation by pawnbrokers.
    5. Municipal Corporations <&wkey;lll(4) — Ordinance — Partial Invalidity — Effect.
    Such ordinance, imposing similar restrictions upon junk dealers and secondhand dealers, and which so intermingled those* classes that one part of the ordinance could not be upheld to the exclusion of the others, its invalidity as to the penalty imposed on pawnbrokers rendered it void both as to pawnbrokers and junk dealers.
    6. Municipal Corporations <&wkey;625 — Ordinance— Junk Dealers — Unreasonableness.
    An ordinance requiring junk dealers to keep a record of all transactions, describing the articles received and the persons from whom received, and their addresses, to be open to chief of police, and requiring them to furnish daily reports to tho chief of police, making it unlawful to buy or receive property marked as the property of any firm or corporation, unless the person offering it showed that he is the lawful owner, requiring that lots purchased be kept separate for two days, and restricting business to the hours between 6 a. m. and 7:39 p. m., was invalid because unreasonable.
    Prendergast,. J., dissenting.
    Application for writ of habeas corpus by A. Goldburg.
    Relator ordered discharged.
    Hudsepth, Dale & Harper, of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The city of El Paso passed an ordinance, *the first section of which reads as follows:

“It shall be the .duty of every person, firm or corporation who is engaged in the business of pawnbroker, junk dealer or a dealer in secondhand goods or merchandise in; the city of El Paso, Texas, either as a business or as a mere occasional purchaser of the same, to provide a well-bound book to be kept at his place of business, in which a record of all transactions had by said person, firm or corporation shall be kept, giving an accurate description of each and every article taken in as a pledge or purchased by them, together with an accurate description of the party or parties from whom said goods are received or purchased, together with the name of said person or persons and his or their address, giving the house or street number of same, which book shall be open at all times to the inspection of the chief of police of tho city of El Paso, Texas, or any officer designated by such chief of police, and there shall also be entered in said book the amount of the loan or purchase price of all of said articles.”

Section 3 provides:

“It shall be the duty of every person, firm or corporation engaged in any of the above businesses to furnish daily a report before 12 o’clock noon to the chief of polic-e of the city of El Paso, Texas, on blanks to be furnished by said chief of police, which accurate and complete record shall show all property of every kind received or purchased by them, together with the description of said property, description of the person, delivering the same to them, together with said persons’ addresses, and said report shall give the age, complexion, sex and approximate height of the persons delivering said property to them, together with the time at which said property was received.”

Section 5 provides:

“It shall he unlawful for any person, firm or corporation to buy any property of any kind or receive the same as a pledge which property is distinctly and plainly marked as being the property of any firm or corporation other than the party offering the same to sell, unless the party offering to sell the same shall show satisfactory evidence in writing that he is the legal and lawful owner of said property.”

Section 6 provides:

“It shall be unlawful for any person to act as the agent, servant or emploj'é of any person, firm or corporation engaged in any of said businesses, who does not keep a book as required by this ordinance and does not make report to the chief of police as herein required.”

Section 7 provides:

“It shall be the duty of every person, firm or corporation from whom junk is bought or otherwise obtained to safely keep each lot or purchase separate and apart from other articles so that the same can be identified, for at least two (2) full days after the day the same is purchased and report thereof is made to the chief of police, as above required.”

Section 9 provides:

“Should it hereafter be discovered or adjudged by any court that any section or portion of this ordinance is unconstitutional, void or invalid for any reason, it shall not affect the validity or constitutionality of tho remaining portion of this ordinance, unless the portion so declared unconstitutional, void or invalid is so interwoven or dependent upon the other portions of said ordinance that the same cannot be enforced as herein intended.”

Section 10 provides:

“It shall be unlawful for any person, firm or corporation engaged in the business of pawnbroker or junk dealer to keep such place of business open for business or to transact any business at said place of business between the hours of 7 :30 o’clock p. m. and 6 o’clock a. m. on the following day; and it shall be the duty of said person, firm or corporation so engaged in said business to keep the said place of business closed between the hours above mentioned.”

Section 11 provides:

“Any person, firm or corporation, or their agents, servants or emjfloyes. who shall violate any of the provisions of this ordinance, shall be deemed guilty of misdemeanor, and, upon conviction thereof, shall be fined for any sum not less than five ($5.00) dollars, nor more than two hundred ($200.00) dollars.”

This is a sufficient statement of the provisions of the ordinance to bring in review the questions urged for disposition. There are a few general propositions which seem to be well understood as the law, which may be stated as follows: A business which is authorized by the state law cannot be prohibited by city ordinance directly or indirectly. A business which is regulated by the state cannot be prohibited by the city either by express enactment or by prohibitory regulation. A business regulated by the state cannot be regulated by the city, otherwise than by grant of power to such city in the charter passed by the Legislature for the purpose of such regulation. Nor can such regulation be otherwise than in accord with the state law. It cannot be in violation of or in conflict with the state law or any provision of the Constitution. Penalities under ordinances, if the ordinance is the same as the state law, must conform strictly to penalties prescribed by the state law. Such penalties cannot exceed or fall below the penalties prescribed by the state law; that is, where the ordinance pertains to the same matter as that enacted by the Legislature. Ordinances which are purely municipal, and where there is no existing state law on the same subject cannot prescribe penalties, unless so authorized by the state law and specified in the charter, and this in no instance beyond the granted power. If there be no express authority in the charter to levy penalties, but there is a general statute of the state authorizing penalties for city ordinances, then the ordinance must conform to the generally delegated authority. The city can neither provide a punishment in excess of the legislative act, nor prescribe a less penalty, and in either or both instances there must be no conflict with the state law or the Constitution. Const, art. 11, § 5. For cases, see Harris’ Ann. Cons. pp. 208 to 212.

An inspection of the charter of the city of El Paso shows that there is no express authority contained in the charter to regulate or penalize the occupation of junls dealer or secondhand dealer. The power to create or ordain the ordinance in question, if existent, is to be found in the general statement of granted authority in the second section of the charter. It is unnecessary to repeat that section, but it is very general as in contradistinction from being specific. Power, however, is granted specifically to control pawnbrokers. This is found in section 98 of the city charter of El Paso, but junk dealers and secondhand dealers are not specified. Therefore, if they can be regulated or penalized, as before stated, it must be under the general grant of power found in section 2 of the act. It will be noticed that this ordinance prescribes a punishment not less than $5 nor more than $200. Pawnbrokers are included within this ordinance, and come within that punishment. Article 641 of the Penal Code provides that:

“If any pawnbroker, or person doing any business as such, shall receive any article in pledge, or sell the same without complying with the laws regulating pawnbrokers in this state, he shall be punished by fine not less than twenty-five dollars nor more than one hundred dollars.”

So it is obvious that the ordinance is invalid in its punishment so far as pawnbrokers are concerned. All the authorities hold that where the punishment is prescribed by a state law, and the city undertakes to prescribe a punishment for the same offense, it must follow literally the state law both as to definition and punishment, and that any punishment higher or lower than the state law will be invalid. The authorities are so numerous and so well understood it is thought unnecessary to cite them. Not only is this the well-known rule in Texas, but the matter is further emphasized by a provision of the Constitution. Article 11, § 5, of tliat instrument thus reads:

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

So there would seem to be no question of this proposition. There is a direct conflict here between the ordinance and the state law as to pawnbrokers, especially as to the amount of punishment. This ordinance is void from this standpoint. The punishment and regulations provided therein as to pawnbrokers being in direct conflict with the state law on these subjects must be held void. The ordinance includes pawnbrokers, junk dealers, and secondhand dealers, and so intermingles all these different subjects and classes that one part of the ordinance cannot be upheld to the exclusion of the others or an omission of the other phases. This seems evident from its perusal. This being true, the whole ordinance must fall. It is unnecessary to take up and contrast the pawnbrokers’ phase of the ordinance with the state law on the same subject. The ordinance and the state law are so directly in conflict on these different matters, and they are so interwoven in the ordinance with each other, that they cannot be held invalid as to one and valid as to its other provisions. It was and is clearly the intention of the ordinance to include them all together, and the ordinance is so written that it seems impossible to eliminate one and leave the other so as to make the ordinance valid as to any of them. Ex parte Wood, 52 Tex. Cr. R. 575, 108 S. W. 1171, 16 L. R. A. (N. S.) 450, 124 Am. St. Rep. 3107; Pullman Car Co. v. State, 64 Tex. 279, 53 Am. Rep. 758; Hoefling v. City of San Antonio, 85 Tex. 228, 20 S. W. 85, 16 L. R. A. 608.

It is contended that the ordinance is invalid because of its unreasonableness. We are of opinion this proposition is correct. Some provisions of the ordinance are not only unreasonable, but discriminating and prohibitory. Pawnbroking seems to have been rather ostracized of late years, and legislation has been adverse to such business, but this cannot be said of junk dealers and secondhand dealers so far as the policy of legislation in Texas is concerned. That reasonable regulations may be applied is not necessary to he discussed, but some of those prescribed clearly are unreasonable. Eor instance, take section 5, which prescribes:

“It shall be unlawful for auy person, firm or corporation to buy any property of any kind or receive the same as a pledge which property is distinctly and plainly marked as being the property of any firm or corporation other than the party offering the same to sell, unless the party offering to sell the same shall show satisfactory evidence in writing that he is the legtil and lawful owner of said property.”

The practical effect of this section is tliat parties who desire to exchange property which they may have, 'such as clothing, stoves, and a great many things of that character here unnecessary to enumerate, would be prohibited from selling and the purchaser from purchasing if it should happen to have stamped on it the name of the original maker or owner of said article. This seems to the writer to he a prohibition of the purchase or selling of such article, if not an absurdity. It would be rather difficult for some one who has bought a suit of clothes with the name of the original maker on it where it was manufactured in some of the other states of the Union, or perhaps in a foreign country, to get permission from the maker or original owner to dispose of this property, and the purchaser would have equally as difficult proposition to ascertain the granted permission. The maker of those clothes, stoves, or other articles may buy them and place them upon the market and dispose of them and part with the title when they were shipped from the factory. The party owning such property when he proposes to sell or exchange, pledge, or pawn them would be required to seek out the original manufacturer or owner and secure authority from them in order to sell this property, whether it he junk or secondhand goods. If this section is held valid it would require practically an impossibility, and unless he did obtain such permission as required by the ordinance he would be liable for a severe punishment. The writer is inclined to think that section 3 is subject to the criticism of appellant. It is unnecessary here to repeat it, as it has already been quoted. From it it will be seen that parties engaged in any of these matters are required to make daily reports to the chief of police before 12 o’clock of each day on blanks furnished by such chief of police, stating accurately and completely in that record all property of every kind received or purchased, a description of the property and of the person delivering the same, the person’s address, and such report shall give the age, complexion, sex, and approximate height of the person delivering said property, together with the time at which it was received. And in section 7, the junk bought shall be safely kept to itself separate and apart from all other articles so that the same may be identified, and must he so kept for at least two days after the day the same was purchased and report thereof is made to the chief of police. These matters are of such a nature as to be prohibitive, onerous, and unreasonable.

We are therefore of opinion this ordinance is void, and the relator is ordered discharged.

PRENDERGAST, J.

(dissenting). The relator was prosecuted for violating the ordinance as to junk dealers .solely. ' Therefore, even if some provisions of the ordinance as to pawnbrokers or dealers in secondhand goods should be invalid, that would not invalidate the ordinance as to junk dealers. I think the ordinance is severable and valid as to junk dealers. I therefore cannot agree to the opinion by the majority, but dissent therefrom.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes