text:
    CASTLEBERRY v. STATE.
    (No. 4956.)
    (Court of Criminal Appeals of Texas.
    Oct. 9, 1918.
    On Motion for Rehearing, Nov. 20, 1918.)
    1. Witnesses <©=3209(14) — Cross-Examination — Homicides by Deceased — Circumstances.
    Where defendant in a murder case testified he had heard deceased had killed three men, but was not informed of the circumstances attending the homicides, and sought to prove the homicides by deceased’s brother, this attack on deceased’s character justified the state’s cross-examination to develop the circumstances surrounding the homicides.
    2. Criminal Law <@=465 — Evidence — Possession of Gun by Deceased — Conclusion.
    In a murder trial, the admission of conclusion,of deceased’s brother that deceased was not armed is not erroneous, where the witness put the jury in possession of all the facts upon which he based such statement.
    S. Criminal Law <@=598(2) — Trial — Postponement — Securing Witnesses — Diligence.
    It was not error to refuse to postpone a murder trial upon defendant’s motion therefor to enable him. to secure a witness, in the absence of showing of due diligence in procuring such witness.
    4. Criminal Law <@=59C(3) — Postponement to Secure Impeaching Witness.
    A murder trial may not be postponed in order to enable defendant to secure a witness for impeachment purposes only.
    5. Criminal Law <@=598(2) — Postponement to Secure Witnesses — Notice of Impeachment-Diligence.
    Where defendant’s witness testified to seeing deceased put his hand in his bosom and seeing a pistol handle therein at the time the fatal shot was fired, and the state by cross-examination and summoning grand, jurors laid the foundation for impeachment by proving he testified otherwise before grand jury, early in the trial, such was notice to defendant to secure his character witnesses, and he cannot complain that he was refused a postponement therefor.
    6. Criminal Law <@=>596(1) — Postponement —Refusal—Securing Witnesses.
    Upon the question of deceased’s being armed, where defendant’s motion for postponement of murder trial to secure a witness shows no material conflict between what he wanted to prove by the witness and what other witnesses stated, the refusal to postpone was .not reversible error.
    7. Criminal Law <@=599 — Continuance-Surprise — Witnesses.
    A motion to postpone a murder trial to secure the testimony of a witness, without disclosing any efforts to procure the witness between adjournment of trial on Saturday evening and filing motion Monday morning, held to contain none of the elements of surprise required by Code Cr. Proe. 1911, art. 616, to authorize a continuance.
    8. Criminal Law <@=1091(4) — Appeal—Bill of Exceptions — Sufficiency — Qualification of Expert Witness.
    The qualification of a witness is a matter for the court, and defendant’s bill of exceptions that a nonexpert witness was allowed to testify to course of bullets in deceased’s body should contain sufficient verified facts to negative the presumption in favor of the court’s ruling.
    On Motion for Rehearing.
    9. Criminal Law <S=594(1) — Trial—Continuances — Sufficiency — Abuse of Discretion.
    Denial of an application for continuance of murder trial to procure witnesses, which does not show where they reside or to what county the subpoenas were to issue, or that such testimony could not be secured from others present, or account for the delay in issuing other than because of impeaching testimony, held not an abuse of discretion.
    Appeal from District Court, Nacogdoches County; D. D. Guinn, Judge.
    Jim Castleberry was convicted of manslaughter, and he appeals.
    Affirmed.
    Geo. S. King, of Houston, and A. A. Seale, of Nacogdoches, for appellant.
    Beeman Strong, of Austin, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Indicted for murder, appellant was convicted of manslaughter and his punishment assessed at confinement in the penitentiary for four years.

The killing of deceased by appellant was not controverted, but appellant relied upon justificaticin under the law of self-defense. There were facts supporting that issue and it was submitted to the jury. Appellant testified he had heard that the deceased had killed three men, but possessed no information as to the circumstances attending the homicides. In addition to this, however, the appellant sought to establish the fact that the deceased had killed three men by the testimony of deceased’s brother. This evidence was an attack upon the character of deceased, which justified the state in cross-examination of the witness to develop the circumstances under which the three men were killed. Hysaw v. State, 69 Tex. Cr. R. 562, 155 S. W. 942; Bullock v. State, 73 Tex. Cr. R. 419, 165 S. W. 109.

There was no error in permitting the state to rebut the theory and evidence of the appellant, that the deceased was armed and made a demonstration at the time of the homicide, by evidence tending to show that the deceased was not armed. The bill complaining that the court permitted the brother of deceased to give his conclusion that the deceased was not armed is too meager in setting out the facts. In examining the statement of facts, to which the trial judge refers in his qualification, it is apparent that the witness put the jury in possession of all the facts upon which he based his statement that his brother did not have a pistol. The testimony of this witness is cumulative. We think if the bill -was as full as the statement of facts it would not show reversible error. See Tate v. State, 35 Tex. Cr. R. 234, 33 S. W. 121; Fulcher v. State, 28 Tex. App. 471, 13 S. W. 750; Williams v. State, 60 Tex. Cr. R. 457, 132 S. W. 345; Branch’s Ann. P. C. § 210, p. 134.

It appears that at 10:30 o’clock Saturday night the appellant made a verbal request of the court to postpone further consideration of the case until the succeeding Monday. As presented, it appears the court declined to grant the request, but did postpone the ease; at least, it was not submitted to the jury until Monday morning, at which time appellant presented a written motion to postpone and for process for various witnesses. One ground in the motion related to the alleged fact that a witness named Clevelander had testified for the appellant that some two or three weeks before the homicide he saw the deceased at a church; that he was in possession of a pistol, which he threw in the lap of a young lady named Junde; that Miss Junde, near the conclusion of the trial, contradicted Clevelander’s testimony ; and it was alleged that Mrs. Clevelander would testify to a conversation with Miss Junde admitting that the occurrence as testified by Clevelander happened. There is an absence of allegation of diligence to procure the testimony of Mrs. Clevelander. Moreover, her testimony was of an impeaching nature only. Appellant was entitled to prove that the deceased was in the habit .of carrying a pistol. Wharton’s Crim. Ev. § 927, p. 1762; Billy v. State, 20 Tex. App. 1; Jay v. State, 56 Tex. Cr. R. 111, 120 S. W. 449. If relevant, Clevelander’s testimony was on the issue of this habit. The fact that the deceased was in the habit of carrying a pistol was not a controverted issue. The state controverted the fact that he had a pistol at the time he was killed, but that he frequently carried one to church and elsewhere was conceded by his brother and other state witnesses, and apparently an established fact.

A postponement was also sought to obtain witnesses to support the reputation for truth and veracity of appellant’s witness D. Pitts, who testified that at the time the fatal shot was fired deceased had his hand in his bosom, and that the witness saw the handle of a pistol therein. A predicate for the impeachment of this witness, who was introduced by the appellant at an early stage of the trial, was laid by the state, the effect of which predicate was to give appellant notice that the state would undertake to show that the witness, in giving his testimony before the grand jury, had omitted to state that he had seen the pistol on the person of the deceased. Subsequently, members of the grand jury, who were presumably witnesses duly subpoenaed, testified supporting this theory of the state, and it was by reason of this impeachment that appellant sought to issue process for witnesses to sustain the reputation of Pitts. We think the predicate mentioned, in connection with the fact that in the .cross-examination of the witness Pitts the state by innuendo suggested an absence of good faith of said witness, and directed attention to the fact the witness was related to appellant, and that the homicide had taken place with a pistol belonging to Pitts, was sufficient to make it incumbent upon appellant to anticipate the need of character witnesses. See Yarborough v. State, 66 Tex. Cr. R. 324, 147 S. W. 270; Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103, and other cases cited in Vernon’s Crim. Stats., vol. 2, p. 317, note 24.

The sheriff, Spradley, was the first witness for appellant. He gave no testimony touching the examination of the body of deceased. He was not present on Saturday night at the time of the verbal motion to postpone, and in that and a subsequent motion there is contained the statement that appellant'desired his attendance to show that about an hour after the homicide he arrived at the scene and made no examination for arms, but simply to examine the wounds. Appellant’s argument suggests that this testimony became important in view of rebuttal testimony by the state. The testimony is not set out in the motion, but an examination of the statement of facts discloses that one witness testified as follows:

“Most of us felt over the body, and I was there when Mr. Spradley came, and I saw him feel over the body. I saw Mr. Spradley take some things out of his pockets. I think maybp he had two dollars and a few cents, and a few other little trinkets. I never saw his coat taken off; it wasn’t taken off there. There was no weapon on or about the body when we went over there or when Mr. Spradley came.”

Appellant’s theory was that deceased’s pistol was taken from his person by his brother who was standing near by at the time of the homicide. He came to the scene with the deceased, was armed himself, and fired some shots, one of which wounded the uncle of appellant. A number of eyewitnesses both for the state and appellant testified they were present and saw the body of deceased, some of them going to make an examination very soon after the homicide. The brother of deceased was shown by his own admission and other testimony to have gone to the body immediately after the horn-icicle. It was uncontroverted that these examinations were made and the brother of deceased had left the scene of the homicide before the sheriff arrived. There being no conflict in the evidence touching the fact that the sheriff did not arrive until after the brother of deceased had gone, and until after many other persons had examined the body, and no material conflict between what the appellant in his motion says he wanted to prove by the sheriff and the testimony of others as to what the sheriff did, we are unable to conclude that appellant’s failure to have the testimony of the sheriff resulted in such injury as would authorize a reversal. The motion does not disclose that any efforts were made by appellant between the adjournment Saturday night and the time that he presented his motion Monday morning to secure the attendance of the. sheriff. The motion contains none of the elements of surprise which, under article 616, C. C. P., authorizes a continuance upon the happening of some unexpected occurrence which no reasonable diligence could have anticipated. In truth, the motion did not contain the elements requisite in an application for continuance before the beginning of the trial. The matter of postponement was within the judicial discretion of the court. Branch’s Ann. P. O. § 340. It is clear that the bill fails to show such abuse of it as would authorize this court to reverse.

The bill complaining of the admission of testimony touching an altercation with one Davidson is quite meager in setting out the facts, and is qualified by the judge trying the case with the statement that appellant was present at the time the conversation took place and heard, or could have heard, it all. In our examination of the statement of facts we find that the witness mentioned in the bill heard some words between appellant, his brother, and Davidson. Quoting:

.“I heard an altercation or quarrel they all had there. Davidson inquired: ‘Where is Pistol Pete? God damn him! Í want to kill him.’ Appellant, who was sitting in a buggy, got out of the buggy and had his knife open. Deceased was standing near, and as appellant got out of the buggy appellant said, T never come down here to be run over by any of you sons of bitches,’ nodding his head towards dleceased, Davidson, and others.”

After some further words both deceased and appellant left the grounds; deceased going on horseback towards home. Appellant claims that before deceased left he told appellant he would return and kill him. There was also testimony introduced by appellant that in leaving deceased made a similar threat to other witnesses. There was testimony that when deceased reached home he was crying; that he changed clothes and returned. Appellant, in his testimony, refers to the altercation, and said that while he and Davidson were talking deceased came up and entered into the controversy, and left with the words: “By God! I don’t have to | let anybody alone. You stay here until I get back.” Appellant testified that, believing deceased would return, he armed himself for his own protection. It was shown that deceased and his brother did return; that they approached appellant, the evidence being conflicting as to what occurred. It is the state’s theory that deceased approached appellant and sought to shake hands with him, making no hostile demonstration. Appellant insists that he declined to shake hands with deceased, believing that both he and his brother were armed, and that'his proposal to shake hands was in order to obtain the advantage; that at the time the shot was fired deceased, using threatening language, thrust his hand into his bosom as though to draw a weapon.

There is complaint made that one of the witnesses testified that he examined the wounds upon the body of deceased, and that one appeared to enter about the top of the shoulder and range downward. The objection urged is that this was an opinion of a nonexpert witness, and harmful because in conflict with appellant’s theory as to the attitude of deceased at the time the shots were fired. The bill does not affirmatively show that the witness was not an expert, and did not qualify or give the testimony. The qualification cf a witness is a matter for the court, and a bill of exceptions should contain sufficient facts verified in some manner prescribed by law to negative the presumption which obtains in favor of the correctness of the court’s ruling. Branch’s Ann. P. C. § 207; also, section 209. The theory upon which the evidence was harmful to appellant is not made clear in the bill of exceptions. Appellant shot three times, and two shots struck deceased. He was standing facing appellant at the time the shooting began and sank down. It was not clear that the fact that one of the shots struck the shoulder and ranged downward would necessarily be in conflict with appellant’s theory.

The matters complained of in the record which are not discussed have been carefully examined, and our conclusion is that no reversible error is disclosed.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

We were in error in stating in the original opinion that the homicide took place with a pistol belonging to the witness D. Pitts. The record shows that the pistol was the property of appellant’s father, and had been left at the residence of D. Pitts, and was obtained by appellant therefrom a short time before the homicide.

The statement of facts indicates that about a dozen witnesses testified after defendant’s witness Pitts left the witness stand. The conflict between this witness’ testimony and that of numerous other eyewitnesses touching the possession of the pistol by the deceased at the time of the homicide, in connection with the fact that while he was on the witness stand the state laid a predicate for his impeachment by evidence that his testimony at the trial was materially different from that given before the grand jury, and the fact that members of the grand jury were present as witnesses, was sufficient, we think, to suggest to appellant that his witness Pitts would be impeached, and to have required him in the exercise of diligence to have had subpomas then issued for witnesses supporting his reputation: for truth and veracity. Pitts was a resident of. the community in which the homicide took place, and appellant sought, after the introduction of evidence had been concluded, to subpoena witnesses to prove his good reputation for truth and veracity. The court in allowing the bill states that two-thirds of the community, a hundred or two of them, were present at the trial on Saturday night when the motion to postpone was first presented. The written motion followed on Monday and states that appellant sought subpoenas for certain named witnesses to prove the good reputation in the respect mentioned of Pitts. The application fails to show where the witnesses reside and to what county he sought to have the subpoenas issued. It fails to show that the same testimony cannot be had from other witnesses present, or to account for the delay in issuing the subpoenas otherwise than by the allegations showing that after Pitts had given important testimony the state introduced members of the grand jury to impeach him. Coming before this . court for review of the action of the trial judge, the matter must be tested by its legal merits, and we cannot hold that the application presents such grounds as would authorize this court to hold, as a matter of law, that the trial court abused his discretion in refusing the motion to postpone.

The motion for rehearing is overruled.
      <®=l’or otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    MARSHALL v. STATE.
    (No. 5176.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Homicide <&wkey;190(7) — Evidence—Uncom-municated Threats.
    In prosecution for homicide, facts raising issue as to who began difficulty, defendant in such connection had right to prove uncommuni-cated threats by deceased.
    2. Criminal Law (&wkey;761(18) — Trial—Instruction on Weight ox Evidence.
    In prosecution for homicide, instruction that, if defendant went to scene to provoke difficulty with deceased, he lost right of self-defense, etc., held charge on weight of evidence as assuming proposition adverse to defendant.
    3. Criminal Law &wkey;>761(4) — Trial — Instruction-Unwarranted Assumption.
    In prosecution for homicide, instruction, making it basis of manslaughter conviction if defendant wont to scene of difficulty with the intent, to whip or inflict injury upon deceased less than death, held erroneous as making unwarranted assumption of fact.
    Appeal from District Court, Cooke County; John Speer, Judge.
    Ralph Marshall was convicted of manslaughter, and he appeals.
    Judgment reversed, and cause remanded.
    Culp & Culp, of Gainesville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

He had rented land from the deceased, and had prepared most of it for planting purposes. One or more acres of the land had not been plowed. Deceased hitched his team and went down and began plowing this land. Appellant went where he was to inquire the reason for such action. During the conversation, deceased notified appellant that he was going to take the land, leaving the impression, on appellant’s mind, that he would have to leave the place, and that his rental contract would be canceled. After conversing with reference to this matter, deceased stated to appellant that he (appellant) tried to induce deceased’s daughter Ruby to run off and marry a young man named Johnson. This appellant denied. From this point on the facts diverge. Appellant’s testimony was to the effect that deceased called him a liar, and made a demonstration as if to get his pistol, which he carried under his left arm, and had drawn the pistol sufficiently far for appellant to see it when he drew his and fired, and continued to fire. The deceased did not fire his pistol. The state’s view of this matter was, when the matter arose with reference to appellant trying to induce the daughter of deceased to run off with Johnson, appellant used some pretty vigorous language, some of it verging on the point of indecency; that he then knocked deceased down with his fist, and drew his pistol and shot him while lying on the ground. There was no question that deceased was armed. His two sons who were eyewitnesses so state, and it was a conceded fact that deceased always went armed. It is also not a controverted fact that deceased after the shooting went to his house a short distance and carried his pistol in his hand. These facts suggested the issues of murder, manslaughter, and self-defense. The court submitted these issues, and the jury convicted of manslaughter.

Appellant’s contention was that the facts also raised the issue as to who began the difficulty, and in this connection insisted that he had a legal right to prove uncommunicated threats by deceased. The court excluded this testimony for reasons stated in the bill of exceptions. Without discussing this, or the qualification of the bill, upon another trial this testimony should be admitted. The authorities are so uniform and numerous that it is deemed unnecessary to cite them.

The court charged the jury in the following language:

“If the defendant went to the scene of the difficulty with the specific intent of provoking a difficulty with the deceased, _ or produced a provocation for the killing of said G. M. Lynch, he would lose his right of self-defense if at the time of the killing he had done some act carrying out such intent, if any, and it became necessary for him to shoot the said G. M. Lynch in order to defend himself against bodily harm, the defendant would be guilty of murder. But if you find from the evidence that the defendant went to the scene of the difficulty with the specific intent to whip, or otherwise inflict an injury on the deceased less than that of death, and if at the time of the shooting he was then doing some act carrying out such intent, and it became necessary for him to kill the said G. M. Lynch in order to defend himself, the killing would be manslaughter.”

Proper exceptions were reserved to this charge, and special requested instructions refused. This is a charge upon the weight of the evidence, and assumes a proposition adverse to appellant. Appellant did go to the scene of the homicide to talk with deceased with reference to his acts in regard to the land and the purposes of the deceased. The deceased substantially informed him that he was going to take the land and plant it. As we understand the record, his statement was to the effect that the rental contract would be ignored. When this conversation ended, then the conversation came up with reference to deceased’s daughter, as stated above. It is true, appellant was armed when he went to deceased. Appellant states he knew the dangerous character of deceased, and all the evidence shows he was a dangerous man, and continually went armed; and for this reason appellant carried his pistol; that he did not know what the deceased would do in view of the situation, and in case deceased raised trouble with him he would be able to defend himself. Under the state’s view of the case, appellant stated to deceased, when charged with trying to induce his daughter to run away with Johnson, that he was a liar and a son of a bitch, and then deceased reached for his pistol. Appellant’s theory was that when he went to deceased and the accusation was brought with reference to the girl he denied it, and said he made no such statement, and that he did not believe his daughter so informed him, and deceased applied an epithet and liar to appellant, and he struck him with his fist and knocked him down, but before knocking him down deceased reached for his pistol and was pulling it. Under these circumstances, the court was not authorized to assume as a fact, and predicate a charge upon the assumption, that appellant went to the place for the purpose of provoking a difficulty, or for the specific purpose and intent of killing deceased. This was assuming a fact adversely to appellant, and so informing the jury.

The quoted charge is also criticized because the court made it the basis of a manslaughter conviction that, if defendant went to the scene of the difficulty for the specific intent to whip or to inflict injury upon deceased less than death, it would be manslaughter. There is no evidence, as we understand this record, indicating defendant intended to whip deceased. The evidence is that when deceased called him a liar appellant knocked him down with his fist. The whole difficulty seems to have culminated in the conversation with reference to the girl and the language following between the parties. There is nothing to indicate that appellant anticipated, or had any reason to anticipate, the matter- with reference to the girl would come between them. This is an assumption of a fact, made the basis of a conviction for manslaughter, which was unwarranted by the facts. The charge was not justified nor permissible under the conditions of this record.

For the reasons indicated, this judgment will be reversed, and the cause remanded.
      ¡@^?IPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    VILLAFRANCO v. STATE.
    (No. 5167.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Criminai. Law &wkey;>369(8) — Evidence — . Other Crimes.
    In prosecution for rape, evidence of other acts of intercourse in another county was admissible, though defendant denied act of intercourse for which he was being tried. ‘
    2. Criminal Law <&wkey;419, 420(4) — Rare <&wkey; 48(1) — Corroborative Evidence — Declarations oe Prosecutrix — Hearsay.
    In a prosecution for rape, evidence that at a time remote from that of intercourse prosecu-trix, in absence of defendant, showed witness place where intercourse took place, and told him what occurred there, was of a hearsay nature, in no way corroborative of the girl’s testimony, and inadmissible.
    3. Criminal Law <&wkey;447 — Evidence—Contents oe Letter.
    Evidence as to contents of letter, in response to questions asked by state’s attorney while holding letter in his hand and reading therefrom, was inadmissible, where letter itself was not introduced in evidence.
    4. Witnesses <&wkey;190 — Privileged Testimony-Husband and Whte.
    In prosecution for rape, defendant was improperly required to testify that his wife accused him of the crime, such evidence being as to a matter between defendant and his wife, which he could not be required to testify to.
    Davidson, P. J., dissenting in part.
    Appeal from District Court, Bee County; E. G. Chambliss, Judge.
    Pablo Villafranco was convicted of rape upon a girl under 15 years of age, and he appeals.
    Reversed and remanded.

      E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape upon a girl under 15 years of age, his punishment being assessed at 27 years’ confinement in the penitentiary.

The facts show prosecutrix was appellant’s stepdaughter. The girl testified to three acts of intercourse, two in Goliad county and one in Bee county. Appellant denied having intercourse with the girl at any time or place. When the two acts of intercourse were introduced appellant urged exceptions. Various grounds are stated as basis of the exceptions. The writer is of opinion the testimony was not admissible. Evidence of other crimes may be admissible, owing to the circumstances of the individual case. This court has held in a number of recent cases that under certain circumstances acts of this character may be introduced. As the writer understands the law with reference to extraneous crimes and other offenses than that on trial, they may be introduced in developing res gestae, showing intent, or connecting the defendant with the crime on trial. These exceptions are fairly well understood from the decisions and the law generally, and it is also well settled they are not introducible unless they tend in some way to elucidate some question in the case on trial that is not otherwise clear, and which will assist in elucidating. The issue was positive that defendant had intercourse with her in Bee county. It was positively denied. No one testified to any intercourse except the" girl, either in Bee or Goliad county.

'„ If the girl testified to the truth, the state’s case was made out, so far as the act of intercourse is concerned. If the jury believed ap-. pellant’s statement that it did not occur, then the state was without a case. The two acts testified by her in Goliad county did not and could not show that he had intercourse with her in Bee county. He may have had intercourse with her in both counties, and under her testimony did; but the two acts testified by her in Goliad county could not develop res gestae, nor show his intent, nor connect him with the case in Bee county. If he had intercourse with her in Bee county, it was independent of the acts in the other county, and was a positive fact asserted by the girl. It did not elucidate any issue as to the case in Bee county. The writer is of opinion this testimony, upon another trial, should not be admitted. The majority of the court holds the acts in Goliad county are admissible, and no error was committed. See Bradshaw v. State, 198 S. W. 942.

Another bill recites that the witness Wright was permitted to testify for the prosecution that a few months before he testified that prosecutrix showed him a particular place on the Lucas farm in Bee county, and told him what occurred there. Objection was urged to this testimony, and the court was requested to withdraw it from the jury. We are of opinion this exception was well taken. It was not proper to show by the witness that the girl had taken him to the place where she says the act of intercourse occurred, and show him the place. This was a matter occurring between the two witnesses, and in the absence of the defendant, and a matter occurring between third parties,- in no way binding upon appellant, and was not in any way a corroboration of the girl. Time was too remote. There are cases holding that the place supposed to be the scene • of the act might be introduced in evidence if shown shortly after the transaction, and there was evidence of a struggle or matter of that character that tended to corroborate the pros-ecutrix; but nothing of that sort occurred here, and this was a matter entirely of a hearsay nature, and occurring between different parties, and served in no way, so far as this record is concerned, to elucidate or illustrate any question in the case.

Another bill of exceptions was reserved to the ruling of the court permitting the district attorney, while cross-examining the defendant, to ask him questions, apparently from a letter held in his hands, and in full view of the jury, as to what Lazaro (defendant’s brother) was writing about in Lazaro’s letter to him about the 1st of December, and whether defendant remembered of Lazaro telling him in this letter to get out of the country, and if Lazaro did not also tell him in this letter that his trip to Brownsville had been in vain and that he had failed to reconcile these people. Quite a lot of this character of examination was indulged, over many objections of appellant. This testimony was in-admissble. The letter was not introduced as shown by the bill or by any evidence, but counsel, holding it in his hands, asked questions. In Hollingsworth v. State, 78 Tex. Cr. R. 489, 182 S. W. 465, this matter was reviewed by Judge Harper, and the testimony held inadmissible. The writer does not deem it necessary to review this question. The Hollingsworth case seems to settle it, and correctly.

There is another bill which recites that while defendant was being cross-examined the state’s counsel asked the following question about matters not brought out by the defense: “Now, who laid it (meaning the commission of the crime) on you?” To this question objection was urged, overruled, and the witness required to answer: “My wife laid it on me.” This was a matter between defendant and his wife, about which he could not be required to testify. This much is said, so that upon another trial the matter will not arise.

For the reasons indicated the judgment will be reversed and the cause remanded.
      <g£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    BASHARA v. STATE.
    (No. 5125.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.
    On Motion for Rehearing, Nov. 20, 1918.)
    1. Intoxicating Liquors <&wkey;205(l) — Indictment— Sufficiency — Local Option Law.
    An indictment alleging the unlawful sale of intoxicating liquors “in violation of said law aforesaid,” held to charge a violation of the local option law as against an exception that it only referred to the local option election law therein mentioned.
    2. Indictment and Information &wkey;>60 — Allegation of-Penalty.
    It is wholly unnecessary that an indictment allege the penalty for the crime.
    3. Indictment and Information &wkey;>86(2)— Venue — “Then and There.”
    Where an indictment shows it was brought by the grand jury of M. county, that M. county had adopted the local option liquor law, and alleges defendant did “then and there” violate said law, the words “then and there” held to refer to M. county.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Then and There.]
    4. Criminal Law &wkey;>1144(6) — Appeal and Error — Venue—Presumption.
    In view of Code Grim. Proe. 1911, 'art. 938, it must be presumed! that the venue was proven unless that was made an issue in the trial.
    5. Criminal Law &wkey;304(6) — Geographical Locations — Judicial Notice.
    Where proof shows the violation of the local option liquor law in Waco, the court will take judicial knowledge that Waco is in McLel-lan county.
    6. Intoxicating Liquors <&wkey;236(ll) — Sale to Sick Person — Prescription—Evidence —Sufficiency.
    Proof held to show clearly that defendant made an illegal sale of what he knew was whis-ky in violation of the liquor law, under which a legal sale to a person claimed to be sick can only be made on a written prescription of a doctor, in view of Pen. Code 1911, art. 598.
    7. Criminal Law &wkey;>304(20) — Judicial Notice — Whisky.
    The court will take judicial notice that whis-ky is intoxicating.
    On Motion for Rehearing.
    8. Intoxicating Liquors i&wkey;205(2) — Indictment — Local Option Election — “Declaring Result of Said Vote.”
    In an indictment for violation of the local option law, the use of the wordls “declaring the result of the election” instead of the words “declaring the result of said vote,” as used in Rev. St. art. 5721, is immaterial.
    9. Intoxicating Liquors <&wkey;36(5) — Local Option Election — Declaration of Vote— Conclusiveness.
    Under Rev. St. art. 5728, the declaration of the commissioners’ court upon the adoption of county local option is conclusive unless contested within 30 days.
    10. Intoxicating Liquors <§^148 — Local Option Law — Violation — Intent to Evade.
    In a prosecution for violation of the local option liquor law, the state need not prove the sale -was made with the purpose of evading the law.
    Appeal from 'District Court, McLennan County; R. I. Munroe, Judge.
    Tom Bashara was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    James E. Veager, of Waco, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of violating the prohibition law in said county.

He had no attorney when tried, but procured one as soon as he was convicted. His able attorney has filed both an original and a supplemental brief, which have had due consideration.

No motion was made to quash the indictment, but a motion in arrest of judgment was filed claiming the indictment was invalid. In view of his motion we will copy the indictment. It is:

“In the name and by the authority of the state of Texas: The grand! jury of the county of Mc-Lennan and state of Texas, duly .selected, organized, and impaneled by the judge of the 54th judicial district of Texas, holding session of the district court in and for said county, upon their oaths in said court present that heretofore, on the 20th day of October, 1917, in said McLennan county, an election was held in accordance with the laws of said state, and under the authority of an order of the commissioners’ court of said county, theretofore duly made and published as required by law, to determine whether or not the sale of intoxicating liquors should be prohibited! in said county, and the qualified voters of said election did then and there determine that the sale of intoxicating liquors should be prohibited in said McLennan county, and thereupon, to wit, on November 3, 1917, the commissioners’ court of said county did pass an order declaring the result of said election, and prohibiting the sale of intoxicating liquors in said McLennan county, which order was duly entered of record on the minutes of the said commissioners’ court, and which order was immediately thereafter duly published for four successive weeks in the Waco Morning News, a newspaper then and! there published daily in said McLennan county, and being a newspaper selected in a manner as required by law by the then county judge of said county for the purpose of said publication, which selection and publication as aforesaid were duly certified to by the said county judge, and his certificate thereof duly entered on the minutes of said commissioners’ court as required by law; and that thereafter, to wit, on or about the 30th day of December, 1917, and before the presentment hereof, one Tom Bashara did then and there unlawfully sell intoxicating liquor to Bob Gilbert in violation of said law aforesaid, which was then and there in full force and effect in said county, against the peace and dignity of the state.”

His motion in arrest as to the claimed insufficiency of said indictment is on these grounds: (1) That it charges no offense under the law, in that it alleges that he sold the intoxicating liquor to Gilbert “in violation of said law aforesaid,” when, as he claims, the only law referred to was in regard to holding elections to determine whether or not the sale of intoxicating liquor should be prohibited in said county, and no mention of any law fixing a penalty for the sale of intoxicating liquors is mentioned in the indictment. (2) That the indictment failed to allege the selection of a newspaper publishing the order of the commissioners’ court, and that the publication thereof was certified to by the judge of said county. (3) That it fails to fix the jurisdiction and venue, in that it does not allege that the offense was committed in said county.

At most, appellant’s objections are hypercritical, and we think the indictment itself meets each of them. It is reasonably certain, even if that was necessary, that the law he is alleged to have violated was none other than the law prohibiting the sale of intoxicating liquors. It was wholly unnecessary for the indictment to allege what the penalty for his offense was. This is never done in an indictment. It plainly alleges the newspaper in which the commissioners’ court order was published, and that the publication thereof was certified by the county judge of said county. It alleges that the offense was committed in McLennan county. The “then and there” in the latter part clearly referred to McLennan county as the place in which the sale was made. Branch’s Ann. P. C. § 502.

In his motion for a new trial for the first time he claimed that the testimony failed to prove the sale was made in said county. He has no bill of exceptions on the subject. The statute (article 938, C. C. P.) requires that this court shall presume the venue was proven in the court below, unless that was made an issue in the trial below, and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the court below. The decisions of this court follow said statute. See some of them cited in 1 Branch’s Ann. P. C. § 452. Besides, the proof shows that the sale was made in Waco, and this court judicially knows that Waco is in McLennan county. 1 Branch’s Ann. P. C. § 263.

The uncontradicted testimony shows that the said purchaser claimed to be sick, and told appellant he wanted some whisky, and asked if he knew where he could get some. Appellant told him he had some in his room, and he went with him to his room, and they both took a drink out of a bottle. The purchaser than asked appellant what he would let him have the balance of the whisky in the bottle for. Appellant told him that the bottle originally cost him $1.50, but that he would let him have it for $1, and that he, for that price, took the bottle. He did not then pay for it, but that appellant later dunned him for the price. That he knew it was whisky. The proof clearly shows the illegal sale of the liquor as alleged. Appellant cites and relies upon Waldstien v. State, 29 Tex. App. 82, 14 S. W. 394. That case is not in point. Appellant was prosecuted therein for making a sale of liquor to a minor without a written order, under a different statute altogether, and shows a very peculiar state of facts. That decision, however, was not adhered to, but, in effect, overruled, under the later decisions of this court. Yakel v. State, 30 Tex. App. 391, 17 S. W. 943, 20 S. W. 205.

Under the prohibition law, a sale of whisky to a person claimed to be sick can legally be sold only on the written prescription of a doctor. Pen,. Code, art. 598.

The proof showed that the liquor appellant sold was whisky. No other proof was necessary to show it was intoxicating. This court has uniformly held that, when the proof shows the liquor sold was whisky, that is sufficient to show that it was an intoxicant. 1 Branch’s Ann. P. C. p. 700.

Appellant alleged other matters in his motion for a new trial, which he briefs, but he has no bills of exception, which are proper to raise the questions. Appellant’s conviction was in every way legal and proper. No reversible error is shown.

The judgment is affirmed.

On Motion for Rehearing

Appellant's attorney in his motion for rehearing says that he did not contend in his motion in arrest of judgment, that the' penalty for violation of said statute prohibiting the sale of intoxicating liquors in prohibition territory should have been alleged in the indictment, and that he does not like for such contention on his part, as in effect so stated in the original opinion, to be made history. The court in stating the first ground in, his motion in arrest of judgment in the original opinion may have misunderstood him on this point and incorrectly stated his position. In deference, therefore, to what he says, any expression in the original opinion which indicates that he may have made such a contention is withdrawn. Of course, this court does not desire to put him in a false attitude and had no intention of doing so.

In his motion in arrest of judgment for the claimed insufficiency of the indictment he did not claim that the order of the commissioners’ court declaring tire result of “said election” instead of declaring the result of “said vote,” that the prohibition law was not thereby put in force. He did make such a claim in his brief. We did not notice it in the opinion because we thought it was too hypercritical to' require mention. lie renews that contention in his motion for rehearing, and says: “We concede that this contention, is drawing a fine point, nevertheless the issue is drawn, and it should not be passed over lightly.” • He cites article 5721, Rev. Civil Statutes, which directs that tire commissioners’ court at the time specified shall open the polls and count the votes, and, if the majority are for prohibition, that the court shall immediately make an order declaring the “result of said vote,” and absolutely prohibiting the sale of intoxicating liquors, etc. Neither in fact nor in law under this statute is there any distinction or difference between declaring the result of said “election” and declaring the result of said “vote.” Declaring the result of said election could mean nothing else than declaring the result “of said vote.” 'Mr. Branch in his 1 Branch’s Ann. P. C. p. 689, in prescribing a form of indictment under the prohibition statute, instead of using the words “declaring the result of said, vote” uses the words “declaring the result of said election.” The use of the words “declaring the result of the election,” instead of the words “declaring the result of the vote,” was wholly immaterial. Besides, if there could have been anything in this point, the statute requires that unless the election should be contested by suit brought in, the district court within 30 days after the election, the declaration of the result by the commissioners’ court is conclusive on all courts. Rev. St. art. 5728.

Neither is there anything in appellant’s contention that it was necessary for the state to prove that in mailing the alleged sale of intoxicating liquors the appellant must be shown to have done so for the purpose of evading the law. The indictment alleged, and the state proved, a direct and unlawful sale, which was all that was necessary to either allege or prove on this point.

The motion is overruled.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    NELSON v. STATE.
    (No. 5120.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Homicide <&wkey;271, 309(4) — Question eoe Juey — Instbuctions—Manslaughter.
    If there is some evidence which supports the theory of adequate cause, and that a killing was on account • of passion arising therefrom, the court is not the judge of its possible truth, and should leave it to the jury, submitting the issue of manslaughter in an instruction.
    2. Homicide <@=308(2) — Degrees oe Muedee —Instbuctions.
    Since Acts 33d Leg. c- 116, § 1 (Vernon’s Ann. Pen. Code 1916, arts. 1140, 1141), amending the statutes, so as to do away with the degrees of murder, it is improper for the court to charge on the different degrees.
    3. Mabeiage <&wkey;13 — Common-Law Mabeiage —Pboof.
    That a couple were living together, and some time intended to marry, was insufficient to show a common-law marriage.
    4. Homicide <@=165 — Issues — Evidence — MARRIAGE.
    In a prosecution for murder, it was immaterial whether deceased was the wife or mistress of accused.
    Appeal from District Court, Payette County; M. C. Jeffrey, Judge.
    Robert Nelson was convicted of murder, and be appeals.
    Reversed and remanded.
    John T. Duncan, of La Grange, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and bis punishment assessed at 50 years in tbe penitentiary.

Appellant and deceased were negroes. They had lived together for several years prior to the time he killed her. He lived with her, and supported her and her child by a former husband, just like he would if they had been legally married. He said they intended at some time to marry. He became much attached to her, he said, and that he was living with her, and treated her as if she was his wife, and felt towards her like she was his wife. While he was off somewhere from the home where they- lived, she and her girl left there and went off to some other town. Appellant was informed that she had gone off with a negro man. I-Ie went up after her, and found her; but no other negro man was with her when he found her. She willingly returned with him to their home. He said he had been informed that she had gone off with the other man for improper purposes; but he did not know this, and it seems he claimed not to believe it. When they returned to their home that morning, he asked her about it. She denied it. He told her that a certain person had told him. It was agreed between them then, he says, that they would send for this person who had told him, and she claimed she would prove by him that the accusation against her was untrue. They thereupon sent her little girl for the man, and after the girl left appellant claimed that they discussed the subject some further, and that she ascertained that when the man they had sent for came he would ask him such questions as it seems she concluded would reveal the fact that she had been untrue to him. Thereupon, he says, she admitted the fact that she had been untrue to him with the other man, and that on one occasion she had given to the other man money that the appellant had given her for her own use. He claims that this admission by her at the time in effect ran him mighty near crazy; that he jumped up and grabbed his gun and shot her; that when she admitted her guilt with the other man that it made him angry, and the substance of his testimony as a whole raised the question of manslaughter. It might be stated that the testimony raising manslaughter was not very strong— rather weak.

The court did not submit the issue of manslaughter to the jury. Appellant specifically objected to the court’s charge on that account, and went into sufficient particulars as to what ho claimed the testimony showed which raised the issue.

The rule is that, if there is evidence which supports the theory of adequate cause and that the killing was on account of passion arising therefrom, the court is not the judge of its possible truth, but should leave it to the jury. 2 Branch’s An. P. O. § 2009, and cases there collated.

In addition to the exceptions by appellant to the court’s charge, because he failed and refused to submit tbe issue of manslaughter, he asked a special charge submitting that issue, which was refused, and to which he excepted. While the evidence was amply sufficient to sustain, and might be held to call for, appellant’s conviction of murder, and not that of manslaughter, yet, as the testimony raised the issue of manslaughter, the court should have charged thereon, and his failure and refusal to do so presents reversible error.

The court did not err in his charge in submitting the issue of murder. Since the act of the Legislature of 1913 (Acts 33d Leg. c. 116, § 1, Vernon’s Ann. Pen. Code 1916, arts. 1140, 1141), amending our statutes so as to do away with the degrees of murder, it would have been improper for the court to have charged the different degrees as contended for by appellant, as has many times been held by this court since the statute was amended.

The testimony was insufficient to show that appellant and deceased were husband and wife under a common-law marriage. Grigsby v. Ried, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011; Melton v. State, 71 Tex. Cr. R. 146, 158 S. W. 550; Nye v. State, 77 Tex. Cr. R. 390, 179 S. W. 100. Hence the court did not err in refusing to submit an issue to the jury of whether or not appellant and deceased were husband and wife. Again, it would have been wholly immaterial to any issue in this case whether, the deceased was the common-law wife of appellant or was his mistress — kept woman. It may be that to have shown that she was his wife would have been against appellant, and not for him. At any rate whether she was his common-law wife or not was an immaterial matter.

Appellant’s bill to the exclusion of the testimony of his witness Gaertner, as qualified and explained by the court, showed no error. The only error shown by the record is the court’s failure and refusal to submit the issue of manslaughter.

Reversed and remanded.
      @c»For other cases see same .topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    ALEXANDER v. STATE.
    (No. 5056.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Homicide <&wkey;250 — Manslaughter — Sufficiency of Evidence.
    Evidence held sufficient to support verdict of manslaughter by defendant, who killed deceased in a quarrel that arose during a game of craps.
    2. Criminal Law <&wkey;1124(4) — Appeal — Evidence on Motion for New Trial.
    Code Cr. Proc. 1911, art. 841, permits state to take issue with defendant on truth of grounds of motion for new trial, and when state does so, court hearing evidence. and deciding against defendant, decision is conclusive on Court of Criminal Appeals, unless evidence on which trial judge acted is legally brought up for review.
    3. Criminal Law &wkey;>925 — New Trial — Misconduct of Jury-Evidence.
    In prosecution for manslaughter, facts as to misconduct of jury held insufficient to justify disturbance of trial judge’s finding that claim of misconduct did not call for new trial.
    4. Criminal Law &wkey;^942(2) — New Trial — Newly Discovered Evidence — Impeaching Statements.
    Alleged impeaching statements of witnesses out of court, conflicting with their testimony on trial, are generally treated as insufficient to require new trial on ground of newly discovered evidence.
    Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Austin Alexander was convicted of manslaughter, and he appeals.
    Affirmed.
    Futch & Tipps, of Henderson, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for the murder of Chester Matthews, convicted of manslaughter, and punishment assessed at three years’ confinement in the state penitentiary.

The fact that appellant shot and lulled deceased is conceded, shown by his own testimony. The evidence is conflicting as to the incidents of the homicide. Appellant and deceased were both negroes, and the evidence is conclusive that the difficulty arose over a dollar which appellant claims belonged to him, and which the deceased threw on the ground, telling appellant to take it, and that when appellant stooped to pick it up he was attacked by deceased with a knife, and was thrown down upon the ground, and that deceased’s brother joined in the attack, and that the' shots were fired in self-defense. . Appellant received several wounds, which he claimed were received in the fight, but which, from the state’s standpoint, were inflicted by the brother of deceased after the shooting.

The state’s theory and testimony tended to show that deceased and appellant were engaged in playing “craps” for money, and that a quarrel arose; that appellant in the quarrel put his hand in his bosom as though to draw a weapon; that deceased caught hold of him, and while standing appellant fired one shot, which struck deceased, and in the struggle which followed fired three others, which took effect.

The defendant’s theory of self-defense was fairly submitted to th& jury in the court’s general charge and in special charges requested by appellant, and we regard the evidence as entirely sufficient to support the verdict of manslaughter.

Appellant sought a new trial upon the ground that the evidence did not justify the verdict, misconduct of the jury, and newly discovered evidence. The misconduct consisted in the alleged fact that the juror Baxter was influenced to agree to the verdict of guilty against bis judgment by two facts: First, that appellant owed a relative of the juror a debt, and one of the jurors goaded him into the agreement, advancing the idea that otherwise he would be subjecting himself to the criticism of having been influenced by a desire to save his relative from loss of the debt; second, that in the argument which took place in the jury room one of the jurors stated that appellant’s attorneys had represented another negro in a different case, who had been sentenced to four years’ confinement in the penitentiary, when the crime justified a much heavier sentence; and, further, in the alleged fact that the juror Harrison was sick, and was influenced to render a verdict of guilty against his judgment by his desire to escape the discomforts of the jury room while he was sick. The newly discovered evidence consisted in the allegation that several of the witnesses who had testified to damaging facts had, in conversations out of the court, made statements and admissions conflicting with their testimony given upon the trial. There were affidavits attached to the motion supporting the ground stated.

From the order of the court overruling the motion for new trial it affirmatively appears that the facts alleged in the motion were controverted by the introduction of evidence ; that six of the jurors who tried the case, among them the juror Baxter, testified. We find copied in the record several hills of exceptions seeking to bring before this court the testimony thus adduced. The. term of court at which the conviction took place expired on the 9th day of February, and the bills of exceptions mentioned were filed the 30th of April following. The court entered an order extending the time of filing bills after adjournment. This court held, in the case of Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, that facts adduced on hearing of motion for new trial could be considered only in the event they were verified and filed during the term of court at which the conviction took place, and that the provisions of the statute permitting statements of fáct and bills of exceptions to be filed after the expiration of a term had no application to those relating to the hearing of a motion for new trial. This construction has been adhered to without deviation. Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Garcia v. State, 196 S. W. 182; Sanford v. State, 79 Tex. Cr. R. 346, 185 S. W. 27.

Article 841, Code Crim. Proc., permits the state to take issue with the accused upon the truth of causes set up in a motion for new trial, and when this is done, the court hearing evidence and deciding against the accused upon the truth of the allegations in his motion, his decision is conclusive on this court, unless the evidence upon which the trial judge acted in overruling the motion is in a legal manner brought to this court for review.

If the evidence heard by the judge who tried the case, as set out in the bills filed too late, could be considered, we think it would not justify a disturbance of his finding. The alleged impeaching statements of witnesses are generally treated in the decisions of this court as insufficient to require a reversal on the ground of newly discovered evidence. See Branch’s Ann. P. G. § 202, and cases collated.

Some of the alleged influences which are referred to in the motion as affecting the juror Baxter are of a character not justifying impeachment of the verdict. See Turner v. State, 61 Tex. Cr. R. 103, 133 S. W. 1052.

The judgment is affirmed.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    KERR et al. v. STATE et al.
    (No. 6002.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1918.)
    Appeal from District Court, Travis County; Ireland Graves, Judge.
    On application for rehearing.
    .For former opinion, see 205 S. W. 474..
    Rehearing denied.
    E. H. Teiser, of Austin, and C. S. Williams, of Plainview,- for appellants.
    N. A. Rector, of Austin, for appellee T. F. Pinckney. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for the State.
   JENKINS, J.

It is immaterial whether the field notes of the Thompson surveys, other than those adjacent to the leagues, were original or amended field notes. None of them, except Nos. 10 and 11, is in the record; but it is agreed that these surveys aré 1,900 varas square. The ultimate fact to be ascertained is: Where did Chalk locate the western lines of the Thompson surveys adjacent to the league? This will be ascertained by beginning at either the northwest corner of survey No. 19, or at the stone 269 varas north 45° east from said corner, and running thence west 24,290 varas. The point thus reached will be the western line of the Thompson survey through which this line runs.

It is evident to our minds, from the facts in the record, that the call in the Thompson field notes for the east line of the league survey was made by conjecture, and should not control the northeast corner of No. 19.

Whether the line running west 24,290 should begin at the northeast corner of No. 19, or at the stone 269 varas north 45° east from-such corner, is a fact to be found by the court or jury retrying this case. It is evident that Chalk could not have located the Thompson-surveys immediately adjacent to the leagues, if he actually surveyed them on the ground,, in any other way than by running from one- or the other of these points the distance across the intervening Thompson surveys,. as shown by their field notes. If he made no actual survey of these adjacent Thompson surveys, the actual run that was made for his connecting line from the sod house corner shows that these surveys must be run out its above indicated.

The motion of all appellees for a new hearing is overruled.

Motion overruled.


author: HIGGINS, J.

text:
    WESTERN UNION TELEGRAPH CO. v. CHIHUAHUA EXCHANGE.
    (No. 870.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 24, 1918.)
    Rehearing Denied Nov. 14, 1918.)
    1. Telegrams and Telephones <&wkey;39 — Error in Transmission — Right of Recovery •^-Approximate Quotation.

      f¡ Even if plaintiff’s telegram was merely an approximate quotation of price, this is immaterial as regards plaintiff’s right to recovery of telegraph company for transmitting a lower price, sendee ordering plaintiff to buy, and he doing so at market price, resulting in a complete and fully executed contract)
    2. Principal and Agent/%=360 — Exceeding-Aut-thority — Liability.
    /An agent, with limited authority to buy at a certain price, paying more, is liable to the principal for the excess expendedX
    3. Telegraphs and Telephones' <&wkey;56(2)— Mistake in Transmission — Right oe ^•nder. ’
    ’ One who telegraphs quotation of ijrice to f another, with whom he had previously corresponded by mail, makes the telegraph company his agent, and so must settle with the sendee on the price erroneously, transmitted, accepted bL, .sendee, and can recover the loss of the company.'
    A. Courts &wkey;>91(l) — Controlling Decision -/State Supreme Court.
    (Decision of Texas Supreme Court on invalidity of provisions on back of interstate telegram limiting liability for error in transmission is controlling on Court of Civil Appeals/"
    Appeal from El Paso County Court; W. P. Brady, Judge.
    (Action by the Chihuahua Exchange against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.)
    Albert T. Benedict, of New York City, and Beali, Kemp & Nagle and Harold Potash, all of El Paso, for appellant.
    R. B. Redic, of El Paso, for appellee.
   Statement of Case. •

HIGGINS, J.

This was a feuit by Miguel Gutierrez to recover damagSS," alleged to have been sustained by reason of an error committed by appellant in the transmission of a telegraphic message. Gutierrez was engaged in the business of buying and selling Carranza currency in tbe city of El Paso, Tex., under the name of Chihuahua Exchange. A. N. Medillin, of Mesilla Park, N. M„ had on deposit with Gutierrez in excess"or $1,071.13 in United States "money for the purpose of buying Carranza money for Medillin when instructed by the latter so to do. In response to letters received by plaintiff from Medillin, the contents of which are not disclosed by tbe evidence, plaintiff delivered to defendant - at El Paso a telegram in Spanish directed to Medillin at Mesilla -RarkA Translated, the message •readsT’T*'

“According to letters received;, hard to buy now at less than tjvo seventy five," waiting two or three days, it may golower, advise us.”

The message was promptly transmitted and delivered to Medillin, but when received, the word “setenta” (seventy) had been negligently omitted in transmission so as to make tbe quoted price “two five” instead of “seventy five.” Upon receipt of tbe telegram Medillin wired plaintiff:

“I have deal closed, please send on to-day without fail.” 1 \

These'telegrams were transmitted and delivered on March 22, 1916. Upon receipt of the wire from Medillin, and on the same day plaintiff purchased for him $40,420 worth of Carranza money at $2.65 gold on the hundred, the same being the market price therefor, paying the total sum of $1,071.13 in gold therefor. The Carranza currency was transmitted to Medillin and billed to him at $2.75 gold per hundred. These transactions all occurred March 22, 1916. In response to the bill rendered, Medillin on March 23d, complained at the price charged, and claimed that plaintiff was bound to settle with him on the basis of $2^. gold per hundred. Thereupon Gutierrez settled with Medillin on said basis. Gutierrez was not aware of the error in tbe transmission of the telegram until darch 23d, when Medillin complained of the price of $2.75. Judgment was rendered for plaintiff in the sum of $242,52, that being the total amount of the difference between $2.05 per hundred and the market price of $2.75 per hundred actually paid by Gutierrez for the currency.

Opinion.

It is asserted that the telegrams between the parties did not constitute a contract for the reason that the first telegram was not an offer, hut merely an approximate, quotation of price at which Carranza money could be bought, and because plaintiff was simply acting as Medillin’s agent and broker. As to the first objection it is sufficient to say that, whatever the nature of the first telegram, Medillin authorized plaintiff to purchase Carranza money, and the negotiations between tbe parties culminated in a complete and fully executed contract. As to tbe second, it makes no difference if Gutierrez was simply the agent of Medillin in the purchase of the money. The agency was limited, namely, to purchase at a particular price. If an agent to purchase pays more than his principal authorizes him to pay, he is liable to the principal for any excess of the principal’s funds so expended. Clearly, Medillin did not authorize Gutierrez to pay more than $2.05.

The difficult question in thiá ease arises upon the contention that in the transmission of the message appellant acted as an infle^ pendent principal, and not as the agent of plaiñEiHT"'hence is not liable to plaintiff. Upon this question the authorities are in hopeless confusion. Some of the courts take the position' that the telegraph company is the agent of the sender of a message, especially where he selects it as a means of communication. Under this theory the sender is responsible1 in contract to the sendee, and the former, therefore, has a right of action against the telegraph company for any damages which he has sustained in carrying out his contract with the sendee.

A theory adopted by other courts is that which considers the telegraph company as an independent principal in transmitting the message. These decisions follow the English rule, and repudiate the idea that the telegraph company is the agent of the sender to transmit his communication to the addressee. Under this theory it is held that the minds of the sender and sendee of a message erroneously transmitted never meet and the sender does not become liable in contract to the sendee. Hence, if the sender re-* imhurse the sendee for any loss sustained by the latter, the former cannot recover from the telegraph company for any funds so ex-

It would be profitless for this court to at-mpt to review the numerous decisions upon the subject. Among those adopting the latter rule are the following: Pepper v. Tel., Co., 87 Tenn. 554, 11 S. W. 783, 4 L. R. A. 660 10 Am. St. Rep. 699; Shingleur v. Tel. Co. 72 Miss. 1030, 18 South. 425, 30 L. R. A. 444, 48 Am. St. Rep. 604; Strong v. Tel. Co., 18 Idaho, 389, 109 Pac. 910, 30 L. R. A. (N. S.) 409, Ann. Cas. 1912A, 55; McKee v. Tel. Co., 15S Ky. 143, 164 S. W. 348, 51 L. R. A. (N. S.) 439; Oil Co. v. Tel. Co., 171 N. C. 705, 89 S. E. 21; Tel. Co. v. Shaeffer, 110 Ky. 907, 62 S. W. 1119. This rule was applied in the Texas case of Harrison v. Tel. Co., 3 Willson Civ. Chis. Ct. App. § 44.

/ The distinguished Judge Thompson, in his work op the Law of Electricity (sections 480-2), denounces in unmeasured terms the Epglish rule and the Pepper Case, supra, the leading case in this country adopting that view, and says that the weight of American authority is contrary thereto.

Jones on Telegraph & Telephone Co. (2d Ed.) § 487, says that “the prevailing view is that, as between the sender of a telegraph message and the innocent sendee, all losses caused by the errors or mistakes made in the. transmission must be borne by the sender.” At section 723 he says:

“It has been seen heretofore that contracts may be made between two persons by the medium of the telegraph, and while the telegraph company may be considered, in a certain light, an independent contractor with respect to said contract, yet it is very generally held that it acts as agent for the party employing its services, or the one suggesting these means to consummate such contract.”

And section 745 the following:

“When an offer or proposition is made by mail or by telegram, it is not complete until it has been delivered to the sendee. The party making an offer — the same to be delivered by this means — appoints this agency to make the delivery. The postal system or telegraph being an agent of the sender, the offer is not complete so long as it remains in the hands of the agent, but so soon as it is delivered to the party to whom the offer is made it. then becomes complete. If there are any delays or mistakes made during the transmission of the offer, the party sending same must suffer the consequences.”

See, also, sections 757 and 758. The same rule is announced in 27 Am. & Eng. Ency. Law (2d Ed.) 1092; also in 9 Cyc. 294.

In Ayer v. Tel. Co., 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353, upon facts identical with the instant case,, the Supreme Court of Maine held that the sender of a message embodying a commercial offer or acceptance is bound to the receiver by the terms of the message as delivered to the latter, and the court, in discussing the question whether in case of error in transmission the sender or receiver should suffer loss, says:

“We think the safer and more equitable rule, and the rule the public can most easily adapt itself to, is that, as between sender and receiver, the party who selects the telegraph as the means of communication shall bear the loss caused by the errors of the telegraph. The first proposer can select one of many modes of communication, both for the proposal and the. answer. The receiver has no such choice. * * * If he cannot safely act upon the message ,he receives through the agency selected by the propóser, business must be seriously hampered and delayed.” \

Por otherjsases where the sender has been regarded as liable to the addressee, and held to have a right of action against the telegraph company, see Oil Mill Co. v. Tel. Co. (Ark.) 201 S. W. 273; Tel. Co. v. Shotter, 71 Ga. 760; Younker v. Tel. Co., 146 Iowa, 499, 125 N. W. 577; Saveland v. Green, 40 Wis. 431; Sherrerd v. Tel. Co., 146 Wis. 197, 131 N. W. 341.

In Hulme v. Mercantile Co., 149 S. W. 781, the Amarillo Court of Civil Appeals says that in cases of this kind the weight of authority is that the telegraph company is regarded as the agent of the sender; and that this fact will bind the sender, not according to the terms of the message as delivered to the telegraph company, but in accordance with the language of that transmitted and delivered to the addressee. Upon the facts stated in that case, however, the pertinency of the ruling is not apparent. See, also, Tel. Co. v. Land Co., 61 Tex. Civ. App. 168, 128 S. W. 1162.

Without undertaking to lay down as a general rule that the telegraph company is in all instances to be regarded as the agent of the sender, yet upon the facts reflected by this record we think it should be so regarded. Upon this view Gutierrez became bound to settle with Medillin at the price for Carranza, money quoted in the telegram actually delivered to Medillin. Notwithstanding the previous communications between Gutierrez and Medillin had been by letters, the former, when he undertook to quote to the latter the price of Carranza money, employed the telegraph company as the agency of communicating the quotation. Medillin, in good faith, acted upon the telegram actually transmitted and received by wire. It seems to us that reason and justice demand that Gutierrez should be bound to protect him against any damage arising out of the negligence of the agency which the former used to quote prices. The quotation from the Ayers Case, supra, is regarded as announcing the correct viewpoint.

As to those assignments which complain of the court’s refusal to give effect to certain provisions upon the back of the telegram, relied upon by appellant as limiting its liability for its negligence in erroneously transmitting the telegram, it suffices to refer to the rule announced by our Supreme Court in Tel. Co. v. Bailey, 108 Tex. 427, 196 S. W. 516. This decision is controlling upon this court. Tel. Co. v. Prewitt, 199 S. W. 316.

All other questions presented have been considered, and are regarded as without merit.

Finding no error, the judgment is affirmed.

       — -.Tinr other eases see same topic and KEY-NUMBEK in ail Key-Numbered Digests and Indexes


author: KEY, O. J.

text:
    WILSON v. CITY OF BELTON.
    (No. 5962.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1918.)
    1. Municipal Corporations &wkey;>978(9) — Foreclosure of Lien foe Taxes — Pleading — Venue.
    Where a complaint in a suit by a city to foreclose a lien for taxes failed to allege that the property was in the county at the time of the commencement of the suit, it was error to overrule a plea of privilege; defendant being a nonresident.
    2. Venue <&wkey;21 — Suit foe Taxes — Nonresi-dence.
    A city cannot maintain a suit for taxes against a nonresident taxpayer, where the case is not within any exception to Rev. St. 1895, art. 1194, requiring a defendant to be sued in the county of his domicile.
    Error from Bell County Court; M. B. Blair, Judge.
    Suit by the City of Belton against J. M. Wilson. Judgment for plaintiff, and defendant brings error.
    Reversed, with instructions.
    Ross & Zumwalt, of Dallas, and G. M. Felts, of Belton, for plaintiff in error.
    Jas. Boyd, of Belton, for defendant in error.
   KEY, O. J.

Appellee sued appellant and recovered a judgment for certain taxes alleged to be due ujion personal property. The first question presented to this court for decision is the action of the court in overruling a plea of privilege to be sued in another county. The plea referred to, which was sustained by the uncontroverted proof, conformed to requirements of the statute, and showed that at the time the suit was brought the defendant resided in Denton county, and not in Bell county, where the suit was instituted. The suit was not based upon any written obligation to pay the taxes, and, while the petition sought to foreclose an alleged lien on certain money and notes, it did not allege that either the money or notes was in Bell county at the time the suit was commenced. It did allege that they were in the possession of the defendant in that county, and in the city of Belton on the 1st day of January, 1914, but the suit was not commenced until October 6,1916, and there was no allegation by the plaintiff that any of the property referred to was in Bell county subsequent to January 1, 1914; therefore, it did not appear that the plaintiff sought to foreclose a lien upon property situated in Bell county.

With the question of lien eliminated, the case is analogous to Harrold v. State, 30 Tex. Civ. App. 524, 71 S. W. 407, decided by this court, and writ of error denied by the Supreme Court; and we quote as follows the syllabus in that case:

“Though, under the Constitution and laws, taxes are due and payable in the county to which they are payable, an action therefor cannot be maintained in that county against a nonresident taxpayer; the case not being within any exception to Rev. St. 1895, art. 1194, requiring a defendant to be sued in the county of his domicile.”

For the reason stated in that case, we decline to rule upon, the other questions presented in appellant’s brief.

We hold that the trial court committed reversible error when it overruled the plea in abatement; and therefore the judgment is reversed, and the cause remanded, with instructions to that court to sustain the plea of privilege, and transfer the case to the county court of Denton county, as required by statute.

Reversed, with instrulctions.
      <Ss»JTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    DIAMOND v. GUST et al.
    (No. 7610.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 29, 1918.
    Rehearings Denied Nov. 14, 1918.)
    1. Partnership &wkey;>138 — Payment of Debts —Powers of Partner.
    One partner of a trading partnership may lawfully and in good faith sell the entire personal assets of the partnership to pay partnership debts.
    2. Appeal and Error <&wkey;854(l) — Presumptions on Appeal — Action for Accounting.
    In suit by one partner against the other and his grantees for an accounting, where the record' did not show the reason of the trial judge for holding the sale by one void, the court will not disturb the judgment rendered which could be-supported on the question of fraud in making the sale.

      3. PARTNERSHIP <&wkey;344 — ACCOUNTING — BELIEF.
    In suit by one partner for an accounting on ground of fraudulent sale by the other partner, the sale being void as to plaintiff, he continued to hold a half interest in the property and business and could recover, not the value of the loss of his partnership property, but one-half the property and one-half the net profits after all firm debts were paid. .
    4. Partnership &wkey;>178 — Interest of Partner — What Constitutes.
    Nothing is to be considered as the share of a partner but his proportionate part of the residue or balance after an accounting has been taken of the debts and credits, including-the amounts paid by the several partners in liquidating firm debts.
    5. Partnership <&wkey;302 — Right to Accounting-Discharge of Firm Debts.
    A partner who pays or is forced to pay more than his proportionate share of firm debts has a right to a general accounting and contribution from the assets of the firm or from his copart-ners.
    6. Partnership <&wkey;313 — Right to Accounting — Nature of Remedy.
    The settlement of partnership accounts, and an equitable division of the assets of the partnership among the partners, has always been one of the functions of a court of equity.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Suit by D. Diamond against John Gust and others. Judgment for plaintiff in part and he appeals, and defendants file cross-assignments of error.
    Affirmed.
    Huggins & Kayser, of Houston, for appellant.
    Cole & Cole, of Houston, for appellees.
   LANE, J.

This suit was brought by appellant, D. Diamond, against John Gust and various others, to recover a one-half interest in certain property which was alleged to be owned by a partnership composed of himself and John Gust, for an accounting of said partnership, and for the reasonable value of the use of said property during the time the same was held by defendants other than John Gust.

The plaintiff alleged that he and John. Gust were partners in a “restaurant and pool hall” business prior to the 7th day of July, 1916, each owning one-half interest therein and one-half of all the personal property belonging thereto; that it was understood between said partners that the said Gust was to conduct the business and give his entire time thereto and was to be paid out of the funds of .the partnership $30 per month for his services; that Diamond was to receive one-half of the net profits of said business; that on the 7th day of July, 1916, said copartnership owned pool tables, show cases, tables, chairs, etc., of the value of $1,500; and that the profit of said business was $250 per month. He then alleged that his partner, Gust, without his knowledge and consent, did, on or about the 7th day of July, 1916, wrongfully and with the intent to defraud plaintiff, sell said business, and all personal property belonging thereto, to other defendants named in his petition. He prayed for an order directing all the defendants who had been at any time.engaged in conducting said business to render an itemized statement of profits of said business so as to show what profits had accrued from said business. He prayed for one-half of any such profits, and for one-half interest in the furniture and other property belonging thereto; that the business and all the partnership properties be sold by order of court at either private or public sale; and that the moneys derived from such sale be applied, first, to-the extinguishment of certain debts owing by the partnership, and that the balance be paid one-half to him and the other one-half to whomsoever it belonged. He also prayed for judgment against all the defendants for one-half of the profits of said business. . He prayed in the alternative as follows;

“If he is not entitled to one-half interest in the profits of said business from July 7, 1916, then he prays judgment for the sum of $50 per month from said date for the use and rental of said property from defendants Stratos Christos, Alex. Seitanides, and John Coroneos, restraining these defendants from in any way disposing of plaintiff’s interest in said property during the pendency of this suit or removing the same from its present location, and for such other and further relief both general and special in law and in equity to which plaintiff may show himself entitled.”

Defendant John Gust answered admitting the formation and conduct of the partnership and business up to July 7, 1916, as alleged by plaintiff, except he alleges: That the partnership business was run at a loss, and that on said 7th day of July, 1916, said x>artnersliip owed various persons an aggregate sum of about $600 or $700 and had no money with which to pay the same or any part thereof. That he had tried to get plaintiff to join him in getting money with which to pay said debts, and that plaintiff refused to do so. That this defendant saw that he could no longer conduct the business, and that he did on behalf of himself and the plaintiff, D. Diamond, on July 7, 1916, sell the entire business to Pete Manuel and M. Tamaris, in consideration of the said Pete Manuel releasing his debt against the partnership in the sum of $135 for borrowed money and wages due him and in consideration of said Manuel and Tamaris assuming and agreeing to pay something in the neighborhood of $600 indebtedness .due by the firm of Gust & Diamond. That said sale was in good faith and made for the purpose of paying the debts of the partnership; and that he got nothing whatever out of the consideration for which said property was sold. That he denies that there was any conspiracy on his part to in any way defraud the plaintiff, and that this defendant’s action in the premises was the only thing that could be done to protect the indebtedness of the partnership. That he offered to deed the property to the said Diamond, or to sell him Ms interest in consideration of Diamond paying the Mils or seeing that they were paid, and that the plaintiff, Diamond, refused all propositions made to him.

Defendant Alex. S’eitanides answered denying that he was guilty of any conspiracy or fraud in the purchase of said business and its properties, and averred that the same was purchased by him in good faith' for a valuable consideration without notice of any rights claimed by plaintiff, and that he is now the owner of said property and business. He also averred that he paid the debts due by Gust & Diamond, a part of which was a lien on said property. He also adopted the answer of his codefendant, John Gust; for the purpose of showing the dealings of the several parties with said properties.

The cause was tried before the court without a jury. The trial court found from the evidence: (1) That the one-half interest of plaintiff in said properties had not been divested out of him by the sale made by Gust, and that he still owned said one-half interest; (2) that the purchaser from Gust and his assigns had paid or caused to be paid an indebtedness against said property in the sum of $727 for which they should be reimbursed.

The court further .found that the property could not be divided among those owning an interest therein, and that the same should be sold, as prayed for by plaintiff, and' the proceeds divided betwéen the parties at interest, and that to effect such sale a receiver should be appointed to make such sale and distribution.

Upon these findings the following judgment was entered:

“It is therefore considered, ordered, adjudged, and decreed that C. M. McWilliams be and is hereby appointed receiver, and it is further ordered that said receiver shall sell said property and divide the proceeds as follows: To defendants he shall pay $727.00 first, the balance remaining to bo divided one-half to plaintiff and the other half to defendants. And it is further ordered that plaintiff do have and recover of and from the defendants herein all costs in this behalf expended, except that all costs incurred by the said receivership shall be paid in equal sums by plaintiff and defendants, for all of which let execution issue.”

From this judgment appellant, D. Diamond, has appealed.

Appellees have filed cross-assignments which we shall dispose of before considering appellant’s assignments.

By their cross-assignments appellees insist that, the trial court erred in holding that one partner of a nontrading partnership, such as the one involved in this suit is admitted to be, is without power to sell the entire partnership assets in payment of partnership debts, and in rendering judgment based thereon, to the effect that the sale made by John Gust, the partner who was managjinig the partnership business, to a third person, did not pass the title to the property so sold. That one partner of a trading partnership may lawfully, in good faith, sell the entire personal assets of the partnership for the purpose of paying the partnership debts, is well settled. Schneider & Davis v. Sansom, 62 Tex. 201, 501 Am. Rep. 521, and authorities there cited. But that one partner of a nontrading partnership has such power is not so clearly settled. Appellant contends that the law in this state is to the contrary in the later case, and cites the case of Huey v. Fish, 15 Tex. Civ. App. 455, 40 S. W. 29, in support of his contention.

We do not think that it is necessary for a proper disposition of appellees’ cross-assignments that we should decide this precise question, as the assignment should be overruled for other reasons; but, if we were required to decide the question, we would be inclined to hold that in either case one partner has the power to sell the entire assets of the firm for its reasonable value in good faith for the purpose of paying the debts of the firm, when there are no resources of the firm accessible with which said debts could be paid.

We are not' prepared to say that the trial court erred in his conclusions and judgment complained of.

Appellant alleged that the property sold by Gust, his partner, without his consent. for $727, was of the value of $1,500; that it was not sold in good faith to pay the debts of the firm, but was sold for the purpose of defrauding plaintiff. The only evidence with reference to the value of the property was the testimony of the plaintiff, who said that it was worth $1,130.60. There was also testimony to the effect that Fete Manuel, one of the purchasers from John Gust, was the cousin of Gust; that Manuel came from Galveston on the 22d day of June, 1916, 14 days before the sale was made by Gust to him, and was with Gust from that time up to the date of the sale on June 7, 1916, and that, after Pete Manuel took possession of the business, John Gust was assisting him in running it. The evidence above cited, together with other incidents testified to by appellant, Diamond, was, we think, sufficient to support a finding by the court that the sale was not made in good faith for the purpose of paying-the debts of the firm, but that the property and business was sold for less than its value and partly at least to defraud appellant.

As there is nothing in the record showing the reasons of the trial judge for holding the said sale void, and as such finding and judgment can be supported on the question of fraud, we do not feel justified in disturbing the same. The cross-assignments are overruled.

By appellant’s assignments 1, 2, and 3, it is contended as near as we can gather; First, that the trial court erred in refusing to allow plaintiff any compensation for the use of his one-half of said partnership property from the time defendant took possession thereof under the sale of John Gust on July 7, 1916, to date of trial; second, that the court'erred in finding that the indebtedness of the partnership of Gust & Diamond was $727, and in directing that the same should be first paid out of the proceeds of a sale of the property of said partnership before any part thereof should be distributed to the owners of such property, because the sum so found was excessive, in that the only sums which should have been allowed was $500, that being the balance of the purchase price of said property unpaid at the time of said sale by Gust; third, that the court erred in directing that $227 of said indebtedness of $727 should be paid out of the proceeds of the sale of said property, because said $227 was made up of indebtedness of said partnership which was not a lien upon said property, nor for any part of the purchase price thereof. .

At the suit of plaintiff and upon his allegations and prayer, the court set aside or in effect adjudged that the sale of the partnership property and business was void, and that appellant continued to own one-half interest in said property and business. If this be true, then certainly appellant would not be entitled to recover of his other partners the value of the use of his one-half of the partnership property but would be entitled to recover one-half of the property and one-half of the net profits of said business, after all debts of the firm are paid, and, as the undisputed evidence shows there were no profits, appellant should not recover anything for either the use of the property or for profits.

We have also reached the conclusion that the evidence shows that the parties who attempted to purchase the said property and business through John Gust assumed and paid the sum of $727 of the indebtedness ■ of said firm of Gust & Diamond, which was assumed by them in good faith. We further conclude that under appellant’s prayer for an accounting, sale of the property, and for an equitable adjustment of the rights of the parties, the trial court found that the purchaser from John Gust who assumed the payment and did pay $727 of the debts of the firm of Gust.& Diamond should be first reimbursed out of the proceeds of the sale of the firm property, the sale of which was ordered upon the prayer of appellant.

Nothing is to be considered as the share of a partner but his proportionate part of the residue or balance after an account has been taken of the debts and credits, including the amounts paid by the several partners in liquidating firm debts. A partner who pays or is forced to pay more than his proportionate share of firm debts has a right to a general accounting and contribution from the assets of the firih or from his co-partners, and therefore we conclude that the trial court did not err in so adjudging in the present case.

As appellant was a partner in the business and had prayed for an accounting and an equitable adjustment of the affairs of the partnership business, for a sale of the property thereof, and for an equitable distribution of the proceeds of such sale among those found to be entitled thereto, the trial court properly directed that the debts of the co-partnership should be first paid out of the proceeds of a sale of the partnership property before any part of the same should be paid to the partners.

Under the pleadings and prayer of the plaintiff and evidence adduced, it was an immaterial fact that $227 of the amount of the indebtedness of the partnership ordered to he first paid out of the proceeds of the sale of said property was not for any part of the purchase price of the property, but an unsecured debt of the partnership only.

The settlement of partnership accounts, and an equitable division of the assets of the partnership among the partners, has always been one of the functions of a court of equity.

The contentions of appellant are overruled, and the' judgment of the trial court is affirmed. ’

Affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes