author: PHILLIPS, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. TUCKER.
    (No. 2499.)
    (Supreme Court of Texas.
    April 18, 1917.)
    1. TELEGRAPHS AND TELEPHONES <&wkey;67(2) — Messages — Failure to Deliver — Liability.
    A telegram addressed to “Sterling Dosier, Colo. Texas,” read: “Tom Tucker’s baby died today. If any one can come, send telegram. [Signed.] Sam Corley.” Dosier was plaintiff’s son-in-law and a brother-in-law of Tucker, whose wife was plaintiff Jenkins’ daughter and the mother of the child referred to. Held, that the company should reasonably have anticipated the probable delay of the funeral until arrival of the child’s grandparents, had the message been delivered.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 65.]
    2. Telegraphs and Telephones <®=»37(9)— Messages — Notice op Relationship.
    The words of such message indicated that others than the addressee had an interest in the child’s death, and were sufficient to put the company on inquiry which would have disclosed the interest of the parties.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 82.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Tom Tucker against the Western Union Telegraph Company. Judgment (152 S. W. 199) affirming judgment for the plaintiff, and defendant brings error.
    Affirmed.
    N. L. Lindsley, of Dallas, and Ed. J. Ham-ner and Geo. T. Wilson, both of Sweetwater, for plaintiff in error. Royall G. Smith and W. P. Leslie, both of Colorado, Tex., for defendant in error.
   PHILLIPS, C. J.

The suit was one for the recovery of damages suffered by Mr. Tucker’s wife through the failure of her father and mother, Mr. and Mrs. Jenkins, to attend the funeral of her child, due to the Telegraph Company’s neglect to deliver a telegram announcing the child’s death.

Mr. and Mrs. Tucker lived near Clarks-ville. Mr. and Mrs. Jenkins lived near Colorado City. Following the child’s death the Tuckers caused the following telegram to be delivered to the Telegraph Company at Clarksville, on August 16:

“Sterling Dosier, Colorado, Texas. Tom Tucker’s baby died today. If any one can come, send telegram. (Signed) Sam Corley.”

Corley was a physician, acting for the Tuckers in sending the message, as he informed the .Telegraph Company’s agent at the time. Dosier lived in Colorado City and was accessible to the Company. He was a relative both of the Tuckers and the Jenkins. The proof was that if he had duly received the message he would have at once communicated it to Mr. and Mrs. Jenkins who would have immediately gone to Clarksville, where they would have arrived at 4:30 P. M. on August 17th; and upon receipt of any word that they were coming, the funeral would have been delayed until their arrival. The message was not delivered to Dosier at all.

With the Telegraph Company having distinct information that the message was sent for Mr. and Mrs. Tucker (Telegraph Co. v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843), the message upon its face,— having regard to its nature and the known usual conduct in such cases, — very clearly gave notice to the Company that its purpose was to immediately summon for the burial of the child some one in close relationship to the senders; that a reply from such person or persons as to whether they were coming was expected; and, if the reply was favorable, that the senders would reasonably postpone the burial until their árrival. Such would have been the natural consequences of such a message, if it had been delivered, and therefore should reasonably have been foreseen. Telegraph Co. v. Swearingin, 97 Tex. 293, 78 S. W. 491, 104 Am. St. Rep. 878.

Under the proof, there can be no doubt that any inquiry by the Company would have afforded it knowledge that the message was intended for Mr. and Mrs. Jenkins, and, accordingly, of their interest in it. It was not necessary that the message give the Company distinct notice of their relationship to the child and Mr. and Mrs. Tucker. It was sufficient if its language was such as to put the Company upon inquiry. Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Telegraph Company v. Herring, 107 Tex. —, 185 S. W. 293. That the message was intended to include some one other than, or in addition to, Dosier as the person whose presence at the burial was desired, is plain. It said: “If any one can come, send telegram.” This gave clear notice that there were those other than Dosier in close relationship to the senders whose coming was desired, and, upon the delivery of the message, might be expected. The importance of the message as to such persons was apparent. Their names were not disclosed, but with their interest thus made known, the ascertainment of their names would have been a natural inquiry. If the Company had desired to know them, it should have made the inquiry. Had it been made, it could easily and readily have learned them.

The message in its language was not materially different from that in Telegraph Co. v. Landry (Civ. App.) 134 S. W. 848, in which a writ of error was refused, reported also in (Civ. App.) 108 S. W. 461. There the message was addressed by Mrs. Landry to her father, concerning the serious illness of her husband, who died. It read: “Gus very low. Send some one to me. Answer.” It was held that the father and a brother of the sender were within the purview of the message, as the “some one” that the sender desired should come to her in her time of stress.

The judgments of the District Court and Court of Civil Appeals are affirmed.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. JENKINS.
    (No. 2500.)
    (Supreme Court of Texas.
    April 18, 1917.)
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by J. E. Jenkins against the Western Union Telegraph Company. Judgment (152 S. W. 198), affirming judgment for plaintiff, and defendant brings error.
    Affirmed.'
    N. L. Lindsley, of Dallas, and Ed. J. Hamner and Geo. T. Wilson, both of Sweetwater, for plaintiff in error. Royall G. Smith and W. P. Leslie, both of Colorado, Tex., for defendant in error.
   PHILLIPS, C. J.

This is a companion ease to Western Union Telegraph Company v. Tucker, 194 S. W. 130, this day decided, the suit haying been instituted by J. E. Jenkins for damages suffered by himself and wife on account of the neglect of the Telegraph Company to deliver the telegram set out in the opinion in that case, announcing the death of their grandchild. The facts of the two cases are substantially the same. Our ruling in the Tucker Case is conclusive of the material questions involved in the present case, and a further discussion of them is unnecessary.

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


text:
    ROSBOROUGH v. COOK et al.
    (No. 2476.)
    (Supreme Court of Texas.
    April 18, 1917.)
    3. Adverse Possession «&wkey;71(l) — Requisite Title.
    To support limitation under the five-year statute, the deed under which claim is made need not convey title, but is sufficient if it describes and purports to convey the land and is on its face a good deed.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 415, 416, 427, 429.]
    2. Adverse Possession <&wkey;71(l) — Estates Conveyed — Eeeect of Lis Pendens.
    Where during partition suit two persons in interest conveyed a specific tract after lis pendens notice was filed, their interest passed subject to the termination of the suit, and the deed was valid, so as to stay the running of the limitations in favor of the grantee.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 415, 416, 427, 429.]
    3. Lis Pendens <&wkey;ll(l) — Eeeect.
    A lis pendens operates only during pendency of the suit, and only as to matters involved therein, ana terminates with the judgment in the absence of appeal.
    [Ed. Note. — Eor other cases, see Lis Pendens, Cent. Dig. §§ 28-30.]
    4. Adverse Possession <&wkey;71(l) — Five-Year Limitation — Necessity oe Title.
    Where the title of the grantee was canceled by a judgment in partition, the grantee could nevertheless acquire title under the five-year limitation, since to perfect such title it is only necessary that notice of her adverse claim be afforded by registration of a deed purporting to convey the land, the payment of taxes and possession for the five-year period.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 415, 416, 427, 429.]
    5. Adverse Possession <&wkey;71(2) — Requisite Title.
    Where during partition suit two persons in interest conveyed a specific tract after lis pen-dens notice was filed, their interest passed subject to the termination of the suit, and, though the deed conveyed no title, it remained effective after the judgment for the purpose of limitation under the five-year statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 417-421, 424-426, 428.]
    Error to Court of Civil Appeals, Sixth Supreme Judicial District.
    Action by W. J. Rosborough against Ellen Cook and others. Judgment (148 S. W. 1120) affirming judgment for defendants, and plaintiff brings error.
    Affirmed.
    F. H. Prendergast, of Marshall, for plaintiff in error. James Tucker, A. G. Carter, and Beard & Davidson, all of Marshall, for defendants in error.
   PHILLIPS, C. J.

Pending a suit, filed in the year 1900, for partition of certain land, two of its joint owners, Turner and Blair, by regular warranty deed conveyed a part of it, including the twenty-acre tract here in controversy, to Ellen Cook, the defendant in error, a stranger to the partition suit. By the decree subsequently rendered in that suit the tract here involved was set apart to another of the joint owners, Ruby Faust, under whom Rosborough, the plaintiff in error, claims by direct conveyance. No writ of possession against Ellen Cook ever issued on the judgment.

Prior to the conveyance by Turner and Blair and during the pendency of the partition suit, they had contracted to convey the land described in their deed to Tom Cook, Ellen’s husband, in contemplation, doubtless, that it would be allotted to them in the partition. Tom Cook died, and the deed was made to Ellen. She paid for the land, registered her deed, held possession of the land under the deed, improved it, and, whether the period of limitation be reckoned from the date of the deed or the date of the judgment in the partition suit, acquired title under the five years statute of limitation, if the deed of Turngr and Blair afforded sufficient basis for such a title.

• The question presented by the case, whether the judgment in the partition suit had the effect of cancelling the deed for the purposes of limitation under the five years statute, is one of interest, and is not free from difficulty. It is, however, capable, we think, of accurate solution by bearing. clearly in mind the office of a deed under the five years statute, the operation of the lis pendens rule, and the effect of the judgment in the partition suit under such rule. It was before the court, but not determined in Letney v. Marshall, 79 Tex. 513, 15 S. W. 586.

To support limitation under the five years- statute, it is not necessary that the deed, under which the claim is made, convey any title. The grantor may be wholly barren of any vestige of title; the deed may therefore pass no semblance of title; yet, if it describes and purports to convey the land and tested by itself is upon its face a good deed, it meets the requirement. Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53; Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120; Harris v. Wells, 85 Tex. 312, 20 S. W. 68.

Accordingly, if Ellen Cook had a deed to this land, good upon its fáce and which retained its validity as such, if she claimed under it, with it duly registered, and met the other requirements of the statute, as she did, for a continuous five year period, she acquired title to the land by limitation, though she never acquired and at no time had any title whatever in virtue of the deed.

It is thus clear that a deed under the law governing five years limitation has a character distinct from that of an effectual muniment of title. For the purpose of such limitation it performs an office unrelated to title, and although as a conveyance of title it may be futile. That office is simply to aid the possession as a means of notice of .the adverse clajm to the land.

The law of limitation of actions for land is founded upon notice. The title by limitation ripens, primarily, only because, in such manner and for such period of time as the different statutes require, notice is given of the hostile claim. Under the three years statute, it is afforded by possession under title or color of title. Under the ten years statute, simply by possession. And under the five years statute, it is given by possession, the payment of taxes, and the registration of a naked deed. It is not the character of the deed as a conveyance of title which, under the five years statute, helps to put limitation in. motion. It assists the operation of limitation under that statute merely because of the notice given of the adverse claim by its registration as an instrument which purports to convey, not the title, but the land.

The rule of lis pendens does not prohibit and hold void a conveyance during the pendency of the suit. The interest of the grantor merely passes subject to the determination of the cause. If the grantor recovers the interest, the grantee succeeds to it. If the grantor does not recover it, the grantee acquires nothing. Bennett on Dis Pendens, Secs. 167, 183. So, the deed of Turner and Blair to Ellen Cook was not void, though given while the partition suit was pending. Had the decree awarded Turner and Blair this particular tract, Ellen Cook would have undoubtedly acquired the title to it under the deed.

Furthermore, a lis pendens operates only during the pendency of the suit, and only as to those matters that are involved in the suit. It terminates with the judgment, in the absence of an appeal. Bennett on Lis Pendens, Sec. 78. There was no appeal in the partition suit.

True, the judgment in the partition suit cancelled Ellen Cook’s title to the land. After the judgment she stood without any title. But under the five years limitation statute it was not necessary that she have any title. The judgment did not cut off her right to thereafter acquire title by limitation. To perfect such a title it was only necessary that notice of her adverse claim be afforded by the registration of a deed purporting to convey the land, the payment of taxes, and possession for the five year period. From the time of the judgment, clearly, her possession was adverse. She continuofisly held such possession, claiming under her deed, which had been previously registered, and paying the taxes, for a five year period from the date of the judgment before the filing of the present suit. Admitting that-the judgment left her without any title, was that not, as to her, the extent of its operation? In what respect did it invalidate her deed as a lawful instrument, or undo its registration? These were matters which the suit in nowise put in issue, and the judgment, therefore, was of no effect upon them. The suit only concerned the ascertainment of the lawful interests in the land and , their award to the rightful owners of the title. The judgment accordingly operated only upon the title and for the purpose of vesting title. The suit was a lis pendens only as to these matters, and nothing else.

It is urged that as the judgment can-celled the deed as a conveyance of title, it necessarily left it without any effect. But if under the law governing limitation it had another character and was capable of performing a distinct office though it conveyed no title whatever, how could a judgment which merely destroyed its'force as a conveyance of title affect such other character, or defeat its use for such other office? It is not uncommon for an instrument to have legal effect for one purpose and not for another. For illustration, a will, through default in its probate, may have no force as a testament, yet be admissible for probate as a muniment of title. If the instrument has under the law a dual character and is available for distinct purposes, its annulment for one purpose does not destroy it for all purposes. The argument overlooks that this deed was efficient for other purposes than the conveyance of title. Though, it conveyed no title, it had, with its registration, distinct from any office as a conveyance of title, the force of notice of the adverse claim to the land. Its character as an element of such notice was not involved in the partition suit, and was not touched by the judgment. It therefore in our opinion remained effective after the judgment for the purposes of limitation under the five years statute, and, with its registration, undisturbed adverse possession and payment of taxes for five years after that time, perfected a title in Ellen Cook by limitation.

Paxton v. Meyer, 67 Tex. 97, 2 S. W. 817, is not analogous. There the limitation, claimed in virtue of a conveyance from a defendant in an attachment suit and made while the suit was pending, was asserted under the three years statute. The foreclosure of the attachment cut off all title or color of title to the land under the deed. This, as the opinion points out, left the grantee unconnected with the sovereignty of the soil, and therefore without any basis for limitation under the three years statute. Here, the cutting off of title under the deed did not affect the limitation claimed, since to perfect it, it was not necessary that the claimant have any title.

Nor is Voight v. Mackle, 71 Tex. 78, 8 S. W. 623, controlling. There the claimant under limitation of five years had virtually renounced all claim to the land under his deed by conveying it to another. The renunciation of claim under the deed of course destroyed it as a basis for five years limitation. Here the open challenge of the right of all adverse claimants, through the registration of the deed, hostile and unrenounced claim under it, the possession, use and enjoyment of the land and payment of taxes, continued for full five years after the judgment in the partition suit, and the claim was not questioned. Ellen Cook was in our opinion entitled to the land.

The judgments of the District Court and Court of Civil Appeals are affirmed.'
      tssxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    HUGGINS v. CAREY.
    (No. 2465.)
    (Supreme Court of Texas.
    April 18, 1917.)
    1. Damages <&wkey;216(3) — Instructions — Double Damages.
    In an action for breach of promise of marriage, an instruction that the measure of damages was compensation to the plaintiff for the breach of the promise which included all damages sustained by her on account of injury to her feelings, affection, and wounded pride, as well as the loss of the marriage of the defendant, and that, if the jury further believed that by reason of the promise to marry plaintiff was seduced, they might add such other damages as they believed she had thereby sustained, was erroneous as authorizing double damages, since the measure of damages first stated was broad enough to include damages for the seduction.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. § 548.]
    2. Breach of Marriage Promise &wkey;>28 — Instructions — Measure of Damages.
    In an action for breach of marriage contract, the jury can, in assessing the damages, consider the seduction of plaintiff, though they could not allow damages for such seduction without a promise.to marry.
    [Ed. Note. — Por other cases, see Breach of Marriage Promise, Cent. Dig. §§ 40-43.]
    3. Damages &wkey;>228--lNSTRUCTi0NS — Cure by Remittitur.
    In an action for breach of marriage promise, where plaintiff claimed different amounts as actual and special damages, and an instruction erroneously authorized the jury to assess double damages for seduction, it could not be said that the amount found as special damages, separate from the actual damages, was allowed as damages for the seduction, and therefore requiring a remittitur of that amount did not cure the error.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 576-579.]
    4. New Trial <&wkey;105 — Newly Discovered Evidence — Impeaching Evidence — Material Pact.
    In an action for breach of marriage promise, where plaintiff testified at the trial that she gave birth to a child in a distant city, giving the names of the doctor and nurse who attended her; newly discovered evidence that no such nurse or doctor were known in that city and the birth was not registered there is sufficient to require the granting of a new trial, though it tended to impeach plaintiff’s testimony, since it also tended to establish a material fact.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ 183, 221-223, 229.]
    5. Appeal and Error <&wkey;222 — Presenting Questions Below — Exhibit to Motion for New Trial.
    The objection that the statement of a newly discovered witness attached to a motion for new trial -was acknowledged but not sworn to, •which was not raised in the trial court or in the brief in the Court of Appeals, cannot be raised in Supreme Court.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1156, 1333-1336.]
    Error to Court of Civil Appeals of Second Supreme -Judicial District.
    Action by Clara T. Carey against J. L. Huggins. Judgment for the plaintiff was affirmed after remittitur was ordered by the Court of Civil Appeals (149 S. W. 390), and defendant brings error.
    Reversed and cause remanded to the district court.
    Davis & Davis, of-Gainesville, Allen & Allen, of Henrietta, McLean, Scott & MoLean, of Pt. Worth, and Williams & Stedman, of Austin, for plaintiff in error. R. E. Taylor, I-Iunter <& Hunter, W. A. Hanger, and Theodore Mack, all of Pt. Worth, and W. P. Ramsey, of Dallas, for defendant in error.
   YANTIS, J.

This suit was instituted in the district court of. Clay county, Tex., by Mrs. Clara T. Carey, defendant in error, against J. L. Huggins, plaintiff in err.or, to recover damages from the latter for an alleged breach of a marriage contract. The trial, which was by a jury, resulted in a verdict in Mrs. Carey’s favor. Huggins appealed to the Court of Civil Appeals for the Second District, where the judgment of the district court was affirmed. 149 S. W. 390. A petition for writ of error was presented to this court by said Huggins, and the writ was granted October 9, 1912, this court then inclining to the view that the trial court erred in refusing to grant a new trial in order to secure the newly discovered evidence mentioned in the plaintiff in error’s motion for a new trial; and also believing the court’s charge on the measure of damages was erroneous.

The defendant in error, Mrs. Carey, at the time she alleges to have consented to marry Huggins, was a widow, 28 shears of age. Huggins was a bachelor, 59 years of age. She was then residing in Et. Worth, Tex. He was residing in Clay county, Tex., on his ranch, and is shown to have been a man of considerable means. She alleges that she met Huggins on the 13th day of March, 1906, and became engaged, on the 25th day of December, 1906, to marry him; that on .or about the 1st day of September, -1907, he asked her to permit him to have carnal intercourse with her, renewing his promise of marriage; that she, relying upon his promise of marriage, assented, and on said date they did have sexual intercourse, and continued such course of carnal intercourse at different times under said promise of marriage until about'March 15, 1908, when she became pregnant with child by Huggins, of which she informed him, and later, on or about the 10th day of December, 190S, she gave birth to a girl child. The trial was had on May 15, 1911, at which date the child was about 2½. years old, according to her statement. She alleged that subsequent to the birth of the child, on each' of his visits to her, they continued such illicit intercourse until about the 1st day of January, 1911, Huggins all the time assuring her that he intended to qarry out his promise of marriage, and she relying upon such promise; that on or about the 1st day of January, 1911, Huggins, for the first time, told her that he would not marry her, and would not fulfill his promise so to do; that by reason of the breach of his promise she suffered the loss of an advantageous marriage, Huggins being a man of great wealth and high social position, and that in addition thereto her love and affections had been disregarded and blighted, and her feelings had been lacerated, and her spirit greatly wounded, and she had suffered great distress, worry, and humiliation; that she was greatly in love with Huggins, and anxious to marry him, and that in addition to the loss of an advantageous marriage, and the injury she sustained from distress and mortification, and as a result of said intercourse, and the birth of a girl child, she had been put to the expense, since its birth, of supporting and maintaining it, with the exception of the sum of $25 per month paid by Huggins for about 12 months after its birth, and that she will be compelled in the future to incur the expense of maintaining and educating said child, and that .when it becomes known, if it docs, that she is the mother of an illegitimate child, this fact will destroy her social standing among her associates and friends, and will cause them to look upon her with shame and disgrace, which will follow her through the remainder of her life. She prayed for actual damages in the sum of $40,000, and for special damages in the sum of $25,000.

The plaintiff in error, Huggins, answered her petition by a number of exceptions and demurrers. He also denied specially that he had promised plaintiff to marry her, or that he had said anything which could be construed into a promise of marriage; alleged that he paid her valuable considerations for all intercourse he had with her, to wit, about $6,000; that he furnished her money at various times, and paid her well for all that he got; he denied that any child was born that belonged to him, although he admitted that he furnished plaintiff with money to keep up a supposed child which plaintiff said she had given birth to at some place in California; that, if plaintiff ever had a child, “she had it of her own volition, and that he was not the father of same and had nothing to do with it”; that at the time he met the defendant in error he had gone to a rooming house in the city of Et. Worth, for the purpose of securing a room; that he was there introduced to and met her; that at said meeting there were no improper relations between them, but that their acquaintance became intimate, and that about seven or eight months later- he did have intercourse with her at a rooming house or hotel in the city of Et. Worth, Tex.; that prior to having intercourse with her he loaned her the sum of $3,000 in cash, and that she voluntarily suggested and submitted to defendant her person, and declined to return or account for any of -said money ; that; thereafter, on various occasions, he did have carnal intercourse with her, and on two different occasions he did pay her the sum of $500 at each time, and afterwards did send and give her various sums of money, in all amounting to $6,000 or $7,000; that she never at any time made any demand upon him to marry her until more than a year after he had ceased sending her any money, and had ceased paying her any attention; that he did not promise to marry her, and never intended so to do, and the first that he knew that she claimed any promise of marriage to-have been made was more than a year after he had ceased giving her money, and paying her any attention, and after she had made repeated demands upon him for money, and after he had refused such demands; that she is a woman about 35 years of age; had roomed and boarded for many years at various boarding houses and hotels in the city of Ft. Worth, Tex.; that she had previously been married; and that she was a “grass-widow” at the time he met her.

The court charged the jury on the measure of damages as follows:

“The measure of damages in this case is compensation to the plaintiff for the breach of the promise to marry her, which includes all damages sustained by her on account of injury to her feelings, affection, and wounded pride, as well as the loss of the marriage of the defendant. And, ,if you further believe from the evidence that by reason of such promise to marry her, if such was made by the defendant, he seduced her and begot her with child, and that child was born of said seduction, then you may add to such sum such other and further damages as in your sound discretion you believe she has sustained by reason of such seduction and by reason of the disgrace and humiliation which she has thereby sustained, if any.”

This charge is assailed by the plaintiff in error upon the ground that it authorizes the jury to assess double damages against him. We think the contention must be sustained. The first paragraph of this charge directs the jury to find compensation in favor of the plaintiff in a sum which includes “all damages sustained by her on account of injury to her feelings, affection, and wounded pride, as well as the loss of the marriage.” This is clearly broad enough to authorize the recovery of damages for the seduction, and injury to her feelings, affection, and wounded pride resulting from the seduction, as well as resulting from the breach of the promise of marriage. The second paragraph authorizes the jury to assess, in addition thereto, such other and further damages as in their discretion they might believe she had sustained by reason of the seduction, if any, and by reason of the disgrace and humiliation which she thereby sustained, which we think, in effect, were embraced in the first paragraph of the charge, and, being in addition thereto, clearly authorized a double recovery. It was proper to allow the jury, in assessing the damages, to take into account, if they should find there was a breach of promise to marry, the fact of seduction, though it is not permissible to allow damages for seduction alone. Daggett v. Wallace, 75 Tex. 353, 13 S. W. 49, 16 Am. St. Rep. 908. But it is not, under any circumstances, proper to authorize the jury to assess damages twice on account of the se-duetiop and the injured feelings resulting therefrom. This, we think, the charge of the court plainly authorizes.

The jury assessed damages in the sum of $45,000. The Court of Civil Appeals, being of the opinion, as we are, that the charge authorized the recovery of double damages, required a remittitur of $10,000, in the belief that in this way the probable injury to the plaintiff in error would be cured. This holding was based on the fact that the jury, in the form of its verdict, allowed $10,000 to the defendant in error as “special damages.” The form of the verdict was:

“We, the jury, find for the plaintiff, and assess her actual damages <aft thirty-five thousand dollars ($35,000.00), and special damages at the sum of ten thousand dollars ($10,000.00).”

We see nothing in the verdict to indicate a segregation of the damages arising from seduction from the other damages found by the jury. So far as the verdict itself shows, when construed in connection with the charge of the court, there appears no segregation by the jury of any of the items of damage from any of the other items found. So far as appears from the verdict, in connection with the charge of the court, the finding of $35,-000 actual damages, and the finding of $10,-000 special damages, each embraces double damages. If so, to remit the $10,000 finding would not cure the error, but would still leave a double recovery in the $35,000 finding. If the charge of the court had directed the jury to separate the damages resulting from the breach of promise and from the injury to her feelings resulting therefrom, from the damages which resulted from the seduction and the injury to her feelings resulting therefrom, calling one actual damages and the other special damages, then the verdict of the jury in its form might-with reasonable clearness reflect such separation, and a remitti-tur in' such a case would probably cure the error, since it would be presumed that the jury obeyed the instruction of the court and separated the items of damage as directed. But the charge does not undertake to require such separation. Why a' separation was made by the jury, or what rule, if any they followed in making it, does not appear. It is true that the defendant in error, in her petition, alleged that she had been damaged in the sum of $40,000 actual damages, and $25,000 special damages, and prayed for such judgment. We cannot conclude from this that the jury, when dividing the amount of damages assessed into two different lump sums, disobeyed the instruction of the court and refused to allow a double recovery as required by such charge. We therefore think the remittitur of $10,000 did not, with any degree of certainty, cure the injury caused by the charge in authorizing a double recovery of damages. This error in the charge requires a reversal of the judgment which was rendered against the plaintiff in error.

We also think a new trial §hould' have been ordered by the trial court on account of the newly discovered evidence stated in connection with the motion for a new trial. The proposed evidence has a tendency to prove that Mrs. Oarey did not in fact give birth to a child.. It was proposed to prove that nb nurse or physician of the names given by Mrs. Carey on the witness stand lived or had lived in the city of Los Angeles, in the vicinity fixed by her as being the place of the alleged birth; also, that no such physician was practicing in Los Angeles, and that no birth of the child was shown by the record of births in said city. It is true that this evidence partakes of the nature of impeaching evidence, but it is also original evidence tending to show that Mrs. Carey had not given birth to a child at all. She tendered by her evidence the issue as to birth, fixing the time and place, and names of the nurse and the physician who attended her. The proposed evidence was clearly in rebuttal of the issue she had tendered, and the fact that it was also impeaching evidence would not render it insufficient to require a new trial. It must, of course, be and is the settled rule that a new trial should not be granted to secure evidence whose only effect would be to impeach a witness. However, it must be admitted to .be also well settled that, though the newly discovered evidence impeaches and contradicts, this fact will be untenable as an objection to the proposed evidence, as to granting a new trial in order to secure it, where it tends to prove facts material to one of the issues in the case. Railwáy v. Eorsyth, 49 Tex. 171. The proposed evidence was original evidence, and tended to disprove the birth of the child, and was a proper basis for granting the motion for a new trial.

The statement of Jno. P. Elms attached as an exhibit to the motion was not sworn to, but was only acknowledged before a notary public. If it had been excepted to' when presented, it might have been proper to strike it out. But it was not excepted to when it was presented to the trial court, and was not objected to, on this ground, in Mrs. Carey’s brief when the case was presented to the Court of Civil Appeals. We think such objection, if made now, would come too late.

The judgments of the district court and the Court of Civil Appeals are reversed, and the cause is remanded to the district court.
      (SutoEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SULLIVAN et ux. v. DOYLE.
    (No. 2484.)
    (Supreme Court of Texas.
    April 18, 1917.)
    1. Appeal and Error &wkey;H173(2) — Scope ox Review — Disposition op Cause.
    Where one defendant alone appealed, there was no warrant for reversing the judgment on behalf of another defendant, who did not appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4568, 4656.]
    2. Appeaeance ' <&wkey;20 — Cross-Actio ns — Necessity op Citation — Entry op Appearance.
    Where one defendant entered his appearance in the main cause, he was before the court for all purposes, and another defendant, who brought a cross-action, was entitled to judgment against him without the necessity of citation.
    [Ed. Note. — Eor other cases, see Appearance, Cent. Dig. §§ 91-102.]
    3. Subrogation <&wkey;36 — Advances — Rights op Parties.
    One defendant conveyed land to another defendant, who gave three vendor’s lien notes, and then conveyed the land to a third defendant, who assumed payment of the second and third of the notes, and also gave the second defendant vendor’s lien notes in a certain amount. At the request of the third defendant, plaintiff fur-’nislied money for payment of the second note, the third defendant agreeing that the note should be held for plaintiff’s security, but the first defendant had no knowledge of such agreement. Held, that plaintiff was not entitled as against the first defendant to be subrogated to the lien, though he was entitled to subrogation as against a third defendant.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 99-103.]
    4. Subrogation <©=336 — Vendor’s Lien — Priority.
    The lien of plaintiff, as against the lien held by the second defendant and by a bank on an independent attachment against the second defendant, was entitled to priority.
    [Ed. Note. — Eor other cases, see Subrogation, Cent. Dig. §§ 99-103.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    ,Suit by C. L. Sullivan and wife against Grant Doyle. Judgment (150 S. W. 473) reversing the judgment of the trial court, and plaintiffs bring error.
    Reversed.
    Carl Gilliland and W. H. Russell, both of Hereford, for plaintiffs in error. G. W. Bar-eus, of Waco, and J. C. North, of Falfurrias, for defendant in error.
   PHILLIPS, C. J.

Louis E. Botts conveyed land to Grant Doyle for which Doyle, in part payment, gave three vendor’s lien notes. Later, Doyle conveyed the land to H. B. McKinley, who assumed the payment of the second and third of the notes given by Doyle to Botts, — the first one having been paid, and also gave Doyle his vendor’s lien note in a certain amount. The second of the notes in Botts’ favor having matured, the trial court found, — and there was some evidence to such effect, — that at McKinley’s request C. L. Sullivan furnished him the money for its payment, — joint funds of Sullivan and his wife, — with the understanding between himself and McKinley that he should hold the note for his security. The note was taken up by McKinley at the bank which held it for collection for Botts, its owner, and delivered by him to Sullivan. In delivering the note, the bank marked it “paid” across its face. Botts was not a party to the agreement between Sullivan and McKinley and had no knowledge of it.

The suit was by Sullivan and wife against Doyle and McKinley upon this note and for foreclosure of the vendor’s lien. In the petition, Botts and the First State Bank & Trust Company of Hereford were included as defendants, it being alleged that they were asserting liens upon the land, the lien of the latter being an attachment lien levied in another suit against McKinley. Sullivan and wife sought to have their lien adjudged superior to or of the same rank as that securing the third of the original series of notes in Botts’ favor, and superior to the lien securing the note given by McKinley to Doyle, as well as that claimed by the Bank & Trust Company. Botts and Doyle, by cross-actions, set up their respective notes and liens, each asserting that the lien claimed by the Sulli-vans, if it existed, was subordinate to his. McKinley entered his appearance in the case, but of a date prior to the filing of these cross-actions. The Bank & Trust Company made default. Judgment was rendered for the Sul-livans against McKinley for the amount furnished for the payment of the note sued on, with interest, and subrogating them to the lien securing it. Foreclosure of the lien against the other parties was decreed in favor of the Sullivans and Botts. It was ordered that the proceeds of the sale be applied to the payment, first, of the principal and interest due on Botts’ note and the costs of the suit, and then, to the judgment in favor of the Sullivans, any remainder to be paid over to McKinley. Doyle was denied' any recovery upon his cross-action against McKinley apparently for the reason that as to it McKinley had entered no appearance and had not been served with citation, and proper diligence had not been exerted to obtain such service. Doyle, alone, appealed.

The Court of Civil Appeals for the Seventh District held that McKinley was not before the court as to Doyle’s cross-action, but that the j’udgment should be reversed and the cause remanded because the lien of the Sullivans was given priority over Doyle’s lien and that of the Bank & Trust Company, and because Botts was not allowed the recovery of attorneys’ fees upon his note. We granted the writ of error upon the application of the Sullivans because the decision of the Court of Civil Appeals practically settled the case.

Botts was content with the judgment as it was rendered in his favor and did not appeal. There was no warrant for a reversal in his behalf on Doyle’s appeal. This is likewise true as to the reversal in favor of the Bank & Trust Company. Foreclosure of the lien of the Sullivans was decreed against it by default and it did not appeal. No evidence was adduced in anywise showing that such lien as it had was superior to the lien claimed by the Sullivans.

Having entered his appearance in the main case, McKinley was before the court for all purposes, and Doyle was entitled to judgment against him upon his cross-action without the necessity of citation. Roller v. Ried, 87 Tex. 76, 26 S. W. 1060; Vernor v. Sullivan (Civ. App.) 126 S. W. 641.

The Sullivans were not entitled, as against Botts, to be subrogated to the lien securing the note for the payment of which their money was furnished. Botts did not consent to the transfer of the note or lien. The other note held by him, secured by the same lien, remained unpaid. With his debt not wholly satisfied, the payment of the note by persons in the position of the Sullivans could, as against him, work no subrogation without his consent. Sheldon on Subrogation, § 248; Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273; Cason v. Connor, 83 Tex. 26, 18 S. W. 668. But under the finding of the trial court in respect to the agreement between C. I. Sullivan and McKinley, the Sullivans clearly became subrogated to the lien as against McKinley to the extent of the amount furnished by them for the payment of the note, though in their hands, it was subordinate to that held by Botts.

The lien thus acquired by them was necessarily superior to those of junior lien-holders, such as Doyle and the Bank & Trust Company. The lien was upon the land when Doyle and the Bank & Trust Company acquired their liens. They took their liens subject to it. It was not possible for them to be prejudiced by the Sullivans being substituted for Botts as its holders. Upon principle there can be no reason for rendering it in the Sul-livans’ hands inferior to liens which from their origin were subordinate to it. Downer v. Miller, 15 Wis. 612.

The judgment of the Court of Civil Appeals is reversed. The judgment of the trial court as rendered in Botts’ favor will not be disturbed and is affirmed. As- rendered for the Sullivans it is likewise affirmed. For failure to decree recovery in Doyle’s favor on his cross-action against McKinley, it is reversed in part and judgment will be here rendered for Doyle against McKinley for the amount admittedly due as shown by the record, principal, interest and attorneys’ fees, upon the latter’s note in Doyle’s favor, with foreclosure of the vendor’s lien securing-it The judgment will provide that the proceeds of the sale of the land be applied to the payment, first, of tlie judgment in Botts’ favor and the costs of the suit in the trial court, including the expense of the sale; next, the judgment in! favor of the Sullivans; then, the judgment in Doyle’s favor, any balance remaining to be paid to McKinley.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Di&ests and Indexes


author: DAVIDSON, P. J.

text:
    LEE v. STATE.
    (No. 4428.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    Criminal Law &wkey;>1090(16)—Appeal—Dispo-sition.
    In criminal prosecution, where the record contains no statement of facts or bill of exceptions, and the matters set out in the motion for new trial cannot be considered in the absence of such statement or bill, the judgment must be affirmed.
    [E'd. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2822, 2948, 3204.]
    • Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    George Lee was convicted of assault with a pjstol, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of an assault by the use of a pistol, which was then and there a prohibited weapon, as it is termed. The jury allotted him a term of two years’ confinement in the penitentiary.

The record is before us without a statement of facts or bill of exceptions. The matters set out in the motion for new trial are such that they cannot be considered in the absence of a statement of facts, and some of them cannot be reviewed without bills of exception, especially the question which relates to the argument of state’s counsel. There is nothing with reference to this argument except the statement in the motion for new trial.

As this record is presented to us, the judgment must be affirmed, and it is accordingly so ordered.
      <fes>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    DOWNS v. STATE.
    (No. 4413.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    LARCENY <&wkey;71(2) — INSTRUCTIONS—INTENT. _
    _ In prosecution under Pen. Code 1911, aft. 1329, for theft, by taking from a baggage check room a bag belonging to another and converting it, where defendant claimed that he had presented his cheek for his own Bag, and that the agent confused the numbers, and that when he received the bag he was intoxicated and had no intention of stealing the bag, but subsequently decided to do so, he was entitled to instruction that, if the jury found his theory to be correct, he was not guilty.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 192.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Oscar Downs was convicted of theft, and he appeals.
    Reversed and remanded.
    P. O. Lopp and G. W. Dunaway, both of Et. Worth, 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 two years upon an indictment and conviction for theft.

It appears appellant deposited his suit case with the agent of the Texas & Pacific Railway Company in charge of its baggage-room in Et. Worth, and received a check corresponding with the number on his suit case, which was 53252. He returned the check, and the agent by mistake gave him a suit case belonging to another party, on which the check number was 52352. Appellant claimed that he did not discover the mistake made until the next day after he had gotten possession of the suit case; that at the time he received it he had been drinking, and was intoxicated; that he delivered the check which the agent gave him and received from him a suit case which he supposed to be his own until the following day. There was evidence showing that after discovery of the mistake appellant converted the property.

The court charged the jury on the law of theft, and appellant excepted to the charge on the ground that it failed to tell the jury, in effect, that if appellant at the time he received the property did not know that it was not his own, and did not at that time intend to appropriate it to his own use, but formed that intention subsequently after discovering the mistake, that he would not be guilty. Appellant also requested special charges, which were refused, submitting this issue. The prosecution was under article 1329, P. 0. Mr. Branch, in his Annotated Penal Code, with reference to the subjects involved, uses the following language, and cites the authorities mentioned:

“If the original taking was lawful, no false pretext being used; a conviction based upon a subsequent appropriation will not be sustained under an ordinary indictment for theft. Stokely v. State, 24 Tex. App. 509, 6 S. W. 538; Taylor v. State, 25 Tex. App. 101, 7 S. W. 861; Nichols v. State, 28 Tex. App. 107, 12 S. W. 500; Williams v. State, 30 Tex. App. 153, 16 S. W. 760; Jones v. State, 49 S. W. 387; Gosler v. State, 56 S. W. 51; Peters v. State, 49 Tex. Cr. R. 365, 91 S. W. 224; Warrep v. State, 106 S. W. 382; Richards v. State, 55 Tex. C. R. 281, 116 S. W. 587.
“Proof of the conversion of the property is not sufficient, of itself, to show that defendant intended at the time of the taking to deprive the owner of the value of the same and to appropriate it to the úse or benefit of defendant. Pitts v. State, 3 Tex. App. 210; Hernandez v. State, 20 Tex. App. 152; Stokely v. State, 24 Tex. App, 510, 6 S. W. 538; Cox v. State, 28 Tex. App. 95, 12 S. W. 493; Williams v. State, 30 Tex. App. 155, 16 S. W. 760; Lopez v. State, 37 Tex. Cr. R. 650, 40 S. W. 972; Gosler v. State, 56 S. W. 51.”

Appellant’s defense was that the original taking was not unlawful, and at the time there was no intent to appropriate the property. The appellant was entitled to a charge upon his defensive theory raised by the evidence. Wilson v. State, 76 S. W. 434; Bullard v. State, 41 Tex. Cr. R. 225, 53 S. W. 637; Varas v. State, 41 Tex. 527; Henry v. State, 9 Tex. App. 358; Cameron v. State, 9 Tex. App. 332; Melton v. State, 56 S. W. 67; Coleman v. State, 55 S. W. 836; James v. State, 32 Tex. Cr. R. 511, 24 S. W. 642; Fruger v. State, 63 S. W. 130.

The failure of the court to give such a charge was material error, and because thereof it is ordered that the judgment of the lower court be reversed, and the cause remanded.


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

text:
    COX v. STATE.
    (No. 4355.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1917.
    On Motion for Rehearing, March 28, 1917.)
    1.. Burglary <&wkey;9(l) — Passing Through Open Door.
    The mere passing through an open door at night does not constitute burglary, since force of some sort is necessary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 6-9.]
    2. Burglary <&wkey;24 — Indictment — Sueei-oiency.
    Indictment charging that defendant “did unlawfully by force, threats, and fraud bur-glariously and fraudulently break and enter a house * ⅜ ' ⅜ without the consent,” etc. held
      sufficient to charge either a nighttime or day: time burglary.
    [Ed. Note — For other cases, see Burglary, Cent. Dig. § 34.]
    3. Bukglaey &wkey;>3 — With Intent to Commit Theft — Necessity of Force and Breaking.
    To constitute a burglarious entry with intent to commit theft, it must be committed with force or breaking with intent to commit the crime.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 24-27.]
    4. Burglary <&wkey;46(2) — With Intent to Commit Theft — Instructions.
    In prosecution for burglary with intent to commit theft, instructions held proper.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 112.]
    5. Witnesses <&wkey;358 — Impeachment—Cross-Examination — Isolated Transactions.
    Where defendant’s character witness testified that he had never heard anything charged against defendant, it was proper to cross-examine him as to whether he was present when defendant was tried for perjury, since that was a charge against defendant, and proper subject for impeachment.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1159, 1160.]
    6. Criminal Daw &wkey;>1170%(6) — Harmless Error — Evidence Cured by Instruction.
    Allowing_ cross-examination of defendant’s character witness, after his statement that he had never heard anything charged against defendant, to show defendant’s trials and convictions of perjury which were finally reversed, was harmless, where court instructed jury that there was no conviction, unless the appellate court had affirmed it.
    [Ed. Note. — For other cases, see Criminal. Law, Cent Dig. § 3134.] ,
    On Motion for Kehearing.
    7. Witniesses l&wkey;337(5) — Impeachment of ■ Accused — Previous Trial and Acquittal.
    Allowing district attorney on cross-examination of accused to show that accused was twice convicted of perjury and finally acquitted was erroneous.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132, 1140-1142,'1146-1148.]
    8. Criminal Law <&wkey;1170%(6) — Harmless Error' — Evidence Cured by Instruction.
    Instruction that there was no conviction where appellate court had not affirmed it did not cure error of permitting cross-examination of accused as to his being twice tried and' finally [acquitted of perjury, where the instruction still left the testimony before the jury.
    [Ed. Note. — For other cases, see Criminal, I Law, Cent. Dig. § 3134.]
    I Prendergast, J., dissenting.
    I Appeal from District Court, Taylor County; Thos. D. Blanton, Judge.
    I Ernest Cox was convicted, of burglary with intent to commit theft, and appeals.
    Affirmed. On motion for rehearing. Motion granted, judgment of affirmance set aside, judgment reversed, and cause remanded.
    I Cunningham & Sewell, of Abilene, for apellant. E. B. Hendricks, Asst. Atty. Gen., lor the State.
   I DAVIDSON, P. J.

Appellant was convicted of burglary with intent to commit the crime of theft; his punishment being assessed at two years’ confinement in the penitentiary.

The record is before us without a statement of facts. Bill of exceptions No. 1 is to the effect that Coffman, the alleged owner of the burglarized house, was asked upon cross-examination if the door of the house had not ,at times been open. He replied in the affirmative, and that he had more than one house or bin which contained wheat. He was then asked how many. The court remarked that he did not see how that could have anything to do with this case, whether the door was open or not. if it was a nighttime transaction. Counsel for appellant replied it would not if it was at some unusual place of entrance. The court stated it would not at nighttime; there does not have to be any force applied at night. Appellant excepted. The bill further recites that the testimony of this witness shows that his granary had been entered by some one at night and 15 bushels of wheat taken. Appellant testified admitting he took the wheat from the granary, but further stated the door leading into it was open at the time he entered, and neither he nor his codefendant opened the door. The bill recites further after the court ascertained that the indictment did not charge a nighttime burglary he permitted the defendant to proceed to question the witness as to whether or not the door was ever left or found open, but he did not retract nor in any way correct his statement and remarks aforesaid made in the presence and hearing of the jury. The court qualifies the bill by stating:

“The defendant having admitted that he went into the bam and stole the wheat about midnight, the court was under the impression that the indictment charged a nighttime burglary, and when he interrupted counsel, he did so with that impression in mind, but following what is detailed in this bill, the court, as shown in the stenographer’s notes, asked counsel: Does the indictment charge a nighttime burglary?
“Blr. Cunningham: No, sir.
“The Court: Well, if it does not, why proceed?
“And counsel then went as fully into the matter as he desired, and the court fully submitted the issue of force and breaking in his charge.”

If the door was not open and the defendant passed through it and took the wheat out of the house, it would be burglary under this indictment, either day or night. But if the door was open, and they entered the house by that means, it would not be burglary. The question of passing through an open door at night came before this court in Hamilton v. State, 11 Tex. App. 116, and it was decided in an opinion by Judge Hurt that this did not constitute burglary. There must be force of some sort in order to constitute burglary.

• .[2] The indictment sufficiently charges a nighttime burglary, under the authorities. It charges that appellant did unlawfully, by force, threats, and fraud, burglariously and fraudulently break and enter a house then and there owned and occupied by one IX E. Coffman, without the‘consent, etc. ' In Carr v. State, 19 Tex. App. 6S5, 53 Am. Rep. 395, the question was fully discussed and decided that an indictment containing this character of allegation charges either a nighttime or a daytime burglary. We are not discussing the burglary of a private residence at night. The Carr Case has been followed by subsequent decisions.

The court instructed the jury that in order to constitute a burglarious entry with intent to commit the crime of theft, it must be committed by force or breaking, and before the jury would be warranted in finding a verdict of guilty, they must be satisfied from the evidence beyond a reasonable doubt that the entry was made, if it was made, by force and breaking, and with the intent to commit the crime of theft. This was correct. In submitting the case for a finding by the jury the court instructed them that, if they believed appellant by force and breaking did enter a house and that the same was then and there occupied by D. E. Coffman, with the intent on the part of appellant to commit the crime of theft, they would be authorized to find him guilty, otherwise they would acquit. In this connection he further instructed the jury as follows:

“I instruct you that the state having failed to charge in the indictment a nighttime burglary, before you could find the defendant guilty of burglary as charged in said indictment, you must believe from the evidence that either the defendant or John Reed opened the door leading into said granary, and in this connection I charge you that if said door was already open, and neither said defendant nor said John Reed opened the same, then the said defendant would not be guilty of burglary; or, if you have a reasonable dopbt as to such issue, you will acquit the defendant.”

These charges instructed the jury as to the law of the case, and, as we understand, in accordance with the statute and the decisions.

Another bill recites that the defendant in his testimony admitted taking the personal property shown to have been stolen from the alleged burglarized house, but he testified that the door leading into it was open at the time, and neither he nor his co-defendant opened it, thereby raising the issue of whether or not defendant was guilty of burglary or theft. And it is further stated in the bill defendant had filed his application in writing, for suspended sentence, and in support of this had testified that he had never been convicted of a felony in this state or any other state; and that while his character witness, Ben Hancock, was on the stand, and after said witness had testified that he knew defendant^ general reputation in the community where he lived for truth and veracity and for honesty and fair dealing, and that up to about two years ago, when he was indicted for perjury, it was good, the district attorney then took the witness for cross-examination, when the following occurred:

“You know of the defendant having had two trials for perjury? To which question the defendant then and there objected for the reason that the testimony is inadmissible to establish reputation; that it should be confined to his general reputation, and because it is assuming to prove isolated transactions; that it is highly prejudicial,” etc.

Thereupon the court made the following remarks in the presence and hearing of the jury:

“The court holds it admissible upon .two points: The weight to be given to the credibility of the witness and as to the general issue of the defendant’s character being put in issue under his plea for suspended sentence. Under both of them it is admissible.”

The witness was permitted to testify that he knew that defendant had been tried twice for perjury. The bill is thus qualified by the court:

“The defense proved by several witnesses that they considered defendant’s general reputation, was good because they had never heard of anything whatever charged against him. In rebuttal to this the court permitted the state to ask these witnesses if they were no.t present when the defendant was tried for perjury, and at the request of defendant the court charged the jury in his general charge that no defendant could be deemed convicted until his conviction was made final by affirmance from the appellate court.”

As explained by the court we think there is no reversible error shown. When these witnesses testified they had never heard of anything charged against appellant, it was permissible to ask them if they did not know the fact and were present when defendant was tried for perjury. This was certainly a charge against him, and the witnesses having testified they had never heard of anything, it could be shown they were present .when these cases were tried. This was a subject °í impeaohment, and this testimony became admissible by reason of the peculiar statements of the witnesses. They had testified they had never heard anything charged against appellant, and yet on cross-examination they were shown to have been present when he was on trial. for perjury. That certainly was a charge against him, and it was proper to test the memory and attitude of the witnesses by this means. The court in order to avoid any trouble by reason of the statement that appellant had been convicted, instructed the jury that it could not be shown that he had been previously convicted under the facts because the case had not been affirmed by the appellate court. It may be gathered from the bill that appellant’s case had been reversed in the appellate court, and the bill shows that he had been finally acquitted.

Another bill recites the fact that appellant had filed a plea for his suspended sentence, and had testified in support of same that he had never been convicted of a felony in this or any other state. The bill further recites that while defendant .was upon the stand he was asked upon cross-examination if he was indicted for perjury. He answered, “Yes,” hut was acquitted. He was then asked if he had not been tried for perjury three times in the same case. Objection was urged that this was prejudicial, and the court overruled it, and defendant answered, “Yes, sir.” The defendant excepted to the ruling of the court. Then the following question was propounded by the district attorney:

“You were tried three times for perjury on the same charge, and the case was reversed, and came back, and you were tried again, and the last time you were turned loose, but you were convicted by the jury here twice.”

Defendant objected for the reason that it necessarily carries the inference to the jury that he had been convicted, and that such convictions were not final, and was calculated to prejudice the rights of the defendant before the jury, and that this testimony was prejudicial and not admissible for any purpose. The court says:

“I think it is admissible on the grounds — that is, with respect to the issue of general reputation that has been put in issue, and the testimony of some of the witnesses in the case; it would become material upon that issue, and I will admit it.”

To the ruling of the court defendant excepted. The court qualifies this bill by stating:

“The stenographer’s record shows that the court called ihe stenographer to his desk and dictated the following reasons, not in the hearing of the jury, for admitting the testimony, to wit: That he admitted it in rebuttal to defendant’s witnesses who had testified that they had never heard his reputation in the three respects inquired about questioned.”

The court instructed the jury, as before stated, that he would not be a convict, unless his judgment had become final. The language of the charge is thus stated:

“I instruct you that the fact that the defendant was convicted of an offense, which conviction was not made final, would, in law, constitute no conviction at all, as no person can be considered to have been convicted of an offense until such conviction becomes final.”

The last question, as guarded by the court, is not, we think, of sufficient importance to reverse this judgment. The question of the district attorney is to the effect that appellant had been convicted twice and acquitted once in the same case; and further, that the two convictions had been reversed by the appellate court, which was followed by the acquittal. This went before the jury, and to avoid injury the court instructed the jury that those convictions meant no conviction because they had not been made final. We think the matter as presented should not cause a reversal of the judgment. Defendant had filed a plea for suspended sentence, testified fully with reference to these matters, and that he had been tried and acquitted. This charge was evidently intended to withdraw from the consideration of the jury any damage that might be done by the testimony showing that he had been formerly found guilty by a jury. While the charge is general and not specific, there is no objection urged to it.

As the record is presented, ,we are of opinion that these matters do not present reversible error, and the judgment is therefore affirmed.

On Motion for Rehearing.

In a motion for rehearing appellant urges error in the opinion heretofore affirming the judgment. We deem it unnecessary to restate the question urged in the motion. Appellant’s general reputation for character was placed in issue. The state-.was permitted to show that he had been charged with perjury, and twice convicted in the same case. When appellant, in reply to queries, stated that he had been charged but acquitted of perjury, the matter should have stopped, and appellant’s objection to further inquiry should have been sustained. There had been a perjury ease against him, and this was shown. Then he was asked whether he was acquitted. Upon the affirmative answer the state was permitted to show that in the same case on two trials he had been convicted by the jury. The judgments had been set aside, and the jury finally rendered the verdict of acquittal.

We are of opinion that we were in error in sustaining this action of the court. The judgment was affirmed upon the theory that the court’s charge instructing the jury that appellant would not be considered a convict until a final disposition of the conviction had occurred against him, and this was a sufficient withdrawal of the testimony from the consideration of the jury, but upon further consideration we have reached the conclusion we were in error. The charge it will be noticed did not withdraw the testimony from the- jury, and it was not withdrawn, but the jury was instructed that the effect of the former conviction did not render him a convict. The testimony that he had been twice convicted remained before the jury. This testimony was not admissible, and was of rather a material and damaging nature. It may be also stated that he had filed a plea for suspended sentence. Even had the court withdrawn from the jury the consideration of the testimony for any purpose, it would not have cured the error. The 'testimony was not admissible from any viewpoint. Clements v. State, 61 Tex. Cr. R. 161, 134 S. W. 728; State v. Haney, 151 Mo. App. 251, 132 S. W. 554; Darnell v. State, 58 Tex. Cr. R. 585, 126 S. W. 1122; Baldridge v. State, 45 Tex. Cr. R. 193, 74 S. W. 916; Crowell v. State, 56 Tex. Cr. R. 480, 120 S. W. 897. On the erroneous ruling of the court admitting the testimony, see Jennings v. State, 55 Tex. Cr. R. 147, 115 S. W. 587, and Goad v. State, 52 Tex. Cr. R. 444, 108 S. W. 680. Other cases might be cited, but these are sufficient.

Believing we were in error in affirming the judgment for the reasons above indicated, the motion for rehearing is granted, the judgment of affirmance set aside, and tlie judgment reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). The first opinion affirming this case ,was correct. The motion for rehearing should be overruled. This case should be affirmed, not reversed.
      cfcsFor other oases see same topic and KEY-NUMBBR..,in all Key-Numbered Digests and Indexes

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author: MORROW), J.

text:
    JERROLS v. STATE.
    (No. 4425.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    Larceny ¡®=>S5 — Guilt — Sufficiency of Evidence.
    In a prosecution for theft of seed cotton, evidence held sufficient to support conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    William Jerrols was convicted of theft, and he appeals.
    Affirmed.
    C. Douglas Duncan, of Bellville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW), J.

This was a prosecution by indictment for theft with a judgment condemning the appellant to confinement in the state penitentiary for a term of four years.

The only question for .review is the sufficiency of the evidence. The conviction was for the theft of seed cotton. The owner of the property had a wagon standing in his field in which he claimed to have placed 1,300 pounds of seed cotton. Two rains had fallen on it, and it had been standing in the field some days, and the wagon and the cotton were taken from the owner’s field in the nighttime. The next day cotton which weighed 1,038 pounds was found in an outhouse on the farm occupied by appellant and identified by the owner as being the same which he had in his wagon. The wagon was found near a neighbor’s house some distance from that of appellant. The tracks of the wagon were traced from the field where the owner left it to the outhouse on appellant’s place. The wagon tracks were not identified by any peculiarity except that the impression made by the tires showed that it was not a new wagon. There was evidence that along the route traveled there were bits of cotton such as would fall off by the jolting of the wagon while in motion. The ground immediately in front of appellant’s outhouse where the cotton was found had been wet by pouring water on it obliterating the tracks. The wagon was also traced by its tracks out away from appellant’s premises in the direction of the place where the wagon was found the next morning after the theft. Appellant’s team consisted of two medium-sized mules, and the tracks of the team drawing the wagon were described as having been made by mules of that character. At the place where the owner left his wagon and cotton there were. found tracks on the ground made by a shoe with a rubber bottom having checks such as are on rubber or tennis shoes. These tracks were measured and the measurement compared-with the track admittedly made by appellant the next day after the theft and fourfd to be of the same size as appellant’s track. Appellant was found wearing tennis shoes, the bottoms of which had checks on them like those found in the owner’s field near the place from which his wagon was taken. Appellant worked the day before in a neighboring field wearing the same shoes, and his tracks there made also measured, and the measurement shown to correspond with his track ■ and those found in the field of the owner of the cotton at the place where his wagon stood. While the owner was picking cotton he had an old torn quilt which was used by his children in playing about and under the wagon, and which was on the cotton at the time it was stolen. Among the cotton found in appellant’s possession were small pieces of cloth like that of the quilt, and which the owner identified as being part of the cloth from the quilt. The cotton found in appellant’s possession was quite wet, some of it mildewed and about to sprout. Appellant lived on a rented farm and his landlord testified that appellant had sold all of the cotton that he had any knowledge of his gathering and all that was on the place within his knowledge except a few hundred pounds of scrap cotton ungathered. Appellant accounted for the possession of the cotton by the testimony of his mother to the effect that she had furnished the seed and some of the labor for planting a part of the cotton on the land rented by appellant and that the cotton found in appellant’s possession was her cotton. She was corroborated to the' extent that she had bought seed in the spring, and children from her household testified that they gathered the cotton during the fall and put it in the house where the cotton in question was found. Their testimony showed that they had gathered this cotton at various times during the fall prior to September 20th, the date of the theft. Appellant accounted for the fact that the cotton in his possession was wet and sprouting by his testimony that the house in which it was stored leaked. This was contradicted by his landlord, owner of the house, who also testified that he had no knowledge of appellant’s mother having any cotton on his farm; that if she had any he would own an interest in it, and had received no information or notice that It was there. He also testified that the appellant in picking the cotton which he had sold had picked it from all over the field, including the land claimed by appellant’s mother.

Appellant insists that the identity of the cotton in his possession was not sufficiently established. The case was fairly submitted to the jury, including a charge upon circumstantial evidence of which there is no complaint, and, in onr Judgment, the evidence taken as a whole is sufficient to support the conviction. Berry v. State, 37 Tex. Cr. R. 44, 38 S. W. 812; Foster v. State, 56 S. W. 58; Richards v. State, 59 Tex. Cr. R. 203, 127 S. W. 823; Davis v. State, 63 Tex. Cr. R. 453, 140 S. W. 349; Dugat v. State, 67 Tex. Cr. R. 46, 148 S. W. 789.

The judgment of the lower court is therefore affirmed.
      <gEs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I MORROW, J.

text:
    JOHNSON v. STATE.
    (No. 4340.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    1. Intoxicating Liquoes <&wkey;236(13) — Offenses — Evidence—Sufficiency—‘ ‘Beek. ’ ’
    In a prosecution for pursuing the business of selling intoxicating liquors, evidence that defendant made sales of beer on Sunday, which beer was concealed in a barrel, held to warrant a conviction, the word “beer” as defined primarily meaning intoxicating liquor, and secondarily, referring to other kinds of beer, such as root beer, etc. (citing Words and Phrases, Second Series, Beer).
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 316.]
    2. Intoxicating Liquoes <&wkey;239(3) — Often ses — Evidence—Sufficiency.
    In a prosecution for pursuing the business of unlawfully selling intoxicating liquors, evidence, <held insufficient to raise the question whether accused purchased the liquor as agent for others, and so it was proper not to submit that issue to the jury.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. § 334.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Will Johnson was convicted of unlawfully pursuing the business of selling intoxicating liquors, and he appeals.
    Affirmed.
    McCutcheon & Church, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   I MORROW, J.

Appellant was indicted and convicted of the offense of unlawfully pursuing the business of selling intoxicating liq-luors, and ’his punishment assessed at two wears’ confinement' in the state penitentiary. I

The indictment charged that the sales were made to two persons named in the indictment. There was evidence that there were hidden about his premises 41 quarts of beer with ice in a barrel. It appears that these sales were made on Sunday at various times, and that the beer found on the premises was on Saturday night. Appellant seeks lo set aside the conviction on the ground that it was not shown that the beer was an intoxicating liquor. This question is raised by exceptions to the charge and to the sufficiency of the evidence and the refusal of special charges. The word “beer,” as defined in the dictionaries, has a primary and a secondary meaning. Primarily it is an in-intoxicating liquor; secondarily, it refers to various other kinds of beer, such as root beer and persimmon beer. Black, on Intoxicating Liquors, p. ■ — ; Williams v. State, 72 Ark. 19, 77 S. W. 597. By many of the courts of other states it has been held that where the word “beer” is used without restrictive words accompanying it or descriptive of it it denotes an intoxicating malt liquor. Rochester v. State, 26 Okl. 309, 109 Pac. 298. See Words and Phrases (2d Ser.) p. 417. It has been held in this state in a number of cases that where the proof showed a sale of beer and there was no evidence that it was an intoxicating liquor, the conviction for violating the local option law prohibiting the sale of intoxicating liquors was not sustained. Harris v. State, 86 S. W. 763; Sullivan v. State, 48 Tex. Cr. R. 201, 87 S. W. 150. Other later decisions, rendered by a divided court, have held that the proof of the sale of beer was sufficient to support such a conviction. Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 156, Ann. Cas. 1914C, 863. The cases in which it has been held that the proof of sale of beer will not support a conviction are cases where the prosecution was under the statute prohibiting the sale of intoxicating liquors, while the prosecution in this case is under the statute prohibiting the pursuit of the business of selling intoxicating liquors.

The finding of the jury in the present case is that the appellant was engaged in the business of selling beer. If there were circumstances showing that the beer that he was engaged in the business of selling was of the intoxicating variety, the conviction must stand without reference to which line of these decisions is followed. We are of the opinion that there was such evidence supplementing the proof that the appellant sold beer. There are circumstances showing that he kept on hand a quantity of beer in bottles; that the price of it was 25 cents a bottle; that it was kept on ice; that it was sold on Sunday. He was supplying a demand for a beer on a day when it could not be bought from legitimate vendors of intoxicating liquors in nearby precincts or towns. His pursuit of the occupation was not by isolated sales, but by a systematic business. There has not come to our attention any such business or occupation as the sale of root beer or persimmon beer. If one were so engaged, it is not probable that he would have concealed his stock. Some of his customers had been drinking whisky on the occasions that they purchased beer from appellant. Their testimony indicates that they knew that he was prepared to supply their demand for beer. These circumstances, we think, in connection with the fact that the article sold was beer, are sufficient to show that the business in which appellant was engaged was that of selling intoxicating liquors.

One of the witnesses named in the indictment, E. A. Hume, testified as follows (on direct examination):

“I didn’t have much of a transaction; I gave him the money to get me a little beer with. I gave him about $1.35, something like that. He got me a half dozen bottles of beer. Yes, sir; he gave them to me. Yes, sir; I gave him $1.35 to get the beer with. I went over there Sunday and got it. He brought it out to me in a basket. Six quarts. It was beer; it tasted like beer; that is, what I gave him the money to get, beer. I don’t remember what it was labeled. Yes, sir; I drank it. Yes, sir; it tasted like beer; that is what I ordered, beer. No, sir; before that time, I didn’t buy anything from him at any other time; I might a couple of times, but that is some time ago; I think I have, but I don’t remember the date. I got the same amount from him. 1 gave him the money on Saturday before Sunday. Yes, sir; I- went down on, Sunday and got it. This wap right this side of Cement, where Johnson lives. I gave him the money at Cement City. Yes, sir; I went down to his house next day and got it.”

On cross-examination:

“I don’t know what you call it, I gave him the money on Saturday and went over there next day and got the beer, I don’t know what you call it. No, sir; he didn’t give me any beer on Saturday. I don’t remember what time I gave him the money on Saturday, along after dinner, after 12 o’clock. Along about 10 o’clock on Sunday I went over there and got it. There wasn’t anything said. ‘Bring half a dozen quarts of beer’ is what I ordered. I said: ‘Bring me a half dozen quarts of beer.’ I ain’t allowed to take this beer home. My wife don’t allow me to bring much beer home, so I had him bring me out a half dozen quarts of beer. The reason for that is I didn’t want to bring it home, and I got anybody who was coming to town to get it and take it to their house for me. I got several others besides Will to get it for me; I don’t know as it is necessary for me to call their names. 'Yes, sir; I gave him the money to get this beer for me. He said he was going to town. Yes, sir; he said he would get it for me. It happened that way both times.”

Appellant insists that under this testimony the court should have instructed the jury on the issue as to whether appellant acted as the agent of Hume in purchasing beer, and should have told the jury that if the transaction with Hume was not a sale, there could be no conviction. This contention is correct if the evidence raises the issue. In our judgment, it does not raise it. There is no testimony that appellant bought the beer from any one for Hume, none that he used Hume’s money in buying it, and none that he sent to town to get the beer. On the contrary, it appears that he kept beer at his place and delivered it to his customers. The question of the sufficiency of the evidence to raise the issue of agency was discussed in the case of Hamilton v. State, 191 S. W. 1161, and it was held on motion for rehearing that the evidence in that case was not sufficient to raise the issue. The agency there under consideration was that of appellant for the seller, but the case is in point on the character of evidence necessary to require or justify the submission of the question of agency.

We have reviewed all the questions raised by the record, and, finding no reversible error, it is ordered that the judgment of the lower court be affirmed.
      <S=5>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


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

text:
    BUNCH v. STATE.
    (No. 4421.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.)
    1. Larceny <&wkey;02(l) — Theft from the Person — Knowledge.
    Evidence held not to show, as is necessary, under Pen. Code 1911, art. 1351, for theft from) the person, that the money was taken without the knowledge of the person.
    [Ed. Note. — For other cases, see Larceny, Cent. Big. § 162.)
    2. Larceny <&wkey;3(4) — Motive of Taking.
    There could be no theft where defendant’s only purpose in taking another’s pocketbook was to get money with which to pay the' other’s room rent.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 6-10.)
    3. Larceny <&wkey;3(2) — Fraudulent Intent.
    To constitute theft there must be a fraudulent intent coincident with the taking j a subsequent fraudulent intent being insufficient.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 4.)
    Prendergast, J., dissenting.
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    A. C. Bunch was convicted, and appeals.
    Reversed and remanded.
    El. J. Gibson, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
    E.
   DAVIDSON, P. J.

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

The evidence discloses that appellant and Whitfield had been attending a fair in Dallas, and on this particular occasion Whitfield was very drunk and appellant intoxicated, hut not to the same extent as was Whitfield. They went to a hotel, appellant assisting Whitfield up the stairway, into the clerk’s office, where he engaged a room for Whitfield known as room No. 20. The door of this room opened into the office, where there were eight or ten people assembled, and the room door was open to the inspection of all those who were in the office. Mrs. Terrell was officiating and in control in the absence of the proprietress, Mrs. Jones. A question came up as to the rent of the room, and appellant informed Mrs. Terrell that Whitfield had money and could pay the room rent. After some discussion among themselves appellant went into the room where Whitfield was lying on a bed, and in the presence of Mrs. Terrell and one or two others took Whitfield’s pocketbook from his pocket, and, Mrs. Terrell says, over Whitfield’s protest; that he told them' not to take his money, but she says appellant did, and took a dollar out of the pocketbook and paid her the room rent. Mrs. Terrell was a state’s witness, and proved that Whitfield knew of and protested against the taking of his money by appellant. The indictment charged appellant under both] grounds of the statute, but the court only! submitted taking the property without the kowledgé of Whitfield, and under this phase of the law he was'convicted.

The state’s testimony not only fails to prove a case, but fully disproves it. The statute requires that the property under such circumstances must be taken without the knowledge of the injured party, and proof of the fact that he knew all about it and protested does not meet the requirements of the statute, but disproves the allegation relied upon to sustain the conviction. For this reason this judgment must be reversed. Branch, Ann. P. C. p. 1374, for many collated cases; P. C. art. 1351.

We might stop at this point without further discussion of the ease, but it may be advisable to state that this pocketbook, under all the testimony, was taken for the purpose of getting money from it to pay the room rent. If this was the only motive, then there could be not only no theft from the person, but no theft under any view of the case. If~the property was taken originally without a fraudulent intent, a subsequent fraudulent intent would not relate back and make the taking fraudulent. This has been passed on so often that it is unnecessary to cite authorities. But see Branch’s Ann. P. C. p. 1374; Roberts v. State, 21 Tex. App. 464, 1 S. W. 452; Graves v. State, 25 Tex. App. 333, 8 S. W. 471. In all theft the fraudulent intent and the taking must be coincident. A taking may be unlawful, but if there is no fraudulent intent it cannot constitute the crime of theft. There seems to be no question of the fact from the state’s testimony that the pocketbook was taken with a view of getting money from it to pay the room rent, and that appellant actually did get money out of the pocketbook to pay Mrs. Terrell, and she received the dollar for the room rent. This was the amount she charged. The state’s theory was that when he opened the pocketbook he took also some greenbacks from it. The evidence by the state’s witnesses — two of them perhaps — was that, while he had the pocketbook open in his hand in front of all of them, he was seen to put some greenbacks in one of his hip pockets, and was asked about it. This he denied. He said it was a dirty handkerchief. When this occurred he returned to the room, and was in there a few minutes, and came out and made the offer to be searched by any or all of them, but no one made a search of his person. The theory of the state was that he must have left the greenbacks in the room when he returned to it, but the room was not searched for it, so far as the record is concerned, and if it was there is no evidence that any money was ever found. Whitfield was not present at the trial, nor did he testify, nor is there any indication that he ever made any investigation of the matter, or made any complaint, or charged appellant with having taken money from his pocketbook. There is no reason given why Whitfield was not present at the trial. The only evidence they had of his want of consent was the fact that Mrs. Terrell testified that he protested against their taking his money. From no viewpoint of this case has the state proved a case of theft from the person without the knowledge of the injured party.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). I have studied the evidence in this ease with care, and it is amply sufficient to sustain this conviction. It does not show that appellant took Whitfield’s money with Whitfield’s knowledge. It does show that when he at first tried to take it Whitfield protested and he did not then get it- — that is, when he first took him to the room. He took the money later, after he got him in bed' and while he was so drunk he knew nothing, and when Whitfield did not know it, and could not have known it.

It is true appellant claimed he took Whitfield’s money, just $1, to pay for the room, and did pay it for the room. But the other testimony shows he took much more than $1, and at the very time he took it it was with the intention to convert it to his own use, and he did so, not that he formed such intention later.

The other testimony shows he took some bills of greenbacks, and attempted to sur-' reptitiously put them in his pocket, and when seen and charged therewith at the very time he falsely claimed it was not greenbacks, but a dirty handkerchief, he was putting therein. After being thus seen and charged therewith, he then went back into the room and stayed some time, and then returned to the others, and then, and not till then, did he offer to be searched. Of course, he had then secreted the money about his person or the room. He then left, and was shown to have spent money, and later returned to the room.

This case should not be reversed, but affirmed. I dissent.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes