text:
    MARSCHALL et al. v. SMITH et al.
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.)
    Attorney and Client (§ 189) — Lien—Protection Against Settlement.
    Where the parties to an action, before filing the power of attorney transferring to the attorneys an interest in the suit, had compro: raised all matters at issue under an agreement requiring a pending appeal to be dismissed, ap-pellees, who had no notice of the attorneys’ interest when the compromise agreement was made, could enforce the agreement by requiring appellants to dismiss the appeal.
    [Ed. Note. — Por other cases, see Attorney and Client, Cent. Dig. §§ 407-411; Dec. Dig. § 189.]
    Supplemental opinion on motion to dismiss the appeal.
    Appeal dismissed.
    Por former opinion, see 132 S. W. 812.
    See, also, 147 S. W. 226.
    O. R. Seiter, of Chicago, Ill., and J. H. Tal-liehet, of Houston, for appellants. J. H. McLean, of Llano, for appellees.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

While this appeal was pending, appellants filed their motion to withdraw the submission and dismiss said appeal, on the ground that the respective parties had compromised and settled the matters at issue between them. This motion was resisted by their attorneys of record, Messrs. Seiter & Talliehet, for the reason that they had acquired an interest in said cause of action prior to such settlement by written assignment thereof, which had been duly filed in the papers of said cause, and notation thereof made in the minutes, in accordance with article 4647, R. S. 1895. This court dismissed said appeal, however, notwithstanding said objection! on the part of counsel, holding that, since the transcript failed to show that they had any interest in said cause of action, they had no right, as against appellants, to control said appeal. See Marschall v. Smith, 132 S. W. 812. After motion for rehearing had been denied, (Mr. O. R. Seiter, one of said attorneys (the other, Mr. J. IT. Talliehet, having filed a disclaimer of any interest therein), sued out a writ of error to the Supreme Court, which court on May 8, 1912, reversed our judgment, holding that we were in error in dismissing said appeal — that we not only had the inherent power, but that it was our duty under article 998 of the Revised Civil Statutes, to hear evidence and determine the issue raised by said motions, as will more fully appear by reference to the opinion of said court in Seiter v. Marschall et al., 147 S. W. 226.

Though said opinion was rendered on May 8, 1912, the same, with the mandate of said court, for some reason, was not returned to and filed in this court until April 10, 1913. In conformity with said opinion, this court on the 30th of April last gave notice to said parties that on June 4th it would hear evidence by affidavit in support of their respective contentions; and, the same having been filed by them, after due consideration thereof, we are of the opinion that it satisfactorily appears that the parties to this litigation, on the 2d of March, 1910, and prior to the filing by said attorneys of their power of attorney in the papers of the cause transferring to them an interest in said suit, had fully compromised all matters at issue between them, wherein it was agreed that appellants herein, in consideration of such settlement, would dismiss this appeal; and since it appears that appellees had! no notice, either actual or constructive, of the interest of said attorneys in said cause of action at the time of such agreement, they were entitled, as matter of right, to the enforcement thereof, and appellants rested under obligation to procure such dismissal; for which reasons we are of the opinion that said motion should be sustained, and the appeal dismissed, and it is accordingly so ordered.

Appeal dismissed.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    INTERNATIONAL & G. N. RY. CO. v. MATTHEWS BROS.
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.)
    1. Raimoads (§ 441)—Killing Animals— Horses — Switch Limits — Burden oe Proof.
    Where plaintiffs’ horse was killed by defendant railroad company at a point within the switch limits of a town, where the railroad company was not required to fence its track, plaintiffs could not recover without proof that defendant was negligent in respect to the killing, and that such negligence was the proximate cause thereof.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.]
    2. Railroads (§ 417)—Killing Animals— Negligence—Evidence.
    Where plaintiffs’ horse was killed by defendant railroad company within the switch limits of a town, evidence that the train by which the horse was probably killed passed through the town very fast, without blowing the whistle or sounding the bell, was not of itself sufficient to establish the railroad company’s negligence.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1484-1487; Dec. Dig. § 417.]
    3. Negligence (§ 121) — Negligent Act — Causal Connection—Presumptions.
    Neither an alleged negligent act or omission, nor the causal connection between it and the injury, can be presumed, but the burden is on plaintiff to prove it.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. § 121.]
    4. Railroads- (§ 441)—Killing Animals— Negligence—Res Ipsa Loquitur.
    Evidence that plaintiffs’ horse, with two of his legs broken, was found on defendant’s railroad track within its switchyard, and that the train by which the horse was probably struck passed through the town at high speed, without blowing the whistle or sounding the bell, was insufficient to raise a presumption of defendant’s negligence, so as to require defendant to offer exculpatory evidence.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.]
    Appeal from Montgomery County Court; 5. A. McCall, Judge.
    Action by Matthews Bros, against the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    W. M. Williams and A. L. Kayser, both of Conroe, for appellant. S. A. Crawford, of Willis, for appellees.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

On the night of December 18, 1911, one of the appellees’ horses was found injured on appellant’s track in the town of Willis, from the effects of which it died, and this action was brought by them in the justice’s court against appellant to recover damages therefor. A trial there having resulted in favor of appellees, an appeal was taken to the county court, where a similar judgment was had against appellant, from which this appeal is prosecuted.

After general demurrer and general denial, appellant pleaded specially that the horse, if killed by it, was killed ih. the settled portion of the town of Willis and within its switch limits, where public necessity and convenience required its track to be left unfenced. The evidence showed that the animal was found with both legs broken lying on the track within the switchyard of appellant, a place not required to be fenced. Railway v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S. W. 331. Hence, before the appellees were entitled to recover, they must show that the appellant was guilty of negligence in respect to such killing, and that the same was the proximate cause thereof.

Has this been shown by the evidence? We think not. Ibis true that the proof shows that the animal was found injured as above described on the railway track, and that it was likely struck by a passing train, most probably by the 4 o’clock morning train going south, which it appeared from the testimony ran very fast through the town, without blowing the whistle or sounding the bell; but it has been held that this, in and of itself, does not show negligence. See T. & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; Elliott on Railroads, §§ 1204-1586. No witness saw the accident, and the details are not given, and we are left entirely to conjecture as to how it occurred. It might be concluded that the animal was on the track, and the engineer saw it in time to have prevented the injury, and that he was negligent in failing to do so, and, if these facts were shown, it would be our duty to sustain the judgment; but we may just as easily infer that the animal, when the train came along, was frightened by its noise, and suddenly ran in front thereof and was killed, without.fault of the servants of the company, and, if so, no recovery could be had. It is true it is shown that the track was straight, and the bell was not rung or the whistle blown; but it does not appear that this was the proximate cause of the injury. See M., K. & T. Ry. Co. v. Baker, 99 Tex. 452, 90 S. W. 869.

The burden was upon the appellees, not only to show negligence on the part of appellant, but that such negligence, if any, was the proximate cause of the injury. “This fact of causal connection between an alleged negligent act or omission and an injury can no more be presumed than can the act or omission itself.” T. & P. Ry. Co. v. Shoemaker, 98 Tex. 456, 84 S. W. 1052; M. P. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 324; Tex. & N. D. Ry. Co. v. Crowder, 63 Tex. 505.

It is true there was no evidence offered on the part of appellant explaining the accident; but it is said in 2 Wharton on Evidence, § 1268, that the defendant is not called on to bring evidence of exoneration until plaintiff has made a prima facie case. No presumption, therefore, can be indulged against-it on account of its failure in this respect. The evidence-leaves us in the dark as to the circumstances surrounding the accident, -without which we are wholly unable to determine whether the appellant was guilty of negligence in reference thereto.

This case is very similar to that of Railway v. Anson, 101 Tex. 198, 105 S. W. 990, upon the authority of which we hold that the evidence was insufficient to sustain the judgment, and sustain the assignment that the court erred in failing to give a peremptory charge in favor of appellant, as requested by it. See Railway Co. v. Simpson, 41 Tex. Civ. App. 125, 91 S. W. 875; Railway v. Blake, 43 Tex. Civ. App. 180, 95 S. W. 593; Railway v. Randal, 48 Tex. Civ. App. 637, 108 S. W. 505.

It appearing that the case has been fully developed, it becomes our duty to reverse the judgment of the court below, and here render same in favor of appellant, which is accordingly done.

Reversed and rendered.


text:
    ALLEN v. ALLEN.
    (Court of Civil Appeals of Texas. Austin.
    May 28, 1913.
    Rehearing Denied June 18, 1913.)
    1. Husband and W^fe (§ 248½) — Community Property — What Constitutes.
    Where a deed from a husband prior to his marriage was a mortgage, the fact that the 'husband and wife subsequently occupied the land for a period sufficient to acquire title by adverse possession did not render the land community estate, the entire interest in which passed to the wife on the husband’s death without issue. Allen v. Allen, 158 S. W. 1049.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. § 888; Dec. Dig. § 248½.]
    2. Appeal and Error (§ 172) — Review-Questions Not Raised Below.
    The question as to the right of plaintiff to foreclose an instrument will not be reviewed, where the issue was not raised by the pleadings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1070-1078; Dec. Dig. § 172.]
    3. Homestead (§ 143) — Right of Wife.
    Since, under Const, art. 16, § 52, a surviving wife is entitled to the use and occupation of the homestead for life, the deceased husband’s brothers and sisters took their interest therein subject to the wife’s right.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 270; Dec. Dig. § 143.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by Matilda Allen against Thomas Allen. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    E. T. Moore and Jos. W. Cloud, both of Austin, for appellant. Ike D. White and Fred C. Yon Rosenberg, both of Austin, for appel-lee.

       For other oases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Statement of the Case.

RICE, J.

The following statement of the nature and result of this suit is taken substantially from appellant’s brief: Appellee, Matilda Allen, brought this suit- in the ordinary form of trespass to try title against Thomas Allen and Jerry Menefee for title and possession of 41.15 acres of land, being the east half of an 82.3-acre tract out of the Caldwell league in Travis county, describing the same by metes and bounds, claiming title thereto in fee, and likewise .under the ten-year statute of limitation, alleging that she was the surviving wife of Edmund Allen, deceased, and that she and her husband held possession thereof from January, 1893, to the date of his death, and that she held possession thereafter to the time she was ejected by appellant.

Menefee disclaimed. Appellant -in his first amended original answer pleaded general demurrer, general denial, and not guilty; likewise a cross-action, alleging that he was the owner of the title to said property, and that appellee was asserting some claim by virtue of some sort of contract, the exact nature of which he did not know, and such claim constituted a cloud on his title, praying judgment for affirmative relief against appellee, that she be required to show her title, for removal of cloud, and general relief.

By supplemental petition appellee demurred to appellant’s cross-action and pleaded not guilty, and the five and ten year statutes of limitation.

Appellant filed a trial amendment, specially denying the allegations of appellee as to limitation, and alleging that during the time that Edmund Allen was in possession, and up to his death, he leased and rented from appellant, and occupied said land as lessee, and that appellee, after his death, continued to so occupy said land as his tenant, and that their possession was never adverse to him, and, further, that at the time Edmund Allen went into possession as tenant of appellant he desired to repurchase the land from appellant at the same price that he had sold to appellant, namely, for $1,250, and it was agreed between appellant and Edmund Allen that he would rent until he was able to repurchase it, and that he rented it and paid rent therefor; that said sale was never made, because Edmund Allen never obtained the money to purchase same; that at the time the contract was made with Edmund Allen he was unmarried — praying as in his original petition.

Appellee, after general and special exceptions thereto, and general denial, specially answered, denying any such lease, or that there was ever any conveyance made of the land from Edmund Allen to appellant, but, if such conveyance was ever made, it was intended as a mortgage; that, if it was true that appellant agreed to sell said property to Edmund Allen, appellant agreed, after Edmund’s death, to surrender his interest to appellee for $1,250; that Edmund died without issue, intestate, whereupon appellee became subrogated to all the rights of Edmund in said property under such contract; and that, if the court should find that such contract of sale and purchase was entered into, she now offers to pay to appellant said $1,250 on such terms as the court might direct — praying for judgment for the land and for general and special relief.

The case was tried before the court without a jury, who filed the following conclusions of fact and law:

“Findings of Fact.
“1. I find that the plaintiff, Matilda Allen, and Edmund Allen, deceased, were married on or about the 23d day of January, 1893, and that the said Edmund Allen died intestate, without issue, on or about the 15th day of September, 1909, leaving the plaintiff, Matilda Allen, as his surviving wife.
“2. That on or about the - day of -, 1887, the said Edmund Allen, deceased, went into possession of the lands and premises described in plaintiff’s petition, and occupied the same up to his marriage with the plaintiff, and that from and after their marriage the said Edmund Allen, deceased, and plaintiff, resided upon said land, cultivating, using, and enjoying the same as their homestead up to the date of the death of the said Edmund Allen; that the said Edmund Allen and plaintiff had and held open, notorious, and adverse possession of said land from the time said Edmund Allen entered upon the same, for the period of more than ten years, claiming the same as their own and adverse to every other person; that, after the death of the said Edmund Allen the plaintiff, Matilda Allen, claimed and held open and adverse possession of said land, cultivating, using, and enjoying the same, up to the --- day of January, 1910, when the defendant, Thomas Allen, wrongfully entered upon the same and took possession thereof; and that the defendant’s entry upon and taking possession of said land was a trespass upon the rights of the plaintiff, Matilda Allen.
“3. That the instrument under which defendant, Thomas Allen, claims title to said land, dated the 20th day of March, 1886, though a deed absolute upon its face, was not intended by the parties thereto to operate as a deed, but the same was intended to be a mortgage, and I find from the evidence that the same is a mortgage, and not a deed.
“Conclusions of Law.
“From the foregoing findings of fact, and pleadings in this case, I conclude as a matter of law that the defendant, Thomas Allen, is not entitled to recover anything against the plaintiff, Matilda Allen, on his cross-action, and that the plaintiff, Matilda Allen, is entitled to recover of and from defendant, Thomas Allen, title to and possession of said lands described in plaintiff’s petition, and her costs in this behalf expended. I further conclude that, in the event the instrument under which the defendant, Thomas Allen, claims should be held and considered as a deed absolute, and not a mortgage, plaintiff is nevertheless entitled to recover title and possession of said lands by and under the ten-year statute of limitation.
“Judgment will therefore be entered in favor of the plaintiff for title and possession of said lands and premises and for her costs in this behalf expended.
“Geo. Calhoun, Judge Presiding.”

Opinion.

While many questions are presented by this appeal, it is only necessary, in our judgment, to discuss the one challenging the correctness of the conclusions of law on the part of the court. It is urged that the court in such conclusions'erred, in that it failed to determine whether the property in controversy was the separate property of Edmund Allen, or the community property of Edmund Allen and appellee. If the conveyance under which defendant, Thomas Allen, claims title to the land was in fact a mortgage, as found by the court, then it is clear under the evidence that the land was the separate property of Edmund Allen; and upon his death, intestate and without issue, title to one half thereof vested in appellee, and the other half passed to his other heirs, as directed in article1 2462, Rev. Stat. 1911, for the reason that the title thereto was acquired by Edmund prior to his marriage. See, also, article 4621, Rev. Civ. Stat. 1911. But if said instrument was a deed, as claimed by appellant, then if the facts set up in plaintiff’s petition were true, the land in controversy became the community property of appellee and Edmund Allen; and upon his death, without issue, she was entitled to inherit his half, and thereby became the owner of the entire tract. See article 2469, R. S. 1911. The court, however, seemed to conclude that appellee was entitled to said land, irrespective of whether said conveyance was a deed or mortgage. In this there was error.

It is unnecessary for us to pass upon the question as to appellant’s right to a foreclosure of said instrument, if the same was a mortgage, because this issue was not raised by the pleadings. If appellant in his pleadings had asserted this right, the statute of limitations, if the facts warranted it, might have been urged as a defense thereto.

It appears from the evidence in this case that the property in controversy was the homestead of Edmund Allen and his wife. It therefore may not be improper for us to suggest that, even though it should be found that the conveyance above mentioned was a mortgage, and not a deed, and said Edmund acquired title thereto prior to his marriage, and that his wife was only entitled to one-half thereof, still the brothers and sisters of the deceased could not dispossess her, for the reason that under the Constitution the surviving wife was entitled to use and occupy the same as a homestead during her lifetime, and they took their interest subject to her right so to do. See section 52, art. 16, Constitution of Texas.

For the reasons above indicated, the judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.


author: JENKINS, J.

text:
    SOUTH TEXAS MORTGAGE CO. v. DOZIER.
    (Court of Civil Appeals of Texas. Austin.
    June 4, 1913.)
    1. Witnesses (§ 379) — Cross-Examination— Impeachment.
    Where, in an action to cancel an executory contract for the sale of certain lots to plaintiff by a corporation, one of defendant’s witnesses testified on cross-examination that he thought the corporation was composed of good.men and they would do what they promised,_ plaintiff was not entitled .to impeach him by introducing a letter, written by the witness to a third person, in which witness stated that he had done certain work for the corporation, had not gotten, his money therefor, and that the outfit was a gang of cut-throats; the witness’ opinion as to the integrity of the corporation’s officers being an immaterial matter.
    • [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256 ; Dec. Dig. § 379.]
    2. Trial (§ 307) — Misconduct of Jury— Consideration of Matter Not in Evidence.
    Where, in a suit to cancel an executory contract for the sale of land, a public record book, containing the record of a deed of trust covering the city addition in which the land was located, was introduced in evidence, and the book was sent to the jury room with the consent of both parties, that the jury might examine the deed, and the jury discovered another deed of trust in the record covering the same land, which neither party knew was recorded in the book, and which had not been introduced in evidence, and one of the jurors testified that such additional incumbrance caused him to consent to a verdict for plaintiff, and, but for his belief that such additional incumbrance existed, he would not have found for plaintiff, it was reversible error.
    [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 732-737; Dec. Dig. § 307.]
    Appeal from District Court, Bell County; Jno. D. Robinson, Judge.
    Action by W. E. Dozier against the South Texas Mortgage Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    M. E. Monteith, of Belton, and A. M. John and J. W. Lockett, both of Houston, for appellant. John B. Daniel, of Temple, for ap-pellee.

       For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   JENKINS, J.

This suit was brought by ap-pellee to cancel an executory contract for the sale of certain lots in the 'Laurel Heights addition to the city of Temple, alleging as a cause of action fraudulent representation of facts, in that the Western Land Corporation represented to appellee that it had a good title to said property, when in fact it was indebted for said property, said indebtedness being secured by a vendor’s lien in the sum of $10,100, which indebtedness had never been paid, and that the defendant herein was unable to pay the same, and also fraudulent promises on the part of said corporation, in that it agreed to open Sixth street from Temple to said property, which was the only way by which connection could be secured from said property to the city of Temple, and without which said property was worthless as town lots, to macadamize said Sixth street to Lamar avenue, up Lamar ¿venue and Eighth street to the Munn residence, and to construct cement sidewalks in front of all the lots in said addition, which said promises said land corporation had no intention of executing at the time the same' were made, and had not fulfilled said promises; that said land corporation had transferred to appellant, the South Texas Mortgage Company, the land embraced in said Laurel Heights addition, and that appellant had assumed all the obligations of said land corporation, and had not fulfilled the same, and was financially unable to do so; and that neither the said land corporation nor the appellant herein owned the land over which it was necessary for said Sixth street to run in order to connect said addition with the city of Temple, and were therefore unable to perform said promise, as they well knew at the time of making the same. There was a verdict and judgment for appellee, and judgment of the court canceling said contract, and that appellee recover the amount of money paid on same, together with interest thereon, and for foreclosure of lien on the lots mentioned in said contract.

Among other errors assigned is the following: “The court erred in admitting the testimony of C. A. Foster to the effect that witness had written a letter to one Coe, in which the writer stated that the Western Land Corporation consisted of a bunch of crooks, and- did not intend to carry out any of its agreements in regard to improvements in Laurel Heights addition to the city of Temple, because said testimony was inadmissible, immaterial, and prejudicial to the interest of the defendant, was hearsay, res inter alios acta, and opinion evidence.” The witness Foster was placed upon the stand by appellant, and testified that he made certain improvements in said addition at the instance of the Western Land Corporation, and'had been paid for the work he did. Upon cross-examination by appellee he was asked if he had not written a letter to one Coe, in which he said that the Western Land Corporation was a set of cut-throats. Witness denied having written such letter. Whereupon the appellee showed him a letter, which he acknowledged having written to Coe, in which, among other things, he stated: “I have put down only one block of walk, at the Laurel Heights, and have not got all my cash out of that. My opinion of it is that outfit are a gang of cut-throats, and all they aim to do is to sell a lot and get a couple of payments, and then take it away and sell it again next year.” The witness, upon cross-examination by appellee, had testified that he thought the Western Land Corporation was composed of good men, and that they would do what they promised. Had this opinion been elicited by appellant, the appellee might have impeached him by said letter; but a party cannot cross-examine a witness as to matters concerning which he was not examined by the opposite party, and, having obtained an unfavorable answer, impeach him by his contradictory statements theretofore made. Especially ought this not to have been permitted upon an immaterial matter, to wit, the opinion of the witness. This assignment must be sustained.

Appellant also assigns as error the misconduct of the jury in reading and discussing in the jury room a certain deed of trust upon the land composing Laurel Heights, which was not introduced in evidence. A deed of trust on said Laurel Heights was introduced in evidence, and we presume that the record thereof was read from the record booh, instead of original or certified copy. The jury asked that this record be sent to their room, in order that they might examine the deed of trust. Both parties consented to this, but neither party knew that there was another deed of trust in said record on said land. This fact was discovered by the jury, and they read and discussed this second deed of trust, which, as stated, was not introduced in evidence. One of the jurors testified that it was this additional incumbrance, as he understood it to be, that caused him to consent to a verdict for plaintiff, and that, but for his belief that such additional in-cumbrance existed, he would not have found for the plaintiff. It is reversible error for a jury to consider and discuss material evidence which was not introduced on the trial of the cause, for which reason this assignment also must be sustained.

It is also assigned as error that the court rendered judgment foreclosing a lien on the lots, when there was no finding of the Jury as to this matter. We sustain this assignment of error.

As the other errors complained of are not likely to occur upon another trial, we deem it unnecessary to pass upon them.

For the reasons above stated, the judgment of the trial court is reversed and remanded.

Reversed and remanded.


author: WILLSON, C. J.

text:
    KRUEGEL v. WILLIAMS et al.
    (Court of Civil Appeals of Texas. Texarkana.
    June 27, 1913.
    Rehearing Denied July 5, 1913.)
    1.Appeal and Ebboe (§ 684) — Recobd—Ap-pointment op Clebk.
    On appeal from an order denying a motion for the appointment of a clerk pro tem., an allegation in the motion that the clerk was a party to the suit was insufficient to establish such
    to be the fact of record so as to be accepted on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2887-2890; Dec. Dig. § 684.)
    2. Appeal and Eebob (§ 85) — Oedees Ap-pealable.
    An order denying a motion for the appointment of a clerk pro tem. is not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 548-558; Dec. Dig. § 85.]
    3. Appeal and Eeeoe (§ 10) — Remedy by Mandamus — Cleek Peo Tem. — Refusal to Appoint.
    Where, in an action against the clerk, the court refuses to grant a motion to appoint a clerk pro tem., plaintiff’s remedy is by mandamus.
    [Ed. Note. — For other cases,' see Appeal and Error, Cent. Dig. §§ 34-38; Dec. Dig. § 10.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Herman Kruegel against H. H. Williams and others. From an order overruling the motion to appoint a clerk pro tem., plaintiff appeals.
    Dismissed.
    Herman Kruegel, of Dallas, for appellant.

       Eor other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

This appeal is from an order overruling a motion made under article 1687, R. S. 1911, to appoint a clerk pro tem-pore in a suit brought by appellant in a district court of Dallas county. In his motion appellant alleged that H. H. Williams, the clerk of said court, was a party to the suit, and therefore that it was necessary, before he could procure the issuance of lawful process for service on said Williams and other defendants in the suit, that a clerk pro tem-pore should be appointed.

Appellant’s petition in the suit commenced by him is not a part of the record sent to this court. In no other way than by an allegation in his motion does it appear from that record that the clerk was a party to the suit. If, therefore, appellant was entitled to prosecute an appeal from the order of the court, we would be bound to hold he had failed to show that the action of the court was erroneous. The allegation in the motion that the clerk was a party to the suit is not evidence that he was, and we could not say from the record before us that the action of the court was not based on a finding, justified by evidence before him, that the clerk was not a party to the suit.

But we are of the opinion that an appeal does not lie from such an order. A right to appeal exists only when given by the Constitution or a statute. Hudson v. Smith, 133 S. W. 488; Texas Rubber Co. v. Wilson, 137 S. W. 710. A right to appeal from an order in limine like the one in question is not given by either the Constitution or a statute, and therefore does not exist. State v. McElhinney, 241 Mo. 592, 145 S. W. 1142; Powdrill v. Powdrill, 134 S. W. 272.

If the clerk was in fact a party to appellant’s suit, his remedy, if he had one, for the refusal of the court to appoint a clerk pro tempore was the writ of mandamus, and not an appeal.

The appeal is dismissed.


author: KEY, C. J.

text:
    DUNMAN v. McKINNEY.
    (Court of Civil Appeals of Texas. Austin.
    May 14, 1913.
    Rehearing Denied June 25, 1913.)
    1. Sales (§ 355)—Pleading—Variance.
    In an action for the sale of oats, a petition, averring a sale at 75 cents per bushel, does not allege an express contract, so that proof that there was no price agreed upon, but that the market price was 75 cents per bushel, does not constitute a variance.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1025-1043; Dec. Dig. §, 355.]
    2. Sales (§ 355)—Pleading—Evidence Admissible.
    Such petition is broad enough to authorize a recovery upon the basis of the market value.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1025-1043; Dec. Dig. § 355.]
    3. Appeal and Error (§ 1001)—Review — Findings.
    A verdict by the jury, supported by evidence, is conclusive on appeal.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Action by Matt McKinney against Theo Dunman. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Weatherred & McDaniel, of Coleman, for appellant. Woodward & Baker and Snod-grass & Dibrell, all of Coleman, for appellee.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEY, C. J.

Appellee brought this suit against appellant, alleging in his petition that he sold and delivered to appellant 61 head of steers at §22.50 per head, and 80 bushels of oats at 75 cents per bushel, and one cow and yearling at §35, the aggregate sum being $1,467.50, and that appellant had paid §500 of that sum, leaving balance due of §967.50. Appellant’s answer contained a general denial, the two-year statute of limitation, and a counterclaim and set-off, amounting in the aggregate to §32.80. At the trial the case was submitted to the jury upon special issues, and the findings of the jury were to the effect that appellee had sold and delivered to the defendant the live stock and oats, as alleged in his petition, and for the consideration therein stated, and that, in addition to the $500 paid by appellant, he was entitled to a further credit of §22.80, leaving balance due of §944.70, for which amount judgment was rendered, and to reverse that judgment this appeal is prosecuted.

The first assignment of error charges that the court erred in rendering judgment against appellant for the value of 80 bushels of oats at the price of 75 cents per bushel, for the reason that the undisputed testimony shows that there was no price agreed upon; and it is contended that the pleadings do not authorize a judgment for the market value of the oats. Appellee alleged in his petition that “on or about May 1, 1909, he sold and delivered to the defendant 80 bushels of oats, at 75 cents per bushel.’’ No exception was addressed to that averment, and we hold that it' authorized the court to hear the testimony that was admitted, and to submit to the jury the issues that were submitted with reference to that question. The jury found that the market value of the oats was 75 cents per bushel, and that appellant agreed to pay for them at that rate. We do not agree with appellant that the pleading quoted alleged that there was an express contract, and we hold that the evidence supports the finding of the jury that there was an implied contract to pay the market value, which, according to the verdict, was 75 cents per bushel.

What we have just said disposes of the second assignment, which is based upon the contention that the petition alleged an express contract in reference to the oats.

Under the third assignment it is contended that the undisputed proof shows that there was no price agreed upon for the oats, but that the same were to be taken at their market value. Conceding appellant’s contention as to the testimony, and that the agreement was that appellant was to pay the market value of the oats, we think the averment in the plaintiff’s petition was broad enough to admit proof of and authorize a recovery upon the basis of market value.

The findings of the jury show that ap-pellee’s demand was not barred by limitation. The other assignments present the contention that the proof failed to show that more than 38 head of cattle had been delivered by ap-pellee to appellant under the contract between them, and that the $500 paid by appellant covered the contract price of the 38 head, and therefore appellant is not liable for the remaining 23 head. The jury found against appellant on the issue referred to, and we hold that the findings in that respect are supported by testimony.

No grounds for reversal have been shown, and the judgment is affirmed.

Affirmed.


text:
    JONES et al. v. MONTAGUE.
    (Court of Civil Appeal of Texas. Austin.
    May 21, 1913.
    Rehearing Denied June 25, 1913.)
    1. Appeal and Error (§ 1064*)—Harmless Error—Instructions—Burden oe Proof.
    In an action for damages for fraud and deceit, where the uncontradicted evidence showed that the false representations were made in the county in which suit was brought, and the charge required the jury, in order to find for plaintiff, to find that they were made in that county, an instruction that the burden was on defendants to establish their plea of privilege was not erroneous whether or not it stated the proper rule.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    2. Fraud (§ 32) — Remedies — Action eor Breach op Warranty.
    Where a vendor of land, subject to certain vendor’s lien notes which the purchaser agreed to assume, falsely represented that the interest on such notes was paid to a certain date, the purchaser could sue for damages for the fraud and deceit and was not limited to an action for breach of warranty.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 28; Dee. Dig. § 32.]
    3. Principal and Agent (§ 136) — Liability op Agent por Fraud.
    The agents of a vendor, who in negotiating a sale of land, subject to vendor’s lien notes, falsely represented that the interest was paid on the notes to a certain date, were personally liable for damages, since while an agent is not responsible for injuries resulting from, his mere omission to perform a duty, he is liable for injuries resulting from misfeasance or malfeasance, and hence an instruction that, as the evidence showed that they were acting as agents within the scope of their employment and not in their personal behalf, the jury should find for them was properly refused as it did not recognize the distinction between a mere omission and misfeasance or malfeasance.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 447-150, 476-491; Dec. Dig. § 136.]
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Action by J. Montague against Ernest Jones and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    R. B. Truly, of Ballinger, for appellants. Wright, Wynn & Bartholomew and W. C. Blalock, all of San Angelo, for appellee.

       For otter eases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

On the 22d day of April, 1912, apipellee purchased from Mrs. A. P. Jones, one of the appellants, a tract of land in Tom Green county and as part consideration therefor agreed to assume the payment of four certain vendor’s lien notes outstanding thereon; said deed reciting, however, that he only assumed to. pay the interest on said notes from the 1st of October, 1911. Appellee brought this suit for the sum of $123.60, back interest paid by him on said notes, against said Mrs. Jones, Ernest Jones, and C. T. Planz in the justice’s court of Tom Green county, alleging that the two last-named parties were the agents of Mrs. Jones, and that they and each of them falsely represented to him before said purchase that all the interest on each of said notes had been paid up to the 1st of October, 1911; that said representations were material, were believed to be true by him, and by reason of which he was induced to purchase the land; that the same were false and untrue; and that he was compelled to pay off said amount as back interest on said notes in order to prevent a foreclosure of the vendor’s lien upon said land, charging that said false representations were made in Tom Green county, where the sale was consummated.

All of the appellants resided in Runnels county and filed their plea of privilege to be sued therein, and likewise pleaded general demurrer, special exceptions, general denial; and the said Ernest Jones and Hanz further pleaded that they were only the agents of the said Mrs. Jones in the making of said sale, and asserted that by reason thereof they were not liable in this action to appellee. Appellee recovered in the justice’s court, from which an appeal was taken to the county court, where, on trial before a jury, ap-pellee again recovered, from which judgment this appeal is prosecuted.

It is contended on the part of the appellants that the court erred in its charge to the jury, wherein it told them that the burden of proof to establish their plea of privilege was upon appellants. The burden of proof on a plea of abatement is generally held to be upon the defendant. See Hopson v. Caswell, 13 Civ. App. 495, 36 S. W. 313; Robertson v. Ephraim, 18 Tex. 118. Appellant, however, relies upon the case of Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S. W. 25, in which the contrary doctrine is announced with reference to cases similar to the present. In the present case, however, irrespective of what may be the proper rule upon this subject, we think the court did not err in this respect for the reason that the uncontradicted evidence showed that the false representations were made to appellee in Tom Green county. Hence the court would have been justified in instructing the jury to so find. The charge, however, did require the jury, in order to find for plaintiff, to believe that such representations were made in the county where the suit was brought. This assignment is therefore overruled.

The allegations of the petition are amply sufficient, for which reason we overrule the exceptions thereto.

We do not think there is any merit in the contention of appellants that the cause of action, if any, on the part of plaintiff was on breach of warranty, and therefore the action was improperly brought. Appellee had two remedies, either to sue upon the warranty or rely upon the fraud. He elected the latter, as he had the right to do. We therefore overrule the assignment complaining of this matter. See Howe Grain & Mercantile Co. v. Galt, 32 Tex. Civ. App. 193, 73 S. W. 828; Wintz v. Morrison, 17 Tex. 384, 67 Am. Dec. 658.

The court did not err in refusing appellant’s special charge No. 4 to the effect that since the evidence showed tnat Ernest Jones and Hanz were acting as the agents-of Mrs. Jones, within the scope of their employment and not in their personal behalf, the jury would therefore return a verdict for them. This charge was properly refused, because: First, it was a peremptory charge in their behalf; second, it is not the law, because, while the agent is not responsible for injuries resulting from his mere omission to perform a duty, still he is liable for injuries resulting from misfeasance or malfeasance, and the charge did not recognize this distinction. It is said in 31 Cyc. pp. 1560-1562, et seq., that: “While an agent is not liable to third persons for injury resulting, from his omission to perform a duty owed to the principal alone, he is liable to them for injury resulting from his misfeasance or malfeasance, meaning by those terms the breach of a duty owed to third persons generally, independent of the particular duties imposed by his agency. Accordingly an agent may be held liable in damages to third persons for conversion, fraud, and deceit, and even for negligence. In an action against an agent by a third person for misfeasance or malfeasance, it is no defense that he acted as agent by the authority or direction of another, for no one can lawfully authorize the commission of a tort; nor is it a defense that the agent received no benefit from his wrong, or that he has paid over the proceeds of his wrong to his principal, or is liable to the latter therefor.” . See, also, Poole v. H. & T. C. Ry. Co., 58 Tex. 134; Labadie v. Hawley, 61 Tex. 179, 48 Am. Rep. 278; Kenney v. Lane, 9 Tex. Civ. App. 150, 36 S. W. 1063. In the present case the recovery is not sought for mere nonfeasance, but for fraud and deceit. We think the evidence is sufficient to sustain the verdict, and the charge of the court clearly and distinctly presented the issues of law arising thereon.

The remaining assignments are,- in our judgment, without merit for which reason they will not be discussed in detail.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.


text:
    MORRIS v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Texarkana.
    May 15, 1913.)
    Master and Servant (§ 111) — Injuries to Servant — Railroads — Automatic Couplers.
    Plaintiff, a switchman, was injured while endeavoring to couple a switch engine with a flat car, both equipped with automatic couplers. After the coupling was not made the first time they came together, plaintiff pulled the drawbar toward him as far as he could, gave the engineer the signal to advance, and just before the couplings came together plaintiff saw that the draw-bar on the car was not in proper position and kicked the bar over as far as he could. The knuckle on the engine caught the sole of'his shoe and dragged his foot into the coupling which was then made. Held, that the fact that the coupler
    on the car was not properly adjusted in that it had too much play did not constitute a violation of Safety Appliance Act (Act Cong. March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174] as amended by Act April 1, 1896, c. 87, 29 Stat. 85, and as further amended by Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1911, p. 1314] Rev. St. 1911, art. 6710), requiring railroads to equip cars and engines engaged in both interstate and- intrastate commerce with automatic couplers “which will couple” by impact without requiring any person to go between the cars.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Action by James W. Morris against the St. Louis Southwestern Rail-fray of Texas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Graham & Smitha, of Texarkana, for appellant. Glass, Estes, King & Burford, of Texarkana, for appellee.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

In effecting a coupling between an engine and a flat car, appellant (employed by appellee as a switchman) had two of the toes of his right foot so crushed that they had to be amputated. In his petition appellant alleged that the couplers, or drawheads, on the engine and ear were worn out and so defective they would not couple automatically, and that it was necessary for him to go between the engine and car in order to make the coupling desired. He then alleged that appellee’s track and the engine and car were instrumentalities of interstate commerce; that appellee “was and is a common carrier engaged in interstate commerce” ; that he “was engaged at the time he was injured in the handling and moving of interstate commerce”; and that “to permit [quoting] said engine and car to become defective and inoperative as aforesaid was negligence and carelessness on the part of this defendant, its agents and servants, and that defendant’s failure to repair said defects was negligence which caused plaintiff’s injury.” After hearing the testimony offered, the court instructed the jury to return a verdict for appellee, and in accordance with such a verdict rendered judgment that appellant take nothing by his suit.

Appellant was not entitled to recover unless it appeared that appellee had violated either the federal or state statute requiring it to equip its engines and cars with automatic couplers, for by his pleadings appellant did not seek a recovery on any other ground.

The part of the federal statute (Act March 2, 1893, e. 196, 27 Stat. 531 [3 U. S. Oomp. St. 1901, p. 3174]) applicable is as follows : "That on and after the first day of January, 1898, it shall be unlawful for any such common carrier (that is, a common carrier engaged in interstate commerce by railroad) to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” By the amendment of March 2, 1903 (U. S. Comp. St. Supp. 1911, p. 1314), the provisions of the act were made to apply to locomotives and tenders as well1 as to cars.

The state statute is as follows: “It shall be unlawful for any common carrier, engaged in” intrastate “commerce as aforesaid, to haul or permit to be hauled or used on its line of railroad within the state of Texas, any locomotive, tender, car or similar vehicle employed in moving intrastate traffic within the said state which is not equipped with couplers, coupling automatically by impact, and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, cars and similar vehicles.” Article 6710, Rev. Stat. 1911.

It will be observed that the statutes are the same, so far as they prescribe the kind of couplers with which railway companies are required to equip their cars, etc.

It was not claimed that the couplers when placed on the engine and car were not such as the statutes required appellee to equip same with. The contention was that the one on the car had become so worn and defective it had ceased to be such a coupler as the statutes required appellee to have on the car.

It appeared that at the time the accident occurred appellant was standing on the foot-board of the engine. 1-Iis account of the accident was as follows: “I was trying to couple an engine into this flat car, and the first time we hit it, trying to make a coupling, the couplings didn’t meet, and then I pulled the drawbar over to me as far as I could and thought it was over far enough to meet, and I gave the engineer a signal to come ahead, and just before we got to the flat car I saw that the drawbar on the car was over towards me, as far over as it would go, and I kicked the drawbar on the flat car as far as I could and the knuckle on the engine caught the sole of my shoe and dragged the foot into the coupling.” With reference to the defect, as he claimed, in the coupler on the car, appellant testified: “It would move sideways too much. * * * It moved a good deal further than it ought to in order to be in first-class repair. * * * It had more play than it ought to have had. As to what the proper play of one of those draw-heads is, how much to the right or left, I do not know the exact amount. I know about what it is. It is about three or four inches either way. This one had at least six inches. * * * After pulling the draw-bar (on the engine) as far as I could in the direction of the other drawhead, it would not have made a coupling if I had not moved the drawhead on the flat car.” On his cross-examination appellant testified: “There is some play in the couplers; if they didn’t have any play they could not go around curves. They have got to be adjusted on every car on the road, and they have got to be adjusted from time to time in order to make them couple. Yes, sir; in every car, whether it is in good condition or otherwise. When these couplings first came together one of them was too far over, and the engineer backed; he saw it hadn’t coupled. I thought I had adjusted the knuckle so they would couple. * $ ⅜ The only difference in adjusting this coupling and another is that you would have had to push this one about two inches further than you otherwise would. If it had been in perfect condition, the pulling the drawbar on the engine as far as it would go would have been far enough to make the coupling without moving the coupling any more.” Appellant testified that the engine and car coupled together at the time the toes of his foot were mashed, and his witness Buchanan testified that he “followed the engine,” quoting from the record, “and coupled onto this car [the car on which Morris was riding at the time he was injured] three or four times after the accident, and had no trouble in making the couplings.”

It is plain, we think, that the testimony recited did not show, nor in the least tend to show (and there is none in the record before us wljieh did), that appellee had failed to comply with the requirement of either the federal or state statute. On the contrary, it appeared that the engine and car were equipped with couplers which, notwithstanding a defect in the one on the car, if properly adjusted for the purpose would couple automatically by impact. It did not appear that in order to so adjust the couplers it was necessary for some one to go between the ends of the engine and car. For aught appearing in the record to the contrary, the couplers could have been so adjusted by the manipulation of rods or levers, or otherwise, by a person standing entirely from between the ends of the engine and car. If they could have been so adjusted, it is clear appellee had not violated either of the statutes, and that appellant was not entitled to recover on the ground that it had. The burden being on appellant to prove such a violation, and he having failed to do so, the trial court did not err in peremptorily instructing the jury to find for appellee.

The conclusion reached renders it unnecessary to consider other questions presented in the briefs of the parties.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.
    Rehearing Denied June 27, 1913.)
    1. Burglary (§ 41*) — Evidence — Sufficiency.
    Evidence which was purely circumstantial held sufficient to warrant a conviction for burglary and the larceny of oats from a barn.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.*]
    2. Criminal Law (§ 622*) — Separate Trial of Codefendants — Motion for Severance.
    A- motion for a separate trial of two defendants charged with the same offense, made to enable the testimony of one of them to- be used in the trial of the other, which was not sworn to by either defendant, and which did not state that the desired testimony was material, was not sufficient.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1380-1383, 1385, 1386, 1388-1390; Dec. Dig. § 622.*]
    3. Criminal Law (§, 1093*) — Appeal —Bill of Exceptions — Sufficiency — Objection to Evidence.
    A hill assigning error in the admission of testimony over the objection of the accused, in that the transaction inquired about occurred in the absence of the accused, is incomplete, since the objection does not amount to a statement of the fact that the accused was not present.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.*]
    4. Criminal Law (§ 448*) — Evidence—Conclusion.
    In a prosecution for burglary and the larceny of oats, a question asked the owner of the stolen property how the oats in the bin of defendant’s father compared with his own does not call for a conclusion, and is proper whether the defendant was present at the time the owner made the examination of .the oats or not.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.*]
    5. Witnesses (§ 372*) — Interest of Witness — Cross-Examination to Show Bias.
    Where the father of a codefendant testified on behalf of the defendant, it was proper for the state to ask him if his son was not indicted for the same offense, to show his bias.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*]
    6. Criminal Law. (§ 673*) — Triai>-Instruc-tions — Necessity — Limiting Effect of Evidence.
    It was not necessary for the court to give an instruction limiting the effect of such evidence, since the fact that another was indicted for the same offense could not prejudice the jury against the accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.*]
    7. Criminal Law (§§ 1056, 1064*) — Appeal-Necessity of Exceptions to Instruction —Motion for New Trial.
    Complaints, concerning the charge of the court in a criminal case, contained in the brief, but not made, either by exceptions to the charge or in a motion for new trial, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670, 2676-2684; Dee. Dig. §§ 1056, 1064.*]
    8. Burglary (§ 16) — Defenses — Purchase from Owner’s Brother.
    A defendant is guilty of burglary and larceny of oats from a barn, even though he bought the oats from the owner’s brother, who broke open the barn for him, if. he knew at the time of the transaction that the brother had no authority to sell the oats.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 3; Dec. Dig. § 16.]
    9. Burglary (§ 41) — Evidence — Sufficiency.
    In a prosecution for burglary and the larceny of oats from a barn, where the theory of the defense was that he bought the oats from the owner’s brother, evidence held sufficient to show that if he did purchase them, he knew that the brother had no authority to sell them.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§, 94-103, 109; Dec. Dig. § 41.]
    Appeal from District Court, Bosque County; O. L. Lockett, Judge.
    Harry Wilson was convicted of burglary, and he appeals.
    Affirmed.
    J. W. Taylor, of Waco, and J. P. Word, of Meridian, for appellant. C. E. Lane, Asst. Atty. 'Gen., for the State.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

The appellant was indicted for burglarizing by force, threats, and fraud a house, the barn, of John Ivy, on July 28, 1911, with the intent to steal. He was convicted, and given the lowest penalty, two years in the penitentiary.

The evidence to show appellant’s guilt was circumstantial. The court gave a correct charge on circumstantial evidence. Appellant contends that the evidence is insufficient to sustain the verdict. We have care- • fully read and studied the evidence, and in our opinion it is amply sufficient to sustain the verdict.

It is unnecessary to give a detailed or extensive statement of the evidence. We will merely give what the evidence tends to show, and what the jury from all the evidence was justified in finding. Appellant lived with his father, Bill Wilson, on his farm. The night the burglary and theft occurred Bill Wilson was at Waco, and was not at home. The farms of John Ivy and Bill Wilson adjoined. It was about, or a little less than, a mile and a half between their residences, by the public road. John Ivy’s barn was situated at his residence and near thereto; the barn of Bill Wilson was situated near his residence. John Ivy had a brother Bill, who was entirely blind, and almost entirely deaf. He could not hear an ordinary conversation, and could not hear out of one ear at all. In order to make him hear out of the other ear it was necessary to get very close to him and talk loud. Bill Ivy lived with John, and had for many years. John Ivy had some shelled sacks of oats in his barn. A short time before the burglary and theft, John Ivy and his wife had gone to Mineral Wells, and were there on the night of the burglary. He left in charge of his place and property Lee Grea-son. When hie left to go to Mineral Wells John Ivy fastened the outside window to his barn, where his oats were, by a button from the outside, a staple, and wired up on the inside, and in addition a plank, nailed across the window on the inside, the plank being nailed on either side of the window and through the window, thereby apparently securely fastening this window. A brother of appellant, who lived some quarter of a mile from Bill Wilson, had an old wagon and a team of small mules. These mules had very small feet. This wagon and team were at Bill Wilson’s the night of the burglary. On the night of the burglary appellant’s cousin Dan Davis stayed all night at Bill Wilson’s. Dan was sick, and soon after supper, early in the night, went to bed. He did not go to sleep for some half hour after he went to bed. Soon after supper appellant told Dan Davis to look after himself; that he was going up to his said brother Pink’s. Ag. Standifer, another cousin of appellant, was also at Bill Wilson’s that night. When appellant told Dan Davis to take care of himself he — and the evidence justified the jury to believe — and Ag. Standifer then left Bill Wilson’s place. They did not go to Pink’s, where appellant had announced to Dan Davis he was going. Bill Ivy was well known to appellant, and he had known him for several years. Bill Ivy stayed about the negroes, Bill Wilson, and others a good deal. John Ivy had notified them repeatedly not to permit him to stay about them. On the night of the burglary, Greason went to bed about 9 o’clock. Bill Ivy was not there then, and had not been there prior to that time that night. Between 9 and 10 o’clock, after Grea-son had gone to bed, he heard some noise out about John Ivy’s barn. It sounded to him like knocking and prizing. Soon afterwards he heard a wagon drive away from John Ivy’s barn. He did not then go outside to see what, if anything, was the matter. About 30 minutes later he did get up from the bed and went out to the barn. He looked about the barn, but saw no one and no wagon. In going out to the barn, however, he met Bill Ivy about a well in the lot; had no conversation then with Bill Ivy. After finding no one about the barn, he went back and went to bed, not knowing that anything particularly had occurred until the next morning between daylight and sunup. Bill Ivy also went to the house and went to bed, not in the bed or room with Greason. The next morning a tenant living on John Ivy’s farm who came to Ivy's lot to feed his team, found that the outside door of John Ivy’s barn had been bursted open, and he saw oats were missing out of the barn. He notified Grea-son. Greason then went out and made an examination. They found the outside window of John Ivy’s barn bursted open, the plank nailed up had been torn off, the wire •or staples broken ór pulled out, and they then found loose scattered oats on the ground under this window, and from there tracked a wagon, drawn by animals that had very small feet, to Bill Wilson’s barn. The said old wagon was then in Bill Wilson’s lot near his barn. They found loose shelled oats in this old wagon and on the ground at Bill Wilson’s barn. In his barn they then found at least eight sacks of oats. Greason then inquired of Dan Davis where Bill Wilson was. The appellant was then in Bill Wilson’s house, and heard what occurred between Greason and Davis, but did not make his appearance. Upon being informed that Bill Wilson was in Waco, and had been the day and night before, Greason left. Later in the day he and others went back to Bill Wilson’s barn. They then found no oats in sacks, but found loose shelled oats piled up in Bill Wilson’s bin in his barn. Digging down in this pile they found two different colored kind of oats. That on top corresponded with the color and grade of oats raised by John Ivy that year and which were taken out of his barn the night before. Those underneath were a brighter, lighter grade of oats, and readily distinguishable from those on top, and the oats underneath were also identified and shown to be of the same grade and color of oats that Bill Wilson had raised and thrashed that year. From all this, it will be readily seen that the evidence unerringly pointed to the appellant as one of the persons, at least, who committed the burglary and theft. At any rate, it was amply and clearly sufficient to justify the jury to convict appellant as the party, or one of the parties.

It seems that P. A. or Ag. Standifer, as well as appellant, was indicted under a separate indictment for the same burglary. When the cause was called for trial said Standifer and appellant made a motion for severance, with the view of having Standifer tried first, so that appellant could use his testimony on his trial. This motion was not sworn to by either party, and it did not state that the testimony of Standifer was material for appellant. The motion was correctly refused by the court on both of these grounds, as stated by the judge in allowing the bill excepting to the overruling of said motion. Article 729, C. C. P.; Shaw v. State, 39 Tex. Cr. R. 161, 45 S. W. 599.

While John Ivy was testifying for the state he was asked whether or not he made any examination of the oats in the Wilson crib, and if so to tell the jury how the oats compared with the oats in his bin. The appellant objected to this because it was in the absence of the defendant and called for a conclusion of the witness. This was a mere objection to the evidence, and not a statement of fact that the appellant was absent. The bill is wholly incomplete, but the evidence was clearly admissible whether appellant was present or absent, and the testimony did not call for a conclusion of the witness. The witness testified that he examined the oats; and in his judgment they were exactly like the oats in his granary.

Hilry Standifer, the father of said Ag. Standifer, gave testimony in appellant’s behalf which was against the state’s case. In order to show his bias in favor of appellant, the state was permitted to ask him if his son Ag. Standifer was not also indicted for committing this burglary, and he replied that he was. Appellant complains of this testimony, and also complains that the court failed to limit the purpose for which this testimony was introduced. Clearly the testimony was admissible to show the witness’ bias and prejudice in appellant’s behalf. Earle v. State, 142 S. W. 1182; Pope v. State, 143 S. W. 612.

And the court did not err in giving a charge limiting the effect of this evidence. The fact that Ag. Standifer was indicted for this burglary would clearly be a circumstance in appellant’s favor, but, whether so or not, the jury could not possibly have been influenced to base a verdict against appellant because another party was indicted for the burglary.

By several grounds of the motion for new trial appellant attacks the court’s charge, and excepts to the refusal to give certain special charges requested. • We have considered all of these. In addition to appellant’s complaints in his motion for new trial to the charge of the court, in his brief he raises other questions which were not raised in the court below. It is too well settled to need the citation to the cases that such objections, first made in this court, cannot be considered. In order for the appellant to have such questions considered here he must have made such objections, either by. exceptions to the charge of the court at the time given, or in the motion for new trial, and when not so made, this court cannot consider them.

The theory of the appellant, by all of his complaints to the charge of the court and said special charges requested and refused, is that the appellant bought four sacks of John Ivy’s oats from Bill Ivy, John’s brother, and because Bill Ivy lived at John’s and had a key to John’s barn, that appellant could not be guilty of burgjary. . The sole evidence on which appellant bases his theory is that he had Greason to testify on cross-examination, over the objections of the state, that he (Greason) had a conversation with Bill Ivy the next day after the burglary at night, and that Bill said he sold Harry Wilson, the defendant, four sacks of oats, and that it amounted to $8, and that he would divide the money with Greason if Greason would not tell his brother John Ivy about it On cross-examination by appellant of John Ivy, John Ivy swore positively that Bill Ivy did not tell him at any time that he had sold appellant four sacks of oats, but flatly denied any such thing. Appellant did not testify, and neither did Bill Ivy.

The effect of appellant’s contentions and objections to the court’s charge on this point was that he was entitled, in effect, to a peremptory charge, if the jury believed appellant bought four sacks of John Ivy’s oats-from Bill Ivy, and got them from John Ivy’s-barn that night, that he could not and would not be guilty of burglary. Instead of so-charging, the court correctly submitted that issue to the jury in two separate paragraphs of the fourth subdivision of the court’s charge-as follows:

“Now if you believe from the evidence beyond a reasonable doubt that the defendant,. Harry Wilson, was a principal with Bill Ivy and with one Ag. Standifer, and that said parties, or any two or more of them, agreed to act together in the taking of the oats from said barn by entering the same through the-window, or in entering the same from some other way and taking said oats from the-said window, if you believe they did do so, and that the defendant knew at the time that he did so that the said Bill Ivy did not own-said oats, or did hot have authority to sell the same, then you are instructed that the-said parties so acting together would be principals within the meaning of that word as-herein defined.
“On the other hand, if you believe from-the evidence that Bill Ivy owned said oats,, or that he had authority to sell the same, or that under all the facts and circumstances under which defendant received the said oats, if he did so, he honestly and in good-faith believed that said Bill Ivy had authority to sell said oats to him, then you; are instructed that the defendant would not be a principal with the said Bill Ivy, and would not be bound by his acts in the break-. ing of said barn, if he did so, and in that-event you will find him not guilty.”

This, in our opinion, correctly submitted the theory of the appellant as it should, have been submitted.

As shown above, these oats were taken out of John Ivy’s barn in sacks in the dead hours of the night, by forcibly breaking open the well-fastened and nailed-up-window of John Ivy’s barn, and the evidence justified the jury to believe that appellant took the oats to Bill Wilson’s barn and placed them therein at night. It was satisfactorily shown that the -wagon and team at Bill Wilson’s was used to haul these oats. Early the next morning eight sacks of John Ivy’s oats were found in Bill Wilson’s barn. All the evidence justified the jury to believe that appellant was at least one of the parties who did this. He could not, either honestly or in good faith, have believed that Bill Ivy had the authority to sell him four sacks of these oats. The evidence all repels such an idea. In addition, after the particular sacks of John Ivy’s oats -were found In Bill Wilson’s barn tbe next morning, and before other witnesses went there in the evening so as to further examine and identify them, they were taken out of the sacks and emptied on a pile of Bill Wilson’s oats in Bill Wilson’s bin, and the sacks themselves were not found by the witnesses. Somebody, and the jury were clearly authorized to believe that appellant was that person, emptied these sacks, and made away with them, and attempted to hide or disguise the stolen oats by emptying them loose in Bill Wilson’s bin in his barn. Appellant is bound to have known that Bill Ivy had no authority whatever to sell his brother John Ivy’s oats to him at night, and forcibly take them out of John Ivy’s barn at night.

In our opinion, there is no reversible error shown in this record, and the judgment will be affirmed.


author: HARPER, J.

text:
    FOWLER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.
    Rehearing Denied June 27, 1913.)
    1. Criminal Law (§§ 1092, 1099) — Appeal —Time for Filing Bill of Exceptions.
    Acts 32d Leg. c. 119, § 7, provides that on appeal from the district court the parties may have 30 days after adjournment to file a statement of facts and bills of exception, but if the term may by law continue more than eight weeks, the statement and bills of exception must be filed within 30 days after motion for a new trial shall have been overruled, and that while the trial court may extend the time, the time shall not be extended so as to delay the filing of the transcript in the appellate court. Rules 1 and 2, adopted by the Supreme Court for the Court of Criminal Appeals (142 S. W. xvii), requiring the filing of transcripts within 90 days, bills of exceptions and statement of facts in a criminal prosecution, tried at a term of court which began August 5th and adjourned November 2d, cannot be considered, where accused’s motion for new trial was overruled on August 26th, and the bills and statements were not filed until November 29th, 95 days after the overruling of the motion.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2S61, 2866-28S0, 2919; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1144) —Appeal—Presumption.
    In the absence of a statement of facts and bills of exception, it must be presumed that the lower court correctly disposed of accused’s motion to quash the venire of jurymen drawn to compose the grand jury; evidence being heard on that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    3. Criminal Law (§ 1090) — Appeal — Bill of Exceptions. ⅞
    In the absence of a bill of exceptions properly reserved, the overruling of accused’s motion for a continuance cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §.§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    4. Criminal Law (§ 1090) — Appeal—Bill of Exceptions.
    In the absence of a statement of facts and bills of exception, the denial of a motion for new trial, requested on the ground that the grand jury was not organized according to law, cannot be reviewed, it appearing that the lower court heard the evidence on that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Jury (§ 70) — Summoning—Oath of Sheriff.
    It is not necessary for the court to swear the sheriff in ordering him to summon the special venire drawn as talesman; his oath of office being sufficient.
    [Ed. Note. — For other cases, see Jury, Cent Dig. §§ 310-330, 340, 350; Dee. Dig. § 70.]
    6. Criminal Law (§ 1090) — Appeal — Bill ' of Exceptions.
    In the . absence of a bill of exception, the admission of accused’s confession cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    7. Criminal Law (§,§ 518, 519*) — Evidence-Confessions.
    A confession should not be considered by the jury unless accused was warned, and the statement was freely and voluntarily made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Di*. §] 1157-1162, 1103-1174; Dec. Dig. §§ 518, 519.]
    8. Criminal Law (§ 1144*) — Appeal—Bill of Exceptions.
    In the absence of a statement of facts, it must be presumed on appeal that the court correctly charged all the law applicable to the case, and it cannot be held that the refusal of special charges was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2730-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Paul Fowler was convicted of murder, and he appeals.
    Affirmed.
    G. R. Lipscomb, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of murder in' the first degree, and his 'punishment assessed at death. The term of court at which appellant was tried convened August 5, 1912, and adjourned November 2, 1912. The motion for a new trial' was filed in the court below August 23, 1912, and overruled by the court on the 26th day of August, 1912. There are several bills of exception in the record, and a statement of facts, all filed on the 29th day of November, 1912 — 95 days after the date of the overruling of the motion for new trial. Section 7, chapter 119, Acts 32d Leg., provides that, when appeal is taken from the. judgment rendered in any cause in district court, the parties are entitled to and granted 30 days after the day of adjournment of court in which to prepare and file a statement of facts and bills of exception; provided that, if the term of said court may by law continue in session more than 8 weeks, said statement of facts and bills of exception shall be filed within 30 days after the motion for new trial shall have been overruled. It is further provided, for good cause shown, the court may extend the time; but the time shall not be extended so as to delay the filing of the transcript of the record in the appellate court within the time prescribed by law. Our Civil Statutes and the rules of the Supreme Court and the Code of Criminal Procedure provide for the filing of the transcript in the appellate court within not exceeding 90 days. Rule 2, adopted by the Supreme Court for the Courts of Civil Appeals (142 S. W. x); Rules 1 and 2 of the Supreme Court for the Court of Criminal Appeals (142 S. W. xvii). Article 5, § 25, Const. The judge in this case did not seek to grant more than 90 days, and if he had done so, his order would have been void. Inasmuch as the statement of facts and bills of exceptions were not filed within the time provided by law, the court continuing more than eight weeks, we are not authorized to consider them, and the motion for new trial presents no question we can review, in the absence of a statement of facts and bills of exceptions. Unless the statutes make provision for the filing of statement of facts and bills of exception after the adjournment, under the rules of law, those papers must be filed in term time. Our statute is liberal in this respect, but there is no authority in this court, or any other court, to grant more time after adjournment than is specifically allowed by the statute.

Appellant filed a motion to quash or challenge the venire of jurymen drawn to compose the grand jury. The court, in his order overruling the motion, states he heard the evidence adduced on the hearing of this challenge or motion, and the argument of counsel thereon, and, being fully advised as to ■ the law governing the issues, is of the opinion that defendant’s challenge should be overruled. As the evidence heard on said motion was not filed in term time, nor in the time allowed by law for filing statements of facts and bills of exception, we cannot consider same, and under such circumstances we must presume that the court ruled correctly in the premises.

Appellant filed a motion for a continuance. No bill of exception was reserved within the time allowed by law; consequently, under an unbroken line of decisions, we would not be authorized to review this question. However, we may add that had a bill been properly reserved, the application presents no ground for a continuance.

The court did not err in overruling the motion to quash the indictment. The indictment is couched in terms frequently approved by this court, and the grounds alleged are similar to those alleged in the challenge to array of grand jurymen, and, as said in that instance, the court heard the testimony adduced thereon; this evidence is not brought' before us in a way we cán consider it; therefore, we presume the court ruled correctly.

The grand jury was organized in the manner provided by our Code, and those provisions of the Code are not unconstitutional, as contended. Those were allegations contained in the motion for new trial which it took evidence to support; the court heard the evidence; we do not know what the testimony was; and under such circumstances we cannot review that ground in the motion for new trial which states the grand jury was not properly sworn, etc.

It was unnecessary for the court to swear the sheriff in ordering him to summon, the special venire drawn in accordance with law. The oath of office he took was sufficient. He was sworn to summon the talesmen as provided by our Code.

The confession of defendant was reduced to writing, and is in full compliance with our statute governing the admissibility of confessions. If there was any testimony which would tend to show that it should not have been admitted in evidence, the evidence should have been preserved by a bill of exception, prepared, approved, and filed within the time provided by law. The confession reads: “I, Paul Fowler, after having been duly warned by J. M. Brown, assistant county attorney, first, that I do not have to make any statement at all; and that if I do make a statement the same may be used in evidence against me on the trial for the offenses or offense concerning which this statement is herein made, and that this statement must be freely and voluntarily made, do make this free and voluntary statement to J.'M. Brown, assistant county attorney, the person by whom the above warning was given me. My name is Paul Fowler. I am 18 years of age. I live at 1114 Dallas alley, Ft. Worth, Tex. I ate supper at home with my grandmother about 6 o’clock, and left there and went up East Front street to Main street. This was. on Monday night before I was arrested on Tuesday evening. When I got to Main street I stopped at the Terminal Haberdasher, and looked in.the window at some pants, and I left there and walked to Fifteenth and Main streets, and looked in at the show window at L. Gordan’s and went from there on up Main street to Ninth street, and turned on Ninth, and went to Jones street, and up Jones street to Eighth street and east on Eighth street to Calhoun street, where I met a friend of mine by the name of ‘Rabbitt.’ We went in the saloon on the corner of Eighth and Calhoun streets, and I bought a half pint of whisky. I left ‘Rabbitt’ there,, and went on up to Brann’s saloon on Main street near the courthouse. I do not exactly remember the route. I took from the saloon on Eighth and Cal--houn to Brann’s saloon. At Brann’s saloon X met Ernest Harrison, Johnson Gilbert, Scotland Anderson, and a boy by the name of Douglas. We were in the back of the saloon, and while there we drank a can of beer. I do not remember how long we were there, but not very long; we left there, and all went to a pool hall back of the saloon on West Belk-nap and North Houston streets, except Johnson Gilbert, who left Brann’s saloon before we did. We were around that pool hall two or three hours, playing dominoes. After we finished playing dominoes I went back to the tóilet, and when I came back Ernest Harrison was gone. He was gone but a very short time when he came back and we left the pool hall. Scotland Anderson had left before we left, and the Douglas boy was still there when we left. Ernest Harrison and X went down Houston street to Weatherford street, down Weatherford to Main street, and down Main to East Eront street. We went down East Front to Kentucky, and down Kentucky to Dallas alley, and down the alley to my grandmother’s house. I went to the toilet in the back yard, and Ernest waited in the back yard while I was in the toilet. We retraced our steps back to East Front and ICentucky, and as we reached East Front street we saw a man going east on Front street, on the north side of the street, and Ernest was in front of me, and he got in front of the man while I was to the side of the man. Ernest was in front and stopped the man, and we threw our guns down on him. The man tried to say something, but could not, and then he hollered, and the guns fired. I do not know which fired first, but my gun went off, and there was only two shots fired; Ernest firing one and me the other. I have never seen the man before to my knowledge. While we were on the way to my house to the toilet, Ernest had said, ‘Suppose we should meet a live one; we would make some money, maybe’ — and when we went over to where this man was and threw our guns down on him; our intention was to get his money if he had any, and if he had given it up, there would have been no trouble. He never did put his hands up, but kept doing something with his coat that hfe was carrying on his arm at the time. After the shots were fired I ran home to my grandmother’s and when I got there Ernest was there. I knocked on the side of the house, and told my grandmother to let me in, and she got up and let us in at the back door. I do not know which way Ernest ran from the place where the shooting took place, but I ran up the sidewalk to the alley. When we got in the house, we laid our guns on the table. The next morning I found the black gun in the dresser drawer, and I took both of the guns and put one in one trunk and one in another trunk. Soon after we got in the house that night we went straight to bed, did not talk about the shooting, and I soon went to sleep. .We got up about 6 o’clock the.next morning and went away together, and I went' .to work at the Walker Grain Company, and I do not know where Ernest went after we left the house, for he left me. I have not seen Ernest since. The guns that we had Ernest had gotten them somewhere; I do not know where. The first time that I saw the guns was in the pool hall back of the saloon on the corner of North Houston and West Bel-knap, and that was before 6 o’clock on the afternoon before the night of the shooting. Ernest brought me a 41 Colts, a bright-looking gun and told me to put it on, and I stuck it under my shirt in the waistband of my pants. He had one on, but I did not see it at that time, but I felt it. We had the guns with us in the afternoon at Doc. White’s barber shop on East Front street. While I was in his shop I pulled off the one that I had, and put it in a drawer while I played dominoes. The guns that we had that night, and that we did the shooting with, are the same ones that I put in the trunks the next morning, and are the same ones that the officers have here to-night. This is all that I can remember about that matter at this time. [Signed] Paul Fowler. Witnesses: J. W. Renfro. J. A. Connelly.”

As stated before, the bill presenting this question was not filed in time to authorize us to review the action of the court in admitting it, but in the charge we find the court instructed the jury: “You are instructed that, unless you believe from the evidence beyond a reasonable doubt that the defendant, Paul Fowler, was warned by the Assistant County Attorney, J. M. Brown, in and for Tarrant county, Tex., before he made the purported confession claimed to have been made to and before the said Assistant County Attorney Brown, and introduced as evidence in this ease, and to the effect that he, the said Paul Fowler, did not have to make any statement at all, and that if he made a statement the same might be used in evidence against him on, the trial for the offenses or offense concerning which the statement is made, and that the statement was freely and voluntarily made to the Assistant County Attorney Brown, then you will not consider this Confession for any purpose, as evidence of defendant’s guilt.” So if by the testimony, which we have not before us in such condition we can consider it, it raised the issue that it was not freely and voluntarily made, the court in his charge properly submitted that issue.

In the absence of a statement of facts. we can consider, we must presume that the court charged the law, and all the law applicable to the testimony adduced on the trial,' and we are not authorized to determine whether or not the special charges should have been given. However, we will state that, as the jury assessed the death penalty we have read the statement of facts herein filed, and copied herein the confession of defendant,, although, .not properly before .us* even though not filed in the time permitted by law, and if we could consider this testimony, we would hold that the court did not err in refusing the special charges requested, and that it supports the verdict.

Judgment affirmed.


text:
    HARRISON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied June 27, 1913.)
    Criminal Law (§,§ 1092, 1099) — -Appeal-Statement of Pacts — Bills of Exception —Time of Filing.
    Where accused was convicted at a term which lasted more than eight weeks, and upon the overruling of his motion for new trial on August 26th the court granted him 30 days’ additional time’ in which to file his bills of exception and a statement of facts, a statement of facts and bills of exception not filed until the last of November cannot be considered, because coming too late; accused only having the 30 days allowed by law and the 30 days additional allowed by the court in which to file those instruments.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Ernest Harrison, alias Ernest Harris, was convicted of murder, and he appeals. -
    Affirmed.
    G. R. Lipscomb, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

Appellant was indicted for murder in attempted robbery. He was convicted of murder in the first degree, and the death penalty inflicted.

This is a companion ease with that of Paul Fowler, 158 S. W. 1117, which we decided June 11th inst. The cases are as much alike as two cases could possibly be. The appellant and said Fowler were together, and acted 'together in the attempted robbery and murder.

The motion for new trial was heard and overruled in this as in the Fowler Case on August 26, 1912. The only order of the court extending the time beyond 30 days allowed by law for filing bills of exceptions was made and entered on August 26,1912, the same day on which the motion for a new trial was overruled. That order grants 30 days’ additional time to prepare and file bills of exceptions. The law allowed 30 days only for filing bills of exceptions. The utmost time, therefore, allowed by this order was 30 days additional, which would be 60 days from August 26,1912. October 25th, therefore, was the latest date authorized by this order to file bills of exceptions. They were not filed until November 21st, 27 days too late. The statement of facts was not filed until November 29th, the same day on which the statement of facts in the Paul Fowler Case was filed.

It is useless to discuss any of the questions attempted to be raised in this case, because such of them as could be considered were discussed and decided in the Fowler Case.

As the death penalty was inflicted in this, as in the Fowler Case, notwithstanding we could not consider the statement of facts, we have carefully read what is filed as such statement. Even if we could consider it, in our opinion it unquestionably and without doubt clearly shows the guilt of the appellant, and authorized the jury to convict him and inflict the death penalty.

The judgment herein will be affirmed.