text:
    SCHLEY v. STATE.
    (No. 3855.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.
    On Motion for Rehearing, Jan. 12, 1916.)
    1. Ceiminal Law c&wkey;i091 — Bill of Exceptions— Sufficiency.
    A bill of exceptions setting forth a mass of testimony, part of which is admissible, is too general to be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;1091.]
    2. Ceiminal Law ‘<&wkey;>1091 — Bill of Exceptions — Sufficiency.
    A bill of exceptions containing testimony, part of which is admissible and part not, must specifically point out that testimony against which objection is urged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;>1091.]
    3. Ceiminal Law <&wkey;400 — Evidence — Perjury-Former Testimony.
    In a prosecution for perjury, the official stenographer who took down the evidence in the former case, but did not transcribe it, may reproduce the same notwithstanding an objection that the written testimony was the best evi-
    dence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-S86, 1208-1210; Dec. Dig. <&wkey;>400.]
    On Motion for Rehearing.
    4. Criminal Law <&wkey;400 — Evidence — Perjury-Former Testimony.
    In a prosecution for perjury, any one who heard the alleged false testimony may reproduce it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 878-886, 1208-1210; Dec. Dig. <3=»400.]
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    ■John Schley was convicted of perjury, and he appeals.
    Affirmed.
    Moore & Short, of Gatesville, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

A brief summary of the state’s evidence discloses that Ashford and Smith were in the town of Gatesville on Saturday, the 5th of the month, and while there passed two forged checks made payable to Preston, signed by McMordie. McMordie is sheriff of the county. They were strangers in the town, therefore the question of identity became one of more or less importance. The state’s case was that they were acting together, in passing the checks, one on Greenburg and the other on Tom Davidson. Both Davidson and Greenburg were merchants. The evidence, shows they bought a lot of things from these two merchants and went their way. On the following Tuesday they were arrested in Hamilton, and some of the purchased goods found in their possession. Their theory was, and they introduced evidence to prove it, that they were in Waco on the 5th, and not in Gatesville. The'y were identified as being the men in both places sufficiently to sustain the state’s view and sufficiently to have shown their absence from Gatesville. Appellant was a witness in the Joe Smith Case —not in the Ashford Case. On the trial of Smith appellant testified that neither of the parties in Gatesville, who were supposed to have passed the forged checks, were Ashford or Smith. He further testified he was in Greenburg’s house when the matters occurred in there incident to and connected with the passing of the forged instrument on Greenburg. This was shown to be false by several witnesses, two or three of whom saw appellant that evening a number of miles distant from the town of Gatesville in company and working with A. P. Wylie. It is also shown by the parties in Greenburg’s store that appellant was not in there. The real question around which the perjury revolves is the alibi of the two men who were supposed to have been Ashford and Smith. That was the central thought of the defense, and it was this defense that attacked the state’s case of their presence in Gatesville and their criminality with reference to the forged checks. The indictment narrates these matters and charges with sufficient plainness and accuracy that the question was alibi, and the testimony which was set out as given by appellant was false. We think the indictment sufficiently charges the offense, and was not subject to demurrer.

There were some bills of exception reserved to the introduction of certain testimony. These bills were quite lengthy, and set out to a large extent all the testimony of each witness, to the introduction of which the defendant objected. The bills might be passed out by stating they are so general they do not present any question for review, but passing from that question, a great deal of the testimony set out in the bills of exception was clearly admissible, if not all of it. It is a general rule, and almost without exception, that where bills of this character set out a great deal of testimony, some of which is objectionable, and some of which may not be, that the bill must specifically point out that against which objection is urged. These objections are general and to the whole of the testimony. A discussion of the bills and statement of the evidence would demonstrate the accuracy of this statement, but it would serve no useful purpose either to the bench, the legal profession, or jurisprudence of Texas.

The stenographer was introduced as a witness to reproduce the testimony delivered on the Smith trial, and over objection he did reproduce it. The main objection is, that the written testimony was the best evidence. The bill is very lengthy, and the court qualifies it in lengthy form, but the substance is that in the Smith Case the stenographer took the notes, but did not transcribe them, inasmuch as Smith upon his conviction appealed to the Court of Criminal Appeals without a statement of facts; therefore the testimony was never transcribed or put in form on the typewriter. The stenographer made it clear from his statement that he recollected the testimony independent of his stenographic notes, but had his stenographic notes, and that they were correct as taken at the time, and the testimony he took down in shorthand was correct. This question has been before the court quite a number of times, and from any standpoint of it we do not think any valid reason is shown why the court committed error. Judge Ramsey, in rather an elaborate opinion in Smith v. State, 60 Tex. Cr. R. 293, 131 S. W. 1081, discussed these matters fully and thoroughly, and reviewed the eases, both criminal and civil. It is unnecessary to discuss the question, for that ease decides the entire matter adversely to appellant. Reviewing this entire record, specifically and generally, it occurs to us appellant has not been deprived of any legal rights, and that the court was rather cautious and careful in his trial.

The judgment is therefore affirmed.

On Motion for Rehearing.

Appellant has hied a motion for rehearing,, alleging that the court erred in affirming the judgment, and especially calls attention to the fact that the court was in error in making this statement in the opinion:

“The stenographer was introduced as a witness to reproduce the testimony delivered on the Smith trial, and over objection he did reproduce it. The main objection is, that the written testimony was the best evidence.”

The motion then states that the court was in error in the above statement because appellant raised no such objection, but did object to the stenographer, McKinzie, testifying 'orally as to what the defendant’s testimony was on the trial of Joe Smith v. State, being the trial in which the alleged perjury was committed, as shown by bill, etc. Second, because the testimony on the trial of the Smith Case was reduced to shorthand writing as required by the statutory law of this state, and was the best evidence of what the defendant Joe Smith’s testimony was on his trial. With these objections to the statement in the opinion affirming the judgment, stated in the motion for rehearing, we still believe the opinion was correct in stating that one of his objections was that the written testimony was the best evidence. The evidence reproduced by the witness was not reduced to typewritten form, or in writing, and the reasons were stated for not doing so that Smith has appealed his case to this court without a statement of facts. If the oral testimony was not the best evidence, it must be because the written testimony would be better, and this is emphasized in this rehearing motion because he states that the evidence of appellant given on the Smith trial was reduced to shorthand writing as required by the statutory law of this state. If this does not mean the writing was the best testimony, and that the oral was secondary, we do not understand the effect of the objections. However, it is unnecessary to discuss that question further, but the writer deems it necessary, as he wrote the opinion of affirmance, to make this additional statement, in regard to this testimony, to wit, the stenographer was reproducing the testimony of appellant given on the trial of Smith, which formed the basis of this perjury. As a part of the state’s case, it was necessary to show what appellant did testify in the Smith trial in order to show its falsity. The case cited in Freeman v. State, 43 Tex. Cr. R. 580, 67 S. W. 499, is not applicable to the question here presented.

That case was correct on the question decided, but it referred to the testimony of third parties; it had no reference or application to the reproduction of alleged false testimony of an accused in a perjury case. That testimony could be reproduced by anybody who heard the testimony, and it was necessary to do so in order" to show its falsity. That the stenographer was called upon to reproduce it would make no difference. There could possibly be no objection to reproducing before the jury the alleged false testimony where perjury is charged, because it was necessary in order that the state might show its falsity, and it is not material as to who testifies to it or reproduces it before the jury. It must be reproduced by somebody, and anybody who heard it and could reproduce it would be a competent witness so to do. If the testimony had been written out it might have been a safer plan to have reproduced it as he wrote it, but this the stenographer did not do, and other witnesses could be and were called to reproduce it, and the stenographer having taken it down in his notes, he certainly could testify, as he did, that the testimony was correctly taken down, but not transcribed.

The motion for rehearing is therefore overruled.
      <S=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    YOUNG v. STATE.
    (No. 3860.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Physicians and Surgeons &wkey;>6 — Practicing Without Authority — Information — Sufficiency — Statutory Words.
    Under a statute prohibiting the practice of medicine by one who has not recorded a certificate or diploma in the county of his residence, an information alleging that the defendant practiced medicine without having first obtained a certificate and without having a diploma, is sufficient, such language necessarily implying that the certificate and diploma had not been filed.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. <@^6.]
    2. Criminal Law <&wkey; 198 — Former Jeopardy.
    An information charging that' the defendant practiced medicine unlawfully between two certain dates by attending a certain person, is not bad on account of former jeopardy, where the former charge was that he attended a different person at different dates, the offenses under the statute being distinct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3S5 ; Dec. Dig. <®^198.]
    3. Criminal Law <&wkey;829 — Instructions.
    It is not error' to refuse a special requested charge which was fully covered by the court in the main charge.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;>829.]
    4. Criminal Law <&wkey;469 — Practicing Medicine Without Authority — Opinion Evidence — Meaning of Words.
    Where the statute specifically defines the term “practicing medicine,” it is not error to exclude testimony as to the general meaning of those words in a prosecution for practicing medicine without authority.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. <&wkey;>469.]
    5. Physicians and Surgeons <&wkey;6 — Practicing Without Authority — Prosecutions— Evidence — Admissibility.
    In a prosecution of a physician for practicing without authority, evidence of a witness that the defendant treated his wife .and received his board and lodging as compensation therefor is admissible.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. <&wkey;6.]
    6. Criminal Law &wkey;>1059 — Instructions — Exceptions — Sufficiency.
    In a prosecution for practicing medicine without authority of law, an exception to the charge of the court that it did not charge the law applicable to the facts proven and the issues raised, is too general and points out no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. <&wkey;>1059.]
    7. Criminal Law &wkey;>1056 — Appeal and Error — Exceptions—Time for Presentment.
    Exceptions to the charge of the court in a prosecution for the unlawful practice of medicine, made for the first time on a motion for new trial, cannot be considered on appeal of the cause.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. <&wkey;> 1056.]
    Appeal from Red River County Court; Geo. Morrison, Judge.
    J. W. Young was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed.
    Travis T. Thompson, of Clarksville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully practicing medicine, and his punishment assessed at a fine of $175, from which judgment he prosecutes this appeal.

Appellant moved to quash the information and complaint because they did not allege that he had not recorded a certificate or diploma in the county of his residence. It is always better to follow the language of the statute, but this is not absolutely essential, if language of equivalent import and meaning is used. Mathews v. State, 36 Tex. 675; Fowler v. State, 38 Tex. 559; Caldwell v. State, 2 Tex. App. 53; Sansbury v. State, 4 Tex. App. 99; Bigham v. State, 31 Tex. Cr. R. 244, 20 S. W. 577. The information and complaint in this ease allege that appellant practiced medicine “without having first obtained from an authorized board of medical examiners a certificate of professional qualifications, and without having a diploma from some accredited medical college.” If appellant had obtained a certificate or diploma and failed to record it in the county of his residence, he would be guilty, and if he had such certificate or diploma, it would be necessary to allege that he had not recorded it in the county of his residence before a conviction would be authorized. But when the information alleges he had never obtained a certificate or diploma, this language necessarily implies and charges that he had not recorded authority in the county of his residence. Article 462 of the Code of Criminal Procedure, 1895, provides:

“Words used in the statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

The court did not err in striking out the plea of former jeopardy or acquittal. This information alleges that on or about the 12th of March, 1915, and thence continuously up to the date of filing the complaint in this cause, which was April 27th, appellant did unlawfully engage in the practice of medicine, and did prescribe for and visit Mrs. Thad Pines, etc. This covered a specific time from March 12th to April 27th. The other information also covered a specific time, from May 10, 1915, to May 12, 1915, and alleged appellant engaged in the practice of medicine, and did treat one W. W. Prior. They were separate and distinct offenses alleged, and occurred at separate and distinct times. The state had to prove in one instance that appellant treated and offered to treat Mrs. Pines, and in the other Mr. Prior.

The only special charge requested was one that asked an instruction that the state must prove that “appellant did not have a diploma or a verification certificate filed in the county of his residence.” This was fully covered by the court in his main charge, and such fact was proven by Dr. Foster, who testified that appellant had stated to him that he had never attended a medical school or college; that he had no diploma from any accredited medical college; that he had no verified certificate, and had no license to practice medicine in this state.

The statute specifically defines the words “practicing medicine,” and the court did not err in not admitting testimony as to the general meaning of those words. Had not the statute given those words a definite meaning, there might he merit in appellant’s contention.

There was no error in admitting the testimony of J. W. Braden. His testimony shows that appellant did treat his wife, and that he received his board and lodging as compensation for the medicine furnished and services rendered.

This is a misdemeanor conviction, and the only exception reserved to the charge of the court as given was:

“Now comes the defendant and hereby excepts to the charge of the court as given, for the reason that said charge does not charge the law applicable to the facts proven and issues raised.”

This exception is too general, and points out no error in the charge. The information charged appellant with unlawfully practicing medicine. The charge submits that offense, and the evidence sustains a verdict that he was guilty of that offense.

The complaints of the charge, made for the first time in the motion for a new trial, cannot he considered. Basquez v. State, 56 Tex. Cr. R. 329, 119 S. W. 861.

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


author: PRENDERGAST, P. J.

text:
    CARTER v. STATE.
    (No. 3789.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Rape <§=>22 — Indictment—Sufficiency.
    An indictment for rape which followed the statute and was in the usual approved form, and which alleged that the prosecutrix was not his wife, and that he did then and there rape her, the said Stella Mayberry, was sufficient, although it omitted to allege that prosecutrix was a female.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 26; Dec. Dig. <§=>22J
    2. Indictment and Information <§=>159 — Correct Name — Substitution—Propriety.
    Where accused, indicted under the name of P. C., objected to being indicted and tried thereunder, declaring his true name to be C! C., he and other witnesses testifying that he was known by both names, the action of the trial court in ordering P. C. to be erased from the indictment and C. C. substituted was proper under Code Cr. Proc. 1911, art. 456, providing for indictment under any of several names; article 559, declaring the name stated to be sufficient unless objected to by accused on arraignment; article 560, providing for correcting the indictment to show a different name where suggested by accused; and article 561, providing that the cause proceed under the name stated in the indictment upon refusal of accused to give his real name.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. <§=>159.]
    3. Witnesses <§=>40 — Child Witness — Competency.
    Where, in a prosecution for rape, prosecu-trix, being under 15 years of age, stated on her examination that she knew it was wrong to lie, that she would be punished if she lied, and that liars were punished here and hereafter, and the oath being explained to her, it appeared to the court that she understood its application, and she made an intelligent witness, she was not incompetent under Code Cr. Proc. 1911, art. 788, subd. 2, disqualifying children not sufficiently intelligent to testify or not understanding the oath.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. <§=>40.]
    4. Witnesses <©=244 —Examination—Heading Questions.
    Where, in a prosecution for rape, the pros-ecutrix was - a reluctant and hostile witness for the state, trying to shield defendant and refusing to testify against him, it was proper for the court to permit the district attorney to lead her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dec. Dig. <§=>244.]
    5. Rape <§=>43 — Pregnancy—Evidence.
    In a prosecution for rape, it was not error for the court to permit the prosecutrix to testify that she knew what it was to be pregnant and that she was pregnant.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. <§=>43.]
    6. Criminal Daw <§=>657 — Conduct op Court — Witness—Contempt—P unishment.
    Where, in a prosecution for a rape, the prosecutrix, as the state’s witness, was impudent, insolent, and refused to testify against accused, and the court, knowing that she had conspired with her sister, to exonerate accused, and that she knew whether accused had actually had connection with her or not, it was not error for the court to retire the jury and send the witness to jail for contempt, whereby she was induced to return and testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1534; Dec. Dig. <§=>657.]
    7. Witnesses <§=227 — Contempt—Recall.
    After the return of such witness from jail, it was not necessary to reswear her before resuming her testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 798-806; Dec. Dig. <§=>227.]
    8. Rape <§=>38 — Acts op Robbery — Fixing Time — Evidence—Admissibility.
    Where the prosecutrix, in a prosecution for rape, testified that the acts of intercourse occurred in March, but could not fix the exact dates, but testified that she and her mother went to accused’s house during February, and she had her menses in that month, that the intercourse followed in March, as testified to, and during March she missed her menses, there being other testimony that the transactions relied on by the state occurred in the same month as testified to by her, her testimony as to when the acts of intercourse occurred, was properly admitted.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dec. Dig. <§=>38.]
    9. Criminal Law <©=>369 — Other Offenses— Rape.
    Where, in a prosecution for rape, the evidence showed that the administratrix was over 13 years old at the time of the intercourse, that accused was hex- brother-in-law, and that her mother placed her in his care, while attending the accused’s wife during and following her confinement, it was not eri-or to allow the prosecuting witness to testify to more than one act of intercourse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. <@=>369.]
    10. Criminal Law <@=>678 — Several Acts — Requiring Election by State.
    Where, in a prosecution for rape, accused, immediately upon proof of several acts of inter-coui'se, moved to require the state to elect upon which one it would stand, the action of the court in overruling such motion and not requiring such election until the close of the state’s case was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. <S=> 078.]
    11. Rape <@=>38 — Threats—Admissibility.
    In a prosecution for rape, it was not ei-ror to permit prosecutrix to testify that at the time of the intercourse accused threatened to kill her if she ever told.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dec. Dig. <@=>38.J
    12. Rape <@=>43 — Prosecutrix—Physical Examination-Admissibility.
    In a. prosecution for rape, the testimony of the physician who made a physical examination of proseeuti'ix, that he had examined her for the purpose of seeing whether she was pregnant and found that she was, was properly admitted.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. <@=>43.]
    13. Criminal Law <@=>400 — Evidence—'Venue— Location op County Line.
    Where the defense relied on the venue being in another county, the testimony of a state’s witness that the county line between the county of trial and that adjoining was about a half mile north of the town of Thurber, was pi’operly admitted where the witness had said that he knew whei-e the line was, that he saw it being run by the county sui-veyor, and that it was recognized as the line between the two counties.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. <@=>400.]
    14. Witnesses <@=>305 — Privilege.
    Where, in a prosecution for i-ape, the defense introduced a witness fx-om whose testimony an act of intercourse between him and prosecu-trix was inferable, allowing the state to elicit his positive statement on cross-examination that such intercourse occurred, was not error as violating the witness’ privilege, where the witness did not claim his privilege.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1053-1057; Dec. Dig. <@=>305.]
    15. Criminal Law <@=>673 — Several Acts — Election — Charge.
    Where, in a prosecution for x-ape by her brother-in-law on a' girl under 15, while having custody of her while her mother was attending his wife during the wife’s confinement, sevex-al acts of intei’course were pi'oved and the state was i-equired to elect as to one, the charge that the jury might consider the other acts proved in determining whether or not accused committed the act upon which the state had elected to stand, if they threw any light on that issue, but for no other purpose, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. <@=>673.J
    16. Criminal Law <@=>1166% — Conduct op Trial — Remark by Court — Harmless Error).
    In a prosecution for rape, accused’s testimony showed that the prosecutrix was under 15 years old, and accused introduced a witness who testified to intercourse with her at her request, and the court, in the presence of the jury, ordered the sheriff to hold the witness in jail and to have the county attorney file a complaint against him; and the sheriff called the witness to go with him, and the two, accompanied by the county attorney, left the courtroom. The court subsequently charging the jury that as exclusive judges of the credibility of the witness they were required to believe all the facts necessary to conviction beyond a reasonable doubt, including the fact that the pi'osecutrix was under 15 years old, failing which, they should acquit accused, and also charged on the presumption of innocence and reasonable doubt, held that, such remark of the court, followed by the action of the sheriff and county attorney, combined with the comment on the weight of the evidence as to the prosecutrix’s age, it being admitted, while error was not ground for revei’sal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. <@=> 1166y2.]
    17. Criminal Law <@=>761 — Undisputed Evidence-Weight op Evidence — Comment.
    Where, in a prosecution, the facts are admitted to be true or are placed beyond doubt without contest, the court, in conducting the trial and charging the jury, may assume the li'uth of such facts without infringing the law forbidding comment by the judge on the weight of the evidence.
    TEd. Note. — For other oases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764,1771, 1853; Dec. Dig. <@=>761.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Claud Carter was convicted of rape, and he appeals.
    Affirmed.
    Chandler & Chandler, of Stephenville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the rape of his wife’s sister, Stella Mayberry, who was alleged to be under the age of 15 years at the time. The jury-assessed the lowest punishment against him. The evidence was clearly sufficient to sustain the conviction.

The indictment follows the statute and is in the usual approved form, except that it did not specifically allege that Stella May-berry was “a female.” It did allege, however, that Stella was not his wife, and that he “did then and there ravish and have carnal knowledge of her, the said Stella Mayberry.” Under the authorities, this indictment was good, even though it omitted to allege that Stella was “a female.” Battle v. State, 4 Tex. App. 595, 30 Am. Rep. 169; Waggoner v. State, 35 Tex. Cr. R. 199, 32 S. W. 896. The court did not err in overruling appellant’s motion to quash.

Appellant was indicted under the name of Pink Carter. By various motions and exceptions, he objected to being indicted and tried under the name of Pint Carter, alleging that his true name was Claud Carter. The court thereupon directed the district attorney to erase in the indictment Pink Carter, and insert instead Claud Carter, and entered an order of the court at the time to that effect. He and all the other witnesses who testified on that subject swore he was known and called by that name as well as Ms true name. The court’s action was strictly in accordance with the statute and the many decisions of this court thereunder. Articles 456, 559, 560, 561, C. C. P. None of appellant’s bills of exception on this question show any error.

Appellant objected to the prosecutrix Stella Mayberry testifying, claiming that she was incompetent; that she did not understand the nature and obligation of an oath. The court in approving appellant’s bill on this subject did so as follows:

“AVitli the qualification that the witness stated on her examination that she knew that it was wrong to tell a lie and that she would be punished if she swore a lie, but did not know whether she would be put in jail or the penitentiary, that people who told lies would go to hell, although some of them might go to heaven. The oath was explained to her and it appeared to the court that she had sufficient intelligence to understand its obligations. She made an intelligent witness, although she is uneducated, and narrated the facts of the case in an intelligent manner both on direct and cross examination, and her evidence was corroborated in several particulars by other witnesses, and she was a competent witness.”

Article 788, subd. 2, O. O. P., and authorities thereunder collated. The court correctly overruled appellant’s objections on this subject.

The court correctly overruled all of appellant’s objections to the district attorney’s asking the witness Stella Mayberry leading questions. In approving his bills the court said:

“With the qualification, the witness was reluctant to testify and hostile to the state and tried to shield the defendant and refused to testify against him, and the court permitted the district attorney to lead her.” Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215.

Nor do any of appellant’s bills as to the court’s remarks on this subject show any error. Neither did the court err in permitting said witness to testify that she knew what it was to be in a family way, and that she was then in a family way.

Stella Mayberry was the state’s first witness. Before the introduction of the evidence, she, with all the other witnesses, was duly sworn. She, when first put upon the stand and questioned by the state, refused to testify against appellant. The court thereupon retired the jury, and admonished the witness, and required her to testify. She still refused to do so. The court ordered her to jail, and she was taken to jail. The court qualifies appellant’s bill on this subject as follows:

“With the explanation that the witness was reluctant, impudent, and had conspired with her sister, the wife of defendant, to swear him out of this case, and the court knew she did know whether defendant had actually [had] intercourse with her or not, and determined to make her testify positively one way or the other, after observing repeated efforts of district attorney to get her to testify without avail. The court retired the jury, then fined the witness and sent her to jail for her insolence and contempt, and within an hour she was anxious to return and testify, which she did.”

The court’s action was proper and legitimate. Appellant’s bill on this subject shows no error. It was unnecessary to reswear this witness when she returned from jail, and was placed upon the stand and testified.

Stella Mayberry testified to three acts of sexual intercourse by appellant with her, all in the month of March, 1915, a few days intervening between each act. Appellant has several bills objecting to her testimony on this point, because she could not, or would not, fix the exact day of the month when these several acts occurred. The court in approving his bills thus qualified them:

“With the qualification that the witness could not give the exact date of the acts of intercourse defendant had with her, but testified that they occurred in the month of March, 1915. That witness and lier mother went to defendant’s house the latter part of February, 1915, and she had her menses in February, and that the intercourse with defendant followed in March, and she missed her periods in March, and since it was shown by other testimony that the transactions relied on by the state occurred in March, 1915.”

The testimony was admissible and the court’s ruling correct.

The appellant has some bills showing that he objected to Stella Mayberry testifying he had more than one act of intercourse with her. In approving one of these bills the court did so with this statement and qualification:

“The evidence showed that prosecutrix was over 13 years, old at the time of the intercourse, and defendant was her brother-in-law, and her mother had placed her in his care while away from the house; prosecutrix’s mother being in attendance on defendant’s wife while being attended during and following her confinement.”

The evidence was clearly admissible. Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, and a large number of cases decided since then following it.

It seems, as soon as Stella Mayberry testified to said three acts of intercourse, appellant at once made a motion to require the state to elect upon which of the three it would seek conviction. The court at that time overruled his motion, qualifying his bill on the subject as follows:

“While the witness was testifying, the defendant objected to state proving but one act of intercourse, and that the state should be limited to but one, the court permitted the state to prove other acts and refused [informed] defendant that after the state had closed its case an election could be required. No motion was made after the state rested or any time thereafter to require the state to elect as to the transaction on which the state would rely, but after the testimony was closed the court required the state to elect, and limited the prosecution to the transaction selected by the state and instructed tlie jury accordingly.”

The court’s action was correct.

The court did riot err in permitting Stella Mayberry to testify that, when appellant had such first act with her, or just after it, he told her that, if she ever told it, he would kill her. This testimony was admissible. And so was the testimony of the doctor who made a physical examination of her in June, 1914, that he examined her for the purpose of seeing whether she was in a family way, and found that she was pregnant and about three months, or a little more, in a family way.

It seems appellant sought to show that the place where Stella testified appellant had intercourse with her was not in Erath, but in Palo Pinto, county. The testimony of the witness Mitchell as to the county line between Erath and Palo Pinto counties was properly admitted. The court in approving appellant’s bill did so as follows:

“With the qualification that the witness testified that he knew where the line between Erath and Palo Pinto counties was. That said line was about one-half mile north of the town of Thurber; the act of intercourse relied on by the state occurring in said town. He further testified that he saw the line being run by the county surveyor of Erath county, and said line was recognized as the line between the two counties, and he knew it was the line from said facts.”

Appellant introduced Worthy Shannon, who, on direct examination, testified to a state of fact, from which the jury could infer that he claimed he had had sexual intercourse with Stella Mayberry some time between the last of February and the first of May, 1915. The court did not err in permitting the state on cross-examination of him to have him testify specifically: “I had intercourse with Stella Mayberry.” He claimed no personal privilege to avoid so testifying, nor did he object to so testifying. The court did not err in overruling appellant’s objection to the testimony of said witness on cross-examination because it was an incrimination of him. The court did not err in refusing to give either of appellant’s special charges peremptorily requiring the jury to acquit him.

It was entirely proper for the court, under the circumstances of this case, in his charge to tell the jury that the state had elected to prosecute on a certain act of intercourse by appellant with prosecutrix clearly identified 'by all of the evidence without controversy, and that he was not on trial for any other act, if the jury believed he had other acts than the one so designated; and, further, that such other acts, if any, might be considered by the jury in determining whether or not he had the act which the state had elected to prosecute him upon if they throw any light on that issue, but for no other purpose. And appellant’s objection to that charge is without any merit.

There is but one other question in the case. It is the only serious one presented. We will now state substantially the evidence, the charge of the court, and the action of the trial judge complained of, and decide the question. The only controverted issue in the case was the fact of whether or not appellant had the act of intercourse with the prosecutrix on which the conviction was sought. The girl’s age was not controverted by appellant.

The girl testified she did not know her own age. After so testifying, she was not pressed on this subject by either the state or the appellant. Her mother testified:

“I could not say exactly how old Stella is. Dude (Arizona) Johnson was with me when Stella was bom.”

She was not pressed on this subject by either the state or appellant. Dude Johnson testified:

“I know Stella Mayberry — I was present when she was born. She was born on the 18th of May, if I am not mistaken. It was in the year 1901. It have kept up with Stella’s age by the age of my daughter Janie’s little girl, who is from October to May older than Stella. Janie’s little girl was born in October, 1900, and Stella was born in May, 1901.”

On cross-examination of her, she testified that she could be mistaken, but she did not think so. She was afraid to say she could not be mistaken as to the date, but she thought she was not. Appellant married Cynthia, the sister of Stella, who was just 2 years older than Stella. He introduced her as a witness, and she testified in his favor, but she was not asked by him, and she did not testify, as to the age of Stella, nor her own. She merely stated that she was Stella’s older sister. Appellant himself testified. On his direct examination, he said nothing whatever as-to the age of Stella. On cross-examination, he testified that he married Cynthia, Stella’s sister; that he did not know how much older Cynthia was than Stella, but their mother said Cynthia was 2 years older than Stella; that Cynthia was 17 years old some time in May; that Stella’s mother said Stella was 15 years old last May. “Stella was not 15 years old in March or February.” So that, as stated, the fact that Stella was not 15 years old at the time appellant had sexual intercourse with her, if he did, was not in controversy, appellant himself swearing positively that she was not 15 years old at that time. The sole controversy was whether or not appellant had had sexual intercourse with her any time during March, 1915. Stella swore positively, not only to the act of intercourse by appellant with her, which act the state elected to claim a conviction on, but she also positively testified that appellant had two other acts of intercourse with her during said month. The testimony by other witnesses was corroborative of Stella as to appellant’s being with her alone and having the opportunity at the respective times which she testified he had intercourse with her. He denied positively any act of intercourse with her. This controverted issue was for the jury. Not only the positive testimony by the state, hut a preponderance of it, was in favor of the state on this issue.

Without dispute or controversy, the testimony showed: That prosecutrix and her mother lived at Stephensville. Appellant and his wife lived at Thurber, in Erath county. Some time before, the exact time not disclosed, appellant had married Cynthia, the sister of, and just 2 years older than, Stella. That appellant had gotten her pregnant, and she was to be confined in March or April, 1915. That her mother, appellant’s mother-in-law, went from her home in Stephensville to appellant’s home in Thurber the latter part of February, so as to be with, and attend to, Cynthia, his wife, when she was confined, taking her young daughter Stella, then under 15 years of age, along with her to appellant’s. That they stayed at appellant’s from the latter part of February to the Sd of May. In the meantime, 'between those dates, Cynthia was confined, and her baby was born. During the time of their said stay, Stella’s mother repeatedly permitted her to go with- appellant at night alone to several different functions. That she would not consent for Stella to go with any boys during or prior to this time, because, as she testified, she was not old enough to receive company. The particular act on which conviction was sought and had, according to Stella’s testimony, was on the night she returned from a certain party, the evidence both by appellant and Stella’s mother showing that her mother requested appellant to go after the girl and bring her home, thus expressly placing her in the care and custody of appellant, her brother-in-law. It was on this night when appellant brought her home from said party that he had the act of intercourse with'her for which he was convicted herein. On her direct examination, the state did not ask her, and she did not testify, denying any act of intercourse with any other person than appellant. When he had her on cross-examination, he asked her and sought to show by her that during her mother’s stay with his wife that she went out at night especially with other boys, or young men, and that they on these several occasions had opportunity to have intercourse with her, and he asked her specifically if she did not on these several occasions have intercourse with certain ones, naming them. She not only positively denied having intercourse with any of these boys, but positively denied being with any of them at any time when an opportunity for such an act could have occurred. In asking her if certain persons, naming them, on these occasions had not had sexual intercourse with her. he named several parties, among them Worthy Shannon. The state in rebuttal on this question put said witnesses, or some of them, on the stand, and they swore positively that they had not had intercourse with said girl, and had had no opportunity. The state did not put said Worthy Shannon on the stand. Appellant did. However, in his cross-examination of Stella, he asked and she testified that, while she knew Worthy Shannon, she never went with him anywhere at night, nor was she at any place where he was after dark. In response to his questions about Worthy Shannon, she said:

“I didn’t tell Worthy Shannon that I could not get along without it, nor that I simply had to have it. Worthy Shannon did not have intercourse with me.”

When appellant put Worthy Shannon on the stand, who is a young negro about 17 years old, appellant had him testify on direct examination that he went home alone with Stella Mayberry from the opera house one night. He said:

“On the way home that night Stella asked me would I give her a little piece, and I told her yes, and she said she would not do without it if I would not tell.”

No other inference could be drawn, and evidently it was appellant’s intention from this evidence that the jury should draw the conclusion, that on this occasion Worthy Shannon did have sexual intercourse with her. On cross-examination by the state, he testified:

“I did it to Stella Mayberry that night coming home from the opera house.”

Just after this witness had concluded his testimony and left the witness stand and was still in the courtroom, the trial judge, in the presence and hearing of the jury, said:

“Mr. Sheriff, take charge of this little negro; put him in jail and have the county attorney file a complaint against him.”

The sheriff was then present in the courtroom, and, in the presence of the jury, called to the witness to go with him, and the witness followed the sheriff. The sheriff and county attorney, accompanied by the witness, then left the courtroom. It is not shown that the county attorney then, or at any other time, filed any complaint or took any action against the witness. To said remark of the trial judge and action of the sheriff appellant then and there in open court excepted, claiming that this was a comment on the weight of the evidence, and that it was calculated to convey, and did convey, to the jury the fact that the court believed prosecutrix to be under 15 years of age, and was an expression by the court of his opinion as to her age and a comment on the credibility of said witness and calculated to, and did, prejudice his rights before the jury. This is all shown by a proper bill of exceptions, and, as stated, presents the only difficult question in the case.

We think there can be no question but that this remark of the trial judge and the action and movement of the sheriff and county attorney with said witness was wrong and presents error; but the question is: Does it present such material error as requires or authorizes the reversal of the judgment? We think not. Her age was not in controversy. Appellant himself swore positively that she was .not 15 years old in March or February. The act of intercourse occurred in March. At the time of the judge’s remark and action of the sheriff and county attorney in compliance therewith, nor at any time, did appellant request the court in writing or otherwise to disregard and not consider what was then done and said. It is the settled law of this state that a harmless immaterial error is no cause for reversal. This has been decided so long and so often and under such a variety of circumstances in eases that it is unnecessary to here collate all of them. The rule in this state is well established to this effect: Where facts are admitted to be true, or are placed beyond doubt without contest, the court even in his charge may assume these facts as true without infringing the law forbidding the judge to comment on the weight of the evidence. That rule is applicable to this question in this case. See Judge White’s Ann. C. O. P. p. 525, where he quotes with approval authorities to this effect, and collates a considerable number of cases supporting it. See, also, Kosmoroske v. State, 59 Tex. Cr. R. 298, 127 S. W. 1056; Russell v. State, 53 Tex. Cr. R. 500, 111 S. W. 658; Nelson v. State, 35 Tex. Cr. R. 205, 32 S. W. 900; Wright v. State, 93 S. W. 548; sections 1057, 1058, Judge White’s Ann. C. C. P.; Holliday v. State, 35 Tex. Cr. R. 133, 32 S. W. 538; Tracey v. State, 44 Tex. 9; Pearce v. State, 35 Tex. Cr. R. 150, 32 S. W. 697; Height v. State, 150 S. W. 908. How could it injure appellant for the court by the remark to intimate that Stella was under 15 years of age when the fact that she was under age was not in controversy? And that she was under age was established by uncontradicted testimony, and by that of appellant himself, who swore positively that she was not 15 years old? Judge Hurt, in Davis v. State, 28 Tex. App. 542, 13 S. W. 994, said:

“To reverse in the absence of probable injury would be contrary to principle.”

And this court, through Judge Davidson, in Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544, in discussing improper argument by the state’s attorney, said:

“Concede that this argument was improper. It does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendants. To reverse in all cases where counsel failed to confine themselves to the record would render trials farces.”

These cases have been many times cited, quoted, and approved by this court, even down to almost this date. But let us see further what the court charged the jury. After, in the first paragraph, stating the case to the jury, in the next he told them:

“Xou, gentlemen, are the exclusive judges of the facts proved, and the credibility of the witnesses, and the weight to be given to the testimony.”

Then follows the proper definition of the offense and the requisites the state must establish before a conviction could be had. In submitting the case to them for a finding, he required the jury to believe from the evidence beyond a reasonable doubt all of the facts necessary to convict, and they must further believe from the evidence beyond a reasonable doubt that Stella Mayberry was at the time of the act of intercourse, if any, under the age of 15 years. And then, in a further paragraph, he tells them, if they do not so believe from the evidence beyond a reasonable doubt, to acquit him. And, again, in a separate paragraph, he tells the jury that, if Stella was at the time of the act not a person under 15 years of age, “or if you have a reasonable doubt as to whether or not she was, you will give the defendant the benefit of such doubt and acquit him.” He also charged the presumption of innocence and the reasonable doubt generally, and told them that, “if you have such doubt as to his guilt, acquit him.” The jury assessed the lowest punishment authorized by law.

Under the facts and circumstances of this case, the said error of the court is not such error as would require or authorize a reversal.

The judgment is affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HUFF, O. J.

text:
    SMITH et al. v. LONG.
    (No. 874.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Habeas Corpus <@=»117 — Custody of Child.
    Where, in a former controversy between the father and the maternal grandparents of a child, the court decreed that the grandparents have custody of the child, on the ground that the father was less than 21 years of age_, unsettled in life, and possessing the characteristics of a boy, which judgment was affirmed on the father’s appeal, and thereafter the father brought habeas corpus against the grandparents for the custody of the child at a time when he was living on his mother’s farm under a 2-year lease, in possession of property, having settled down to steady work, the former judgment was not conclusive of the grandparents’ right to the custody of the child, in view of the change in the circumstances and conditions of the parties.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 119, 120; Dec. Dig. <®^117.]
    2. Habeas Corpus <@=3>99 — Custody of Child —Right of Father.
    Where the custody of the infant daughter of a father less than 21 years old was given to the maternal grandparents on account of the father’s boyishness and unsettled character, and thereafter such father settled down upon his mother’s farm, acquiring property, he was, at the age of 23, entitled to the custody of his child, then aged four, since the father is the natural guardian of a child, and ordinarily entitled to its custody, unless manifestly unworthy and incompetent to discharge his obligations.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. <@=>99.]
    Appeal from District Court, Briscoe County ; R. C. Joiner, Judge.

      Petition for habeas corpus by J. E. Long against S. B. Smith and another. Judgment for petitioner, and defendants appeal.
    Affirmed.
    Martin, Kinder, Russell & Zimmermann, of Plainview, for appellants. K. Ewing Bain, of Silverton, for appellee.
   HUFF, O. J.

J. E. Long filed his petition for writ of habeas corpus against Smith and his wife, Martha Smith, for the custody of his child, Aline Long, which was tried in the district court of Briscoe county, March 25, 1915, and judgment entered giving appel-lee, Long, the custody and possession of his child, Aline Long. Long is the father of the child, and S. B. Smith and Martha Smith, the grandfather and grandmother of the child. The mother of the child was the daughter of Smith and wife. The mother died while the child was very young. The appellee in this case instituted a former proceeding for the custody of the child, and the district court at that time rendered judgment, giving the appellants the custody of the child on the 27th day of March, 1913, decreeing—

“tlie custody of the child. Aline Long, to be and remain with S. B. Smith and wife, Martha Smith, until further order of this court.”

The trial court upon that occasion filed conclusions of fact in which he states:

“I find that relator, J. E. Long, is at this time less than 21 years of age, not settled in life, and possessing the habits and characteristics of the usual boy of his age.”

Also the facts brought out in that trial—

“show relator to be lacking in a sense of responsibility and just appreciation of his duties as a father, and to be unable and unfit at this time to take care of an infant of tender years.”

The appellee here appealed from the former judgment to this court, which will be found reported, Long v. Smith, 162 S. W. 25. It will be noted that this court then regarded the order theretofore rendered as temporary. The proposition is now advanced by appellants that the issues involved in this case were adjudicated against appellee and relat- or, and that there has since been no material change affecting the interests and welfare of the child. The child at the former trial was only 18 months old, while at the hearing on this trial was near 4 years old. The relat- or was then less than 21 years of age, while on this trial he was 23 years old. At that time he had no home; at this time he has a 2-year lease on his mother’s farm and house, which is shown to be a good house; that his mother now lives with him and has entered into an agreement to take care of his child. He also now has a deed to 160 acres of land, some horses, hogs, cattle, and an interest in his mother’s cattle, farming implements, and at the time of the trial below had 300 acres planted and prepared for planting a crop. The evidence will warrant the finding that he settled down to steady work and habits, and that he remains home at night, and that he loves his child and is generally kind to children, and that they are fond of him. He is shown to be a good worker, industrious, and trustworthy, and that his boyish roughness has been largely overcome, and that he has broken himself of the habit of swearing. The court was authorized to find that the condition of the child would be as favorable with the father as with the maternal grandparents ; that the grandparents 'are living on rented property, and the house in which they live is nothing like as good as the one provided by the father of the child.

The question on both trials was: Who is best suited to care for the welfare of the child? Wilson v. Elliott, 96 Tex. 472, 73 S. W. 946, 75 S. W. 368, 97 Am. St. Rep. 928. We saw no reason on a former trial to disturb the judgment of the trial court; neither do we find any reason at this time for disturbing the judgment upon the last trial. It is apparent that the court only regarded the evidence and facts occurring since the former trial, and the present condition of the parties was only considered, and the judgment based thereon. Estoppel by former judgment continues only when the circumstances are the same at the last trial as at the former. We think the change in the circumstances and conditions of the parties is sufficiently marked to authorize the trial court to enter a different judgment. Wilson v. Elliott, supra; Pittman v. Byars, 51 Tex. Civ. App. 83, 112 S. W. 102; Patton v. Shapiro, 154 S. W. 687; Hall v. Whipple, 145 S. W. 308; Ex parte Fuller, 123 S. W. 204.

The father is the natural guardian of the child, and ordinarily is entitled to its custody, unless it is manifest to the court that the father is unworthy or incompetent to discharge the obligation. The presumption is in favor of the father; this presumption the facts in this ease do not rebut. The years since the former trial the father has grown into manhood and his evident affection for his child has aroused an earnest effort to reform his hitherto uncouth manner, and he' has seriously gone to work and by steady efforts prepared a home for his little daughter, where she may be with him and his affection for her may be reciprocated. This worthy motive on his part should be encouraged.

The case is affirmed.
      @=oFor other cases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    BROWNE v. McGUIRE.
    (No. 5556.)

    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Pleading <S^>290 — Verification—Failure oe Consideration.
    Under the express provisions of Rev. St. 1911, art. 1906, § 10, an answer, setting up failure of consideration as a defense to tlie cause of action on debt and to foreclose vendor’s lien notes, should have been sworn to.
    TEd. Note. — For other cases, see Pleading, Cent.Dig. §§ 859-863, 886% > Dec.Dig. <®==>290.]
    2. Appeal and Error <®=>1039 — Harmless Error — Withdrawal of Answer.
    Where, in an action for debt and to foreclose vendor’s lien notes, the answer, setting up failure of consideration, was not verified, and hence would not have prevented the taking of a default judgment, defendant was not injured by withdrawal of the answer by his attorney.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. <§=> 1039.1
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by W. A. McGuire against W. H. Browne and others. Judgment for plaintiff, and defendant Browne appeals.
    Affirmed.
    P. L. Townes, of Laredo, for appellant. Suttle & Todd, of Corpus Christi, for appel-lee.

      Application for writ of error pending in Supreme Court.

   CARL, J.

W. A. McGuire sued W. H. Browne, P. G. Taylor, M. A. Simmons, and Clay Roberts for debt and to foreclose a vendor’s lien on certain real estate in Nueces county. There were two notes, one for $2,000 held by the plaintiff, and another, which became a second lien, in the sum of $1,000, held by P. G. Taylor. The parties were all duly served, and Simmons and Roberts defaulted, but Taylor admitted the allegations of the petition to be true, and prayed for judgment and for foreclosure of his second lien. Appellant employed an attorney, who filed, on appearance day, a general demurrer and general denial; but, when the case was called for trial, the attorney asked and obtained leave to withdraw the answer filed. A controverting affidavit, to the motion to set aside the judgment and reopen the case, says that appellant is also a lawyer, and was present in court at the time the answer was withdrawn.

Service was had on January 13, 1915, and judgment was taken on February 12, J.915. On March 6th appellant’s amended motion for a new trial was filed, in which it was sought to set forth a defense to the cause of action; but this motion is not sworn to, although signed by Browne in personam. And although a contest of the grounds alleged as a defense was filed, still the motion was not sworn to. The defense sought to be made was failure of consideration, and should have been sworn to. Rev. St. '1911, art. 1906, § 10.

Furthermore, the answer filed and withdrawn would not have prevented the taking of a default judgment under the law as it existed at the time of these proceedings. So appellant was not injured by the withdrawal of same. We not only do not think the learned trial judge abused his discretion in refusing to set aside the judgment, but was clearly within the law in overruling the motion.

The judgment is affirmed.
      tg=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PER CURIAM, HARPER, C. J.

text:
    GESTEAN et ux. v. BISHOP et al.

    (No. 498.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1915.
    Dissenting Opinion Dec. 13, 1915.)
    Error from District Court, El Paso County ; M. Nagle, Judge.
    On motion for rehearing.
    Denied.
    For former opinion, see 180 S. W. 302.
    Coldwell & Sweeney, of El Paso, for plaintiffs in error. F. G. Morris and M. W. Stanton, both of El Paso, for defendants in error.

      Writ o£ error pending in Supreme Court.

   PER CURIAM,

Rehearing denied.

HARPER, C. J.

(dissenting). The only questions raised in this case are, as stated in the majority opinion: Was it fundamental error for the trial court to charge that the intervention of Daniel Gestean, her husband, in the suit of Clark Bishop et al. v. Winn et al., upon May 25, 1907, stopped the running of the statute of limitation in favor of the wife, at that date? And, if fundamental error, was the error waived under the statute because not taken advantage of by exception to the charge before it was given, by motion for new trial and proper assignment in the trial court?

The case of Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242, is decisive of the question (1) that a judgment against the husband in a suit to which the wife is not a party does not bind the wife, and she is not estopped to assert her title; (2) that the error was fundamental and could be here urged without assignment of error in the trial court, unless it can be and was waived as indicated in the majority opinion. The period of time between the filing of plea in intervention by the husband in the case of Clark Bishop et al. v. Winn et al., May 25, 1907, and the date of filing of this suit, this being the only suit to stop the running of the statute filed July 6, 1911, was a very material period of time in which to perfect appellant’s title by limitation, and appellant did not have advantage of it before the jury, and therefore is a “prominent error, fundamental in character, upon which the rights of the case depend,” and in my opinion cannqt he waived under the statute cited. There is nothing in the statute relied upon which changes the rules as to fundamental error, as a cause to review the case upon appeal.

’The court having failed to submit the appellants’ case as made by the pleading and evidence, the effect is that the cause has not been tried according to the rules of law, because, where the court has a jury to pass upon the issues and submits them under a general charge, there is no authority anywhere for the court to determine the issues not submitted, like as under the statute providing for submission of the cause by special issues. Article 1985, R. S. 1911. So it follows that the question raised by the pleading and evidence of defendant, plaintiff in error, has not been judicially determined. Therefore the cause should be reversed and remanded for a new trial. I therefore here now enter my dissent.
      <g=33For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    LESTER et al. v. HAWKINS.
    (No. 833.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Partnership ©=>191 — Injury to Partnership Property by Member oe Eirm — Right oe Action.
    Where sheep owned by a partnership were seized on a writ of sequestration issued by the president of the bank which held a mortgage on them, who was also a member of the firm owning them, and such sheep were damaged by reason of their being negligently handled by the officer at the direction of the bank president, his partner could recover against the bank for expenditures made necessary thereby.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 349-353; Dec. Dig. ©=191.]
    2. Appeal and Error ©=>742 — Assignment of Error.
    On defendants’ appeal in an action against a bank and its president, the first proposition under an assignment of error, reading, “The fact that the affidavit may have been untrue could not make * * * appellant bank liable in view of the provisions of its mortgage,” did not confine the assignment to the bank only, and waive it as to its codefendant, its president, since the submission of propositions under an assignment does not waive all points not covered thereby.
    [Ed. Note. — For other cases, see Appeal and Iprror, Cent. Dig. § 3000; Dee. Dig. ©=742.]
    3. Banks and Banking ©=>105 — Authority of President — Contracts—Dealings Adverse to Bank.
    Where the president of a bank, member of a partnership owning sheep upon which the bank held a mortgage, agreed with his partner that, if the latter would ship certain sheep to the market, and apply the proceeds of the sale to the payment of a firm note due the vendor, who had a mortgage on the sheep prior to that of the bank, the partner could withdraw the same number of sheep from the partnership in substitution, that the bank would release its mortgage as to such sheep, and that he himself would release his interest therein, such agree-, ment was not binding upon the bank in the ab-' senee of special authority.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 249-252; Dec. Dig. ©=>105.]
    4. Sequestration ©=>21 — Wrongful Sequestration-Right of Action.
    Where a bank held a mortgage on sheep, neither the bank nor its president could be charged with actual damages on account of the president’s improper affidavit to secure issuance and levy of a writ of sequestration, since the bank had a right to the writ.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 59-54; Dec. Dig. ©=21J
    5. Sequestration ©=21 — Wrongful Sequestration-Right of Action.
    Where the president of a bank holding a mortgage on sheep, in pursuance of a writ of sequestration, the issuance of which was authorized by the bank, provided an inadequate, pasture for the sheep, and directed the sheriff to use such pasture, the bank and the president were liable for damages to the sheep occasioned thereby.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 59-54; Dec. Dig. ©=>21.]
    6. Damages ©=87 — Exemplary Damages — Support by Actual Damage.
    In an action against a bank and its president for the wrongful sequestration of sheep under a mortgage thereon held by the bank, where the award of actual damages was for the expenditure by the owner made necessary by the negligent handling of the sheep under the direction of the president, an award of exemplary damages, based on the president’s making the affidavit for sequestration without probable cause, was improper as a finding of exemplary damages without actual damages occasioned by the same wrong to sustain them.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 188-192; Dec. Dig. ©=>87.]
    7. Banks and Banking ©=>112 — Tort of President — Liability of Bank for exemplary Damages.
    To render a bank liable for exemplary damages resulting from acts of its president, authorized to bring suit and make affidavit for sequestration of property on which the bank held a mortgage, other than his so doing, the bank must have authorized or consciously approved his act, since the principal is not liable in punitory damages for the torts of its agent, unless it authorized the same, or, with knowledge of the wrong committed and its nature, adopted or ratified it.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 271, 272; Dee. Dig. ©=> 112.]
    8. Sequestration ©=>21 — Wrongful Sequestration-Measure of Damages.
    In an action by the owner of sheep for damages to the animals seized under an illegally issued and levied writ of sequestration, the money expended by such owner in earing for the sheep was a proper measure of damages.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 59-54; Dec. Dig. ©=>21.]
    9. Sequestration ©=>21 — Wrongful Sequestration — Damages.
    In an action by an owner of sheep for damages to the animals when seized under an illegally issued and levied writ of sequestration, the value of lambs which would have been born but for the ill treatment of the ewes in getting insufficient pasturage was not a proper element of damages, as too remote.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. ©=>21.]
    Appeal from District Court, Deaf Smith County; M. J. R. Jackson, Special Judge.
    Action by H. IT. Hawkins against L. T. Lester and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    O. D. Wright, of Hereford, and Turner & Rollins, of Amarillo, for appellants. Gilli-land & Estes, of Hereford, for appellee.
   HENDRICKS, J.

The appellee, Hawkins, sued the First National Bank of Canyon, Tex., and L. T. Lester, who is the president of said bank, to recover actual and exemplary damages, alleging the illegal issuance and levy of a writ of sequestration on certain sheep, and also alleging negligence on ■the part of the officer while the sheep were in his custody, asserting that the appellants directed the officer to handle the sheep in the negligent manner alleged. At the threshold of the case the appellants assign a preliminary question of partnership going to the foundation of the action, asserting that Lester, one of the eodefendants, and Hawkins, the appellee, were partners in the sheep, and that Hawkins individually 'maintained the action for the entire damages. The appellants raised this question in the trial court by plea in abatement after the original petition (before amendment) had been filed, and appellee attempts to answer the whole question by asserting that on account of the delay in filing the plea it was waived.

Justice Brown said in the case of Waggoner v. Snody, 98 Tex. 516, 85 S. W. 1134:

“Wihere a joint owner of personal property brings a suit for damages thereto without joining the other owner or owners, he cannot recover the whore' value of the property or the damages which may have been inflicted upon it, but will be entitled to recover only his proportionate part' of such value or damages, notwithstanding defendant has not pleaded the nonjoinder in abatement.”

While the case cited is not exactly the same, from the logic of that case, however, we conclude that the question insisted upon by appellant could be raised by appellants. However, would the rule attempted to be invoked by appellants apply to the facts of this case? Lester, the plaintiffs co-owner in the sheep, was the president of the bank, and as the representative of the bank caused the issuance and levy of the sequestration. The only actual damages that the jury found was the sum of $482.40, representing an expenditure of money upon the part of the plaintiff necessary in caring for the sheep as the proximate result 'of defendant’s negligence.

The question arises: Where a principal and his agent commit a trespass or a tort upon partnership property, and the partner in possession of the property, for the purpose of preserving and relieving the property from damage, and protecting the same, as a result Of the trespass, expends individual money, can he recover the same where the agent acting, for the principal is a partner? Of course, the general rule is that one partner cannot sue others for the wrongful conversion of partnership property, or for a tort committed by others up'on partnership property, for the reason that the recovery is a partnership fund; but, where one partner expends his own money for the protection or preservation of property, though the property itself may belong to the partnership, and the expenditure is brought about by the wrongful act of the other partner, acting with or for a third person, should the general rule prevail? And should the individual partner suing for the damages have to show in that character of case, by any rule of proportion, a severable interest in order that the litigation could be maintained? Story on Partnership, § 256, says:

“ * * * If a third person1 should fraudulently collude with one partner to injure the others, even though the act might in other respects be an injury to the partnership, yet an action will lie by the other partners alone against such third persons so colluding for the special damages occasioned thereby to themselves.”

The English case of Longman v. Pole, 1 Moo. & Malk. 223, cited by Story to sustain the doctrine, is not accessible to us, but the following cases, also cited, bear upon the principle: Calkins v. Smith, 48 N. Y. 614, 8 Am. Rep. 575; Fuller v. Percival, 126 Mass. 383; Duffy v. Gray, 52 Mo. 528.

Bates on Partnership, vol. 2, § 895, says:

“If a partner, by an1 act outside of his authority, creates against his copartners a liability which he would not have called them to share, they may recover from him the amount they have paid. Thus, if a partner makes a note in the firm name for his private purposes, and the firm is compelled to pay it, the innocent partners can recover from him. So, if by the fraud of one partner, partnership property is condemned, or the firm is rendered liable to a third person for a loss to him, the rest can recover against the guilty partner.”

The case of Fuller v. Percival (Mass.) supra, was one where a partner fraudulently executed a promissory note in the name of the firm and delivered it to another, who had knowledge of the fraud, but he in turn delivered it to an innocent holder. The firm was dissolved, and a receiver appointed. The innocent holder brought an action at law upon the note, and the defrauded member of the firm then brought a bill in equity against the partner and his confederate to compel them to take up and cancel the note, but it was held that the bill could not be maintained, for the reasons stated in the opinion; but the court said as to another phase:

“The plaintiff cannot escape his liability to the holders of the note. Upon the payment of the note he may at once commence action at law in his own name alone to recover for the fraud alleged to have been practiced upon him, and in that action his remedy is full, adequate, and complete against the parties to the fraud” —also citing the English case of Longman v. Pole, supra.

If one partner has to pay money individually as the result of an injury perpetrated by a third person and another partner, and this money is recovered from the third person, what possible interest could the partner participating in the tort have in the damages recovered? If this partner should sue the other partner direct for the damages for a personal reimbursement to him for the wrong and collect the same, we see no reason why that should not end the matter; nor any reason' why such money should go into the partnership fund. The personal damages suffered by the partner representing his personal expenditures on account of the tort of the other partner acting as agent with, another, it seems to us, belong to the partner individually. Also see Haller v. Willamowicz, 23 Ark. 566; Boughner v. Black, 83 Ky. 521, 4 Am. St. Rep. 174.

In this case the sheep were held in the custody of the sheriff under the hank’s writ of sequestration for four days, and then re-plevied by this plaintiff (the defendant in the other suit) and remained in the latter’s possession until the trial of the case, and the testimony was to the effect that all the sheep, on account of the negligent manner in which they were handled by the sheriff, suffered the injury pleaded. The sheep were weakened and depreciated, and considerably so partially on account 'of an inadequate pasture procured by the president of the bank in furtherance of the writ, in which pasture the sheep were grazed before re-plevied; and the money personally expended, the jury, found, was made necessary by this damage, and we would not care to disturb the particular findings upon the facts.

It is assigned that, on account of the provision in the bank’s mortgage permitting the taking of the possession of the sheep after default in the payment of the note either by an agent of the bank or by an officer, there could be no recovery for the illegal sequestration; that the issue of probable cause is not in this case. The assignment is as follows:

“The court erred in' submitting special issue No. 1, in the manner submitted, for the reason that there is no issue as to the truthfulness of the affidavit, and because, under the provisions of the mortgage held by the bank, it is immaterial as to whether such affidavit was true or not.
“First Proposition under Fifth Assignment.
“The fact that the affidavit may have been untrue could not make the appellant bank liable in view of the provisions of its mortgage.”

Both appellants objected and excepted to the submission of the issue.

The trouble given us by this assignment is whether the proposition quoted above confines the specification of error as to exemplary damages and relief thereon to the bank only, and is waived as to Lester. The assignment plainly is in the nature of a proposition, but in appellant’s brief is not submitted in terms as one. Where the assignment sufficiently discloses the point, of course it is customary, if a proposition is not submitted, to say that the assignment, of itself, is submitted as a proposition, though the rule does not require it. That portion of rule No. 30 (142 S. W. xiii) says:

“Each point under each assignment shall be stated as a proposition unless the assignment itself may sufficiently disclose the point, in which event it shall be sufficient to copy the assignment.”

The question is whether th'e proposition in this case, being applicable to the bank's immunity from exemplary damages, waives any relief as to Lester, if Lester also should not be liable for such damages. The ease of Railway Co. v. Hill, 58 S. W. 258, by the Dallas Court of GLvil Appeals, is rather in point:

“The matters in question were fairly raised by the assignments of error, which were copied at length in the brief, and submitted as propositions. The contention is that, because the additional propositions were submitted under the assignments, all points not covered by the additional propositions were waived. We think that, because the appellant saw fit to emphasize certain points, by submitting specific propositions thereon, such action would not be a waiver of other points covered by the general proposition, and are of opinion that appellee’s contention is not well taken.”

Writ of error was denied by the Supreme Court, though, of course, we are not advised whether th'e particular point was raised in the application. However, the only real difference we see in the two cases is that in the case cited the assignments were submitted as propositions, and in this case it is not so suggested. The rule is to the effect that, if the assignment sufficiently discloses the point, the assignment of itself is sufficient without a proposition.

Hawkins, the mortgagor, authorized the •bank, either by officer, in person, or by agent, or attorney, to enter the pasture where such property may be situated, to carry away the property and sell the same after notice, as provided by law, as given under execution. The bank being entitled to the right of possession after the maturity of the debt under the provisions of its mortgage, th'e sequestration as to it, placing the possession of the sheep with the sheriff, could not be illegal as a predicate for exemplary damages, unless appellee’s contention as to a certain agreement between Lester and Hawkins would obviate this rule. Wedig v. Brewing Co., 25 Tex. Civ. App. 158, 60 S. W. 567; Buckingham v. Thompson, 135 S. W. 656; Nichols v. Paine, 52 Tex. Civ. App. 87, 113 S. W. 972.

The jury found that Lester agreed with Hawkins that, if th'e latter would ship certain individual sheep to market and apply the proceeds of the sale of same to the payment of a partnership note due to the vendor, who had a prior mortgage on the sheep, that Hawkins could withdraw the same number of sheep from th'e partnership in substitution, and that Lester agreed that the defendant hank would release its mortgage as to such sheep, and that Lester would release his interest therein, and hence that the sequestration was at least in part upon plaintiff’s sheep. The appellants, however, insist that Lester had such ian adverse interest to the bank with reference to such a transaction that therefore such an agreement could not be within the ordinary scope of the president’s authority, and would not bind the bank unless it specially authorized the same. It is true that the hank knew when Hawkins executed the note and mortgage that Lester was a partner of Hawkins, and that Lester also owed the note. The record, though, does not show that the board of directors or any other officer of the bank knew of, any such agreement. Though it may be true that th'e agreement was for the purposé of paying in part a prior lien on the bank’s mortgaged property, still there might be several conceivable reasons why the bank might object to such an agreement. It might consider other methods of protecting its interest and paying the prior lien than that of exchanging th'e partnership sheep, and, unless such an agreement was authorized, or thereafter ratified, on account of the double position of Lester, it could not bind the bank, even if we were entitled to assume that the president of a national bank had the authority by virtue of his position to make such an agreement.

“A person will not be permitted to take upon himself the character of an agent where, on account of his relation to others, or on account of his own' personal interest, he would be com-elled to assume incompatible and inconsistent uties and obligations. An agent owes to his principal a loyal adherence to his interest, and it would be a fraud upon the principal, and would contravene sound public policy, to permit a person, without the full knowledge and consent of his proposed principal, to enter into a relation involving such duty, when his allegiance had already been pledged to one having adverse interest, or when his own personal interests would be antagonistic to those of his principal.” 1 Mechem on Agency (2d Ed.) § 177; Bank v. Harrell, 159 S. W. 863; Hawkins v. Bank, 175 S. W. 163; Jines v. Astle, 170 S. W. 1081, where on motion for rehearing there is a full discussion of similar questions.

Hence, we think, as applicable to the bank, it could not be considered that it was sequestrating the individual sheep of Hawkins. The court, in submitting the question of exemplary damages, as disclosed by the first and seventeenth special issues, confined the malice entirely to the question of probable cause as to the making of the affidavit and the issuance of the writ.

For the mere issuance and the levy of the sequestration, aside from other questions discussed later, the hank could neither be charged with actual nor exemplary damages on account of the improper affidavit. Neither could Lester, the agent of the bank, suffer actual damages for the issuance of the sequestration, or the levy of same; the bank had the right to the writ and actual damages for its issuance could not apply.

The appellants, by a proposition under the sixth assignment, assert that:

“The appellants could be held liable for damages resulting from the negligence of the sheriff unless they directed that the act of negligence be done.”

This, of course, is addressed to the matter of damages resulting to the sheep after the sheriff had assumed, under the writ, the custody of the same, distinct from damages flowing from an alleged illegal issuance and levy of the writ, which differentiation has to be borne in mind in the solution of this case. Under the provisions of the mortgage, entitling the bank to the possession of the sheep, and under the authorities cited, the bank could not suffer actual nor exemplary damages. The amount found by the jury, $482.40, and for which the trial court rendered judgment, was, as stated, for the expenditure by plaintiff made necessary by the negligent handling of the sheep under the directions of Lester. The broad assignment of appellants cannot be sustained, if for no other reason than that the testimony can be resolved, that Lester, as president and agent of the bank, in pursuance of the writ, the issuance of which was authorized by the bank, provided an inadequate pasture for the sheep, and it can be inferred that he directed the sheriff to use said pasture. Ap-pellee insists that the exemplary damages, however, can be sustained because the jury found under special issue No. 17 that Lester was not only malicious in directing the officer to levy the writ, but found he was malicious in other directions he gave to the sheriff in handling said sheep, and that the same were handled in a grossly negligent manner. An analysis of that issue supports, by a fair interpretation, that the trial court conditioned the finding of malice in the second sentence of his special issue to the making of the affidavit for sequestration without probable cause; and the jury were then instructed, if they found in favor of the plaintiff on the above special issue, they could find exemplary damages, and the jury, in response to this issue, found exemplary damages in the sum of $1,915.60; hence the exemplary damages were found by the jury upon an issue for which, under the law, the basis does not exist. The jury did not find exemplary damages based upon the alleged malicious directions of Lester to, and in participation with, the sheriff in the negligent handling of the property. There is a finding of exemplary damages without any actual damages to sustain them.

It is true that a trespass upon the property of others may be willful to the extent that malice and exemplary damages would follow, and the care of property might be such as to import such gross negligence and reckless indifference to the rights of others, in consequence of which exemplary damages would follow. In this case Lester was authorized by the board of directors to bring the suit, and, it may be inferred, to make the affidavit, but from which alone actual and exemplary damages would not follow. But for any other exemplary damages resultant from any other acts, and upon actual damages based upon any other facts, the corporation would have to authorize the same, or consciously approve the willful acts, if any-were perpetrated.

In passing upon the question of partnership and the right of recovery for personal expenditures made necessary by the tort of another partner, we are, of course, confining it to the particular damage; as to what the rule would be if appellee had recovered damages based upon the shrinkage value, or measured by the difference in value, is not raised upon this record. Justice Head, in the case of Barker v. Abbott, 2 Tex. Civ. App. 147, 21 S. W. 72, discusses tbe procedure and rule based upon a recovery where it is a partnership matter.

Again, as to exemplary damages chargeable against a corporation for tbe acts of its' agent, it is tbe rule of law in this state, as stated, that tbe principal is not liable in punitory damages for tbe torts of tbe servant unless tbe master authorized tbe same, or, with knowledge of tbe wrong committed and its nature, has adopted or ratified it so as to make the particular act his own act. Gulf, Colorado & Santa Fé R. R. Co. v. Reed, 80 Tex. 366, 15 S. W. 1105, 26 Am. St. Rep. 749. We are not deciding whether tbe acts here, distinct from tbe making of tbe affidavit, tbe issuance of tbe sequestration, and tbe levy of same are sufficient to predicate exemplary damages. Tbe specific question upon tbe peculiar condition of this record is not really raised, and tbe other questions upon this brief and record are sufficiently troublesome without such an excursion, though such a question is worthy of serious consideration upon this record and tbe authorities in this state.

It is also assigned that tbe money expended by Hawkins in caring for the sheep is not tbe measure of damages. It is held that reasonable expenses incurred in taking care of and curing an injured animal, resulting from tbe wrong of tbe railroad company, is an element of damage, and can be recovered. I. & G. N. Ry. Co. v. Cocke, 64 Tex. 151.

Tbe appellee cross-assigns that the trial court erred in refusing to submit to tbe jury, as an element of damage, the value of lambs which, but for tbe ill treatment to tbe mothers, would have been born, and 500 of which, under tbe proof, would have been worth some 8800. Clearly this is too remote. Baker v. Mims, 14 Tex. Civ. App. 413, 37 S. W. 190, where the value of unborn colts was attempted to be recovered.

We are also confronted with the question of tbe character of disposition of this case. If tbe bank knew of or in some manner ratified after knowledge of tbe agreement claimed to have been made between Hawkins and Lester, in regard to the substitution of sheep, it would be levying upon sheep it knew belonged to Hawkins, and not subject to the mortgage, and upon proper pleading and proof would open up the whole question of exemplary damages as to those particular sheep. If the proof could not be made, which we are unable to say, we would reform the judgment of the trial court, affirm the same as to the actual damages upon which it was rendered, and render judgment in favor of the bank and Lester for the exemplary damages. At present we pursue the course of reversing and remanding the cause for another trial.

We think other assignments are sufficiently covered by the discussion.

Reversed and remanded.
      ©=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes