author: YANTIS, J.

text:
    NUSSBAUM & SCHARFF v. TRINITY & B. V. RY. CO.
    (No. 2494.)
    (Supreme Court of Texas.
    May 16, 1917.)
    1. Railroads ⅞»482(4) — Fires—Spark Ar-resters — Rebutting Presumption oe Negligence.
    A railroad company could not rebut prima facie case of negligence arising where cotton was set afire by sparks from engine by showing use of most approved spark arrester and ordinary care in operating the engine, without showing ordinary care to keep arrester in working order, regardless of whether there was evidence that the arrester was out of repair; the burden being on defendant to show all of these elements to make a complete defense to such prima facie case.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1735.]
    2. Railroads @=^480(5) — Fires—Spark Ar-resters — Evidence.
    From evidence that locomotive properly equipped with the best spark arrester and carefully operated would not emit dangerous sparks, and that defendant’s engines were so equipped and operated, but that emission of sparks was' observed, it might be inferred that arrester was out of order.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1714.]

      3. Trial @=>296(3) — Harmless Erkob — INCONSISTENT INSTRUCTIONS.
    An erroneous charge as to rebutting presumption of railway company’s negligence in setting fire to cotton held not to have been, rendered harmless by a correct instruction inconsistent therewith; it not being presumed the correct charge was followed.
    [Ed. Note — For other cases, see Trial, Cent. Dig. § 709.]
    4. Trial @=>296(13) — Erroneous Instruction — Cure by Withdrawal.
    Where two contradictory charges are given on the same subject, withdrawal of the erroneous instruction is the only possible correction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 718.]
    5. Railroads @=>470 — Fires—Instructions— Recovery.
    Where plaintiff had not assigned to insurer his claim against a railway company for fire loss, but had received insurance, in action by the owner and insurer, it was erroneous to charge that the railway company was only liable to the insurer.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1666.]
    6. Appeal and Error @=>1064(1) — Harmless Error — Instructions.
    In action against railway company for fire loss, where the owner, having joined insurer as plaintiff, claimed only as a nominal plaintiff, being required to bring the suit by his policy, error in charging that only the insurer could recover was harmless, since the owner could not complain that the insurer was not a proper party and had introduced the same facts which it claimed the court erroneously advised the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Trial, Cent. Dig. §§ 475, 525.]
    7. Railroads @=3481(4) — Fires—Spark Ar-resters — Evidence oe Similar Facts.
    In action against railway company for fire loss, testimony that witnesses had seen other of defendant’s engines emitting sparks at different times and places was inadmissible because too remote.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1721.]
    Error from Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by Nussbaum & Scharff and another against the Trinity & Brazos Valley Railway Company. Judgment for defendant. On appeal to the Court of Civil Appeals judgment reversed and cause remanded, and upon motion for rehearing, judgment affirmed (149 S. W. 1083), and plaintiff, Nussbaum & Scharff, brings error.
    Reversed and remanded.
    Collins & Cummings, of Hillsboro, for plaintiff in error. N. H. Dassiter and Robt. Harrison, both of Ft. Worth, • and. C. S. Bradley, of Groesbeck, fo-r defendant in error.
   YANTIS, J.

Suit yvas brought in the district court of Limestone county, Tex., by Nuss-baum & Scharff and the Standard Marine Insurance Company, Limited, of Liverpool, England, as plaintiffs in said court against the Trinity & Brazos Valley Railway Company, defendant therein, to recover of said railway company damages for the loss of 333 bales of cotton, which were stored on the cotton platform of the compress in the town of Mexia, which platform was located by the side of the main line and track of said railway company. The plaintiffs alleged that they were the owners of the cotton, and that it, the said railway company, negligently set fire to the cotton by causing the emission of sparks from some of its passing engines, and that all of said cotton was destroyed to the extent that that which remained was of the value of only $500, while its value before the fire was $15,000. There was a trial by jury, whose verdict was favorable to said railway company, which is the defendant in error in this court. An appeal was taken by Nussbaum & Scharff and the insurance company to the court of Civil Appeals for the Fifth district, where the judgment of the district court was reversed and remanded, but later, upon motion for rehearing by said railway company, was affirmed. (Civ. App.) 149 S. W. 1083. A writ of error was granted by this court on the petition of Nussbaum & Scharff, plaintiff in error.

Complaint is made by the plaintiff in error of that portion of5 paragraph 10 of the court’s charge which is' as follows:

“If you believe ffom, the preponderance of the evidence in this case that sparks of fire escaped from defendant’s engine and set fire to and burned the cotton on the compress platform "at Mexia, Tex., on the date alleged, then you are instructed that such facts will constitute a prima facie case of negligence on the part of defendant; and, in the absence of rebutting evidence sufficient to overcome such prima facia case, you should render a verdict for the plaintiff. If you believe from the evidence that sparks of fire escaped from defendant’s engine and burned the cotton and caused the damage alleged, thereby establishing the prima facie case above defined, but you further believe from the evidence that defendant’s said engine was equipped with one of the most approved spark arresters in use, and that its agents and em-ployés in charge of said engine used ordinary care in operating the engine to prevent the escape of sparks, then you are instructed that the prima facie case so made as above defined is rebutted and overcome. And if you so believe you will find for the defendant."

The criticism made of this charge is that it authorizes a verdict in favor of the defendant, if after a prima facie case of negligence on its part had been established, the evidence showed that the defendant’s engine was equipped with one of the most approved spark arresters in use, and that its agents and employes in charge of said engine used ordinary care in operating said engine to prevent the escape of sparks, omitting to charge that it was essential also, in order to overcome a prima facie case of negligence, for the evidence to show that the spark ar-rester was in good repair. The charge as presented did not embrace all the ingredients of the defense as pleaded, or of that which was necessary to make a complete rebuttal of a prima facie ease that had been established; for it was just as necessary that the spark arrester should be in good repair as it was that the defendant should exercise ordinary care to equip its engine with one of the most approved spark arresters in use. It would render little or no protection against fire to have a good spark arrester, but to have it out of repair so that it would not properly arrest the emission of sparks. The defendant in its answer alleged as a defense to the action that it had exercised ordinary care—

“to provide and equip its engines with the best and most approved spark arresters and other appliances to prevent the escape of sparks or fire from locomotive engines, and that it had ■used reasonable and ordinary care to maintain and keep such appliances in good condition.”

In order to overcome the prima fade case of negligence, as stated, it was necessary for the defendant to show that the spark arrester was in a good state of repair. The burden was upon it to establish this; and it was not entitled to be given a verdict, a prima facie ease of negligence having been shown, without discharging this burden, both as to exercising ordinary care to equip its engines with an approved spark arrester, and to maintaining same in a good state of repair. The charge in question instructs the jury that a prima facie case of negligence would be overcome if only the defendant had its engine equipped with an approved spark arrester, and the servants in charge of the engine exercised ordinary care; and the court told the jury, if they so found, to return a verdict for the defendant. This is not enough. In order to entitle it to a verdict, it should also show that it had exercised ordinary care to maintain its spark arrester in a good state of repair. It is contended, however, by the defendant in error that there was no evidence that the spark arrester was out of repair, for which reason it was not incumbent upon the court in its charge to require a finding, in order to make a complete defense, that the spark arrester was in good repair. Since the burden was on the defendant in error to make a complete defense to a prima facie case to show that the spark arrester was in good repair, we think there is no merit in the contention; but, aside from this, we think there is evidence, from which the jury, in passing upon the weight of the evidence, could fairly' conclude that there was evidence that the spark arrester was out of repair; for there was evidence tending to show that an engine, properly equipped with the best approved spark arrester, and operated carefully along the railroad track, could he operated with safety so far as setting out sparks or fire is concerned. There was evidence to the effect that the defendant’s engines were equipped with the latest approved spark ar-resters ; there was evidence by eyewitnesses that they saw the sparks being emitted from the engine. From these facts it could be' ! legitimately inferred that the spark arrester was out of repair, since according to some of the evidence the best approved spark ar-rester would not emit sparks of fire to any dangerous extent. The charge is subject to the criticism leveled against it.

But it is contended by the defendant in error that if this omission in the charge quoted from rendered it erroneous, the error was harmless when considered in connection with paragraph 14 of the court’s charge, which does charge the jury that if the defendant had exercised ordinary care' to equip its engine with one of the most approved and best kind of spark arresters in common use, and that same was in good repair for arresting sparks, and that its engine was carefully operated to prevent sparks from escaping— “then you will find for the' defendant, even though you may believe that the fire originated from a spark emitted by said engine.”

This was a correct charge upon the defense made by the defendant in error. It did not contain the vice referred to in paragraph 10 quoted from. But we are unable to understand how this charge in paragraph 14 corrected the vice discussed in paragraph 10. It made a conflict between the two charges, but no correction. The charge in paragraph 10 directed the jury to find in favor of the defendant upon a finding by them which omitted one of the essentials of the defense. If we could determine that the jury based their verdict entirely upon the correct charge contained in paragraph 14, we would hold the error in paragraph 10 to be harmless; but we have no means of knowing whether the jury followed the correct charge or the erroneous charge in arriving at their verdict. When two charges upon the same subject are given to the jury, each of which authorizes a verdict for the defendant, one of which is erroneous and the other is not, it is not a presumption that the jury followed the correct charge and rejected the erroneous charge; hence we cannot conclude that the error was harmless. We recognize the rule that ordinarily the charge is to be construed as a whole, and that one part may often be looked to for tbe purpose of qualifying another part of tbe charge; but these two charges are inconsistent and contradictory, and they were calculated to .confuse and mislead the jury. Baker v. Ashe, 80 Tex. 856, 16 S. W. 36.

As aptly said by Mr. Chief Justice Phillips, speaking for this court, in the case of Gulf, T. & W. Ry. Co. v. Dickey, 187 S. W. 184, on the effect of two contradictory charges:

“The only way to make the correction is to withdraw the erroneous instruction.”

The error indicated in paragraph 10 of the court’s charge requires a reversal of the judgment of the district court.

At the time of the fire the firm of Nuss-baum & Scharff carried insurance for their protection on the cotton involved in the Stand- ! ard Marine Insurance Company, Limited, of Liverpool, England. At tile time o-f tlie trial the loss suffered by Nussbaum & Scharff had been paid to them by said insurance company. The finding of fact by the Court of Civil Appeals establishes that there had been no assignment by Nussbaum & Scharff to said insurance company at the time of the trial of the cause of action arising from the destruction of the cotton by the negligence of the railway company. In this state of the evidence the trial court instructed the jury that Nussbaum & Scharff were not entitled to recover in the suit, and that whatever cause of action they had was the property of the Standard Marine Insurance Company, Limited, of Liverpool, England, and that the jury should find against Nussbaum & Scharff and in favor of the Standard Marine Insurance Company, Limited, for any recovery which they might find against the railway company. Complaint is made of this charge by the plaintiff in error on the ground that the insurance company was not a proper party to the suit, and that the instruction placed upon Nussbaum & Scharff the burden of overcoming the prejudice which it is claimed juries commonly hold against insurance companies, and in this connection reference is made to the line of authorities which hold that it is erroneous in a ‘suit for personal injuries to prove that the defendant being sued in such case is protected by liability insurance.

We think the charge complained of was erroneous. Nussbaum & Scharff, having never assigned the cause of action upon which the suit was grounded, were its owners, and were' entitled to a recovery if the defendant in error was liable as alleged for the damage to the cotton. T. & P. Ry. Co. v. Levi & Bro., 59 Tex. 674. But we think the ground of complaint made by the plaintiff in error is not meritorious in view of the state of the pleadings and of the evidence. The undisputed evidence shows that Nussbaum & Scharff had no interest whatever in the recovery, and that they were suing only for the benefit of the Standard Marine Insurance Company, Limited, of Liverpool, England. Scharff, one member of the firm of Nussbaum & Scharff, testified as follows:

“That this firm had no interest in this lawsuit, and that they were bringing it merely because the insurance policy obliged them to do so, and that if anything was recovered it was to be the property of the insurance company.”

The firm of Nussbaum & Scharff was a nominal plaintiff only, for which reason they could not have suffered, any injury from the erroneous charge; except such injury as would in fact result to the beneficiary in Whose behalf they sued, and if injury resulted to the beneficiary, the insurance company, by reason of the prejudice whiqh juries may hold against insurance companies, as contended, the plaintiff in error cannot complain because it introduced the fact that the insurance company was interested in the recovery by voluntarily making it a party plaintiff to the suit, and asking for such recovery; and by evidence it established that the insurance company was to receive all the money which the court might require the defendant in error to pay on account of the loss. The plaintiff in error had introduced to the jury the very same fact of which it complains that the court erroneously advised the jury. We think the error in the charge, in view of the pleading and the undisputed evidence, is purely technical, with no probability of injury resulting from it, and should not be cause for a reversal of the case.

The -plaintiff iq error at the trial offered to introduce testimony of witnesses to the effect that they had frequently seen engines operated by the defendant in error throwing quantities of sparks. This evidence was excluded by the court, and such action by it is made the basis of complaint by the plaintiff in error in one of its assignments. This class of evidence is sometimes admissible. Missouri Pacific Ry. Co. v. Donaldson, 73 Tex. 124, 11 S. W. 163. It is relevant and should be admitted when it tends to rebut a contention by the railway company that the spark arrester in use was in good repair and would not emit sparks, and that the servants of the railway company in charge of the engine exercised ordinary care in its operation to prevent the emission of sparks. A party tq a suit should be afforded an opportunity to disprove or rebut a material contention by his adversary, but in this case the evidence offered is indefinite as to time and place, and we think would not come within the rule stated. The emission of sparks on previous occasions, remote from the time and place of the commission of the negligence upon which the suit is based, under the circumstances of this case, would not tend to rebut the railway company’s contention that the spark arrester was in good repair at the time of the injury complained of, and that its servants in charge of the engine exercised ordinary care in its operation to prevent the emission of sparks. Furthermore it was found as a fact by the Court of Civil Appeals that the fire was started in the cotton for whose loss a recovery is sought by the railway company’s engine No. 12. The evidence offered is not confined to the emission of sparks from that particular engine on former occasions. We think its exclusion in the form offered was proper.

For the error indicated the judgments of the Court of Civil Appeals and of the district court should be reversed. The cause should be remanded to the district court for another trial. It is so ordered.
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source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    SLAYDEN v. PALMO.
    (No. 2501.)
    (Supreme Court of Texas.
    May 16, 1917.)
    1. Principal and Agent <©=>190(2) — Declaration-Evidence.
    Where defendant firm offered testimony of its manager, on the issue of plaintiff’s abandonment of the contract in suit, that after a certain time plaintiff never asserted to the manager any rights under the contract, and that he had no recollection of plaintiff’s ever thereafter alluding to it, testimony that the manager, in a conversation with plaintiff’s attorney concerning the contract, stated that he would advise a member of the firm to settle the controversy with plaintiff in a manner proposed by the attorney, was competent in rebuttal of the manager’s previous testimony.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. § 719.]
    2. Appeal and -EKeor <®c=>1050(1) — Haemless Eekok — Evidence.
    Where incompetent testimony was admitted, the admission of similar testimony later without objection precludes reversal, particularly where the incompetent testimony is unrebutted.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4156, 4157.]
    3. Tkial <©=>105(1) — Failtjee to Object to Testimony.
    Failure to object to certain testimony' furnishes no ground for the admission of similar testimony when properly objected to.
    [Ed. Note. — For other cases, see Trial, Cent, pig. §§ 260, 261, 266.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by Mi Palmo against S. W. Slay-den & Co., a partnership. From a judgment for plaintiffs, defendant S. W. Slayden appealed to the Court of Civil Appeals, which affirmed (151 S. W. 64,9) and defendant brings error.
    Affirmed.
    George Clark and E. J. Clark, both of Waco, J. E. Yantis, of Austin, and Sleeper, Bo'ynton <& Kendall, of Waco, for plaintiff in error. O. L. Stribling and Downs & Webb, all of Waco, for defendants in error.
   PHILLIPS, C. J.

The action was one in damages by Mi Palmo against S. W. Slay-den & Co., a partnership of Waco, Texas, for the breach of a written contract executed on November 23, 1897, in the name of the latter firm by T. B. Slayden, a member of the firm as charged, by the terms of which Palmo was to convey a certain farm belonging to him to S. W. Slayden, or to whom Slayden should direct, for a stated consideration. This is the third appeal. The case, on former appeals, is reported in (Civ. App.) 90 S. W. 908; 100 Tex. 13, 92 S. W. 796, and 53 Tex. Civ. App. 227, 117 S. W. 1054.

On the second appeal it was held by the Court of Civil Appeals that the transaction to which the contract related was not within the ordinary scope of the business in which Slayden & Co. were engaged, and no right of action could be predicated upon it upless its ratification was established. It was remand-’ ed for the settlement of that issue. On the, trial following, recovery was had against S. W. Slayden, the effect of the verdict being that he had ratified the contract. The judgment was reversed by the Court of Civ.il Appeals on the original hearing, but on rehearing was affirmed.

W. H. Lastinger was the general manager both of Slayden & Co. and S. W. Slayden, individually, invested, it appears, with a general authority as to their respective affairs. .Slayden was away from Waco when the contract was executed, and most the time thereafter to the filing of the suit in July, 1901. In the intervening period Lastinger had different dealings with Palmo, in which he acted for the firm or Slayden, some of them having relation to the farm, the subject of the contract. He wrote the contract, itself, though, according to his testimony, T. B. Slayden, alone, acted in the negotiation with Palmo leading to it. It was in proof that following the contract one transaction,— which afterwards failed, for the sale of the farm, in attempted fulfilment and in recognition of the contract as Palmo claimed, was effected partly through him as .Slayden’s njanager or agent. Whatever the exact scope of his powers, he is shown to have sustained a confidential and important relationship to Slayden, and to have been largely entrusted with the' management of his affairs.

An important defense in the case was that Palmo had abandoned the contract. Upon this issue Lastinger was a principal witness for Slayden.- The abandonment of the contract was sought to be established, in part, by his testimony, to the effect that after he notified Palmo of Slayden’s repudiation of it, shortly after its execution, “Palmo, dropped it; that he never insisted any more on any rights under the contract, and went on for three years and a half before he brought any suit upon it; and that he had ho recollection of Palmo’s ever alluding to the contract afterwards, or claiming any right under it.”

Judge Richard I. Munroe was Palmo’s attorney and represented him in the.filing of the suit. He was a witness in Palmo’s behalf in rebuttal, and was permitted to testify, over the defendant’s objection, that Las-tinger, in a conversation had between them concerning the contract, in June 1899, stated that he would advise Slayden to settle the controversy in the manner then proposed by Judge Munroe. One part of the question to which this answer was made was whether Lastinger stated that “he thought Slayden ought to settle with Palmo under the contract.” In detailing, however, the statement made by' Lastinger, it was, in substance, that “he would advise” Slayden to make the settlement proposed. The objection urged to the question was that it was immaterial in that the opinion of the agent was not admissible for the purpose of impeachment. The admission of this testimony was one of the grounds for the reversal by the Court of Civil Appeals on the original hearing. It is the question upon which the writ of error was granted, and is the only one which we deem it necessary to discuss. Our jurisdiction of the case, we should say, is not governed by the Act of 1913.

On rehearing, the Court of Civil Appeals indicated, though not so affirming, that the testimony was admissible for the purpose of disproving the averment of the defendant in respect to Palmo’s abandonment of the contract. It held it to be competent as an admission, since it appeared that Lastinger was the agent of gladden invested with plenary powers. It furthermore held that testimony from Palmo to the same effect was admitted without objection, and for that additional reason refused to reverse the judgment. The record does not disclose that any objection was made to the testimony of Palmo to which the Court of Civil Appeals referred. In Slayden’s motion for rehearing affidavit was made by his counsel that the Palmo testimony was in fact objected to, and a cer-tiorari was prayed for that the record might be completed in order for this to be shown. The motion was overruled. The prayer for a certiorari was denied, — we assume upon the ground that it was not timely.

We think the answer of the witness was competent in rebuttal of Lastinger’s testimony offered by Slayden upon the issue of Palma’s abandonment of the contract. Whether it was admissible upon the issue of ratification, in view of the character of Las-tinger’s agency, it is unnecessary to determine. That issue was distinct from that of the contract’s abandonment. Lastinger’s testimony, that after a certain time Palmo never asserted .to him any rights under the contract and that he had no recollection of his ever thereafter alluding to it, was relied upon by the defendant as proof that Palmo had abandoned the contract. It tended toi establish that defense, and could have been offered for no other purpose. It derived its force as such proof purely from the fact that Lastinger stood in such relation to Slayden as that Palmo’s failure to make to him further claim under the contract was tantamount to his abandoning it as against Slay-den. Slayden’s tender of Lastinger’s testimony upon the issue amounted to an affirn> anee of such relation. Otherwise, the effect of Lastinger’s testimony was that Palmo had merely failed to claim under the contract to one as to whom there could be no reason for its assertion, and to whom, therefore, its affirmation could not be regarded as in anywise .natural or owing.

If Lastinger represented Slayden to such extent as to render Palmo’s failure to make claim to him under the contract competent proof of its abandonment, as Slayden in effect affirmed by the tender of his testimony upon tire issue, we think he necessarily stood in such relation to him as to malee his own recognition of the contract equally competent rebuttal proof of its continued assertion. Slayden, in other words, could not in our opinion make use of Lastinger as a means of effecting an abandonment of the contract through a failure by Palmo to make claim to him under it, without being bound, upon that issue, by acts and statements of Lasting-er which evidenced his own understanding that, whatever the force of the contract, Pal-mo still relied upon it. His statement, as testified to by Judge Munroe, was evidence that he recognized that Palmo was still insisting upon the contract. It was in direct rebuttal of his own testimony which had been adduced by Slayden for the purpose of showing that through the nature of his conduct with him, Palmo had abandoned it.

Since it does not appear to have been claimed upon the trial that Lastinger had authority to ratify the contract, the testimony probably should have been limited to the issue of abandonment, had such request been made. But the request was not made.

Aside from this, at a subsequent stage of the trial Judge Munroe was again placed upon tlie stand and gave substantially the same testimony, without objection as disclos-. ed by the record. His latter testimony was:

“I started to bring a suit to the October, 1900, term of this court, after we reached the conclusion wo could not get any settlement. We (meaning Palmo and himself) talked to Mr. Lastinger, and he Said he had conferred with Mr. Slayden and urged a settlement.”

Were the testimony discussed incompetent, the admission of this latter testimony without, objection precludes a reversal upon its account. It is true that the failure to object to certain testimony furnishes no ground for the admission of similar testimony when properly objected to. McLane v. Paschal, 74 Tex. 27, 11 S. W. 837. But this is a rule for the trial court. Whether an appellate court should reverse a judgment because of the admission of improper testimony, when testimony to the same effect is permitted without objection, is another question. This court has repeatedly ruled that a reversal will not be ordered under such circumstances. Railway Co. v. Hill, 70 Tex. 54, 7 S, W. 659; Railway Co. v. Mackie, 71 Tex. 498, 9 S. W. 451, 1 L. R. A. 667, 10 Am. St. Rep. 766; Letcher v. Morrison, 79 Tex. 241, 14 S. W. 1010;, Wallis v. Schneider, 79 Tex. 479, 15 S. W. 492. See, also, 9 Ency. of Evidence, 42. Particularly is this true where the testimony complained of is unrebutted, as was the condition here, since Lastinger made no denial of the statement testified to by Judge Mun-roe.

The judgments of the District Court and Court of Civil Appeals are affirmed.

XANTIS, J., being disqualified, did not take part in the decision of this case.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    MARTIN v. STATE.
    (No. 4467.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.)
    Fobgery <®=>44(3) — Evidence — Sufficiency.
    Evidence held sufficient to sustain conviction of knowingly having a forged check in his possession with intent to pass it as true, under Pen. Code 1911, art. 939, defining the offense.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 119, 120.]
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    Fritz Martin was convicted of forgery, and appeals.
    Affirmed.
    F. B. Martin, of Longview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of knowingly having a forged check in his possession with intent to pass it as true, under article 939, P. C., and was assessed the lowest punishment.

The sole objection to the court’s charge was fully met by the court in giving appellant’s special charge on that subject covering the point of objection. The court gave a correct charge properly submitting the question upon the offense of which appellant was found guilty, and also therein gave a correct charge on circumstantial evidence. There is no objection at all to the court’s charge other than as stated above.

There is no bill of exceptions in the record. The sole question is whether the evidence was sufficient to sustain the conviction. Appellant contends that it was not, and that the state did not disprove as untrue his sworn written testimony in the examining trial, which was introduced by the State.

Appellant did not testify at all on this trial. He pleaded for a suspended sentence.' The sole testimony he introduced was by Mr. Martin. who testified that he had known appellant all his life, and that he had never been convicted of a felony in this or any other state, and that there was no reason or excuse for him to commit the crime of forgery ; that he left home some weeks before his arrest and had some money at the time; he did. not know how much; that appellant could have secured what money he needed from him at any time, if necessary.

As the testimony introduced by the state is comparatively not long, we will copy the whole of it.

L. E. Jones, testified:

“I live in Wichita Falls, Wichita county, Tex., and am the general manager of the corporation known as Jones-Ivennedy Dry Goods Company of Wichita Falls. I had a business transaction with the defendant, Fritz Martin, in our store on the 28th day of September, 1916. What led up to the transaction was a girl down in the flats phoned up and wanted to buy a coat, and we sent some coats down to her place for inspection, and at that time she said that there was a party at her place who would pay for the coat. She selected a coat and sent it back, and this defendant came in our store and gave me a check on the People’s Bank & Trust Company of Ryan, Okl., signed by Fritz Martin. I saw him sign this check, and he told me at that time that he had the money in the bank to pay same. After I had phoned the bank at Ryan, Old., I did not deliver this coat to the girl, but held up the same. I then had defendant arrested. At the_ time of his arrest he was in a pool hall. This man who is the defendant in this case is the same party that give me this check for $75, and is the same’ party who was arrested in the pool hall.”

W. J. Howard testified:

“I am the justice of the peace of precinct No. 1, Wichita county, Tex., and as such justice of the peace held the examining trial of this defendant, and, as this defendant has been duly warned by me as required by law, he made the following voluntary statement: [Here follows written sworn statement by appellant, which is:]
“ ‘Fritz Martin being advised by W. J. Howard that he did not have to make any statement at all, and any statement he made could be used as evidence against him on the trial of the case concerning winch said statement was made, did voluntarily make the following statement to W. J. Howard:
“ ‘ “I am 27 years of age. I was born in 1889 on the 24th day of October. I am a single man, and live at Longview,- Tex. I came to Wichita Falls night before last, and got here about 12 o’clock. I intended to go to Seymour to pick cotton when I came here. I am a common laborer and have no profession or trade. I- did not give the Jones-Kennedy Dry Goods Company a check yesterday for $75. I gave no dry goods company a check yesterday for a coat. I have no money in any bank at Ryan, Okl. I have no money in the People’s Bank & Trust Company of Ryan, Okl. I deposited $10 in that bank on last Monday. I think it was one day this week I drew that $10 out of the bank. I drew this $10 out day before yesterday. That is the only money I ever had deposited in that bank. That bank issued me a 'deposit slip for $10, but never issued me a deposit slip for $110. I was in a poker game with F. E. Coats yesterday, and he gave me a check for $27. That check for $27 was given to me by F. E. Coats. It was for winnings in a stud poker game. This John Arnett check for $11 was for a gambling debt given me by John Arnett. We had this game near a railroad here. I don’t know what either John Arnett or F. E. Coats do.
“ ‘ “Coats is a little fellow, and was in duckings, and is a lightheaded fellow. He is a man about 30 years, Hght-complected and clean-shaven. John Arnett is a small black-headed fellow, weight about 130 pounds. He is a man about 25 years old, clean-shaven; a man about 5 feet and 6 inches tall.
F. E. Coats
Eleven
Twenty-Seven
9 28 1916
9 25 1916
Fritz Martin
40
60
110
40.00
60.00
110.00
«< «ijjjg above ⅛ a specimen of my handwriting. These checks which I have, signed by John Arnett and F. E. Coats, were written b(y them. I did not write any part of either of those checks. I did not write any word on either of these checks. The deposit slip -which I bad from the People’s Bank & Trust Company of Ryan. Okl., was taken off of me last night. I was just marking on this deposit slip there. The deposit slip was not like it is now when X received it. I was sitting down and,marking on it. The deposit slip was for $4 and $6 the figures ‘4’ and ‘6’ were put on the deposit slip by the banker. I added the ciphers to the figures ‘4’ and ‘6.’ I just put those ‘O’s’ on it. I also added the figure T to the ‘10’ and made figure ‘10’ appear to be ‘110.00.’ I retraced the ⅞,’ ‘6,’ and ‘R/ with my pencil. I did this while on the train or at the depot at Ringgold, Tex. I did this merely scratching, that’s all. I say I did not give Jones-Kennedy Dry Goods Company or any other dry goods company a check for $75 yestei-day. I gave no one a cheek for $75 on yesterday. I did not give Jones-Kiennedy a check for $75 yesterday.” ’ ”

W. S. Cowling testified:

“I know the defendant, Fritz Martin, and saw him in the Jones-Kennedy stoi’e on the 28th of September, 1916. I work in this store. I remember something about a transaction in which he gave a check to Mr. Jones for $75 for a coat. I also remember when he was arrested. He was ai-rested in the pool hall on Seventh street. I was. present at the time he was arrested. I was with the officei-s when they arrested him, and when they arrested him they earned him to the city hall and there searched him. I was present when they searched him. At the time they searched him I saw them take off of his person two checks, one drawn on the First National Bank of Wichita Palls for $11 purporting to be signed by John Arnett and the other purporting to be signed by P. E. Coats. These checks which you show rae are the two checks that were taken off of this defendant at the city hall. There was also a deposit slip taken off of this defendant at the city hall, and I saw this deposit slip in his possession when he was in the Jones-Kennedy store at the time he gave Mr. Jones a check for $75. I do not know either P. E. Coats or John Arnett; I never have 'heard of these parties. The defendant was arrested in Wichita county, Tex., and had these checks together with this deposit slip in his possession in Wichita county, Tex.”

The state next introduced in evidence the said purported check made the basis of the conviction herein, as follows:

Wichita Palls, Texas, 9/28, 1916. No. -.
The First National Bank 88--129 of Wichita Falls.
Pay to Pritz Martin or bearer $27.00 Twenty-Seven /100 Dollars.
F. E. Coats.

The state next introduced the following purported check:

Wichita Palls, Texas, 9/25 1916. No. -
The First National Bank 88-129 of Wichita Palls.
Pay to Pritz Martin or bearer $11.00 Eleven /100 Dollars.
John Arnett.

The state next introduced the said deposit slip which had been identified by Mr. Cowling as the one taken off of defendant’s person, as follows:

“Deposited in People’s Bank & Trust Co. Ryan, Okl.
By Fi-itz Martin
9-25 1916
Please list each check separately
Dollars Cents
Currency
Silver 40.00
Gold
Checks 60.00
110.00

CM

W. M. McGregor testified:

“I am the active rice president of the' First National Bank of Wichita Palls, Tex. X have been engaged in the banking business for more than twenty years. During this time I have had occasion to examine many signatures. X have examined the cheeks and the signature offered in evidence here. It is my opinion that the check purporting to be signed by P. E. Coats and the check purporting to be signed by John Arnett were written by the same person. It is also my opinion that the person who wrote the names ‘John Arnett,’ ‘E. E. Coats,’ and ‘Pritz Martin’ in the statement of the defendant offered in evidence was the same person who wrote the two checks and who signed the two checks. I believe the handwriting on these several instruments is all the same. P. E. Coats never did have an account with the First National Bank of Wichita Palls, Tex., and I know no such person. John Arnett never did have an account with the First National Bank of Wichita Palls, and I do not know this person. Neither of these persons have ever been a depositor of ours.”

W. I/. Robertson testified:

“I am assistant cashier of the City National Bank of Wichita Palls, Tex., and have had occasion to examine signatures for the past 20 yeax-s. I have been teller for this bank for a number of years, and recognize all signatures which come under my inspection during that time. I have examined the handwriting on the two checks offered in evidence, one purporting to be signed by P. E. Coats, and one purporting to be signed by John Arnett. I have also examined the handwriting of the defendant in the statement offered in evidence made before W. J. Howard. It is my judgment and opinion that the person who signed ‘E. E. Coats’ to the check offered in evidence and who signed ‘John Arnett’ to the cheek offered in evidence is the same handwriting as that in the body of this statement made to W. J. Howard. I am well ac-qxiainted in the city of Wichita Palls, and have not known anybody by the name of P. E. Coats or John Arnett.”

Edna Mayes testified:

“I live in the Plats. On or about the 28th day of September, 1916, this defendant, Pritz Martin, was in my place in the Plats, and there was a girl there; and this girl, in the presence of the defendant, said that he was going to buy her a coat, and I asked her why she did not get him to buy her a hat also. She said that he would not buy her a hat. After she made this statement, she had some coats sent down to my place and selected one of these coata This defendant said that he would pay for the same. This was on the 28th day of September, 1916.”

R. L. McPall testified:

“My name is R. E. McPall. I live in Wichita Palls, Tex. I have lived here for eighteen or twenty years. I am the deputy sheriff and jailer at this time, and have been deputy sheriff and jailer for the past three years. X remember when the defendant was arrested and was present at his examining trial. I have had the two checks in my possession since the time of his arrest, the two checks signed ‘F. E. Coats’ and ‘John Arnett’ payable to the defendant. After his ai-rest and before the examining trial I made inquiry for P. E. Coats and John Arnett, but never could find who they were, where they lived, or what they did. After the examining trial I also continued to make inquiry for these two parties, but never could locate them or hear of them or any one who knew them. After this defendant was indicted for this offense a sub-pcena was delivered to me for P. E. Coats and John Arnett, and I made thorough inquiry and investigation for these pax-ties, but .1 never could locate them. I have asked nearly every business house in Wichita Falls if they knew these parties, but could find .no one who had ever seen them. I have asked Mr. Oral Jones, the paying teller at the Oity National Bank, Mr. T. T. Reese, the assistant cashier at the Oity National Bank, Mr. B. Montgomery, the collector of said bank, Mr. O. W. Reid, the cashier of the National Bank of Commerce, W. R. Ferguson, president of the Wichita State Bank, Wm. Huff, teller at the First National Bank, D. B. King-, groeeryman, and B. M. Bul-lard, tax collector of Wichita county, and a great number of other persons, about these parties, but have been unable to find any one who ever knew them or who ever heard of them.”

L. E. Jones, recalled, testified.:

“I have been engaged in the mercantile business in Wichita county for a number of years, and do not know F. E. Coats or John Arnett. At the time the defendant gave me the check for $75 he also showed me a deposit slip for $110 upon People’s Bank & Trust Company of Ryan, Okl. This is the deposit slip which he showed me that the state has here offered in evidence.”

We regard the evidence as a whole to circumstantially corroborate the bank experts in their testimony to the effect that the names signed to the cheeks was appellant’s handwriting.

The evidence was sufficient to sustain the conviction. The judgment is therefore affirmed.
      ■fe^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    BAXTER v. STATE.
    (No. 4462.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    1. Criminal Law <®=> 1091(3) — Appeal-Bill of Exceptions — Statement.
    A bill of exceptions to the action of the court in allowing a witness who had been in the penitentiary to testify, on the ground that it was not sufficiently shown that he had regained his rights of citizenship, should state the evidence given by such witness to enable the appellate court to determine its materialty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2831.]
    2. Witnesses <@=>78 — Disqualification-Burden of Proof.
    As a general rule, a party desiring to exclude the testimony of one convicted of a felony must prove his disqualification by the record showing final conviction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-200.]
    3. Criminal Law <@==>1144(12) — Appeal and Error^-Review — Presumptions.
    In the absence of any recital in the bill of exceptions to the contrary, the appellate court will be bound to assume that the record showing the conviction of a witness of a felony was not introduced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3029, 3030.]
    4. Homicide <@=>158(1) — Evidence — Admissibility.
    Where witnesses on behalf of the state testified that before the homicide defendant had showed them a lead bullet, stating that he had two more and stating in substance that he was going to kill the deceased, the rejection of testimony of a witness offered to rebut such evidence was not error, where it does not appear from the Mil of exceptions that such witness was present and heard the conversation testified to, nor when the alleged conversation which he offered to testify to took place — whether before or after the homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 293.]
    5. Criminal Law <@=>1144(12) — Appeal and Error1 — Review—Presumptions.
    The legal presumption on appeal is that the ruling of the trial court in excluding evidence was correct, unless the contrary is explicitly shown by the bill of exception's.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3029, '3030.]
    6. Criminal Law <@=>1144(18) — Appeal and
    Error — Record—Presumption.
    Where the evidence heard regarding the matters mentioned in a motion for new trial was not brought before the appellate court in any manner by the record, the correctness of the trial court’s conclusion overruling the motion for new trial must be presumed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901', 3036.]
    Appeal from District Court, Rains County; Wm. Pierson, Judge.
    John Baxter was convicted of murder, and he appeals.
    Affirmed.
    Chas. L. Hubbard and W. F. Shipp, both of Emory, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a judgment condemning appellant to confinement in the state penitentiary for a term of 11 years for the murder of Calvin Sellars.

Appellant was the son-in-law of deceased. There was some evidence of bad feeling between them. Mrs. Sellars, mother of deceased, an eyewitness, testified: That her son traveling on horseback stopped at her gate and talked a few moments with her, and as he was about to leave remarked, “I see John now.” That he then rode away, meeting the appellant, John Baxter, about 90 steps from the witness. That as they met deceased said, “God damn you, I see you are carrying your gun for me.” That appellant immediately jumped out of his buggy and shot the deceased while deceased was on his horse, and ■ apparently had not stopped his horse, and that after he fell he had the bridle reins wrapped around his arm. Appellant’s version was that when he and deceased met, and after deceased used the language above quoted, about carrying a gun for him, deceased rode back toward him', reached for a piece of timber which was lying on the ground, and said, “God damn you, I will break your neck,” at which time appellant shot. There was evidence of previous bad feeling between the two. The issues of self-defense and manslaughter were both raised, and these, together with the issue of murder, were submitted to the jury in a charge of' which there is no complaint.

The appellant’s second bill of exceptions contains the following:

“The state offered as a witness one Jess Payne, and the defendant objected to said Payne testifying for the reason that the said Payne had been to the penitentiary, being sent there for introducing stolen property into the state, that the said Payne at the time he was offered as a witness did not have his pardon with him, but testified that he had been granted a pardon, that his citizenship had been restored, that he paid his poll tax, and worked the road, when the rule of evidence is that if the original cannot be found accounting for same is not sufficient in criminal cases of this Kind, but a copy of same is next best evidence and shall be introduced for the purpose of establishing whether the party has a pardon that gives him the lights • of a citizen, but over the objection of the defendant the said Payne was allowed to testify and give in evidence very damaging evidence against this defendant, which was error on the part of the court in permitting same.”

It will be noted that the bill does not state the evidence given by Payne. This should be done to enable this court to determine its materiality. Clayton v. State, 67 Tex. Cr. R. 311, 149 S. W. 119; Todd v. State, 57 Tex. Cr. R. 15, 121 S. W. 506; Canon v. State, 59 Tex. Cr. R. 398, 128 S. W. 141; Ellis v. State, 59 Tex. Cr. R. 630, 130 S. W. 171; Fifer v. State, 64 Tex. Cr. R. 203, 141 S. W. 989, and numerous cases cited in Yernon’s Ann. C. C. P. p. 542, note 29, and Branch’s Ann. P. C, p. 135. Granting that the witness gave material testimony, we do not think there is error shown in permitting him to testify.

The general rule is that a party desiring to exclude testimony of one 'convicted of a felony must prove Ms disqualification by the record showing final conviction. Vernon’s Ann. C. C. P. p. 703; King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135. In the absence of any recital in the bill to the contrary, tMs court would be bound to assume that the record showing Payne was a felon was not introduced. Zweig v. State, 74 Tex. Cr. R. 306, 171 S. W. 747; Vernon’s Ann. C. C. P. art. 744, subdiv. 21, and notes page 537, and cases cited. Under the decisions of tMs court, we must accept this statement of the trial judge as true. Vernon’s Ann. C. C. P. art. 744, p. 556, note, subdiv. 35, citing Goss v. State, 57 Tex. Cr. R. 557, 124 S. W. 107, and numerous other cases. In view of this qualification of the bill and the other matters stated, we would not be authorized to decide that there was error in permitting Payne to testify.

Prom bill of exceptions No. 1 we take the following quotation;

“On the trial of the above styled and numbered cause, the defendant offered as a witness one Doc Price, who would have testified that he (Doc Price) bad a conversation with the defendant in regard to running or molding leaden bullets for the purposes of killing hawks. This was very material from the standpoint of the defendant, in this: That the state undertook to prove and show motive on the part of the defendant to make out its cause of murder, the witnesses Payne and son having testified that the defendant had a motive when he told them that ‘if the deceased swallowed one of these he would not whip his wife again’; the court having sustained an objection to same raised by the state’s counsel on the ground that same would be self-serving declarations on the part of tbe defendant. That the said Price would have testified that the name of the deceased Sellars was not named or mentioned at this time and could not have been a declaration on the part of the defendant that would be or in any wise be self-serving.”

Tbe statement of facts shows that Melton Payne testified on behalf of the state that about a month before tbe homicide appellant showed the witness a lead bullet, stating that he made it and had two more, and stated in substance that he was going to kill deceased. Another witness, J. F. Payne, appears from the statement of facts to have testified to substantially tbe same conversation. It is assumed that the testimony of Price mentioned in the bill of exceptions was offered to rebut the evidence of the two Paynes. It does not appear from the bill that Price was present and heard the same conversation testified to by tbe Paynes, nor when tbe alleged conversation wMcb Price offered to testify to took place — whether before or after tbe homicide. The legal presumption is that the ruling of the trial court in excluding evidence was correct, unless the contrary is explicitly shown by tbe bill of exceptions. Branch’s Ann. P. C., § 207, p. 132; Eldridge v. State, 12 Tex. App. 208; Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074; Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; Anderson v. State, 70 Tex. Cr. R. 594, 157 S. W. 1197.

Appellant insists that tbe evidence was insufficient. We bave carefully read tbe statement of facts, and, without further quoting it, will say we cannot agree with this contention of appellant.

There are several matters mentioned in the motion for new trial relating to the venire and other matters occurring upon the trial of the case. These all depend upon the facts, and it appearing from the judgment overruling the motion for new trial that the court heard evidence touching these matters, and the evidence so heard not being brought before this court in any manner by the record, the correctness of the trial court’s conclusion must be presumed.

Finding no error in tbe record, it is ordered that the judgment of the lower court be affirmed.
      ©=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    THODBERG et al. v. STATE.
    (No. 4430.)
    (Court of Criminal Appeals of Texas.
    April 11, 1917.
    Rehearing Granted May 2, 1917.)
    Bail <®=»79(1) — Fobeeittjee or? Bond — Gbounds.
    Where defendant gave bond and failed to appear, and forfeiture was taken October 4, 1915, hut he returned and went to trial and was convicted on January 3, 1916, and on January 4th filed his answer in the scire facias proceeding on the bond, and on October 2, 1916, final judgment was entered after evidence that at the time of the forfeiture he was sick in a hospital, the forfeiture of the bond should not have been made final in view of Code Cr. Proe. 1911, art. 500, subd. S, providing that the sickness of the principal prevented his appearance at court, will exonerate from liability on bail bond, if such principal appear before final judgment on the recognizance or bail bond to answer the accusation against him, or show sufficient cause for not so appearing.
    [Ed. Note. — For other cases, see Bail, Gent. Dig.-§§ 350-362, 365-368.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    V. H. Thodberg and others were charged with unlawfully carrying a pistol, and gave a Jsail bond. From an order under scire facias proceedings forfeiting such bond, Thod-'berg appeals.
    Appeal dismissed. .On motion for rehearing, motion granted, judgment reversed, and cause remanded.
    Mark Callaway, of Comanche, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This appeal is from a forfeited bail bond under scire facias proceedings. Motion is made by the Assistant Attorney General to dismiss the appeal because brief in the case was not filed in the court below. Under the recent case of Rudy v. State, 191 S. W. 698, and authorities there cited, the motion is well taken. The. appeal will be dismissed, and it is accordingly so ordered.

PRENDERGAST, J., absent.

On Motion for Rehearing.

DAVIDSON, P. J.

This is an appeal from a scire facias final judgment. On a former day of the term the appeal was dismissed because the brief for appellant was not filed in the trial court. Motion is made to reinstate the case with a showing that the filing of the brief in.that court was waived by the attorneys for the state. This is made apparent by the exhibits, affidavits, and agreements as shown on the motion for reinstatement. In view of these matters the appeal will be reinstated and the case disposed of on its merits.

The record shows that appellant had given bond under a charge of unlawfully carrying a pistol. Subsequent to this the case was called, and appellant failing to answer, his appearance bond was forfeited. The forfeiture was taken on October 4, 1915; the judgment nisi was entered. On January 3, 1916, appellant went to trial and was convicted for carrying a pistol. On January 4, 1916, his answer was filed in the scire facias proceeding. On October 2, 1916, the judgment final was entered. His answer sets up several matters, among others, at the time of the forfeiture of the appearance bond he was sick in a hospital in the city of Ft. Worth. About this there was no issue, and may be taken as a conceded fact. On his return to Comanche county he appeared before the court, and his case was tried, and a conviction resulted on the 3d day of January succeeding the forfeiture in October. His answer sets up this sickness and the conviction. Under these circumstances we are of opinion that the forfeiture should not have been made final. This is so provided by statute (article 500, C. C. P., subd. 3), which provides:

“The sickness of the principal, or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no.fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, unless such principal appear before final judgment on the recognizance or bail bond to answer the accusation against him, or show sufficient cause for not so appearing.”

He did appear and plead, and was convicted on January 3, 1916, and the judgment final was entered in October, 1916, several months after the conviction. This statute has been frequently discussed and decided by the courts, and under such circumstances as are presented it has been held that the forfeiture should not have been made final. For collation of these authorities see Vernon’s Annotated Criminal Statutes, at page 266, for quite a number of cases. We deem it unnecessary to insert them in this opinion.

Under those authorities and for the rea- • sons stated, the motion for rehearing is granted, and the judgment is reversed and the cause remanded.
      d^rmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    JONES v. STATE.
    (No. 4466.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    1. Witnesses ©=>367(1) — Impeachment—Evidence-Admissibility.
    In a prosecution for violation of the local option law, the accused should be permitted to prove a conspiracy between the state’s witnesses and officials, and that such witnesses, to escape punishment for crimes for which they were then in jail, fabricated testimony against accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1184.]
    2. Witnesses ©=3404 — Impeachment — Grounds.
    If a witness should deny the conspiracy, it would form a subject of impeachment.
    [Ed. Note.' — For other cases, see Witnesses, Cent. Dig. §§ 1271, 1272.]
    3. Criminal Daw ©=>1118 — Appeal and Error-Motion for Continuance.
    Where a motion for continuance was on the ground of the absence of witnesses by whom a defendant expected to prove an alibi covering the time when it was stated that he had sold the liquor, but neither the application nor the bill shows whether it was the first or second application, the matter is not so,presented as to be considered on appeal, although the testimony was material, since, if it was a second application, the statute was not complied with, although it was complied with as an application for a first continuance.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2926.]

      4. Criminal Law <§=>649(2) — Appeal and ERROR — P O STP ONEMENT.
    Where an application for postponement showed the materiality of the testimony, the presence of witnesses at the beginning of the trial, and their absence without knowledge or consent or connivance of the defendant, and that the postponement would have caused a delay of but an hour or two, with the probability of securing the attendance of the witnesses, the postponement should have been granted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1515.]
    5. Criminal Law <⅜=649(1) — Conflict Between Motions eor Continuance.
    Objection because of variance between two applications for continuance held too technical, where statements in both might be true.
    [Ed. Note. — For other cases, see Criminal Law, Cent. "Dig. §§ 1512-1514.]
    6. Criminal Law <®=>649(2) — Appeal — Reversible Error.
    In a prosecution for violation of the local option law, where the evidence was sharp in its conflict as to whether the defendant had made the sales testified to, denial of a motion for postponement for the purpose of securing the attendance of witnesses by whom defendant expected to prove an alibi covering the time and place of the alleged sales mentioned by the state’s witness was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1515.]
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Jack Jones was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    Harris & Harris and Arthur A. Seale, all of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being fixed at a fine of $25 and 20 days’ imprisonment in the county jail.

The state’s theory, supported by its evidence, was to the effect that appellant sold whisky to Tom Turner along about noon of the 10th day of December, 1916. The state’s evidence also is to the effect that Turner and others gave appellant money, and he went off and got the whisky and brought it to them. Appellant’s theory was that he did not, directly or indirectly, either sell or obtain any whisky for Turner, and offered evidence to prove an alibi as to the time of day relied upon by the state. 1-Iis evidence, such as he had before the jury, was to the effect that he was working for a lumber company that day at the time indicated. Appellant’s evidence was contradictory of any sale at the time and place, and a denial that he had any whisky at said time and place. His theory was, further, that Tom Turner and Ike Ayers, being in jail, entered into an agreement with the county attorney that, if he and Ayers would tell where they got the whisky, he would not prosecute them. This eventuated in two charges, one for purchasing for Ayers and the other for Turner. He was acquitted in the Ayers case, and this trial seems to have immediately followed that trial. His theory further was that these parties entered into a conspiracy, when the offer was made by the county attorney and other officials to exonerate them from punishment if they would inform against those from whom they obtained whisky, and that their testimony was fabricated, and they testified to immune themselves, by charging these transactions on appellant. This is a sufficient statement of the case.

While the bill of exceptions is not clear and full, yet it does state that they expected to prove by Turner this conspiracy to immune themselves from punishment for cases on which they were then in jail. The bill is hardly sufficient, simply alleging he expected to prove these matters as stated. Upon another trial the defendant should be permitted to prove, if he can do so, that such conspiracy was formed between Turner and Ayers for the purpose indicated as- original evidence. If Turner should deny it, then it would form the subject of impeachment. As the bill is presented, this matter is thus treated, so that upon another trial, if properly brought before the court, he should have the benefit of this testimony.

Motion for continuance was made for the absence of certain witnesses by whom he expected to prove an alibi covering the time mentioned by Turner. This matter is not so presented technically as to be considered, because the application and the bill both fail to show whether it was the first or second application. The testimony was material; but if, however, it was the second application, the statute was not complied with, though complied with as an application for the first continuance.

Another bill shows appellant was refused a postponement of the trial. It in•cludes the names of those witnesses set out in the application for a continuance in a general way, but specifically a postponement was sought for the absence of Gentry, by whom he expected to prove that he was at the car shed or engine room, working with and for him, at the time indicated by Turner as the hour of the sale of the whisky to Turner. There are two other witnesses named, also, by whom he expected to prove important facts. ~ This postponement should have been granted. The application shows the materiality of the testimony and the presence of these witnesses at the trial on Tuesday evening in accord with the process that had been served upon them. When defendant began offering his testimony Wednesday morning, they had absented themselves. He asked that they be brought in, so he could have the benefit of their testimony. The alleged residence of these witnesses was at the town of Mayotown, a little village 12 miles from Nacogdoches, where all these matters' are said to have occurred. These witnesses were alleged to hays been absent without the consent or connivance of the defendant. Where important witnesses absent themselves, without the knowledge or consent or connivance of the defendant, he is entitled to a postponement, and the application shows that the postponement would have caused loss of hut a short time, an hour or two, with the probability of securing the attendance of the witnesses.

The state contends in its brief that there is a conflict as to the matter set up in the application for continuance and that for postponement. ' It does not occur to the writer that this is correct. One of the witnesses mentioned in the continuance was named Orouch, a white man. Appellant, it seems, is a negro. By Orouch, as set out in the application for continuance, it was expected to be shown that appellant was working at the lumber yard or engine room or ear shed of the lumber company under his supervision. It was expected to prove by Gentry, in the postponement application, that Gentry had appellant working with him in the engine room or car shed, or was working with him. . The difference between these statements is too technical upon which to base a contradiction in the testimony. Both statements could have been true.

We are of opinion that the postponement should have been granted. For this error the judgment is reversed. The evidence was sharp in its conflict as to whether appellant did what Turner stated. Had the absent witnesses mentioned in the application for postponement been present, it might have been the turning point in favor of defendant. Under cases presenting themselves in this attitude, it would be a difficult proposition to surmise as to what effect the absent testimony would have. If appellant was situated as his witnesses indicate, and as those who are absent would show, then he was not guilty, but the jury convicted him.

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

      other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    PARRIS v. STATE.
    (No. 4457.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    Criminal Law <S=>1090(7) — Appeal—Bill or Exceptions.
    Where bill of exceptions was not reserved to the trial court’s refusal to grant motion for continuance, the ruling cannot be considered on appeal.
    [Ed. Note. — For other cases, see- Criminal Law, Cent. Dig. § 3204.]
    'Appeal froni- Harris County Court, at Law; Murray B. Jones, Judge.
    J. P. Parris was convicted of swindling, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of swindling, and his punishment assessed at 30 days in jail in addition to a fine of $25.

The record is before us without a statement of facts or bill of exceptions. There is nothing in the motion for a new trial that can be considered in the absence of evidence. There is a motion for a continuance in the’ record, but a bill of exceptions was not reserved to the court’s refusal to grant it. Therefore it cannot be considered.

The judgment is affirmed.


text:
    SMITH v. STATE.
    (No. 4449.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    Forgery <⅞^>26 — Indictment—Sufficiency.
    An indictment for forgery alleged: That defendant, on October 20, 1916, without lawful authority, and with intent to injure and defraud, did willfully and • fraudulently mqke a certain false instrument in writing, which said false instrument in writing was to the tenor following: November 20, 1916. Please let G. T. have articles he desires and put on my bill and oblige. M. L. B. That the foregoing false instrument in writing was presented to one I. B., an employs of A. H. & Co., a corporation engaged in mercantile business in the city -of D., Tex., to be honored by the company, and that said false instrument in writing wouid, if true, have created a pecuniary obligation on the part of M. L. B. Held, that such indictment was fatally defective.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 61.]
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    W. H. Smith was convicted of forgery, and he appeals.
    Reversed, and cause ordered dis-. missed.
    A. S. Baskett, of Dallas, for appellant. E. B. Heridricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of forgery and assessed the lowest punishment.

The indictment was in three counts. On appellant’s motion, the first two were quashed by the court. The third, outside of the usual1 and necessary preliminary and concluding allegations, is as follows:

That appellant, on October 20, 1916, “without lawful authority and with intent to injure and defraud, did willfully and fraudulently make a certain false instrument in writing, which said false instrument in writing is to the tenor following: November 20, 1916. Please let George Thomas have articles he desires and put. on my bill and oblige. M. L. Bartholomew, 614 N. Pearl St. That the foregoing false instrument in writing was presented to one Isadore Benno, an .employé of A. Harris & Co., a corporation engaged in mercantile business in the city of Dallas, Tex., to be honored by the said A. Harris & Co. That the said false instrument in writing would, if the same were true, have created a pecuniary obligation on the part of M. L. Bartholomew.”

Appellant made a motion to quash this count on these grounds: (a) It is ’duplici-teras and charges two offenses, to wit, forgery and passing as true a forged instrument in the same count, (b) The alleged forge'd instrument shows, on its face that it is not a subject of forgery, and there are no innuendo-allegations explaining it so as to render it a subject of forgery, (c) The alleged forged instrument bears a date subsequent to the date of the return of the indictment, and there are no innuendo allegations explaining it or showing that it .was executed before the return of the indictment.

The indictment was returned and filed in the lower court November 7, 1916. The majority of this court are of the opinion that sai'd indictment is fatally defective, under the claimed authority of Womble v. State, 39 Tex. Cr. R. 24, 44 S. W. 827; Huckaby v. State, 45 Tex. Cr. R. 581, 78 S. W. 942, 108 Am. St. Rep. 975; Cagle v. State, 39 Tex. Cr. R. 112, 44 S. W. 1097; Crawford v. State, 40 Tex. Cr. R. 345, 50 S. W. 378; Lynch v. State, 41 Tex. Cr. R. 211, 53 S. W. 693; Black v. State, 42 Tex. Cr. R. 586, 61 S. W. 478. (This writer does not concur in ‘such holding.)

We see no necessity of particularly dismissing the question. Under the majority’s views, the cases cited would show what allegations are necessary to make a good indictment.

As the case is to be reversed, we call attention to the alleged forged order in some other particulars. It has been sent up to this court under a proper authentication for the inspection of the court so that we could see the name signed thereto. We have examined it and the signature, and in our opinion the name is spelled Bartholomew, and not Bartholomew; that instead of the letter “t” in spelling the name a “p” is used.

This writer also calls attention to the word in said order which doubtless is “articles.” The “t” therein is not crossed nor the “i” dotted, and it seems that the first syllable of this word is “are.” Neither is the letter “i” in the word “oblige” dotted. These matters escaped attack in the court below. In the opinion of this writer, it would be unnecesr sary to explain these omissions; but as the case is to be reversed and much more particularity is now required than formerly, he calls attention to them, so that if another indictment is preferred the pleader can explain them to prevent another reversal in case of conviction.

It would serve no useful purpose for this writer to cite the statute and decisions thereunder which would, in his opinion, unquestionably show that this indictment is a good one and is not defective in any material particular. He may later do so. He also thinks the above cases cited by the majority are inapplicable.

In accordance with the opinion of the majority, the judgment is reversed, and the cause ordered dismissed.

As it may be necessary for the court below to have said alleged forged order, it is the further order of this court that the clerk send the said original order to the clerk of the court below and procure his receipt therefor.
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MO'RROW, J.

text:
    MOORE v. STATE.
    (No. 4437.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.)
    1. Health @=41 — Business Injurious to Health — Prosecution — Evidence—Sufficiency.
    In a prosecution for carrying on a business known as a. slaughterhouse injurious to the health of those residing in the vicinity, evidence held sufficient to support a jury finding against defendant.
    [Ed. Note. — For other cases, see Health, Cent. Dig. § 38.]
    2. Criminal' Law @=448(7) — Opinion Evidence.
    Statement that defendant’s place of business and premises were the most unsanitary he ever saw in his life was a conclusion of the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1036, 1048.]
    3. Criminal Law @=448(7) — Opinion Evidence.
    Statement that defendant’s place of business and premises were the most filthy places he ever saw was not a conclusion of the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1036, 1048.]
    4. Criminal Law <©=31169(6) — Appeal—Opinion Evidence — Harmless Error.
    Taking into consideration the way the term is treated in the record and the fact that the lowest penalty was assessed, allowing a witness to give conclusion that premises were unsanitary was not reversible error, in a prosecution for carrying on a business injurious to health.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3143.]
    5. Criminal Law @=369(2) — Evidence of Other Offenses — Admissibility.
    In a prosecution for carrying on a slaughterhouse in a manner injurious to the health of those in the vicinity, evidence that a head of cattle was on defendant’s premises near the residence of G. was admissible, although there was a separate prosecution to which this testimony would have been relevant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §⅜ 822, 823.]
    6. Health @==*41 — Business Injurious to Health — Evidence Admissible.
    In a prosecution for carrying on a slaughterhouse in a manner injurious to the health of those in the vicinity, evidence that there were a quantity of flies swarming around hides and diseased meat, and that the water standing on the premises was covered with green scum, was relevant.
    [Ed. Note. — For other cases, see Health, Cent.. Dig. § 38.]
    7. Health @=41 — Business Injurious -to Health — Evidence Admissible.
    In a prosecution for carrying on a slaughterhouse in a manner injurious to the health of those in the vicinity, testimony that children played along a bayou in the neighborhood of defendant’s premises, and that the water was polluted by defendant’s hogpen, was admissible.
    [Ed. Note. — For other eases, see Health, Cent. Dig. § 38.]
    8. Criminal Law <§^369(2) — Evidence op Otheb Offenses — -Admissibility.
    That accused might have been prosecuted under another statute for polluting _ the stream would not render testimony thereof inadmissible, where it was relevant to the offense charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822, 823.]
    Appeal from Harris County Court at Law; Murray B. Jones, Judge.
    Perry Moore was convicted of carrying on sl business injurious to the health of those residing in the vicinity, and he appeals.
    Affirmed.
    John H. Crooker, Cr. Dist. Atty., and E. T. Branch, both of Houston, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MO'RROW, J.

Appellant was prosecuted by indictment under article 694 of the Penal Code, and his trial before a jury resulted in a conviction and the assessment of a fine of $10.

Article 694 is as follows:

“If any person shall carry on any-trade, business or occupation inju'rious to the health of those who reside in the vicinity, or shall suffer any substance which has that effect to remain on premises in his possession, he shall be punished by fine not less than ten nor more than one hundred dollars; and each separate day of carrying on such business, trade or occupation, or of permitting such substance to remain on the premises, shall be considered a separate offense.”

To make plain the questions discussed we set out the charging part of the indictment, as follows:

Appellant “did them and there carry on a business injurious to the health of the people who reside in the vicinity of said business, to wit, the said Perry Moore did then and there carry on a business known as a slaughterhouse near a stream known as Little White Oak bayou and near the Link road in said county, and about a mile and a half from the courthouse of said county, the stench and smell from said business being offensive to the smell and injurious to the health of said people, and the said Perry Moore did then and there permit substances injurious to the health of said people to remain on the premises in his possession, to wit, the above-described premises on which he permitted to remain then and there blood and entrails and a dead carcass of a head of cattle which was swarming with flies and a wagon reeking with foul odor and covered with a swarm of flies.”

The court- gave no general charge, but submitted the question to the jury in two special charges prepared by the appellant. One of these informed the jury that the fact that the business conducted by appellant was unpleasant to persons in the neighborhood would not render it illegal, but that a conviction could only be had in the event the evidence showed beyond a reasonable doubt that it was injurious to the health of such people. The other told the jury that appellant was 'charged with carrying on a business injurious to the health of people who reside in the vicinity of his premises, and that he permitted substances injurious to the health of such people to .remain on his premises, and told the jury that the burden rested upon the state to prove beyond a reasonable doubt that he did carry on such a business, or that he did permit such substances to remain on his premises, and that unless this burden was discharged, and it was shown that the acts were injurious to the health of the people, to find for the defendant.

There was evidence that appellant’s place of business was near a stream called Little White Oak bayou; that he conducted a slaughterhouse; that the odor from the •premises was offensive; that there was a dead head of cattle exposed on the premises, surrounded by swarming flies, emitting an offensive odor; that the place was filthy; that blood and entrails had ibeen left on the floor; that the wagon used by appellant for hauling slops and other refuse stood on the premises, covered with filth and emitting an offensive odor; that appellant’s hogpens adjoining his slaughterhouse ran across the Little White Oak bayou, part of it being included in the hogpens, and was filthy from the hogpens, which emitted a bad odor; that he kept a number of hogs on the premises, and slaughtered animals every week; that he permitted cows which died on the place to remain sev-. eral days; that the stench from the premises caused a family of neighbors to have spells of vomiting; that a large number of animals died on the place, and some had been allowed to remain for some time; that the smell from the slaughterhouse and hogpen, where decayed fish and decayed meat were fed to the hogs, was sickening, and caused a stench. One doctor testified that vomiting would be injurious to health.

The appellant introduced witnesses who testified that they lived near, and that appellant’s premises were kept clean; that there were occasional odors, but they did not interfere with the family; that the refuse was all burned. The health officer testified that he inspected the premises and found them clean. Other physicians gave similar ■ testimony. The fact that the carcass of a cow or calf remained upon the premises an undue length of time was controverted by witnesses, who also claimed that the garbage cans were kept in a sanitary condition. Appellant testified that there was but little odor from the carcass, and that the garbage cans were never used twice" in succession but were cleaned and used alternatively; that is, he used two sets, using one one day and .one the next. A pure food inspector also testified that he inspected the premises and found things clean and in a sanitary condition.

The issue of fact with reference to the condition of the premises and with reference to whether they were in a condition to injure health was sharply contested. The case, however, was tried upon the theory that an issue of fact was presented, and was decided by the jury upon the charges prepared by appellant, and we are not able to say that the jury was not authorized to find against him.

The members of the grand jury inspected the premises and testified as witnesses. One of them said that the appellant’s place of business and premises were the most unsanitary and filthy places he ever saw in his life. Objection was urged to this evidence that it was immaterial, irrelevant, prejudicial, not germane, and merely the opinion of the witness. That part of the statement which described the premises as unsanitary was, we think, rather the expression of an opinion. The part of the statement that the place was filthy, however, was not subject to this objection. It appears that the nonexpert witnesses generally, for the defendant as well as the state, used the term “sanitary” and “unsanitary” ; and, taking into consideration the way the matter is presented, and the way that term is treated in the record, and the fact that the lowest penalty was assessed, we do not regard the admission of this testimony as reversible error.

Another bill complains of the fact that tire testimony was heard that a head of cattle was on appellant’s premises near the residence of Mrs. Gauley. It is suggested in the bill that there was a separate prosecution against appellant under article 696, to which this testimony would have been relevant. The record fails to show by anything authentic that there was another prosecution. Granting, however, that it was shown, we think the evidence was admissible. It was descriptive of the condition of appellant’s premises, and the fact that his premises were near those of Mrs. Gauley would be a part of the res gestee so to speak, and the fact that leaving the dead animal on his own premises near the residence mentioned might be an offense would not preclude its proof in connection with this prosecution. Golden v. State, 22 Tex. App. 14, 2 S. W. 531; Railey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576; January v. State, 66 Tex. Cr. R. 302, 146 S. W. 555; Landrum v. State, 73 Tex. Cr. R. 580, 166 S. W. 726.

Objection is also made to testimony that there were a quantity of flies swarming around the entrails and hide and blood in the slaughterhouse and around the dressed meat, and that the water standing on the premises was covered with green scum. This testimony was relevant and admissible.

Another bill complains of testimony that children played along Little White Oak bayou in the neighborhood of appellant’s premises and that the water of the bayou was polluted by appellant’s hogpen. Appellant contends that this testimony should have been excluded, because it tended to prove a separate offense. What has been said with reference to the same contention in regard to another bill is applicable here. Moreover, this same testimony, except that part of it with reference to the children, was given by other witnesses without objection; in other words, it was evidence already in the record with appellant’s consent. Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169. We regard the testimony, however, as admissible. The evidence shows that a part of the bayou had been made a part of the hogpen on premises used in connection with appellant’s business, and that decayed fish and meats were fed to the hogs in the pen. The fact that appellant might have been prosecuted under another statute (article 696) for polluting the stream would not render the testimony objected to inadmissible; it being relevant to the offense with which he was charged.

Finding no reversible error in the record, it is ordered that the judgment of the lower court be affirmed.
      <5==For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <Ste>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HAVEREBAKKEN et al. v. STATE.
    (No. 4471.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.)
    1. Affray <§=36 — Instructions—Issues.
    Charge on trial under indictment charging defendants with an affray, by fighting with S. in a public place, to convict if defendants, as alleged in indictment, fought in a public place, is erroneous, as authorizing conviction if they fought wish each other.
    [Ed. Note. — Eor other cases, see Affray, Cent. Dig. §§ 11-13.]
    2. Affray <§=36 — Preventing Assault — Instructions.
    Charge, on prosecution for an affray, to acquit if defendants did not use greater force than necessary to prevent the assault, is erroneous, as if they were assaulted they had a right to defend, and were not guilty of an affray though they used greater force than necessary.
    [Ed. Note. — For other cases, see Affray, Cent. Dig. §§ 11-13.]
    3. Affray <®=>5 — Evidence.
    Evidence that a county commissioner had authorized S. to take sand from the road, of which defendants did not know, should not be admitted on a prosecution for affray by fighting with S. in a public place, as the trial should be from the standpoint of defendants and on what they knew and acted.
    [Ed. Note. — For other cases, see Affray, Cent. Dig. §§ 8-10.]
    4. Affray <§=s6 — Instructions — Public Place.
    On a prosecution for affray, the jury should be instructed what it takes to constitute a public place.
    [Ed. Note. — For other cases, see Affray, Cent Dig. §§ 11-13.]
    5. Highways <®=>95(1) — Authority of County Commissioner.
    Relative to the question of a fight between defendants and S., who was taking sand from their land, being an affray, a county commissioner could not authorize him to take sand outside the. road bed.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ S09, 310.]
    Appeal from Basque County Court; W. A. York, Judge.
    Christ Haverebakken and another were convicted, and appeal.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellants were tried on separate indictments for an affray with Isaac Solberg in a public place, to wit, in, along, and in view of a public road. Then follows a description of the road.

While separate indictments were returned against them, they were both tried before the same jury at the same time. No point is made, however, with reference to this matter. The evidence discloses that Solberg was getting gravel and sand from a creek near an old public road. The land belonged to appellants, except in so far as it was covered by the road. Solberg claimed to be hauling the sand by permission from a county commissioner. This county commissioner testified that he only gave Solberg permission to haul sand and gravel from the roadbed, and not from any land outside or away from the roadbed. He states he had given others permission also, and this grew out of the fact that a rise in the creek had washed gravel and sand over the roadbed and he wished it removed. Where Solberg was getting the sand was not on the roadbed, but some steps away from it. While the distance is not stated, there are facts from which it may be presumed or inferred that he was getting the sand at least 30 or 45 feet maybe from-the roadbed. While Solberg was loading his wagon with the sand, appellants came up. Words ensued, resulting in a fight. The issue as to who began the fight or occasioned it is in direct conflict. Solberg’s statement is, while he was loading his wagon with the sand, the two appellants came down to where he was, one of them approaching him rapidly, and he struck this one with his shovel, and the fight ensued. One of the appellants testified he did not engage in the fight; that when the lick was inflicted with the shovel he took it away from Solberg, and the fight occurred then between the other appellant and Solberg. Appellants’ side of the case is that, when they came upon Solberg getting the sand, they ordered him away, stating that it was their sand and he should not take it. Sol-berg told them to go to hell, and struck with the shovel, and the fight ensued.

The court did not submit the first count, which charged an assault and battery, but submitted the second count, which charged an áffray. Several exceptions were reserved to the charge, some of which were well taken. Illustrative of the charge, this quotation is made wherein the court submitted the issue to the jury:

“Now, if you believe from the evidence before you, beyond a reasonable doubt, that the defendants Christ Haverebakken and Martin Ha-verebakken, as alleged in the indictment, on or about 1st day of December, 1916, in the County of Bosque and State of Texas, did fight in a public place then it becomes your duty to find the defendants guilty and assess the punishment of each at a fine of not exceeding $100.”'

The indictment charged appellants with having committed an affray by fighting with Isaac Solberg in a public place. There is no charge against the two Haverebakkens for fighting with each other in a public place. This charge authorized a conviction for a state of case neither charged in the indictment nor proved by the facts. The court also in the charge instructed the jury that, if appellants did not as alleged commit the offense of an affray in a public place as alleged in the indictment on the 1st day of December, etc., then they should acquit. After giving this charge, the court also instructed the jury with reference to the law of self-defense and instructed them that, if appellants did not use greater force than was necessary to prevent said assault, they would find appellants not guilty. Exception was reserved to this portion of the charge which we think was well taken. If Solberg assaulted them, they had a right to defend, and the question of an affray passed out of the case. The issue of more or less force or the use of greater force than was necessary to prevent such assault would not make it an affray. If they had a right to defend, it would not be an assault Goyle v. State, 72 S. W. 847. If appellants had the right to defend against an assault which was made by Solberg, and it was in fact a case of self-defense, then there would be ho affray, and the question of more or less force would not enter into the case. If they had been tried for an assault and battery, then under some circumstances that issue could be raised; but they were not tried for an assault and battery. That issue was withdrawn from the consideration of the jury and was not submitted. Then the case turned alone upon the question of an affray. Where the right of self-defense accrues, the issue of more or less force does not make it an affray. An exception was reserved to the court’s charge and special charge asked covering this question, which was refused, and exception also reserved to the refusal of the court to give the requested charge.

An exception was reserved also to the court’s ruling permitting the county commissioner to testify that he had given Solberg authority to haul gravel and sand from the roadbed, and his testimony is to this effect. This should have been sustained. This was not known to the defendants, and, when they found him trespassing upon what they thought to be their property, they were not aware of the fact that Solberg had obtained permission from the county commissioner to take the sand and gravel. Solberg was not being tried for trespassing on property, but appellants were being tried for an affray with Solberg. This matter should have been looked at and tried from the standpoint of the defendants and what they knew and upon which they acted. But the commissioner further testified that he did not give Solberg authority to go upon the land of appellants, but confined his authority to Solberg to take gravel and sand from the public roadbed and not outside of the roadbed. The court should have instructed what it takes to constitute a public place, under the accusation against appellants, and, if the question should come again as to Sollberg’s authority to take gravel and sand by virtue of the permission of the commissioner, then the jury should be instructed that Solberg would have no right to take sand and gravel except from the road bed as the commissioner authorized. The county commissioner is not clothed with authority to authorize any one to go upon the land of a private citizen and take his property. The Constitution and laws provide that property may be taken for public use, upon adequate compensation being made, but in no event could the commissioners’ court or any constituted authority authorize one citizen to .take the property of another for private use, with or without compensation.

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


text:
    GALLON v. STATE.
    (No. 4458.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    Criminal Law <@=>1131(4) — Appeal Bond — Recognizance.
    Since a defendant convicted of a felony can be iegally discharged only by entering into a recognizance, Ms giving an appeal bond and obtaining his liberty thereby deprived the Court of Appeals of jurisdiction, and his appeal would be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2974, 2976, 2977.]
    Appeal from District Court, Morris County ; J. A. Ward, Judge.
    Rich Gallon was convicted of the unlawful sale of liquor,' and appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for an unlawful sale of liquor, a felony, and assessed the lowest punishment. During the term he appealed, and instead of entering into a recognizance in open court, he gave an appeal bond, and was thereupon given his liberty. The only way he could have legally been discharged at the time he was was by entering into a recognizance instead of giving an appeal bond. His giving the appeal bond and obtaining his liberty thereby deprives this court of jurisdiction. Hence the Assistant Attorney General’s motion to dismiss must be granted. Laird v. State, 184 S. W. 810, and several cases following this decided by this court since then.

The appeal is dismissed.