author: XANTIS, J.

text:
    FT. WORTH & R. G. RY. CO. v. STEWART.
    (No. 2435.)
    (Supreme Court of Texas.
    Feb. 16, 1916.)
    1. Carriers &wkey;>320 — Injury by Fellow Passenger — Conductor's Negligence — Question eoe Jury.
    In a passenger’s action for injuries from a fellow passenger, held that, under the evidence, the conductor’s negligence in not ejecting the offending passenger was for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325: Dec. Dig. <&wkey;320; Negligence, Cent. Dig. § 301.]
    2. Carriers <&wkey;321 — Instructions — Conformity to Pleading and Evidence.
    In a passenger’s action for injuries from an assault by a fellow passenger, held, that the pleadings and evidence justified an instruction charging that plaintiff could not recover if the assault was so sudden that it could not have been reasonably prevented by the conductor.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dee. Dig. <5&wkey;321.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by A. M. Stewart against the Ft. Worth & Rio Grande Railway Company. From a judgment for plaintiff, which was affirmed by the.Court of Civil Appeals (146 S. W. 355), defendant brings error.
    Reversed and remanded.
    , Andrews, Ball & Streetman, of Houston, and C. L. McCartney, of Brownwood, for plaintiff in error. T. 0. Wilkinson, of Brown-wood, for defendant in error.
   XANTIS, J.

This suit was instituted in the district court of Brown county, Tex., by A. M. 'Stewart, the defendant in error, against the Ft. Worth & Rio Grande Railway Company, plaintiff in error, to recover damages for personal injuries' inflicted upon Stewart by a passenger on the plaintiff in error’s train. It was alleged by Stewart that on the 15th day of 'May, 1908, he was a passenger thereon, going from Ft. Worth to Brownwood; that while making this journey he was set upon and assaulted by another passenger; that he was struck across the head over the left ear with a large bottle of whisky; that by said blow he was knocked down, his scalp badly contused, and his skull fractured; that as a consequence of said blow and said injuries his hearing in his left ear had been totally destroyed ; that the defendant’s conductor in charge of said train knew that the passenger who assaulted him and several of his associates were drunk and quarrelsome, and knew that they had already, while on said train, been quarreling and fighting; that they had fought with the conductor, and had threatened to assault plaintiff, and the conductor knew that an injury was threatened to plaintiff by them, and he negligently failed and refused to quiet or suppress the drunken conduct of the man who assaulted him, and his associates, and refused to eject them from the train, or otherwise protect the plaintiff.

The plaintiff in error alleged that, if Stewart was struck by a fellow passenger, it was done without its knowledge, and without the knowledge of its servants and agents in charge of said train; that they had no reasonable cause to anticipate that any one would make an assault, or was likely to make an assault upon the plaintiff; that, if the defendant in error was assaulted, such assault was a sudden, willful, and unexpected act on the part of some third person in no wise connected with the defendant, and in no manner under its control; and that said injuries could not reasonably have been foreseen, anticipated, or prevented by the plaintiff in error.

There was a trial by jury, which resulted in a verdict in favor of Stewart, and against the railway company. The- judgment of the district court was affirmed by the honorable Court of Civil Appeals for the Third District. A writ of error was granted by this court, and the questions presented by the petition for writ of error will now be reviewed:

Plaintiff in error claims there was error in the refusal by the trial court to give defendant’s special charge No. 8, which is as follows:

“If you believe from the evidence in this case that under all the circumstances defendant’s conductor, at and before the time plaintiff was assaulted as testified to by him, ought to have remained witn plaintiff for Ms care and protection, yet if you believe from the evidence that the attack made upon plaintiff was so sudden and of such a character that the conductor, if present, could not reasonably have prevented same, then you are instructed that you cannot find a verdict for the plaintiff on account of the fact that said conductor was not present and personally looking after plaintiff’s protection at the time he was assaulted.”

The honorable Court of Civil Appeals, in passing upon this assignment, held that it was not error to refuse said charge; it being of the opinion that it was the duty of the plaintiff in error’s conductor to eject the passenger who assaulted Stewart and his associates from the train, and that the conductor was guilty of negligence in failing so to do before the assault was committed, and that, as the special charge requested authorized the defeat of liability on a less degree of care by the conductor than ejection, it was proper to refuse it.

To hold as a matter of law that the conductor was guilty of negligence in not ejecting said parties from the train, the evidence that it was the conductor’s duty so to do should be so conclusive that all reasonable minds would agree that it was his duty to take such action. If there was room for reasonable minds to differ about this, then it was a question of fact for the jury to determine, and could not be held by this court to be negligence as a matter of law; there being no statute which required the conductor to eject them. It becomes appropriate, therefore, to quote the material portions of the evidence which has a bearing upon this issue:

Stewart testified, in substance, that he was on the road most all the time, but that he had a place in Brownwood, in which city he maintained headquarters; that on May 15, 1908, about 2:30 a. m., he boarded the plaintiff in error’s train at Ft. Worth, with Brownwood as his destination; that he went into the smoker, and found a lot of people sleeping in there, and a good deal of noise, and nearly all of the seats taken, and that he passed on to the little compartment that was partitioned in the front end of the car, about four seats; that some other gentleman was lying on the right-hand side, and that he took two seats on the left-hand side and placed them together and went to sleep; that later in the night the conductor came through and took up his ticket, and that he again went to sleep; that it must have been about 4 o’clock in the morning when he was awakened by a fellow having his foot over the seat and across his (Stewart’s) neck, which excited him, and that he grabbed the fellow by the ankle and knocked his foot off of his neck, and looked up, and Mr. Blythe and this fellow were fighting; that this fellow had Mr. Blythe around the throat with both hands, and two or three other fellows had hold of this man pretending to pull him off, and this other man had his foot over the seat and across Stewart’s neck; that, when the others pulled him loose, he turned loose with one hand and commenced pounding the conductor over the head with his fist; that, when they got him loose, Mr. Blythe, the conductor, passed into the large room of the smoking compartment; that he (Stewart) then told these fellows, about the time Mr. Blythe left to go into the other end of the car, “It looks to me like you fellows might find some other place to fight instead of fighting over me;” that Mr. Blythe passed out and did not reply; that this fellow said, “By God, maybe you don’t like it;” that he replied, “I don’t like it;” “I am a passenger on this train like you are, and not mixed up in the fights at all; ” that a considerable quarrel followed, and that he ran his hand in his pocket as though he was going to pull a gun; that he (Stewart) said, “Young man, you are too close to me to pull a gun; I will knock you through that window too quick to think about it; I am just as liable to use it as you are;” and there were several words passed between them, and the parties passed back out at the front end of the car on the platform ; that he heard talking out there; that there were four of these fellows, and that they all went out together; that in a few minutes Mr. Blythe, the conductor, came back, and that it looked to him like he met the other parties in about the same place, and they passed some words and licks; that he sat in his seat and did not take any hand; that he thought he was out of it, as he had had his say and was perfectly satisfied; that Mr. Blythe, the conductor, and the other parties then passed into the large end of the compartment; that after this second fight these parties began to abuse him for everything they could think of; that he replied, “There are four of you fellows; I cannot fight all of youthat at the time these fellows were talking to him Mr. Blythe was standing in the door listening to them; that they abused him and called him a “damn son of a bitch,” and everything in the world that could be thought of; that they called him everything, names that he would not like to mention; that the fellow that afterwards struck him with the bottle did the talking; that the other fellows did not do a thing but listen; that they did not try to quiet the fellow who was talking; they never said a word; that they were ail drinking; that this fellow that was talking was drunk enough to stagger; that after these fellows had left the place where Stewart was and had gone into the other compartment, in about five minutes, he should judge, though he could not say positively, Mr. Blythe came back into the little compartment where he was then alone, and said, “Stewart, I believe if X was in your place I would go up and go in the chair car; those fellows are liable to do you bodily harm,” and said, “Did you notice that fellow keep putting his hand on Ms hip pocket?” that he (Stewart) replied, “Xes,” and that Blythe said, “I would go back in the chair car, where there is more people,” and that the conductor then walked out, and that he (Stewart) stood there and studied about a minute, and decided that he had better do that, though it looked like running, and that he picked up his suit case and pushed the door open with his crippled arm, and that after he had passed through the door, and had gone three or four steps from the door, this fellow raised up in his seat and “lammed me across the head with a bottle of whisky” ; that the whisky flew all in his face, and that the bottle cut the brim of his panama hat, and knocked him senseless for a minute, and that, when he (Stewart) turned around to pick up his hat, he looked back, and between himself and this little door he had come out of was one of those fellows with his sleeves rolled up about his elbows, and the blood was streaming down his arm; he was wiping the blood off with his other hand; that the fellow that struck Stewart was gone before he (Stewart) knew anything about it; that prior to being assaulted he asked Mr. Blythe what all this was about, and that he replied, “Well, that fellow got on the train, he was one of the firemen at Waco, and got on the train, a crowd of them, at Ft. Worth, and, when he went through taking up tickets he came to this fellow who said that he could not find his ticket, and, he (Blythe) made Mm pay his fare;” that Blythe said, when the fellow came back in there and jumped on him, that he had found his ticket in the meantime and had come back to Mm to get him to refund his money and take the ticket and that Mr. Blythe said that he would not do it and told Mm how to do it, to turn it in to the ticket agent; that Mr. Blythe said something about having quarreled with him before that time; he said that they had fussed about this money, and the fellow got mad about it.

Stewart testified at greater length than stated herein, but the other portions of his testimony consist almost entirely of repetitions of the portions already stated herein.

The conductor,' Blythe, testified, in substance, as follows: That he remembered the circumstances happening on his train in May, 1908, at the time one of the passengers struck Stewart with a bottle; that he did not see him when he was struck; that prior to the time he (Stewart) was struck he had seen him in the small partitioned end of the smoking car where he secured his ticket; that he (Blythe) did not have any difficulty in that compartment with a man prior to the time Stewart was hit with a bottle; that he had some trouble with this man before Stewart was struck just before reaching Stephenville; that in leaving Ft. Worth he had eight or ten volunteer firemen of Ste-phenville ; that one of them handed him a $10 bill and said he had lost his ticket, and would have to pay his fare; that he gave him a receipt for his money, and when they had reached within two miles or less of Stephenville he -went to the front end of the train to commence to take up< hat cheeks from people that were going to get off at Stephenville; that on reaching the front end of the car the man who had paid his fare approached Mm and said, “I have got the ticket here and -want my money back;” that he (Blythe) told him that he would have to take the receipt and his ticket to the agent at Stephenville and he would get a refund of his money; that he (Blythe) could not give it to him; that the man said, “Xou are the man that got my money, and you are tlie man that has to give it back to me;” that he renewed his statement to the man that he would have to get it from the agent, and then started through the partition door, not looking for any trouble, and not expecting any, and as he got his back to the man he put his arm around his (Blythe’s) neck, and pulled his head.back and struck him a glancing blow on the side of the head; that in getting loose from him he was thrown or pushed in some manner against Mr. Stewart, who was lying down on two seats in this small end of the car, and that Mr. Stewart got up and put his fist in the man’s face and said, “Damn you; you have caused trouble here all night, and I will whip you and whip you now,” and with that the boy passed out into the back end- where the rest of the crowd was, and gathered them together and came into the small end, several of them, making the remark that nobody could whip one of their crowd; that he (Blythe) quieted them down, and pacified them, and pushed them out — got them in the other end of the car, and by that time the train stopped at Stephenville; that he (Blythe) went out through the front end and went into the office and transacted his business in there and unloaded his people, and when they pulled out of Stephenville he (Blythe) came in the front end that he had gone out of and there lay the remains of a bottle on the floor, with a very strong smell of whisky; that the train was pulling into Stephenville when he got these boys back; that when he got them back there they sat down; that he (Blythe) never had any other difficulty with this man than the one difficulty already related by him; that he did not go back where Stewart was after the difficulty he had had in Stewart’s presence, and did not say to Stewart that he had better get out of there, that those boys were liable to hurt him, and that he never told him anything of that sort at all; that he did not go back in there and say anything to Stewart; that after the little trouble between him and this passenger, and the words that were passed between the passenger and Mr. Stewart, he (Blythe) got all those boys back in the other end of the car, and they sat down; that there was nothing said by any of them back there and nothing done which caused him to think that they were liable to go back there and assault Mr. Stewart; none of them made any threat against them in his presence or hearing; that the only thing that was said was while they were all there together in the small end of the car; that when he got them back in the other end of the car after this trouble the train had stopped at that timé, or stopped a very short time afterward; that he (Blythe) did not get a chance to take up his Stephenville checks at all; that this man he had a difficulty with had paid his fare to Stephenville, and was a passenger to Ste-phenville, and was expected to get off there; that at that time he (Blythe) never anticipated nor expected any further trouble between any one; that he supposed it was all quieted down; that there had been no trouble on the train at all that night; that those boys had slept all night; that the man he had a difficulty with got on the train at Ft. Worth, and had probably had a drink or two; that after the train left Ft. Worth and pulled out his conduct was all right; he had been sleeping; there had been no trouble of any sort between Blythe and this man prior to the time the train was approaching Ste-phenville ; that he did not tell Stewart that he had been having trouble with him along the road since he had left Ft. Worth; that he did not call Mr. Stewart’s attention to the fact that this man had put his hand in his pocket as if to draw a pistol.

The testimony of Stewart and Blythe quoted is in conflict in relation to the greater portion of the conduct of the passenger who struck the blow and that of his companions. In determining whether the conductor was guilty of negligence as a matter of law in failing to eject these parties from the train prior to the assault, the testimony of the conductor as to the conduct of the alleged disorderly passengers should be taken as true; for it was within the province of the jury to believe it, and to reject the testimony of Stewart. If the jury rejected the testimony of Stewart on this question, as it was within their province to do, and believed the conductor instead, then we would not be authorized to hold that the evidence was so conclusive as to the disorderly conduct of the fellow passengers as to establish as a matter of law that it was the duty of the conductor to eject the passengers before the assault was made. The conductor’s testimony does not show such a state of facts. The evidence of the conductor was to the effect that the fellow passengers, though they had taken a drink or two, were not disorderly at any time except when one of them assaulted him for not returning his money after he found his ticket; that after the quarrel one of them had with Stewart they all returned to their seats in the coach, and were seated and q-uiet, apparently pacified, and no further trouble was expected by him; that he did not advise Stewart to go back in another coach, or state that he feared they would make an assault on him if he did not go; that at the time of the quarrel had with Stewart by the fellow passenger the train was within two miles or less of Stephenville, which was the destination of the assaulting party and his associates, according to their tickets, and it was within the contemplation of the conductor that the3r would soon leave the train at Ste-phenville. An ordinarily prudent person situated as he was, and under the circumstances related by him, might not have stopped the train to eject these men when the train would stop at their destination within so short a distance. It presented a question of fact for the jury to determine, and not one of law for the court to decide.

The defendant had pleaded that the assault which was made upon Stewart occurred so suddenly that the defendant’s conductor could not have prevented the same. The evidence from the defendant’s viewpoint tended to support this defense. It had a right to have such defense submitted to the jury, unless the undisputed evidence showed that the conduct of the fellow passengers was of such a nature as that the conductor was, as a matter of law, guilty of negligence in not ejecting them. Whether or not this is true when considered in the light ol' Stewart’s testimony alone, we do not think it is true if Stewart’s evidence should be disregarded, which it was the privilege of the jury to do. We are of the opinion the court erred in refusing the defendant’s special charge No. 8, quoted, and for this error the cause should be reversed and remanded.

We have considered the other assignments presented, and do not think any of them presents reversible error.

For the error indicated, the judgment of the honorable Court of Civil Appeals and the judgment of the district court are reversed, and the cause is remanded for another trial.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: YANTIS, J.

license: Public Domain

text:
    CREWS v. GULF GROCERY CO. et al.
    (No. 2437.)
    (Supreme Court of Texas.
    Feb. 23, 1916.)
    1. CORPORATIONS <&wkey;410 — OlTTCERS—AUTHORITY.
    Where one of the principal purposes of the president and general manager of a wholesale grocery company in purchasing a retail stock of groceries at wholesale prices was the collection of a debt due from the seller, the purchase ■was within his authority, though he may also have intended to use the stock in opening a retail business by the company.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1629-1632; Dec. Dig. &wkey;410J
    2. Estoppel <&wkey;110 — Equitable Estoppel-Pleading.
    In an action by the seller of a stock of groceries for damages for breach of the contract, estonpel of plaintiff to claim damages by his conduct in mortgaging the stock and accepting proceeds of sale thereof by a receiver as exempt is not available as a defense, when it has not been pleaded.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. <&wkey;110.]
    Error to Court of Civil Appeals of First .Supreme Judicial District.
    Action by L. A. Crews against the Gulf •Grocery Company and others. From a judgment of the Court of Civil Appeals, reported in 146 S. W. 654, reversing a judgment for plaintiff, he brings error.
    Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

    Dougherty & Gordon and John M. Conley, all of Beaumont, and Ramsey, Black & Ramsey, of Austin, for plaintiff in error. Joe Williams, of Port Arthur, and Greer & Nall and T. H. Bowers, all of Beaumont, for defendants in error.
   YANTIS, J.

The plaintiff in error, L. A. Crews, was engaged in the retail grocery business in the town of Port Arthur, Tex., at the time the alleged cause of action sued upon arose. The Gulf Grocery Company, defendant in error, was a corporation, and was engaged in the wholsale grocery business in said town. Crews, as plaintiff in the district court, filed suit against the Gulf Grocery Company for damages for the alleged breach of a contract of purchase by the Gulf Grocery Company of Crews’ stock of groceries and store fixtures. The trial was by jury, and the case was submitted to the jury on a general charge. The judgment was in favor of the plaintiff, Crews. The Gulf Grocery Company appealed to the honorable -Court of Civil Appeals for the First District. In that court the judgment was reversed and rendered in favor of the Gulf Grocery Company; said court holding that the special charge requested by the Gulf Grocery Company, which was a peremptory charge in its favor, should have been given, the reason assigned by it being that the undisputed evidence showed that W. N. Holmes, the president and general manager of the Gulf Grocery Company, was without authority to make the contract of purchase, with the purpose in -view for it to engage in the retail grocery business. A writ of error was granted by this court on the petition of Crews.

For a statement of the issues we extract from the opinion of the honorable Court of Appeals the following:

“Plaintiff in his amended and supplemental petitions, upon which the case was tried, alleged in substance that the defendant, on or about January 29, 1910, acting by and through W. N. Holmes, its president and general manager and dully authorized agent, entered into a verbal contract with appellee by the terms of which the defendant corporation contracted and agreed to purchase from plaintiff a stock of groceries in the town of Port Arthur, Tex., owned by the plaintiff, together with the store fixtures owned and used by plaintiff in the grocery business he was then conducting in said town, and to ‘reimburse plaintiff for moneys expended by him in launching the said business bY advertising the same at Port Arthur, Tex., contracting and agreeing with this plaintiff by parol to pay him the sum of dollar for dollar in cash for said stock of groceries and fixtures and agreeing to take charge of said stock of groceries and fixtures on the 1st day of February, 1910, and to take possession thereof and reimburse the plaintiff in full for all expenses incurred by him in launching said business by way of advertising the same in the city of Port Arthur Tex., and paying him therefor, in cash according to the inventoried cost' price to plaintiff on the 1st day of February, 1910, and in consideration of the premises plaintiff agreed and contracted with the defendant, by parol, to sell and deliver said groceries and fixtures incident to said business, agreeing to deliver possession thereof to the defendant corporation on the 1st day of February, 1910, and according to the terms of the parol agreement with the defendant as aforesaid, and to receive on said date the contract price therefor in cash as above mentioned.’ The inventory value of said stock of groceries is alleged to be the sum of $3,690.49; the cost price of the fixtures, $3,753.25; and the amount expended by plaintiff in advertising his business prior to the execution of said contract of sale, the sum of $500 — -the aggregate of said amount being the sum of $7,943.74.
“Plaintiff further alleged that in compliance with his part of the agreement he tendered said stock of groceries and fixtures to defendant on the 1st day of February, 1910, but the defendant refused to accept them. Plaintiff further alleged that on the 1st day of February, when he tendered said stock of groceries and fixtures to the defendant, it requested plaintiff to hold the property and continue the operation of the business as the property of the defendant until March 10. 1910. Plaintiff further alleged that on the 14th day of May, 1910, he filed his first amended original petition, alleging insolvency on the part of the defendant Gulf Grocery Company, and praying for the appointment of a receiver for said company, and, in lieu of a notice to show cause why a receiver should not be appointed, defendant, in order to indemnify plaintiff for any judgment that he might recover against it, agreed to and did execute a bond payable to plaintiff, contingent upon the recovery of a judgment against the defendant, in which the sureties on said bond agreed to make themselves parties defendant to the said suit, and agreed that any judgment rendered against the defendant might also be rendered against them in said, suit; said sureties being the defendants W. N. Holmes and R. H. Wood-worth.
“The defendant filed its amended answer, on which it went to trial on January 16, 1911, and in addition to exceptions, answered by general ■denial, and specially denied that it made the contract to purchase from plaintiff, or that it agreed to take over plaintiff’s business; that it was contemplating going into the retail grocery business and the same was discussed at its stockholders’ meeting, and by resolution .of its stockholders the directors of the company were authorized to enter into negotiations or to make such arrangements as to them might seem proper, and to determine whether or not the defendant should or should not enter into the retail grocery business in Port Arthur; that defendant’s directors declined to go into the retail grocery .business, or to purchase plaintiff’s stock of goods; that if defendant’s agent, W. N. Holmes, did make the agreement with plaintiff, as alleged by him, then he was without authority to bind defendant, if ever he had agreed so to do, as such authority is lodged in defendant’s board of directors by its by-laws, and is not delegated to its president, which fact was well known to plaintiff, and he was advised at all times that W. N. Holmes did not have such authority. Defendant further alleged that plaintiff was indebted to it in the sum óf $1,-889.86, with 6 per cent, interest thereon from January 1, 1910, for goods, wares, and merchandise sold; that a receiver had been appointed for plaintiff's stock of goods, and under order of the court had sold same and paid the proceeds to plaintiff’s creditors, and defendant had received from said receiver a 20 per cent, dividend out of said proceeds, amounting to $377.96.
“On January 16, 1911, plaintiff filed his second supplemental petition, and alleged that W. N. Holmes was, at the time of the making of the contract sued on by plaintiff, president and general manager for the Gulf Grocery Company, and as such had express authority under the by-laws of the Gulf Grocery Company in force at that time to make and enter into the contract sued on by plaintiff. Plaintiff also alleged that the said W. N. Holmes had authority to make said contract, because the same was within the charter powers of said Gulf Grocery Company. Plaintiff further alleged that, at the time said contract was entered into between plaintiff and defendant, glaintiff was indebted to the defendant Gulf rroeery Company in a large sum of money, to wit, about $2,000; that it was contemplated by the parties to said contract, as one of the inducements thereto, and one of the moving considerations on the part of the defendant, that the debt of the Gulf Grocery Company should be deducted from the purchase price of the properties; and that the contract was in fact made by the defendant company, induced by the consideration that by making said contract it would in fact protect and collect its debt due it by plaintiff on open account for goods, wares, and merchandise; and by reason of these facts the said Holmes, as president and general manager of .said corporation, had authority to make the contract sued on by the plaintiff as a matter of law. Plaintiff also alleged that the defendant company was bound by said contract for the additional reason that said association is a trading corporation under the law and is bound by the rules of law governing trading corporations, and the defendant company, being a trading corporation and acting by and through its president and general manager, was liable for the contract made by him as a matter of law.
“On the 16th day of January,, 1911, defendant filed its first supplemental answer, and, besides exceptions to plaintiff’s second supplemental petition, urged a general denial.”

The plaintiff in error, Crews, further alleged that when the alleged contract of sale was made, January 29, 1910, he had a solvent, prosperous business, which was daily-increasing, and that the defendant in error, the Gulf Grocery Company, on said date in. fact took possession of his said business under said contract, by causing the preparation and mailing of a certain letter to each of his creditors, in which the said Gulf Grocery Company, in substance, advised each of his creditors to send in a statement of their accounts against L. A. Crews, and that it was very important that they should do so; that immediately thereafter his creditors sent in statements of their accounts, which he was unable to pay at that time, but that it was understood in said contract of sale that the said Gulf Grocery Company would pay said accounts and deduct them from the price of said stock of goods and groceries; that before said letter was written by the Gulf Grocery Company to his creditors they were not pressing him for the payment of his debts, but after said letter had been received by them they immediately began to press him vigorously for the-payment of their claims; that this condition of affairs caused his financial ruin; that on the said 1st day of February, 1910. when he tendered the said stock of groceries and fixtures to the Gulf Grocery Company, it requested him to hold the property and continue the operation of the business, and to hold the property as the property of the said Gulf Grocery Company until the 10th day of March, 1910, or until the return of John W. Gates, a director in the defendant company; that on said last date the Gulf Grocery Company applied for and secured the appointment of a receiver for his said! business.

The contention is made by the Gulf Grocery Company that the undisputed evidence showed that when Holmes, as general manager of the Gulf Grocery Company, proposed to Crews to purchase his stock of groceries and fixtures, he (Holmes) had the purpose in view for the Gulf Grocery Company to enter the retail grocery business, and to use said stock of groceries therein; that, though it had been proposed by the stockholders of the Gulf Grocery Company to its directors for it to enter the retail grocery business, it had not been decided by the board of directors so to do. It was on this theory that the defendant in error requested a peremptory charge at the trial in. its favor. It was this contention which was sustained by the Honorable Court of Civil Appeals, when it reversed and rendered this cause in favor of the defendant in error.

If to enter the retail grocery business were the only purpose entertained by Holmes when he made the proposition to purchase Crews’ stock of groceries, a serious question, and one not free from dilliculty¡ would be presented. But the evidence shows that one of the controlling purposes of Holmes was to collect from Crews, on behalf of the Gulf Grocery Company, a large debt, in the neighborhood of $2,000, which the evidence indicates might and probably would have been lost unless collected in this way. There is no dispute about this. It was stated by Holmes, at the time the proposition to purchase was made, that in paying Crews the Gulf Grocery Company would expect to deduct the amount which Crews owed it from the consideration agreed upon. At the trial Holmes himself testified that to collect this debt was one of his main reasons for proposing to purchase the stock of groceries, fixtures, etc. He testified on this point as follows:

“At the time of this transaction Hr. Crews owed the Gulf Grocery Company about $1,900. Of course, when discussing this deal, that was one of our objects — in particular, to take out the $1,900 owed us. We figured, • among other things, that we would collect the debt to the Gulf Grocery Company; that was the only way we could get any money out of it.”

Crews testified on that point as follows:

“Well, they were heavy creditors of mine. I owed them more money than I did any one else, which I thought then was one of the main reasons for wanting to 'buy me out.”

He further testified:

“The main consideration or point made was that the Gulf Grocery Company should get their money, and get it first.”

We think this evidence presents a very different question from the one contended for by the Gulf Grocery Company, which was to the effect that Holmes was acting beyond the scope of his powers as president and general manager of- the Gulf Grocery Company to enter the retail grocery business. This was stated by Holmes, it is true, at the time of the proposed purchase, to be one of his purposes. If this proposition contended for by the defendant in error were admitted to be sound, still there' would be present the other question; that is, whether Holmes was acting beyond the scope of his powers as president and general manager of the business of the Gulf Grocery Company to purchase Crews’ stock of groceries, fixtures, etc., in order to collect a large debt which the Gulf Grocery Company would otherwise probably lose. We think this question is the controlling one. A part of the safe management of the business of the Gulf Grocery Company was the collection of its debts. The duty to collect its debts was clearly within the scope of Holmes’ powers as president and general manager. Without this authority, to continue the business of the Gulf Grocery Company as a going concern would be impossible. If this authority were denied to him, the Gulf Grocery Company would soon be forced into liquidation; for if Holmes, its president and general manager, were authorized to sell goods, and prohibited from collecting the debts created by such sales, bankruptcy would be inevitable. That he had the power to collect debts due the Gulf Grocery Company is not even debatable. He could not be a general manager without having this authority. It is necessarily implied as one of the duties of the president and general manager. Of course, as general manager he could have in his employ men to do the collecting for the Gulf Grocery Company; but they must necessarily act under his direction and control, and probably be subject to discharge by him-if they failed to obey his instructions, and to comply with his demands about making collections. Though he had others employed to do the collecting, he would still have the general control and supervision of the collections. So to admit that he was general manager concedes that he had the power to collect the debts due to the Gulf Grocery Company.

'Now, having this authority, it follows, we think, that he would be acting within the scope of his powers as general manager when, in order to collect a debt for it, he should purchase property from one of its debtors and deduct the debt due to it from the agreed consideration. Thompson on Corporations (2d Ed.) §§ 1465, 1491, 1575, 1576; Panhandle National Bank v. Emery, 78 Tex. 498, 15 S. W. 23; Farmers’ National Bank v. Templeton (Civ. App.) 40 S. W. 412; Booker-Jones Oil Company v. National Refining Company, 132 S. W. 816; Thompson v. Mills, 45 Tex. Civ. App. 642, 101 S. W. 561; Hamm v. Drew, 83 Tex. 77, 18 S. W. 434. This is especially true when the property purchased, as in this instance, is of a kind and character which could be used in the main line of business of the Gulf Grocery Company. It was engaged in the wholesale grocery business, and the stock of goods which its manager was agreeing-to purchase could be placed with its stock of groceries and disposed of by it in its regular line of wholesale business; and as Holmes was buying the stock of groceries at wholesale prices, it would suffer no loss by purchasing the groceries and reselling them for its wholesale business, and it would at the same time save the large debt due it by Crews, which Holmes testified was one of the main purposes he had in view. It was not necessary for the Gulf Grocery Company to enter the retail business in order to dispose of the goods which it was purchasing from Crews. This we think states a ease where it is evident that Holmes, as president and general manager, was acting within the scope of his powers in making the contract to purchase Crews’ stock of groceries. The fact that one of his purposes was to enter the retail grocery business, if not itself within the scope of his powers so to do, would not nullify his contract, when one of the main purposes for making it was within the scope of his powers. Having authority to' purchase the stock of groceries in order thereby to collect a large debt, the mere fact that another reason which prompted him to mate the purchase might be beyond his powers as a general agent would not render illegal the contract. If, for any reason growing out of the facts, Holmes had authority to make the contract and bind the 'Gulf Grocery Company, this would be sufficient to defeat the defendant in error’s contention that Holmes acted without authority in making the contract. We therefore are of the opinion that the honorable Court of Civil Appeals erred in holding that the peremptory charge requested by the defendant in error should have been given.

Several special charges were requested by the defendant in error, presenting in different forms that the plaintiff in error, Crews, was estopped to demand recovery for breach of the contract by his own conduct in relation to the stock of groceries and fixtures after the contract was repudiated by the Gulf Grocery Company. These charges were based upon evidence that Crews mortgaged the fixtures or groceries in favor of one of his creditors, and that after the receiver sold the property he received and accepted from the court several hundred dollars as the proceeds of the sale of the fixtures as being exempt from forced sale. There was no plea of estoppel made by the defendant in error, and no pleading by it which alleged any of said facts from which an estoppel could be deduced. The defense, therefore, should not have been submitted, and the special charges referred to were properly refused. A remittitur was filed below, covering the amount of money which was paid Crews by the receivership suit. But, had this not been done, the rule would be the same as applied to the refusal of said special charges.

We have examined all of the assignments presented by the defendant in error, and hold them to be without merit.

For the error indicated in the holding of the Court of Civil Appeals, its judgment is reversed, and the judgment of the district court is in all things affirmed.
      ©r»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J. PRENDERGAST, P. X

text:
    ATKISON v. STATE.
    (No. 3922.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.
    On Motion for Rehearing, Feb. 16, 1916.)
    1. Witnesses <&wkey;244^-ExAMiNATi0N — -Leading Questions.
    It is not error to allow the state to lead an unwilling witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dec. Dig. &wkey;>244.]
    2. Homicide <&wkey;191 — Evidence—Admissibility.
    Where accused was not present and the occurrence was not communicated to him before he killed deceased, a witness cannot give his impression that deceased intended to kill accused when he armed himself shortly before the final affray; it appearing that deceased before he was killed permitted himself to be disarmed by his friends.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 414; Dec. Dig. <S&wkey;191.]
    3. Homicide &wkey;5349 — Adeeal — Determination.
    Where accused was only convicted of manslaughter, the propriety of a charge on murder, which issue was raised by the evidence, need not be determined.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig.
    340.]
    4. Homicide <&wkey;112 — Sele-Deeense —• Right to.
    Where accused by his unlawful and wrongful acts sought out deceased for the purpose of provoking a difficulty for the unlawful purpose of committing an' assault and battery upon deceased, and he used language with the intent of producing an occasion to bring on a difficulty, provoking deceased into attacking him with a knife, self-defense is not available, and the killing will be manslaughter, though, if deceased without provocation attacked accused, accused might stand his ground, and, if necessary, kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. &wkey;>112.]
    5. Homicide &wkey;>340 — Appeal—Harmless Er-ro®.
    Where accused was convicted only of manslaughter, the refusal of charges directing that under given circumstances accused could not be convicted of murder as well as charges submitting more than one theory of manslaughter was harmless.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. &wkey;340.]
    6. Criminal Law &wkey;829 — Trial—Instructions.
    Where the court gave an adequate instruction on self-defense the refusal of requested charges on that issue is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.]
    On Motion for Rehearing.
    7. Homicide <&wkey;300 — Evidence—Admissibility.
    In a prosecution for homicide, evidence held to raise the issue as to whether accused provoked the difficulty so that a charge on self-defense properly submitted the question whether accused provoked the difficulty.
    LEd. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. &wkey;300.]
    Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.
    Geary Atkison was convicted of manslaughter, and he appeals.
    Affirmed.
    Woodward & Baker, of Coleman, and Joe Adkins, of Brady, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of manslaughter, and his punishment assessed at five years in the penitentiary.

The state’s evidence was amply sufficient to show that just about or before night appellant, with some companions, was in a drug store in the town of Stacy preparing to take a drink of “coke." Deceased, Eli Brown, who was on a visit to his sister, who ran a hotel and restaurant, went from the restaurant into the back of the drug store to get a bucket of water. In doing so he passed appellant, who hailed him, and he responded. Upon getting the bucket of water, deceased was returning to the restaurant therewith, and, when passing, or just after passing, appellant about the door, appellant used most vile, indecent, and insulting language towards Brown. Brown resented it then but friends interfered, and no encounter was then had. Brown, smarting under the insult, immediately went across the street to his sister’s, got a double-barrel shotgun, went across to the Stacy store, where he procured shells, and loaded the gun. The Stacy store was a block or less distant from the drug store. Brown’s sister, brother-in-law, and other friends, hearing of the difficulty, and anticipating that he might kill appellant with the shotgun, induced him to give it up or took it away from him. His brother-in-law unbreeehed the gun, took out the cartridges, and placed the gun under the counter in the store. Brown did not thereafter have the gun in his hands at all or attempt to get it. He remained in the store. Appellant, with the knowledge that Brown was in the store and had taken the gun therein, went from the drug store to the Stacy store. In going he drew his pocketknife, before reaching the Stacy store, and kept it open in his hand until he reached the store. This knife was shown to have had a blade a quarter of an inch wide and 3% inches long, the entire knife 6 inches long. It had a guard where the blade fitted into the handle, so that it was, or had the appearance of, a dirk or dagger.

The testimony of some witnesses was to the effect that, when appellant reached the Stacy store at this time, he renewed the insults to Brown. His friends again interfered, and two of them took him away to avoid a further difficulty or to prevent a killing. They carried him some distance from the Stacy store, tried in various ways to get him not to return to the store, but he persisted to such an extent that they turned him loose and desisted from any further efforts to keep him away from the Stacy store, where Brown remained. Upon his return to the store the second time he again had his said knife open ready for use. The testimony of some witnesses clearly shows that appellant again renewed his insults to Brown, some of the witnesses making him the aggressor in then also assaulting Brown. They thereupon clinched. Appellant cut deceased’s cheek open with his knife, cut him In the back of the left shoulder, stabbed him between the first and second ribs into the region of the heart, the doctor thinking it severed the aorta, from which wounds Brown expired in a very short time, without speaking. Some of the witnesses made Brown the aggressor at the immediate time they clinched and began fighting. It was also a disputed question whether Brown had a knife in his hand and assaulted appellant therewith, some of the witnesses testifying he did have and assaulted appellant therewith; others to the effect that he did not have. Appellant claimed that deceased in this fight slightly cut him in places. The state’s theory and claim was that these wounds were self-inflicted.

We have not attempted to give in detail the testimony, nor all of the disputed issues. We have merely given an outline so that the case may be understood in a general way.

The appellant has some bills to some claimed leading questions propounded by the state’s attorneys to the witness W. O. Graham. The court qualified them by showing that the witness was decidedly adverse to the state, and for that reason he permitted said leading questions. These bills, as qualified, show no error. Carter v. State, 59 Tex. Cr. R. 75, 127 S. W. 215. A great many other cases in point could be cited, but it is unnecessary.

As explained and qualified by the court, no error was committed by the judge in refusing to permit defendant to ask the witness Frank Smith and have him answer the impression that was made upon his mind by the deceased at the time he saw deceased with said gun, which was at the time he was going with it from his sister’s to the Stacy store, the court’s qualification showing that appellant was not present, what occurred between Smith and deceased was not communicated to him, and that his impression of what he thought Brown’s then intention was was inadmissible, the witness being permitted to testify all that was said and done between them at the time. Neither does another bill, wherein he sought to have the witness Jess Stacy testify that he Stacy believed that the deceased intended to go and shoot the defendant when he came into the store with the gun, as qualified by the court, show any error.

The court gave a most admirable and apt charge submitting every issue properly which was raised by the testimony and necessary to be submitted to the jury. The charge seems to have been prepared with a great deal of care and with a clear conception of the issues in the case. The court correctly and fully charged on murder. The evidence clearly and forcibly presented this issue. But, as the jury found the appellant guilty of manslaughter only, there is no necessity of giving or discussing the charge on that issue. The court then correctly and fully charged the jury on self-defense in a most favorable and complete way in appellant’s behalf and in every way which was raised by the evidence. Appellant’s testimony, with other testimony, raised the issue of self-defense. The court then charged on every phase of provoking the difficulty by appellant, and in each instance properly charged the converse of each issue on this subject raised by the testimony. Unquestionably provoking the difficulty by appellant in every way submitted by' the charge was raised by the testimony.

The charge submitted the question of manslaughter under our manslaughter statute on that phase of the testimony and the well-established law by the many decisions of this court as follows:

“You are further instructed that, if you believe from the evidence beyond a reasonable doubt that the defendant by his own willful and wrongful acts, if any, went to where the deceased Eli Brown was killed, for the unlawful and willful purpose of provoking a difficulty with him, with the unlawful and willful purpose and intention to commit an assault and battery upon Eli Brown, and you further believe from the evidence' beyond a reasonable doubt that the defendant did some act or used language or did both, with the unlawful and willful intention of producing an occasion to bring on a difficulty and to commit an assault and battery upon deceased, Eli Brown, and that such acts or language or both of the defendant, if any, such there were, were reasonably calculated under the circumstances at the time to provoke a difficulty with the deceased, and that such acts or language or both, if any such there was,-of defendant caused the deceased to attack the defendant with a knife, and that the defendant cut or stabbed Eli Brown with a knife, and thereby killed him in order to save his own life, then if you so find, you are instructed that the defendant’s plea of self-defense will not avail him, and the homicide would’be manslaughter, and, if you so find from the evidence beyond a reasonable doubt, you will find the defendant guilty of manslaughter, and assess the penalty as prescribed in this charge.”

In the next, paragraph the court submitted the converse of the proposition, and told them, if that state of fact was true, appellant’s right of self-defense was not forfeited, and he could stand his ground and defend himself by the use of such means as the facts and circumstances indicated to him to be necessary to protect himself from danger, or what reasonably appeared to him at the time to be danger. The charge of the court on this subject has many times been expressly approved by this court. Woodward v. State, 54 Tex. Cr. R. 88, 111 S. W. 941; Prescott v. State, 54 Tex. Cr. R. 485, 113 S. W. 530; Matthews v. State, 42 Tex. Cr. R. 31, 58 S. W. 86; Tardy v. State, 47 Tex. Cr. R. 444, 83 S. W. 1128; Gray v. State, 61 Tex. Cr. R. 454, 135 S. W. 1179; and a large number of other eases collated by Mr. Branch in section 464 of his Criminal Law.

Appellant objected to the court’s charge, because it did not also submit a charge on manslaughter on the theory that deceased’s attack of him with a knife produced that degree of passion sufficient to render him incapable of cool reflection. But he asked no special charge submitting manslaughter under any such a theory. By his charge No. 1, which quoted, in substance, articles 1128,1129, subds. 1 and 3, and article 1130, he told the jury that, if they believed from the evidence that just prior to and at the time of the killing of Brown he had been informed that Brown had gone after his gun for the purpose of killing him, and that at such time such acts and statements were of a nature to produce in his mind such passion, anger, rage, resentment, or terror as to render his mind incapable of cool reflection, and, while his mind was in such condition they believed he was not acting in his self-defense, he stabbed or cut Brown, and thereby killed him, he would not be guilty of any higher offense than manslaughter, and, “if you so believe, or have a reasonable doubt thereof, it will be your duty to acquit defendant of the grade of murder.” This special charge, as seen, is not a charge submitting the question of manslaughter on the theory appellant claims it should have been, but was a specific charge telling the jury, under the circumstances stated, they must not convict him of murder. In our opinion, as he was acquitted of murder and only convicted of manslaughter, the refusal of the court to give this charge does not present reversible error, and, further, as he was convicted of manslaughter only, the fact that the charge of the court submitted that question under one theory alone also does not present reversible error. If the jury had found the appellant guilty of murder, then a different question would be presented. It might be that, if the jury had convicted him of murder, it would have been reversible error to have refused his said special charge No. 1. As he was acquitted of murder, and this charge was on that subject, murder passes out of the case, and so does said charge so far as presenting any error is concerned.

As the court submitted appellant’s claimed self-defense in a full and complete charge properly as presented by the testimony, the court did not err in refusing appellant’s said charges Nos. 3, 4, and 5 on that subject. Neither did the court err in refusing his special charge No. 9 about his right to arm himself with a pistol, etc., as the evidence did not properly raise the necessity of any such charge.

After a careful consideration of. the record in this ■ case, the forcible brief filed by appellant’s able attorneys, and the oral argument of this case, we think no reversible error is shown, and that the judgment should be affirmed, which is accordingly ordered.

DAVIDSON, X, absent.

On Motion for Rehearing.

PRENDERGAST, P. X

Appellant urges some of the same propositions which he urged when the cause was submitted and decided. We will discuss the one we think is necessary.

His first contention is that this court erred in holding that the lower court was justified in charging on provoking the difficulty, asserting :

“We earnestly submit to the court that there is not one line of testimony in this record from the caption of the statement of facts to the certificate of the court approving same that authorized the court to charge the jury on the law of provoking the difficulty.”

Surely appellant’s attorneys have forgotten the record., or they could make no such assertion.

The statement of facts contains some 85 typewritten pages, and shows that some 27 witnesses testified. In the original opinion we gave a correct general statement amply established by the evidence, but did not quote the testimony of the respective witnesses. Of course, we cannot now undertake to quote all of the witnesses nor all of the testimony. We will give some of it on this issue of provoking the difficulty. In addition to what we give, there is testimony by other of the witnesses substantially to the same effect. The record teems with testimony raising the issue, and in fact showing that appellant provoked the difficulty. And the jury were clearly authorized therefrom to believe, as they did, that appellant provoked the difficulty for no other purpose than that of either killing deceased or doing him serious bodily injury.

There was but one difficulty between the parties. Several minutes elapsed between the beginning of it to the time that appellant killed the deceased. There is no particle of testimony in this record which shows, or tends to show, that appellant had the slightest cause from deceased to grossly insult him as he did and continue his gross insults and abuse of him from the time he first began it until after he had stabbed him to the heart and killed him.

All of the witnesses — and there were several of them, including appellant himself— who saw and heard 'the beginning of the difficulty at Bowen’s drug store clearly and without doubt establish this state of fact there: The deceased, Eli Brown, walked into said drug store from his sister’s restaurant across the street to get a bucket of water at a hydrant at the back end of the drug store. In going, he passed appellant and some of his friends. I-Ie neither said nor did anything whatever to appellant. Appellant hailed him: “Hello, Brown.” Brown responded: “Hello.” After getting his bucket of water, he passed back the same way that he had entered, and, when he got to the door, appellant said to him, so he himself swore: “Don’t you want to shoot some craps, Eli?” Eli Brown, deceased, responded: “No; I don’t do that.” Appellant then said: “Suck your a- then.” Deceased responded: “Don’t you get too smart.” Appellant then said to him: “Tlfat’s what I said, you son of a bitch.” What we have just given is from the sworn testimony of appellant himself in his direct examination. Mr. W. 0. Graham, who was present in the drug store at this time, swore that appellant then, in addition, said: “Go to hell, and go on there with your slop” — as Brown started off with his bucket of water. Graham further swore that appellant further said to Brown something like, “Kiss my a-.” Hubb Jones, one of appellant’s witnesses, who was present and saw and heard what occurred in the drug store, swore that appellant also said to Brown there: “Brown, if you don’t like that, suck my a-, you son of a bitch.” Other witnesses who were present testified substantially to the same thing. It is unnecessary to quote them. All of them also show that then Brown at this time set his bucket of water down and started to resent appellant’s most insulting, indecent, and provoking language to him. Tom Menge, who was then present, swore: “Brown was turning facing him [appellant] with a bucket of water, and Geary [appellant] drew his knife and says: ‘G-d-n you; don’t come on me. Gd-n you; I’ll kill you.’ At the time the defendant drew his knife Brown was standing in the door or inside the door somewhere about the door. Brown was turned facing him, when he [appellant] called him [Brown] a son of a b-h.” Appellant himself in, cross-examination swore that he himself then got out his knife. He said: “I went down there after mine. And I got it out and opened it, and I said: ‘That was just what I said, you son of a b-h.’ ” All the other witnesses, and appellant himself, further swore that his friends then got in between them, and they all, in effect, swore that no one at the time held Brown, but that two or three of them at the time held appellant and kept him from then assaulting and killing Brown with his knife. The evidence, as stated in the original opinon, without any dispute, showed the character of this knife then drawn by appellant, and with which he soon afterwards killed Brown. It was a most deadly weapon, in effect, it was a dirk or dagger, with a guard between the handle and the blade, the blade being 3 Ys inches long.

All the testimony without dispute shows that deceased went directly from the drug store to his sister’s, Mrs. Jarrett’s, a short distance only, at once procured a double-barrel shotgun, went immediately therewith to the Stacy store, procured shells, and loaded the gun. 1-Iis sister, Mrs. Jarrett, ahd her husband and other friends, having heard of the difficulty at the drug store, Immediately went to deceased in the Stacy store and induced him to surrender the gun, which he did, and the shells were then taken out by Mr. Jarrett, his brother-in-law, and the gun placed under the counter. Deceased at no time thereafter had the gun in his hands or attempted to procure it, but remained in the Stacy store. His sister and others were attempting to get him to go back to her residence, or hotel. Before he could do so, appellant went from the drug store to Stacy’s store.

Aaron Bowen, who was present at the drug, store and saw and heard what then occurred, swore that, after Brown left the drug store, appellant remained there just a little bit. He further swore: “I saw him when he left the drug store. He stated to me where he was going. He said Brown was over there with a gun, and he was going over' there. He went out at the front door.” This witness further swore that he heard appellant down there at the store cursing, and that he then went down there. Mrs. Burrows, the postmistress, swore that in order to reach Stacy’s from the drug store appellant had to pass the post office, the post office and Stacy’s joining; that, when appellant thus approached Stacy’s store, “he was just saying, ‘The G-d-n son of a b-h,’ ” to Brown; that Mr. Bowen tried to get him to go away. “I told him he would have to get away from the front of the office to swear; that I would make it cost him something if he didn’t” The witness Arch Johnson swore that at this time “the defendant came up with a knife in his hand and was walking towards the crowd where Brown was,” and he (the witness) caught with both his hands appellant’s arm in which he had the knife, “and held him until Aaron Bowen walked up, and then we both turned and led him in behind some stores there,” and that appellant, when they first started away with him said: “You think I want to go, don’t you? I am not afraid of him or all the shotguns he can get.” On cross-examination Johnson further testified that at this time Brown was right near the door of Stacy’s store, “and the defendant was right on the gallery with his open knife, and I took hold of him; he had his knife in his right hand;” that Brown said nothing to him at the time; that he and Aaron Bowen both took hold of him at that time. “I pulled him. He pulled back once.” Mr. Graham further swore that, when appellant came to the store the first time, he came from out of the crowd somewhere, “and he came rushing up to the store and says: ‘Let me get to him.’ ” Mr. B. K. Bowen swore that, when these parties took hold of him to take him away when he first went to the Stacy store, “he seemed to be pulling back”; “I heard him say that with an oath, ‘The G- d-n peaked-faced son of a b-h said he was going to shoot me, and he must shoot me;’ ” that he kept repeating this; that the parties who had hold of him were insisting that he come on and not have any trouble, and he would reply: “He said he was going to shoot me, and he must shoot me.” The testimony of these two witnesses and several others also is to the effect that Johnson and Aaron Bowen then took him away from the Stacy store and did all they could to persuade him not to return to the Stacy store, where Brown was. Appellant himself swore that they took him 34 steps from Stacy’s store and tried to keep him from going back there. Aaron Bowen swore: “He said he wanted to go back over there; that Brown wanted to run him out of town, and then I told him to go ahead. He said he wanted to go back over there; that Brown was over there with’ a gun; that Brown wanted to run him out of town, and I told him to go ahead.” That appellant then went back to the Stacy store, and he (the witness) went back to the drug store. Mell Pearce testified: “Just before the fight occurred I heard the defendant make a statement that he was laying for Brown; that he was after Brown.” Again he heard him say he was laying for Brown, or was after Brown. “Brown’s the man I am after.”

All the witnesses, and appellant himself, said that it was upon his return to the Stacy store that the fight occurred in which appellant stabbed and killed the deceased. Mr. Graham swore that, when appellant came back the second time to Stacy’s store, “and defendant came and cornered Brown and called him a G- d-n son of a b-h, and that was what I said awhile ago, and he came back cussin’. He just came up through the crowd there and called him a son of a b-h. He called Mr. Brown a son of a b-h. I think that was the second time he came back and called him a son of a b-h. He came up there twice cursing.” Mrs. Burrows testified that, when appellant returned to the Stacy store the second time, “Mr. Atkison [appellant] ran into the store, and as he went in he said just the same thing, the same oath, that he had been saying. He just ran past Mrs. Jarrett and grabbed Mr. Brown by the collar.” What he had been saying, as shown by a previous quotation of her testimony, was calling Brown a G-d-n son of a b-h. Mr. W. B. Arthur swore that, when appellant returned this ¡second time, deceased said to .him, “ ‘You have abused me without any cause,’ and he says, T think you ought to take it back,’ and Atkison refused to take it back. He says, T wont take anything back, you peaked-faced son of a b-h;’ and, when he said that, Brown jumped and struck at him; and, when he did that, I pushed Brown back with that arm and shoved Atkison back with that one, and they came around me, and Brown came around the other way, and they went to knocking.” Mr. B. K. Bowen swore: “The deceased said, ‘You called me a son of a b-h, didn’t you?’ Geary said, ‘No.’ Brown said, ‘You called me a son of a bitch,’ the second time. And then he [appellant] said, ‘Yes; you are a G d n peaked-faced son of a b — —-h;’ and then they clinched there.” Jess Stacy swore that, when deceased took hold of appellant, “he said, ‘You called me a son of a b-h,’ and he [appellant] said, ‘Yes; I did, you G--d-n son of a b-h or bastard.’ 1 heard him say that. He didn’t say a word about willing to take it back or anything or willing to apologize, but did say he was a son of a b-h bastard.” Appellant himself on cross-examination swore: “The first I knew Brown had me in the collar, and he said, ‘You called me a son of a b-h,’ and grabbed me in the collar, and I stated, ‘Yes; that be was a G- d-n son of a b-b.’ ” O. B. Jarrett swore that, when appellant started in the bouse lust' before the fight, “I beard him say, ‘The d-n son of a b-h.’ ”

All the testimony then shows that deceased and appellant went to fighting. They clinched. Appellant was cutting and stabbing deceased with that most dangerous knife, or dagger, and plunged it into deceased’s heart, or the aorta thereof, and that, when deceased then got away from him, he ran, and the appellant ran after him. Deceased fell in the dark, and almost immediately thereafter expired. In running after him the appellant stumbled; and, as deceased was in the dark and he could not see him, he immediately returned to the Stacy store, got up on the gallery, and even then Mrs. Jarrett swore he said: “Go, you son of a b-h.” Tom Menge swore that, when appellant got back up on the gallery of the Stacy store immediately after he had stabbed and run deceased, “I heard the defendant say that he was going to kill every G-d-n Jarrett in that town that night.” Mr. B. K. Bowen swore that appellant then said: “The Jar-retts are G-d-n m-r f-g s-s of b-hes, every one of them.” Mrs. Fannie Johnson, who was 350 or 400 yards away, said she heard him then talking and cursing loud, and “I heard him call the Jaretts’ name and say they were G- d-n s-s of b-hes, and everybody that was kin to them, and everybody that was friends of them.”

There can be no shadow of doubt but that provoking the difficulty by appellant was in the case from start to finish, and it was the duty of the court to charge on provoking the difficulty. The state has just as much right to have every issue raised by the evidence in its favor charged upon as the accused has. As stated in the original opinion, the court correctly charged on this question, and also in appellant’s favor charged the converse.

We have carefully reconsidered the other grounds of appellant’s motion for a rehearing. There is no necessity of restating or discussing them, as they were all properly decided in the original opinion. Nothing new is urged as to these grounds in the motion for a rehearing. The motion is overruled.
      <gz^For other cases see same topic and KEY-NUMBBft in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    TOWNSER v. STATE.
    (No. 3939.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    1. Forgery <©=o29 — Indictment — Allegations — Creating Pecuniary Obligation.
    . An indictment for forgery of an order to deliver goods and charge them to the purported maker, need not allege that the order, if genuine, could have created any pecuniary obligation.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. <@=329.1
    2. Forgery <@=329 — Indictment—Order eor Goods.
    The indictment for forgery of an order to a salesman in a store to deliver goods need not allege that he himself had goods for sale, or was empowered to furnish them.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. <@=329.]
    3. Forgery <@=312 —Order eor Goods —Necessity oe Acceptance.
    To constitute forgery of an order to deliver goods, the party to whom it is directed need not accept or comply with it, or be able to do so.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 28-47; Dec. Dig. <£=?12.]
    4. Forgery <@=329 — Indictment — Order eor Goods.
    ' The indictment for forgery of an order on a company for goods need not allege whether it was a firm or a corporation; its name not being alleged to have been forged.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dee. Dig. <@=329.]
    5. Ineants <@=316 — Juvenile Oefenders — Prosecution — Girls.
    Nothing in the juvenile and delinquent child acts authorizes or requires the dismissal of an indictment against a girl, and the trial of her as a delinquent child or juvenile, such acts applying only to boys.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 16; Dec. Dig. <@=316.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Hattie Townser was convicted, and appeals.
    Affirmed.
    J. W. Baker, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of forgery, and assessed the lowest punishment.

The indictment, .after the preliminary necessary allegations, alleged that appellant on or about April 29, 1915, in said county—

“did then and there, without lawful authority, and with intent to injure and defraud, willfully and fraudulently make a certain false instrument in writing, purporting to be the act of another, to wit, purporting to be the act of Eliza Matthews, which said false instrument is to the tenor as follows: ‘Mr. Fout let this girl have 4 yards of Pink Sateen and 2% yard of Pink Yaling her name is Yeola Rhodes. Charge it to Eliza Matthews.’ On the back of said instrument were the following words: ‘Tim Rhodes Da’ In the above instrument the words ‘Mr. Fout’ were intended to mean, and did mean, W. C. Fouts, who is a salesman at the store of Tucker-Hayter & Company, Nacogdoches, Texas. In the above set forth instrument the name ‘Eliza Matthews’ was intended for, and did mean, Eliza Matthews.”

This indictment is in strict accordance with the form therefor laid down by Judge White in his Ann. C. C. P. § 882, and also with Judge Willson’s form in his Criminal Forms (4th Ed.) No. 410, p. 215, and is clearly sufficient.

Appellant attacks by a motion in arrest of judgment said indictment on several grounds; one, because it did not allege that said instrument would have created, diminished, discharged, or defeated any pecuniary obligation or in any way affected any property belonging to the purported maker, Eliza Matthews, if same had been true. In this character of instrument, such allegation is unnecessary and has been held to be so by many decisions of this court. Davis v. State, 70 Tex. Cr. R. 253, 156 S. W. 1171, and authorities therein cited; Horton v. State, 32 Tex. 80; Labbaite v. State, 6 Tex. App. 257; Morris v. State, 17 Tex. App. 660; Dooley v. State, 21 Tex. App. 549, 2 S. W. 884; articles 454 and 807, C. C. P.

The instrument clearly, on its face, was neither vague nor uncertain, and especially when taken in connection with the explanatory averments, and showed clearly that the order to furnish the goods called for was to Mr. W. C. Eouts, a salesman at the store of Tucker-Hayter & Co., which was all that was necessary in that regard; nor was it necessary for. the indictment to allege that said Eouts himself had goods for sale or that he was empowered to furnish said goods from the stock of Tucker-Hayter & Co. Keeler v. State, 15 Tex. App. 111; Spicer v. State, 52 Tex. Cr. R. 177, 105 S. W. 813; Hendricks v. State, 26 Tex. App. 176, 9 S. W. 555, 557, 8 Am. St. Rep. 463; Rubio v. State, 50 Tex. Cr. R. 177, 95 S. W. 120. In order to constitute forgery of an instrument such as in. this instance, it is not necessary that the party to whom the -order is directed shall accept it or comply with it or be able to do so. To constitute forgery it is not necessary that it be successful to the extent of having procured the goods thereby ordered. Reeseman v. State, 59 Tex. Cr. R. 434, 128 S. W. 1126; Rubio v. State, supra.

Neither was it necessary for the indictment to allege whether Tucker-Hayter & Co. was a firm, partnership,' or corporation. It was not their names which were alleged to be forged. Lamb-Campbell v. State, 72 Tex. Cr. R. 628, 162 S. W. 879; Lucas v. State, 39 Tex. Cr. R. 48, 44 S. W. 825; Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356; Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309; Reeseman v. State, supra. As stated above, the said indictment with the explanatory averments made is clearly sufficient under the statute and the authorities.

Before the trial began, appellant’s grandmother made for her, and she filed, an affidavit alleging that she was a female under 18 years of age, to wit, that she was a female 14 years of age, and she sought to have the court dismiss the case against her and sought to be tried as a juvenile only. The court, on the.motion of the state, struck out said affidavit and refused to consider it on two grounds: One, that this was not a proceeding in. a juvenile court against a delinquent child, but a regular proceeding under an indictment for a felony; and the other, because the law makes no provision for such indictment being dismissed in the case of a female; that that law only applied to male defendants.

We have had under careful consideration the said juvenile and delinquent child acts of the Legislature in the recent cases of McCallen v. State, 174 S. W. 611, and Bartee v. State, 174 S. W. 1051, and we therein fully discussed the said laws and the effect thereof. We there held that, even in a prosecution of a male under 17 years of age for a felony, the said laws did not make it compulsory for the district judge to dismiss such felony charge and have the party proceeded against under the juvenile act, but that the court had the power and authority in such case of felony to proceed to the trial regularly as if the party was an adult male; and that in misdemeanor cases the court had the same power and authority, but that, in such misdemeanor case, it was necessary to at first enter an order to the effect that the party should be prosecuted as an ordinary criminal, and not a juvenile. We think it wholly unnecessary to discuss these questions again. We have no doubt that we reached the correct conclusion in those cases.

We know of no law authorizing or requiring that a female under 18 years of age and above 13 years of age cannot be prosecuted for any felony, or that the district judge is either authorized or required to dismiss a felony indictment against a female and have her tried as a delinquent child or as a juvenile can be when a male under 17 years of age. We know of no law which has provided a place of imprisonment other than the penitentiary for females who are prosecuted nn-der the age of 18 years like the Gatesville institution has been provided for males under 17 years of age. The necessity for such a law has never arisen so far as we know. At least, there is no such law.

The evidence was clearly sufficient to authorize the verdict. The testimony of the appellant herself would have been sufficient .for this. Appellant’s special peremptory charge to acquit was properly refused by the trial judge; and so was his charge No. 2, even if the record should show that either was presented in such a way and in such a time as to require this court to consider them.

The judgment is affirmed.,

DAVIDSON, J., not present at consultation.
      <@=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes