text:
    WINTERS et al. v. INDEPENDENT SCHOOL DIST. OF EVANT.

    (No. 5977.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 4, 1918.
    Rehearing Denied Feb. 5, 1919.)
    1. Schools and School Districts <®=>103(2) —Elections—Qualified Votebs.
    Owner of property subject to taxation could vote in an election held in an independent school district to determine whether or not the district should levy an additional school tax, although being 70 years old, he was not subject to poll tax, and he had never been .called upon to list his property and it had never been assessed for taxes.
    2. Taxation <§=>79 — Peksons Liable — Ownership-Time-
    The ownership of property on the 1st day of January of any year creates a liability on the part of the owner for taxes levied upon such property for that year.
    3. Schools and School Districts <§=>103(2) —“Taxpaying Voter.”
    One otherwise qualified to vote at an election in an independent school district to determine whether or not the district should levy an additional school tax is a “taxpaying voter,” if liable for taxes on property, whether or not his property has been assessed for taxes.
    4. Taxation <§=>109 — Property Not Rendered por Taxation.
    If the owner of property does not render the same for taxation, it should be put on the un-rendered roll; and, if this is not done for any year or series of years, back taxes may be collected for such time as they are not barred by limitation.
    6. Elections <§=>83 — Wteo are Voters — Payment op Poll Tax.
    One who did not become a citizen of the state until November 1, 1915, was a qualified voter in an election held in January, 1916, under Const, art. 6, § 2, although he paid no poll tax for the year 1915, not being subject to such a tax.
    6. Elections <§=>227(3) — Irregularity—Voting after Hours.
    Where judges of election were under the impression that the hour for closing the polls was 6 o’clock, and at that hour one of the judges left the voting place, but no public announcement was made that the polls were closed, permitting one to vote a few minutes after 6 was only an irregularity, which did not invalidate the election.
    Appeal from District Court, Coryell 'County; J. H. Arnold, Judge.
    Suit by W. H. Winters and others to contest an election held in the Independent School District of Evant. From a judgment sustaining the election, the plaintiffs appeal.
    Affirmed.
    T. R. Hears, of Gatesville, for appellants.
    H. E. Bell, of Gatesville, for appellee.

      Writ of error dismissed March 19, 1919.

   JENKINS, J.

This was a suit to contest an election held in the independent school district of Evant, Coryell county, to determine whether or not said district should levy an additional school tax of 25 cents on the $100.

At said election there were cast for the tax 41 votes, against the tax 39 votes. Appellants alleged that 3 of the votes cast for the tax were illegal. The case was tried before the court, without a jury, and judgment rendered for appellee. The court filed its findings of fact, to which no complaint is made, but appellants assign error as to the conclusions of law reached by the trial court.

One vote contested is that of Mr. Jones, whose only disqualification is alleged to be that he was not a qualified property holding, taxpaying voter. The court found that Mr. Jones was 70 years old; therefore was not subject to poll tax; that he owned property in the school district subject to taxation, which property had not been assessed for taxes. The amount of property that he owned was small; and he testified that he had never been called upon to list his property for taxation.

The ownership of property on the 1st day of January of any year creates a liability on the part of the owner for taxes levied upon such property for that year. Hillsman v. Faison, 23 Tex. Civ. App. 398, 57 S. W. 921; Rhomberg v. McLaren, 2 Tex. Civ. App. 391, 21 S. W. 571. A taxpaying voter, who is otherwise qualified, does not mean that his property must have been assessed for taxes, but only that he is liable for the payment of such taxes. This liability is created by assessment of taxes by the commissioners’ court. If the owner of property does not render the same for taxation, it should be put on the unrendered roll. If this is not done for .any year or series of years, back taxes may be collected on such unrendered property for such time as the same is not barred by limitation.

The vote of Frank McCauley is challenged by appellants’ assignment, on the ground that he had not paid poll tax for the year 1915. The election was held in January, 1916. Article 6, § 2, of the Constitution of this state, after prescribing certain qualifications as to citizenship and residence, reads as follows:

“Provided, further, that any voter who is subject to pay a poll tax under the laws of the state of Texas shall have paid said tax before he offers to vote at any election in this state and holds a receipt showing his poll tax paid before the first day of February next preceding such election.”

McCauley did not become a citizen of Texas until about the 1st of November, 1915; and therefore he was not “subject to pay a poll tax under the laws of the state of Texas” for that year.

Appellants assign error in counting the vote of Austin Sawyer, upon the ground that he did not vote until after the polls were closed. The facts as found by the court with reference to this voter are that the judges of the election were under the impression that the hour for closing the polls was 6 o’clock p. m., and that at that hour one of the judges left the.voting place, but no public announcement had been made that the polls were closed. A few minutes after 6 o’clock, Sawyer presented himself, and demanded his right to vote, and was permitted to do so by the other judges. This, at most, was only an irregularity. For the views of this court as to the effect of irregularities upon the legality of an election, see the opinion in C. O. Moore v. C. H. Plott, 206 S. W. 958, written by Mr. Justice Brady, and filed today.

We overrule each and all of appellants’ assignments of error, and affirm the judgment of the court below.

Affirmed.
      tJ=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    LESTER v. OLDHAM.
    (No. 1459.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1919.)
    1. Exceptions, Bill of <§=>38 — Time foe Filing — Effect of Filing Findings.
    Under Rev. St. 1911, art. 2075, giving the trial court 10 days after adjournment in which to file his findings, a bill of exceptions to the court’s failure to file findings could not be filed before adjournment, and was therefore properly filed after adjournment.
    2. Tbial <®=>392(1) — Findings of Fact-Duty of Appellant.
    After the court has entered an order showing a request and authorizing the findings to be filed, the person requesting the findings to be filed need not again call upon the court for or request the findings.
    3. Trial <§=>388(1) — Findings of Fact.
    When the proper request is shown, and that the court has failed to file its findings of fact within the time required by Rev. St. 1911, art. 2075, whether he acted arbitrarily or not, his act deprived the aggravated party of a statutory right, and was reversible error.
    Error from Randall County Court; O. R. Flesher, Judge.
    Suit by L. T. Lester against Grady Old-ham. Judgment for defendant, and plaintiff brings error.
    Reversed.
    A. S. Rollins, of Houston, and Veale & Lumpkin, of Amarillo, for plaintiff in error.
    Kimbrough, Underwood & Jackson, of Amarillo, for defendant in error.
   HUFF, C. J.

Plaintiff in error brought suit in the county court on a breach of a contract for the sale of certain stock in the bank in Which he alleged he was to have one-half of the profits or dividends on the stock as part of his compensation. The defendant in error replied, setting up usury find certain fraudulent acts. The case was tried before the court without a jury, and judgment was rendered-for the defendant in error. In the judgment it is recited that the plaintiff in error gave notice of appeal, and was given 90 days after adjournment of court in which to file statement of facts and bills of exception, and further recited:

“At request of plaintiff, which is here entered, the court will file his findings of fact and conclusions of law which are hereto excepted to and exceptions overruled an<$ entered of record.”

There is no statement of facts in the record nor any findings of fact or conclusions of law, but the following bill of exceptions was taken and filed July 13,1918:

“Be it remembered that upon the trial of the above entitled and numbered cause matters of facts as well as of law were submitted to the court, and, after the court had announced his judgment, the plaintiff in open court requested the court to prepare and file his findings of fact and conclusions of law, which request was made a matter of record, the said case having been tried without the appointment of any official reporter to keep a record of the evidence introduced on the trial, there being a conflict in the evidence.
“Be it further remembered that the trial court failed to file within the time required by law any findings of fact and conclusions of law, but, on the contrary, the court did not file any findings of fact or conclusions of law until the 5th day of June, 1918, the term of the court at which the case was tried having expired on April 27, 1918, to which action of the court in failing to file his findings of fact and conclusions of law the plaintiff excepts, and here now tenders this, his bill of exception No. 1, and asks that the court approve the same and order it filed as a part of the record herein.”

The court adjourned on the 27th day of April, A. D. 1918. The plaintiff in error assigns as error that, having requested the court to prepare and file his findings of fact and conclusions of law, and the request having been made a matter of record, it is material error for the court to fail to file such findings until more than a month after The adjournment of the term of court at which the case was tried. The defendant in error, in reply to the plaintiff’s brief, cites the case of Lumpkin v. Marress, 102 S. W. 1169, as holding that it was the duty of the plaintiff in error to do all within his power to see that the findings of fact were properly prepared and filed. In that case the hill of exception was taken after adjournment, but within the 20 days allowed for filing bills of exception. The holding therein is based on Landa v. Hermann, 85 Tex. 1, 19 S. W. 885, which holds it was the duty of the party requesting the findings to file a bill of exceptions before adjournment of court. These decisions evidently would not be applicable on that point under the present statute giving the trial court 10 days after adjournment in which to file his findings. Article 2075. A bill of exceptions could not be taken to a failure until it had occurred. The statute and the order of the court granted time in which to file bills Of exceptions, and the bill was filed within the time granted. We think the reasons advanced for allowing assignments to the action of the court after adjournment in Moody v. Bonham, 178 S. W. 1020, and Goodman v. Peck, 192 S. W. 785, applicable to this ca^e. The court had until the expiration of 10 days after adjournment to file the findings, and the party cast in the suit may not have known until the time expired that he would not do so, and until that time he could not very well have obtained a mandamus. Wandry v. Williams, 103 Tex. 91, 124 S. W. 85. After the court had entered the order showing a request and authorizing the findings to be filed, we cannot perceive that it would be negligence on plaintiffs part if he did not show that he again called for or requested the findings. It was no more his duty, as we conceive it, than that of the defendant in error, to see that the findings were properly filed. In Wandry v. Williams, supra, in answer to a certified question, the Supreme Court held that it was reversible error not to file such findings. The defendant in error seems to contend that the record should show a refusal, or rather it should show that the court acted arbitrarily. We think, when the proper request is shown and that the court has failed to comply therewith, whether he acted arbitrarily or not, his act had deprived the aggrieved party of a statutory right, which is now generally held to be reversible error. Railway Co. v. Turner, 193 S. W. 1087; Wood v. Smith, 141 S. W. 795; Kyle v. Blanchette, 158 S. W. 796; Bloch v. Bloch, 190 S. W. 528. Some of the cases have held that, where there is a statement of facts, unless it appears therefrom that there had been injury, the case would not be reversed, but it appears that the later opinions hold that, when a proper request is made, the party cast in the suit is entitled as a matter of right to the findings. But, where no statement of facts is filed, we believe it has been generally held that a failure to file findings will be reversible error. Railway Co. v. Highland Dairy Co., 137 S. W. 137; Edwards v. McGuire, 165 S. W. 477; Dennis v. Kendrick, 163 S. W. 693; Beaver v. Supreme Home, etc., 204 S. W. 718.

We have reached the conclusion, reluctantly, that under this record it is our duty to reverse the judgment; and it is accordingly so ordered.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SADLER, J. PHILLIPS, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. et al. v. TROUT.
    (No. 2-2545.)
    (Commission of Appeals of Texas, Section B.
    Feb. 12, 1919.)
    On motion for rehearing.
    Motion denied.
    For former opinion, see 206 S. W. 829, which reversed judgment found in 152 S. W. 1187.
   SADLER, J.

We have carefully considered the motion for rehearing in this cause and the very lengthy argument of counsel for defendant in error in support thereof.

In our original investigation, we carefully considered every contention of the parties, and the motion presents no new view of the facts or law. The petition of plaintiff was offered and admitted in evidence for the purpose of showing only what the pleadings were originally.

The special charge requested by defendant Railway Company followed a refused peremptory charge asked by them, and in view of the record did not invite error.

The motion should be overruled.

PHILLIPS, C. J.

The recommendation of the Commission of Appeals on this motion is adopted. The motion is accordingly overruled.
      c&ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: STRONG, J. PHILBIPS, C. J.

text:
    BANK OF MIAMI v. YOUNG et al.
    (No. 21-2639.)
    (Commission of Appeals of Texas, Section A.
    Feb. 12, 1919.)
    1. Guaranty <§=>77(2) — Creditor’s Duty to Proceed .-against Principal.
    A contract of guaranty to pay certain notes and overdrafts, it being duty of creditors to turn over same to an attorney to be selected by guarantors for collection by suit, and, if money should not be made by execution, guarantors were to pay same upon transfer of judgment to them, refusal of guarantors to reduce the notes and overdrafts to judgment, and a denial of liability tüereon, was a breach of the contract .which authorized the creditors to treat the contract as at an end, except for the purpose of bringing suit thereon for its breach.
    2. Guaranty <§=>77(2) — Creditor’s Duty to Proceed Against Principal.
    Under a contract of guaranty to pay certain notes and overdrafts, creditors, on failure of debtors to pay, to turn over the same to an attorney to be selected by the guarantors for collection by suit, and, if money could not be made by execution, guarantors were to pay same upon due transfer of the judgment to them, upon refusal of the guarantors to reduce the notes and overdrafts to judgment and their denial of liability thereon, the creditors were not called upon to reduce the notes and overdrafts to judgment, but could recover the face thereof on offering to assign the notes and overdrafts to the guarantors, subject only to-any abatement by reason of circumstances of which they could reasonably have availed themselves.
    3.Guaranty 3=536(3), 89 — Breach—Damages — Burden op Pro op.
    Under a contract of guaranty to pay notes, where it was duty of creditors to turn notes over to attorney to be selected by guarantors for collection by suit, and, if money could not be made by execution, guarantors were to pay same upon the due transfer of the judgment to them, upon refusal of the guarantors to reduce notes to judgment and their denial of liability thereon, the measure of damages was prima facie the face value of the notes, and burden rested upon guarantors to show any matter which would reduce or mitigate the damages.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by the Bank of Miami against D. J. Young and others. From a judgment of the Court of Civil Appeals (161 S. W. 436) reversing a judgment in favor of plaintiff, plaintiff brings error.
    Judgment of the Court of Civil Appeals reversed, and that of the trial court affirmed.
    G. O. McCrohan, Jr., of Canadian, J. A. Holmes, of Miami, Madden, Trulove & Kim-brough, of Amarillo, and B. M. Baker, of Canadian, for plaintiff in error.
    EWing & Dial, of Miami, and H. E. Hoover, of Canadian, for defendants in error.
   STRONG, J.

The Bank of Miami, a partnership, instituted this suit againt defendants in error and W. S. Martin for damages arising out of an alleged breach of a written contract of guaranty to pay certain notes and overdrafts. It is disclosed by the record that plaintiffs purchased the banking business of defendants at Miami, Tex., including the-notes and overdrafts. Under the terms of the contract of purchase, it was made the duty of plaintiffs, immediately upon the maturity of such indebtedness, to demand payment, and, if not promptly paid, to turn the same over to an attorney to be selected by defendants for collection by suit. Suit was to be immediately instituted thereon, pressed to-judgment, execution issued, and, if the money could not be made by execution, defendants were to pay same upon the due transfer of the judgment to them.

The trial was before the court without the intervention of a jury. The court found that the plaintiffs complied with their obligations. under the contract; that the defendants did designate an attorney; that the attorney so-designated became the agent and representative of defendants to act for them in the premises; that such attorney returned the items of indebtedness involved in this suit to ■ the plaintiffs and declined and refused to carry out the terms of the contract as applied thereto and repudiated the contract by denying all liability of defendants on the items involved, which acts of repudiation and denial were fully ratified by defendants. These findings of the trial court are held by the Court of Civil Appeals to have evidence to sustain them.

Plaintiffs, in their petition, tendered the notes and overdrafts to defendants and offered to execute proper transfer thereto. No evidence was offered by either party as to the actual value of the notes and overdrafts. Judgment was rendered for plaintiffs, assessing their damages at the face value of the notes and overdrafts, and decreeing the title and ownership of same to be in defendants. Upon appeal, the Court of Civil Appeals reversed the judgment, holding that, under the contract, the measure of damages was the difference between the face value of the notes and overdrafts and their actual value, and that the burden of proving their actual value was upon plaintiffs. 161 S. W. 436. In granting the writ of error, the Supreme Court entertained the view that the Court of Civil Appeals erred in its holding upon the question of the measure of damages.

The refusal of defendants to reduce the notes and overdrafts to judgment and their denial of liability thereon was a breach of the contract in the course of its performance and an anticipatory breach authorizing plaintiffs to treat the contract as at an end, except for the purpose of bringing suit thereon, for its breach. Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953. In such action, the measure of damages would be the same as it would have been had the repudiation not been accepted as a breach of the contract, and the plaintiffs had brought suit after the time provided, for the performance, for its breach. Sedgwick on Damages (9th Ed.) p. 1250; Roehm v. Horst, supra. Whether the contract be regarded as a guaranty of collection of the indebtedness or a guaranty of payment is immaterial. The plaintiffs having made effort to collect as provided in the contract, it became the duty of defendants, through the attorney designated by them, to reduce the notes and overdrafts to judgment. Had the defendants complied with their contract, the plaintiffs would have received the face value of the notes and overdrafts. Upon the repudiation of the contract by defendants, it was not incumbent upon the plaintiffs to reduce the notes and overdrafts to judgment through an attorney of their selection, looking to defendants for the difference between the amount so collected and the face value off the indebtedness. The plaintiffs were entitled, in any event, upon the ' performance by them of their obligations under the contract, to receive the face value of the notes and overdrafts. Upon default by defendants, plaintiffs were entitled to recover the same amount as they would have been entitled to, had the defendants performed their obligations under the contract. Under the terms of the contract, defendants were conditionally bound to pay plaintiffs the face value of the indebtedness. By their own wrongful conduct, defendants waived the conditions imposed by the contract and became absolutely and unconditionally bound to pay said amount. While it is true that plaintiffs, in view of the repudiation of the contract by defendants, could recover the amount which they would have received had the contract beep carried out by defendants, this would be subject to any abatement by reason of circumstances of which they could reasonably avail themselves. Plaintiffs, however, were not required to negative the abatement. The measure of damages under the contract was prima facie the face value of the notes and overdrafts, and the burden of proof rested upon the defendants to offer evidence of any matter which would reduce or mitigate the damages. 3 Elliott on Contracts, § 2212; Porter v. Burkett, 65 Tex. 383; Ry. v. Dresson, 43 Tex. Civ. App. 282, 96 S. W. 63.

In the opinion of the Court of Civil Appeals reversing the judgment it is said:

“By the judgment of the court, appellee recovered the face value of the debt, with interest, and may still retain the indebtedness itself and recover on it, if there is security, or if the parties or any of them are solvent. For such amount which may be collected, appellee is not damaged in that sum, whatever it is.”

An examination of the record discloses the following provision in the trial court’s judgment:

“⅜ ⅜ * It is decreed by this court that the title to and ownership of all notes and overdrafts specially described in this judgment as supplying the measure of damages for plaintiff’s recovery and the security for same is and shall be in defendants to this suit.”

The effect of this provision of the judgment was to limit plaintiffs’ recovery to the difference between the face value of the indebtedness and its actual value.

We have examined the other questions presented and think no reversible error is shown in the trial of the case. It follows that we are of opinion that the judgment of the Court of Civil Appeals should be reversed, and that of the trial court affirmed.

PHILBIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.


author: S ONFIELD, P. J. PHILLIPS', C. J.

text:
    DAVENPORT v. SPARKMAN.
    (No. 30-2671.)
    (Commission of Appeals of Texas, Section A.
    Feb. 12, 1919.)
    1. Vendor and Purchaser <©=346 — Construction oe Contract.
    Land contract must be construed as a whole, and cannot be paragraphed and paragraphs construed in severalty without reference to each other, where it is apparent that they are core-lated and interdependent.
    2. Vendor and Purchaser <®=>143 — Insufficiency oe Abstract — Waiver.
    Where land contract gave purchaser specified period after vendor had furnished abstract in which to examine same and specify defects of title, purchaser, upon failure to object to sufficiency of abstract during such period, could not, after expiration thereof, urge such insufficiency as a breach of the contract and as ground for his refusal to perform.
    3. Vendor and Purchaser @=>105(1) — Nonperformance — Forfeiture oe Earnest Money.
    Where land contract obligated purchaser to point out defects in title within specified time, purchaser, refusing to perform and failing to point out defects during specified period held to forfeit note deposited by him.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by B. H. Davenport against W. G. Sparkman and another. Judgment for plaintiff against defendant named reversed by Court of Civil Appeals, 160 S. W. 410, and plaintiff brings error.
    Judgment of Court of Civil Appeals reversed, and that of district court affirmed.
    R. H. Templeton, of Wellington, and Barrett & Jones, of Amarillo, for plaintiff in error. J. L. Rudy, of Bowie, Stark & Stark, of Jacksboro, and Turner & Wharton, of Amarillo, for defendant in error. ■
   S ONFIELD, P. J.

On the 12th day of August, 1911, B. H. Davenport and W. G. Sparkman entered into a contract wherein Davenport, as independent executor of the estate of M. W. Davenport deceased, agreed to sell and convey to W. G. 'Sparkman, sections numbered 49 and 50 in block No. 10, H. & G. N. R. Co. survey, Collingsworth county for the agreed consideration of §519,200, $4,000 cash payable on the 1st day of January, 1912, the balance of the purchase money to be evidenced by eight vendor’s lien notes, each in the sum of $1,900, due and payable as provided in the contract. The parts of the contract material herein read as follows:

“This contract is conditioned that the party of the first part will procure and deliver to party of the second part deeds and abstracts of title to the above-described property within ten days from date, and party of the second part will then have ten days to have said abstract examined by his attorney; if the title as shown by the abstract is good and valid, then first party will make deeds to said land to each tract of land; if title as disclosed by said abstract is not good, then the second party shall procure and submit to party of the first part a statement in writing containing the objections to said abstract within ten days from the date of receiving said abstract. If said objections are of such a character that they can be cured and removed within the period of time not to exceed January 1, 1912, then said first party shall be obligated to so cure and remove said objections at his own expense, and it is hereby agreed and understood that the said party of the first part shall have sufficient time to cure the objections and resubmit to party of the second part for his approval.
“But, if the title to said property as shown by said abstract is not good, and objections thereto are not cured and removed by said first party within the time hereinbefore stated, then the said second party shall have the right to declare this contract at an end and no longer binding on him, and same shall become null and void and the said second party shall be entitled to return of all property paid by him by reason of this contract.
“As an evidence of good faith and in earnest of this contract, the said party of the second part has this day made and executed a note for the sum of $3,000 in favor of B. H. Davenport, and due January 1, 1912, secured by chattel mortgage on certain mules in Jack county, Texas, with the understanding that, if the said first party does make and tender to the party of the second part a good and perfect deed to said land conveying to the said second party, for the price and on the terms hereinbefore stated, and does in fact deliver a complete abstract of title to said property, and the abstract shows good title to said land within the time herein-before stated, and said second party fails or refuses to keep and perform the obligations herein imposed upon him by this agreement and make the cash payment of $4,000, on January 1, 1912, as provided in said deed for cash, then and in that event he shall forfeit to said first party the aforesaid sum of $3,000 as evidenced by the said promissory note, as liquidated damages.”

In. compliance with the contract, the note in the sum of $3,000 was duly executed by Sparkman, together with the chattel mortgage and five vendor’s lien notes, executed by R. T. Hughes, payable to Sparkman, were delivered as collateral security under a provision of the contract not hereinabove set out.

B. H. Davenport, plaintiff, brought suit against W. G. Sparkman and R. T. Hughes, defendants, to recover on the said note and for foreclosure of the chattel mortgage and the lien evidenced by the five vendor’s lien notes executed by defendant R. T. Hughes.

Defendant Sparkman defended on the ground that the note sued on was executed in accordance with the contract, and was payable only in the event of compliance with tlie contract by plaintiff and default by defendant ; that the contract was breached by plaintiff because the abstract furnished was not a complete abstract as contemplated by the contract, it did not show good title in plaintiff, and the deeds tendered were insufficient to invest defendant with title to the land. Defendant Hughes adopted the answer of defendant Sparkman.

The cause was tried before the court and judgment rendered in favor of plaintiff against the defendant Sparkman for the principal and interest of said note, together with 10 per cent, attorney’s fees, foreclosing the chattel mortgage and the lien evidenced by the vendor’s lien notes executed by defendant Hughes. On appeal by defendant Sparkman alone, the Court of Civil Appeals reversed the judgment of the district court and rendered judgment in favor of defendant. 160 S. W. 410.

The contract must be construed as a whole. It cannot be paragraphed and the paragraphs construed in severalty without reference to each other, it being apparent that they are corelated and interdependent. Thus construed, the contract is unambiguous. The intent of the parties deduced from the language is evident. The obligation was upon plaintiff to furnish a complete abstract within ten days from the date of the contract. Ten days after such delivery was given defendant to cause the abstract to be examined by his attorney. If defects were disclosed through such examination, the same should be stated in writing and submitted to plaintiff. If the defects were such as could be remedied by the 1st day of January, 1912, plaintiff was obligated to remedy same within said time. Failing in this, defendant could declare the contract at an end, and was entitled to receive back any property paid thereunder. “As an evidence of good faith and in earnest of this contract” defendant should execute a note in the sum of $3,000, duly secured as therein provided. In the event plaintiff complied with his obligations under the contract, delivering a complete abstract of title to the property, showing good title to the land, within the time specified, and make and tender to defendant a good and 'perfect deed to the land, conveying the same to defendant for the price and on the terms as provided, and defendant makes default and fails or refuses to make the cash payment of $4,000 on the 1st day of January, 1912, he shall forfeit to plaintiff “the sum of $3,000 as evidenced by the said promissory note as liquidated damages.”

The undisputed evidence establishes that within the time stipulated an abstract was delivered by plaintiff to the attorney designated by defendant, who examined the abstract, and within ten days of its delivery prepared and delivered to defendant an opinion thereon, pointing out several objections. These were immediately corrected, and the attorney of defendant duly approved the title. Proper deeds were prepared and tendered defendant prior to the 1st day of January, 1912, which he refused to accept.

On the 11th day of October, 1911, after the expiration of the time stipulated in the contract another attorney employed by defendant rendered an opinion on the title which, together with the abstract, was delivered to an agent of plaintiff. Objections were pointed out in this opinion which were not mentioned in the opinion of defendant’s first attorney. These alleged defects were remedied and the abstract returned to defendant’s said attorney, who on the 21st day of November, 1911, acknowledged receipt of same, stating new objections and on the 21st day of December, 1911, the same attorney wrote again to plaintiff’s agent raising other objections to the title. The good faith of the attorney designated by defendant to pass upon the abstract, and who approved the title, is not questioned by the pleadings or evidence.

The abstract furnished by plaintiff is open to objection as to its form and sufficiency, in that, the certificates of acknowledgment to various deeds are not set out in full. In lieu thereof, the abstractor states the certificates are in statutory form. The abstract was received and examined by defendant’s attorney, without objection on this score. The objection was not raised until after the expiration of the time provided for the furnishing and examination of the abstract, the pointing out and.correction of its defects, and the approval of the title by plaintiff’s attorney. Defendant cannot now urge the insufficiency of the abstract furnished as a breach of the contract and as ground for his refusal to go forward with the performance of the contract. 39 Cyc. 1527; Moot v. Business Men’s Inv. Ass’n, 157 N. X. 201, 52 N. E. 1, 45 L. R. A. 666.

Under the terms of the contract, it was the duty of defendant to point out the defects within ten days after the delivery of the abstract. In Lieber v. Nicholson, 206 S. W. 512, it is said:

“The pointing out of defects within the time was as much the duty of plaintiff in error, under the contract, as was the furnishing of the abstract the duty of the defendants in error. This provision cannot be disregarded. It is an integral part of the contract inserted with purpose. Upon the performance of this duty hinged and depended the obligation of the defendants in error to correct the defects. The defects were to be corrected when properly pointed out, and defendants in error were obligated to correct only the defects so pointed out. 39 Cyc. 1413; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979, 982; Curtis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 332.”

—and again:

“It was incumbent upon plaintiff in error to point out all the defects which he deemed material to remedy, in order to a title of the character contracted for or a title such as he would be willing to accept. He had the right to ignore or waive defects and demand the conveyance of such title as the vendor had, the contract provision for a good title inuring to the benefit of the purchaser. 39 Cyc. 1524; Hughes v. Adams, 55 Tex. Civ. App. 197, 119 S. W. 134. The tender of a good record title was conditioned upon and subject to the disclosure of defects. Plaintiff in error, being in default, rendered further performance, or attempted performance, by defendants in error futile. 13 C. J. 507.”

Plaintiff, under the contract, was bound to correct all defects properly pointed out by defendant that could be corrected by the 1st day of January, 1912. He could not arbitrarily refuse to perform this duty. Plaintiff being thus bound, defendant was likewise bound to point out the defects within the time stipulated, affording plaintiff the time provided in the contract in which to correct same. Having failed in this, defendant is in default, and the note deposited by him in lieu of money under the terms of the contract was forfeited to plaintiff, and defendant became liable to plaintiff in the amount evidenced by the said note. Lieber v. Nicholson, supra.

We are of opinion that the judgment of the Court of Civil Appeals should be reversed, and that of the district court affirmed.

PHILLIPS', C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      &»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    CANNON v. STATE.
    (No. 5229.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Criminal Law <©=>682, 703 — Trial—Rig nr to Require State to Make a Statement of Its Case.
    An accused may demand of the state to make a statement of its case before the introduction of testimony, and require it to develop its case upon the original showing, so that defendant on his defensive propositions would have the state’s full case to meet.
    2. Homicide <§=3300(7), 301 — Self-Defense— Instructions.
    Where in beginning of difficulty accused’s father alone was in danger when defendant shot at prosecuting witness, and where later father was not present when defendant again shot at the prosecuting witness, it was reversible error not to limit charge as to self-defense to the second difficulty.
    3. Assault and Battery <©=354 — Homicide <§=346 — Statutory Manslaughter — Aggravated Assault.
    Where person shoots at one who tells his father in his presence that his mother and his father’s wife was sustaining illicit relations with another person, he would only be guilty of manslaughter if he killed him, and in the absence of a killing only of an aggravated assault.
    4. Criminal Law <§=>723(4) — Argument of State’s Attorney.
    In prosecution for assault to murder, it was improper for prosecuting attorney in his argument to state that “you ought to convict this defendant; * * * the time has come * * * when the citizens will rise up and say, ‘we won’t have our citizens butchered.’ ”
    5. Criminal Law <§=>723(4) — Argument of Prosecuting Attorney.
    In a prosecution for assault to murder, argument of prosecuting attorney, “Gentlemen of the jury, if you suspend this man’s sentence, and let him go out, he may kill you or me,” was improper.
    6. Criminal Law <§=>719(1) 722½ — Argument of Prosecuting Attorney.
    Inflammatory argument of prosecuting attorney,. in a prosecution for assault to murder, not based upon evidence, held error.
    7. Criminal Law <§=>730(7) — Argument of Counsel — Duty of Court.
    The court should promptly suppress illegitimate argument, based upon facts not introduced in evidence.
    Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    J. P. Cannon was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    F. J. & C. T. Duff, of Beaumont, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for assault to murder; the punishment being assessed at five years’ confinement in the penitentiary.

There are several questions suggested for revision. The state introduced an eyewitness whose name was Herring. He testified to the facts and circumstances of the difficulty. His testimony would show a sudden trouble, and a shooting in consequence of it, that might suggest an assault to murder, or not more than an aggravated assault. The evidence tends to show that a conversation occurred between the father, of defendant and the alleged assaulted party, McLaughlin, about some papers, money, etc., that McLaughlin claimed that the elder Cannon surreptitiously took from the estate of J. W. Davis, deceased. At this juncture he says appellant, who was in an adjoining room, stepped into the door and fired, a couple of shots at McLaughlin, breaking his arm. These shots were fired with a shotgun. He further states that McLaughlin left the house and fled into the street; that appellant secured a pistol' from somewhere •about his bed and undertook to follow McLaughlin ; that he (Herring) tried to prevent it, but finally appellant succeeded in freeing himself and followed McLaughlin, and fired several times at him with the pistol. The state rested its case, whereupon appellant moved the court to require the state to place the witness McLaughlin on the stand. The bill of exceptions shows that the demand was made to the effect that the state complete its case upon is original showing, and not develop part of it at the beginning, and then, under the theory of rebuttal testimony, develop a case, under the state’s contention, that would show premeditation in getting McLaughlin to the place where he was shot for the purpose of killing him. Without going into a detailed discussion of this matter, we are of opinion defendant may demand of the state to make a statement of its case before the introduction of testimony, and require it to develop its case upon the original showing, so that the defendant on his defensive propositions would have the state’s full case to meet. This much is said in view of another trial. The statute gives defendant the right to have the state malee a statement of its case, and a refusal to make such statement, if probable injury is shown, or probably resulted, would constitute ground for reversal.

The court charged the jury, on the law of self-defense, that if appellant shot to defend himself, or in defense of another, he would be entitled to an acquittal. This is the substance of the charge. There is no evidence in this record that appellant shot to defend himself against McLaughlin, in the first assault. McLaughlin was not making any demonstration toward him, and the self-defense theory was in the ease alone on the evidence to the effect that appellant shot because he believed McLaughlin was making, or about to make, an attack upon his father, ■with something that he held in his hand ¿t the time he believed to be a club. There is no place for a charge on self-defense of appellant, so far as that part of the difficulty is concerned in favor of himself. The self-defense proposition arises alone on this theory of the case from the fact that appellant believed that McLaughlin was attacking his father, and it was necessary for him to shoot. There is no evidence that suggested this theory. The error is considered to be reversible.

As heretofore stated, when appellant fired the shots in the house at McLaughlin, McLaughlin fled. Appellant followed him with a pistol. The issue of self-defense, if raised at all, had no connection with the father after McLaughlin left the house. The issue | of self-defense on the part of appellant and in his favor arose after they left the house. Appellant testified that McLaughlin turned toward him a time or two after they left the house as if to fight him. Whether the issue of self-defense arose or not after leaving tne house, the charge should have confined it to appellant after leaving the house, and not to the original difficulty in the house. His father was not present, and not having anything to do with the difficulty after that which occurred in the house. So the case presents itself from two standpoints of self-defense: In the house in favor of appellant, who was trying to protect his father; and after so leaving only in favor of defendant. After McLaughlin left the house there is no testimony indicating that his father was Involved in the matter as to the subsequent shooting. So we have two issues sharply drawn: One of self-defense of his father in the house, and self-defense of himself outside of the house.

Appellant further contends that he could not be guilty of an offense higher than aggravated assault. The evidence for the defendant showed that McLaughlin said to appellant’s father that appellant’s mother, and the wife of his father, had been sustaining the relation of wife both to appellant’s father and to the deceased, Davis.' This was said previously to the shooting in the house. This constituted statutory cause for manslaughter if a killing occurred, and in the absence of a killing an aggravated assault. After appellant left the house, there were two questions presented, so far as this phase of the case was concerned: First, self-defense as against McLaughlin; and aggravated assault, on account of the language immediately before leaving the house. The question of cooling time did not arise. The issue of self-defense, therefore, arose in appellant’s favor only for shooting McLaughlin in the house as against an attack on his father. This did not arise on the outside of the house, because his father was in no danger and had ceased to be a party to the transaction. The self-defense on the outside of the house arose only in connection with appellant, and the aggravated assault arose on account of the language used by McLaughlin in relation to appellant’s mother, as well as from the other facts.

Exception was taken to the language of one of the prosecuting attorneys. These are shown by bills of exception. The first bill reserved to the language of the prosecuting attorney is as follows:

“You ought to convict this defendant and send him to the penitentiary for 15 years. I say, the time has come in Hardin county when the citizens will rise up and say, ‘We won’t have our citizens butchered in any such manner.’ ”

Appellant objected, and requested the court to instruct the jury to disregard this language, which the court refused. The next bill recites that the same attorney used this language:

‘‘Gentlemen of the jury, if you suspend this man’s sentence and let him go loose, he may kill me or you; my life or your life will be in danger.”

Upon request of appellant the court refused to instruct the jury to disregard this language. The third hill recites' that the same counsel stated that—

“Everybody was telling McLaughlin that Pete Cannon had caused the death of John W. Davis, and that there was such a suspicion that they, Pete Cannon, his wife, and the defendant, J. P. Cannon, were connected with the death of John W. Davis, that shortly afterwards they left the state of Texas, and went to New Mexico to live.”

Appellant objected, because there was no evidence of any such facts, and the same was inflammatory and calculated to inflame the minds of the jury, and moved the court to instruct the jury not to regard this language, and this the court refused. This language should not have been used, and especially that stated in the third bill of exceptions. There was no evidence to sustain such argument. Upon another trial such remarks will not be indulged, and the court should promptly suppress illegitimate argument, based upon facts not introduced in evidence, and to which the attorney, if he saw proper to testify, should have taken the witness stand. There was no evidence to justify such comments.

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


author: MORROW, J.

text:
    GREENWOOD v. STATE.
    (No. 5223.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.
    On Motion for Rehearing, Feb. 12, 1919.)
    1. Criminal Law <@=>368(3) — Evidence—Res Gestae.
    In a prosecution for theft of a pocketbook found by defendant, where defendant claimed she had given the pocketbook to another who claimed it, evidence of a witness that about an hour after it was lost and found she heard such other person say defendant had given him the pocketbook was inadmissible as res gestse.
    2. Criminal Law <@=>359, 419, 420(1) — Evidence oe Crime by Another — Hearsay.
    It is competent for accused to prove that another committed the offense, when such proof would be inconsistent with the guilt of accused, but such proof must be by legal evidence, and not the unsworn declaration of another.
    3. Witnesses <@=>318 — Corroboration—Evidence at Examining Trial.
    Evidence of accused on examining trial is not admissible to support his testimony when it has not been attacked.
    4. Witnesses <@=>344(2) — Impeachment — Cross-Examination.
    Attempt to impeach a witness by proof on bis cross-examination that he had burned a schoolhouse is contrary to the rulé excluding for that purpose specific criminal acts.
    5. Criminal Law <@=>665(2) — Witnesses— Excluding erom Courtroom.
    The presence of a witness during part of the examination of another was not error, where he appears to have been brought in only for the time necessary to inquire of the witness whether he identified him as the person, to whom defendant had handed the pocketbook which the defendant was accused of stealing.
    On Motion for Rehearing.
    6. Larceny <@=>32(3), 40(9) — Indictment-Variance — Ownership.
    Where the property stolen is community property and the spouses are living together, the ownership is properly laid in the husband, and evidence establishing it as community property makes no fatal variance.
    7. Criminal Law <@=>1160 — Review.
    Where the evidence of larceny is circumstantial and conflicting, a verdict approved by the trial court is binding upon the appellate court.
    Appeal from District Court, Titus County; J. R. Warren, Judge.
    Annie Greenwood was convicted of theft, and she appeals.
    Affirmed.
    I. N. Williams, of Mt. Pleasant, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for theft. A pocketbook containing about $100 in money was dropped on the floor at a dance at which appellant was present. There was a large number of other negroes present at the dance. There was evidence that appellant picked up the pocketbook; opened it; that it had money in it; that shortly after-wards she went to her home near by. Subsequently the owner of the premises and the pocketbook, discovering its loss, went to the appellant’s house and had a conversation with her, in which she. admitted that she picked up the pocketbook and said that she gave it to a “long, tall, stray negro.” She testified that she picked up the pocketbook, saw something in it that looked like a ticket, and that the “long, tall negro” said that the pocketbook was his,' and that she handed it to him. This occurred a very short time after she picked it up. It was shown that after the conversation with the owner she returned to the premises, and she testified that after her return she saw a negro whom she did not know, but whom the evidence showed-, was Lonnie Bryson; that she asked him if he was the man that she gave the pocketbook to, and that he replied that he was; that she asked him his name and took it down. She was corroborated in reference to this statement by her husband and another witness.

The court in submitting the case to the jury used the following language:

“You are further instructed that if you should find the property in question was found upon the floor of the house of Martin Grant, and that defendant picked same up, believing same to have been lost by some one unknown to her, and that same was shortly thereafter claimed by another, and she gave said property, to such other party, then you will find the defendant not guilty.”

The appellant offered to prove by Crea-sy Stanley that she heard Lonnie Bryson say appellant had given him the pocketbook. This was offered as original testimony, according to the qualification to the bill, about an hour after the pocketbook had been lost and picked up by appellant, and his qualification negatives its admissibility as res gestee. It would, we think, have been admissible in rebuttal of the testimony of Lonnie Bryson contradicting appellant’s evidence, or, after he testified, might have been used to Impeach him. Offered as it was, however, as part of appellant’s original case, we think the conclusion of the trial court that its admission would have been obnoxious to the rule against hearsay is correct. Bowen v. State, 3 Tex. App. 617; Holt v. State, 9 Tex. App. 571; Horton v. State, 24 S. W. 28; Hodge v. State, 64 S. W. 242; note, 131 Am. St. Hep. p. 779.

It is competent for one accused of crime to prove that another committed the offense, when such proof would be inconsistent with the guilt of the acdused on trial, but such proof must be made by legal evidence, and is not to be established by the unsworn declaration of another. Dubose v. State, 10 Tex. App. 230. An exception to this rule obtains where the evidence against the accused on trial is wholly circumstantial. Blocker v. State, 55 Tex. Cr. R. 30, 114 S. W. 814, 131 Am. St. Rep. 772; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174.

The reproduction, for the appellant, of the evidence given by the accused on the examining trial that she had claimed that Lonnie Bryson had admitted he got the pocketbook would have been admissible if offered ' to support her testimony after it was attacked; but the court’s qualification of the bill shows it was not so offered, 'but was presented as original testimony before any testimony was introduced contradicting her claim on the witness stand that Bryson had made the admission mentioned.

The attempt to impeach the witness Bryson by proof on his cross-examination that he had burned a schoolhouse was contrary to the rule excluding for that purpose specific criminal acts. Branch’s An. P. C. § 168.

As explained by the trial judge, the presence in the courtroom during part of the examination of the witness Ed. Greenwood was not error. He appears to have been brought in only for the time necessary to inquire of the witness whether he identified him as the person to whom the appellant handed the pocketbook.

All proper exceptions of the court’s charge were met by corrections of the charge by the court.

The judgment is affirmed.

On Motion for Kehearing.

Appellant made the point in his brief, and renews it in his motion for rehearing, that there was a variance in the allegation and proof, in that the possession of the property was charged in Martin Grant and the proof showed it in Lena Grant.

The facts disclose that Martin Grant and Lena Grant were husband and wife, were living together, and at their home there was a gathering of negroes; that they owned a sum of money which was in a pocketbook, which pocketbook was carried in the bosom of Lena Grant, and on the occasion in question was dropped by her on the floor of the dwelling house in which she and her husband resided, and at which both were present.

It is the contention of appellant that the proof shows absolutely that the ownership of the property was in the community <⅛ Lena Grant and her husband Martin, but he insists that the possession was absolutely in Lena Grant.

She testified that the money belonged to her and her husband; that she had been keep* ing it for some time, probably a month; that she spent a dollar or" two at a time without asking her husband; that when he wanted it he could get it from her. She had the custody and control of the money; could do what she pleased with it without asking her husband. Martin Grant gave in substance the same evidence.

The rule, as we understand it, is that where the property stolen is community property and the spouses are living together, the ownership in a charge of theft is properly laid in the husband. Jones v. State, 47 Tex. Cr. R. 128, 80 S. W. 530, 122 Am. St. Rep. 680; Ware v. State, 2 Tex. App. 547; Lucas v. State, 36 Tex. Cr. R. 397, 37 S. W. 427; Smith v. State, 53 Tex. Cr. R. 646, 111 S. W. 939. It may, under certain circumstances, be permissible to lay the ownership in the wife, but the law does not require it. Lane v. State, 69 Tex. Cr. R. 68, 152 S. W. 897.

Even granting the correctness of appellant’s contention that the property haying been lost at a gathering in the house of Grant and wife is to be treated as having been lost in a public place, the allegation of ownership in the husband would not, on the facts developed, disclose a variance. “The ownership as well as the constructive possession of lost property is in the real owner.” Martin v. State, 44 Tex. Cr. R. 538, 72 S. W. 386.

The evidence touching the reasonableness and probable truth of appellant’s explanation that the property was claimed by a “long, tall, stray nigger,” and delivered to him by appellant, was in a large degree circumstantial, and much of it conflicting. There was testimony justifying the conclusion that appellant knew the property was lost, and that its owner could probably be found, that she made no effort to do so, but, discovering immediately after she picked it up that the pocketbook contained money, she formed and executed the purpose to keep and appropriate the money.

The evidence presented a case for the jury, and the verdict, guided by proper charge and approved by the trial judge, is binding on this court. Roberts v. State, 60 Tex. Cr. R. 24, 129 S. W. 611, and cases listed in Branch’s An. P. 0. § 2464.

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


text:
    DAVIDSON et al. v. STATE.
    (No. 5117.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    1. Burglary <2=41(1) — Evidence — Sufficiency-
    In prosecution for burglary, evidence held insufficient to support a conviction.
    2. Criminal Law <2=3306 — Presumption.
    A presumption cannot be based on a presumption. '
    3. Criminal Law <2=507(5) — Accomplice-Receiving Stolen Goods.
    A state’s witness who received from defendants property which it was claimed they obtained by a burglary must be deemed an accomplice, where he testified that when he received the property he thought it had been stolen, and conviction cannot be sustained, unless his'testimony is corroborated.
    4. Burglary <2=42(3) — Evidence — Possession of Goods.
    That a house is shown to have been broken in a burglarious manner, and defendant recently thereafter is found in possession of property identified as coming from the house, is evidence of guilt, though not conclusive, but before conviction can be predicated on such theory, the fact of the burglary must be demonstrated.
    5. Criminal Law <2=780(2) — Instruction-Accomplice Testimony.
    In a prosecution for burglary, where the state relied on the evidence of one who testified that when he received the property from defendant he thought it had been stolen, an instruction on accomplice testimony should be given, especially where the party had turned state’s evidence to avoid punishment.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    George Davidson and others were convicted of burglary, and they appeal.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellants were convicted of burglary; their punishment being assessed at six years’ confinement in the penitentiary each.

The owner of the alleged burglarized house testified, substantially, that he did not know whether his house had been broken and entered or not; that there was no evidence of a breaking. If there was a breaking, the circumstances will be stated hereafter in this opinion with reference to a piece of iron found in the pocket of a coat belonging to defendant Davidson. The state relied on inferences from other facts to show the house had been broken and entered. Some goods were found at the residence of Ship-man, where the defendants were staying or boarding. ’ These goods were in possession of Shipman and his .wife, and not in possession of the defendants. Shipman was indicted for the same alleged burglary as charged in the indictment, was placed in jail, and turned state’s evidence, under contract of immunity from punishment, and testified for the state. His evidence was, substantially, that the defendants brought the goods to him at night and delivered them to him. Among other things was some bedticking and another piece of cloth found in Shipman’s house. He says:

“While at my house they brought some things there. I saw that bedücking at my house. * * * One time they brought a ham and two pieces of bacon, I think it was, and then the bedticking and a piece of red cloth. * * * They did not tell me where they got it. They said it was all bought and paid for, and I did not ask them where they got it.”

Further testifying, he says:

“On the morning just before the arrest I heard Davidson talking to the other two men. He was talking to John and Frank in this west room, and I was in the middle room, and my wife was in the kitchen, but was at the machine making a skirt, and I heard him say, ‘Hell, he-will go in the hands of a receiver and never know how he got there.’ I didn’t know what he was. talking about. I never had any conversation with either of them or all of them with reference to going in a stor'e on the avenue; they never talked to me about going into any store on the avenue. I asked them about closing a door to the store. I said, ‘What do you do, go in and leave the door open?’ ‘No,’ he said, ‘We come out and leave it just like we find it.’ They didn’t tell me what store it was; I don’t know whether they knew the name of the store or not. They told me where the store was; said across the avenue. I live on the east side of the avenue, and Caldwell & Miller’s store is on the west side.”

Mrs. Shipman’s testimony is very brief. She testified, substantially, to defendaAts bringing them goods and their receiving them, and some other things that were brought there by defendant Davidson, which weife sent her from a distance. She made those up into clothing of different sorts and sold them.

Mr. Caldwell, one of the alleged owners of the house burglarized, says:

“I do not know anything about my store having been burglarized about December 5, 1917, as charged in the indictment in this case, and the first suggestion that such was the ease came when I was called upon by officers to examine certain articles of merchandise to see whether or not they belonged to the firm of Caldwell & Miller. I had no idea up to that time that my store had been broken into or that anything had been taken out of it, but I went with the officers, who exhibited several yards of bedticking, that was marked or flawed in making it, and some red cloth that I could identify as belonging to Caldwell & Miller. I also recognized a small remnant of red cloth as being a piece of goods of the same kind we had in stock, which had been missed between December 5th and several days thereafter, and was a remnant that was gone from our store that we had been unable to account for. None of these articles had any particular mark by which I could identify them except the bedticking, which had flaws in it as I have testified, and I will not swear more positively to them than I have sworn. In my best judgment they are our property; my judgment is based upon the facts I have testified to. * * * examination of the building showed that the building, windows, and doors had not been broken, bruised, or tampered with in any manner, and if the goods exhibited to me were taken from the store it must have been by some one who was able to enter the house by opening the doors without breaking same, or in any way interfering with them otherwise than being able to unlock them in some manner, and so far as I am concerned if my store was burglarized, as chai-ged, I would have .been perfectly unaware of any forced or unlawful entry into the store.”

He further states:

“I would not have known that any one had entered my store or had any idea of it if the officers had not called upon me to examine certain merchandise of the character carried in a store such as is operated by me and Mr. Miller. I do not know that the store was entered, and if entered I do not know when it was entered, nor by what manner unless by some one able to manipulate the lock on the double doors without breaking them and closing them without leaving any traces of the entry that were discoverable by me or any traces except the scratches and marks on the tongue of the lock made by the parties who entered the store.”

He further testified that the goods showed to him were part of a large lot of goods and merchandise that firm carried, and that other merchants in the city of Austin carried the same character of goods. In that connection he says:

“It is true that many other general merchants in Austin and Travis county buy bedticking and red cloth of the 'kind presented to me for' examination from the same houses or people that I bought that.”

Deputy Sheriff McCoy testified:

That he went to the residence of Shipman in South Austin, where he resides with his wife. He said he met Shipman and asked him if any men were staying there, and he said they stayed all night, but that he (Shipman) went to Mr. Brown’s market to work. “I went in the little shed, and there was no one there, and then into the back room, and I heard voices. I pulled the door and opened it, and these three men were in the little room. I spoke to and arrested all three.” He found some of the goods already mentioned while he was at the house. He says: “In a trunk I found some handkerchiefs and a piece of silk, and in this room I got a blue serge suit of clothes belonging to George Davidson, and in one of its pockets I found the iron piece about an inch wide and a sixteenth of an inch thick with which Mr. Barbisch and myself after-wards manipulated the lock on the double doors of Caldwell & Miller’s store, opening said doors with said instrument.” He seized and took to the sheriff’s office all these goods that have been mentioned. Appellants claimed none of the goods except the blue serge suit, which was claimed by the defendant Davidson, and in the coat of this suit the officer found the piece of iron' above mentioned, and with which they manipulated the door.

The appellants took the witness stand and denied all connection with the burglary; said they had nothing to do with bringing the goods to Shipman’s house; had entered nobody’s store, and went into an elaborate history under rigid cross-examination as to where they had been spending practically all their lives. One of the defendants, it seems, was not at Shipman’s house part of the time, but left Austin and was to meet a friend at Pflugerville in the northern part of Travis county. While waiting at Pflugerville for the party who failed to appear, he was found near the depot by an officer who gave him money to return to Austin. This is in substance the case.

We are of opinion this evidence is not sufficient to authorize tne conviction. The whole case seems to have been made up from tire statement of Shipman, and inferences and presumptions, many, of which were based upon each other. It is a rule well recognized that one presumption is not basis for another presumption, or that one inference cannot be drawn from another inference in order to form the basis of conviction. These matters are too remoto and too indefinite. The identification of the property is far from being definite. There is no evidence in the case that this house was ever broken into, unless it be by testimony to the effect that the piece of iron found in Davidson’s pocket could be used to open the Yale lock. The officers testified they took the piece of iron and did open the Yale lock, and found some scratches' on the lock. The mere fact that Davidson had a piece of iron in his pocket that would open a lock is not evidence of the fact that he did open the lock, and the inference to be drawn from it by the state was to affect the minds of the jury with the fact that because he had the iron in his pocket, and the officers opened the lock with it, therefore Davidson opened it, or if he did not he could have done so. Nobody saw the defendants in possession of this property except Shipman and his wife. That Shipman was an accomplice in this case if a burglary was committed there can be no question. He had the goods in his possession, was indicted, and turned state’s evidence in order to escape punishment. If he did not enter the house himself, he received stolen goods, for his testimony shows that he believed the goods were stolen as evidenced by the conversation he had with one or more of the defendants with reference to entering the store and bringing the goods away. If he was the thief and did the stealing, of course these defendants are not guilty. If he was an accomplice, the testimony does not corroborate him as' we understand this record. He was testifying under immunity; found in possession of goods that Caldwell seems to think were taken from his store. His excuse for possession was that he got them from these defendants. Their account to Shipman of purchase was not overcome by the facts if they delivered the goods to him. This account was put in by the state. We do not think the evidence sufficient from another standpoint.

If a house is shown to have been broken in a burglarious manner, and the party is found in possession of property recently thereafter, and the property is identified as coming out of the house, it is a circumstance to be considered as to the guilt of the party in whose possession the goods are found. It is not necessarily conclusive, but a fact or circumstance to be considered. But before a conviction can be predicated upon this theory, it must be first shown that a burglary was committed, that is, the breaking of the house in such manner as to show it was done for the purpose of committing a felony or the crime of theft, and, second, that recently thereafter the party was found in possession of property that came out of the house. As before stated, appellants were not found in possession of these goods, but Shipman was, and from'any viewpoint he was testifying under such circumstances, as above stated, that he would have to be corroborated as to the facts about which he did testify, seeking to connect the defendants with any burglarious entry or the taking of the property.

Other questions are raised in the case. One or more bills of exception show that exceptions were taken to the manner of cross-examining the defendants with reference to other matters that were not shown to have been secured or obtained by a burglarious entry, or in any way criminal in their tendency. They were shipped direct to Shipman, so Shipman says, from other points; some of them perhaps not in Texas. We believe the charge on accomplice testimony asked by defendants should be given upon another trial, if one is had, to the effect that Ship-man is an accomplice. Such we understand to be the rule where the facts are such as depicted in this case, and especially where the party turns state’s evidence after indictment is found in order to avoid punishment. The court charged the jury with reference to accomplice testimony, but left it as a matter of fact for the jury to determine whether or not the Shipmans were accomplices. Upon another trial we are of opinion the court should charge that they are accomplices as shown by their own testimony and that of the officers.

The judgment is reversed, and the cause remanded.
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text:
    LEVY v. STATE.
    (No. 5245.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Vageancy <&wkey;3 — Common Prostitute— Proof.
    By statute, to constitute defendant a vagrant under tlie allegation that she was a common prostitute, it was qecessary to show that she was such, which was not done, where no witness testified as to the necessary facts of intercourse with men.
    2. Municipal Corporations <&wkey;592(4) — Paramount Character op State Law-City Ordinance.
    A city by its ordinance cannot set aside the state penal laws prohibiting houses of prostitution.
    3. Vagrancy <S=ol — House op Prostitution —Cessation op Operation.
    Where defendant in opening house of prostitution was justified so far as city authorities could justify her, and ceased to run house when notified by chief of police on May 20th that she must do so, and thereafter was not concerned in business, she was not guilty of vagrancy, through formerly running house of prostitution under complaint filed against her July 31st.
    4. Vagrancy &wkey;>3 — Evidence—Reputation as Prostitute.
    In prosecution for vagrancy by being common prostitute and running house of prostitution, testimony as to defendant’s general reputation and general reputation of some of her associates, and general reputation of houses in her part of city, held inadmissible.
    Appeal from Corporation Court, Bowie County; E. Newt Spivey, Recorder.
    Pauline Levy was charged with being a vagrant in that she w'as a common prostitute, and also with running a house of prostitution and she appeals.
    Judgment reversed, and cause remanded.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged with being a vagrant, in that she was a common prostitute, and also with running a house of prostitution. There were two other counts in the complaint, but as they were abandoned are not discussed. She was convicted either with being a common prostitute or running a house of prostitution, or both. The court enters up his judgment to the effect that she was found guilty of being a common prostitute and running a house of prostitution, and her punishment fixed at a fine of $200, and this he recites in his judgment constituted her a vagrant.

The facts relied upon by the state do not show that she is a common prostitute. No,witness testifies that she had intercourse with any man. The state upon this phase of it failed to make a ease. Springer v. State, 16 Tex. App. 591. The rule laid down in that case was followed by this court in Cox v. State, 205 S. W. 134. There was some evidence in the Cox Case to the effect that appellant had intercourse on two or three occasions, but it was held that the evidence was not sufficient in that case under the showing made by the state that she was a common prostitute. Under the statute, in order to constitute her a vagrant under this allegation of the complaint, it would be necessary to show that she is a common prostitute.

In regard to the other charge, that she was running a den of prostitution, the facts disclose that some time in April she became possessed of a house and opened a house for prostitution. This seems to have been justified on her part as far as the city authorities could do so. Of course, legally speaking, by an ordinance of the city, or by authority of the chief of police, a den of prostitution could not operate, for this would be in direct violation of the state law. The Legislature cannot authorize a city to set aside the state penal laws. This has been the subject of many decisions, as well as by express provision of the state Constitution. But she was notified by the chief of police on the 20th of May that she must cease running the house, which she did, and she testified thereafter she led a decent life, and was not further concerned in that character of business. This complaint was filed against her on the 31st of July. If she ceased this immoral life of operating a house of prostitution, as she stated, on the 20th of May, then she was not guilty as a vagrant, and could not be punished for the past acts. Vagrancy is a present condition or status, and the imposition upon society consists in the fact that she is now a vagrant, and not that she was heretofore a vagrant. This question was fully discussed and decided in Cox v. State, 205 S. W. 134. The state failed to show that she was operating a den of prostitution at the time of her arrest, or had been since notified by the chief of police on May 20th to cease. There is some evidence to the effect that there was a man in a bed in one of the rooms of the house that she owned, but there is no evidence of the fact that his being in there constituted that house one for prostitution. The state seems to have contended that because the man was in the house; and that her reputation was that of a common prostitute, therefore, they were justified, either in convicting for being a common prostitute, or for running a den of prostitution. The facts are too feeble and weak to justify sucli conclusion. She was not shown to have had intercourse with the man and She expressly denied it.

There are several bills of exception reserved to the ruling of the corporation judge wherein he admitted testimony of her general reputation, the general reputation of some of her associates, and the general reputation of houses in that part of the city. This testimony was not permissible under the allegations of this complaint. These matters have been quite frequently discussed and decided by this court, and held adversely to the ruling of the trial court. Arnold v. State, 28 Tex. App. 480, 13 S. W. 774. As to the character of her associates being inadmissible, see Holsey v. State, 24 Tex. App. 35, 5 S. W. 523, and Hudson v. State, 41 Tex. Cr. R. 454, 55 S. W. 492, 96 Am. St. Rep. 789. It has often been held that a witness cannot state in a general way that a party is a common gambler. This would only state a conclusion. The facts should be stated. This was decided in Leatherman v. State, 49 Tex. Cr. R. 486, 95 S. W. 504. For other authorities see Branch’s 2 Ann. Pen. Code, p. 736. The court should have sustained the objections to all this testimony. It was error to admit it.

The judgment is reversed and the cause remanded.
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author: WALTHALL, J.

text:
    PEREZ v. COOK.
    (No. 917.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1919.)
    1. Municipal Coepokations @=>225(5) — Conveyances — Validation — Cubative Act.
    ' Where plaintiff claimed title under a conveyance by the officers of the town of San Eliza-rio, held that, even if an attempt to incorporate the town in 1879 under general statute was of no effect, the special charter not having been repealed, the title was validated by Acts 21st Leg. Special Laws (9 Gammel’s Laws, p. 1371), and Acts 34th Leg. (1st Called Sess.) c. 12, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5393a).
    2. Teespass to Try Title @=>12 — Actions— Possession.
    Though plaintiff failed to deraign title from the state, yet where defendants’ plea of title by limitations was not sustained, and plaintiff showed prior possession of the land in his grantors, judgment for plaintiff was proper.
    3. Landlord and Tenant @=>63(1) — Estop-pel of Tenant.
    A tenant, who has recognized the title of his landlord by renting the land and paying rent, cannot attack the landlord’s title.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Trespass to try title by Fred D. Cook against Esteban Perez. From judgment for plaintiff, defendant appeals.
    Affirmed.
    A. S. Thurmond, of El Paso, for appellant.
    Jones, Jones, Hardie & Grambling, of El Paso, for appellee.
   WALTHALL, J.

This is a suit in trespass to try title, brought by Fred D. Cook against Esteban Perez. The land is described by metes and bounds and is known as survey No. 133, a part of the San Elizario grant. Appellant pleaded not guilty, and the ten-year statute of limitation. The case was tried before a jury, and, on a finding against appellant on the issue of limitation, judgment was rendered in favor of appellee.

Appellant presents one assignment. It is to the effect that appellee failed to establish title in himself to* the land in controversy by a connected chain of title from the state. The point sought to be made is that, the town of San Elizario having been incorporated in 1871 by special charter by an act of the Legislature, and such special charter not having been repealed until 1891, it was in force in 1882, and the attempt to incorporate the town of San Elizario in 1879 under the general statutes was of no effect, and that the act of the officers of San Elizario, acting under the latter or general laws, conveying the title to the land in controversy and under which appellee claims title, was ineffectual to convey title and was null and void. We think appellant’s contention cannot be sustained for the following reasons:

If the act of the officer in conveying the title of the town of San Elizario was invalid, as claimed, the title was validated, first, by the Acts of the 21st Legislature, Special Laws, Gammel’s Laws, vol. 9, p. 1371; second, the deed was validated by general law, Acts of the 34th Legislature, First Galled Session, 1915, § 1, chapter 12, p. 2S (Vernon’s Ann. Civ. St. Supp. 1918, art. 5393a).

Again, appellee showed prior possession of the land in his grantors, under whom he claimed title, viz., Lujan and wife, and that Lujan and wife had placed appellant in possession to look after the land for them, his possession being their possession. The evidence also clearly shows that appellant, at the time of filing this suit was the tenant of appellee, and that appellant had recognized appellee as his landlord by renting the land and paying rent. In the brief filed by ap-pellee, reference is made to the record in the suit of “The State of Texas v. Michael Meehan et al., No. 16282, 53d District Court, Travis County, Tex.,” including judgment in said cause defining the boundaries of San Elizario and awarding judgment for defendants within the defined boundaries, as against plaintiff, as to land sued for, including the land in controversy in this cause. It is claimed that the suit vested all title the state had, if any, in the defendants in that suit, including Lujan; but the record here is not sufficiently full for this court to say what the judgment in that case determines, and we make no holding as to the effect of the judgment in that case.

We think it clear that the judgment for appellee is well sustained by the record.

The judgment is affirmed.
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author: BROOKE, J. WALKER, J.

text:
    HALL v. WHITE.
    (No. 405.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 26, 1918.
    On Rehearing, Feb. 5, 1919.)
    1. Appeal and Error <§=31040(10) — Harmless Error — Pleading.
    In action for damages for breach of contract of employment, action of court, in overruling exception to allegation in plaintiff’s petition that he was a married man and depended upon his manual labor to make a living for himself and wife, could not have prejudiced defendant.
    2. Appeal and Error <§=31039(2) — Harmless Error — Pleading.
    In an action for breach of a contract of employment, defendant cannot complain that petition did not allege that plaintiff could not secure work after he was discharged, where it was shown without objection that plaintiff did secure other employment.
    3. Master and Servant <§=>41(2) — Breach of Contract of Employment — Damages.
    In an action for breach of a contract of employment under which defendant was to furnish plaintiff a home to live in, the plaintiff could show as an element of damages the cost of moving from such house and the rent of the house until the termination of the contract.
    4. Master and Servant <§=341(2) — Breach of Contract of Employment — Damages.
    In an action for breach of a contract of employment under which it was alleged plaintiff was to have a portion of a crop and a portion of the increase in stock and profits from the milk on the farm where he was employed, plaintiff could show the value of the milk sold and the calves and pigs born during the year.
    5. Appeal and Error <§=>742(4) — Matters Reviewable — Assignments of Error.
    Where from statement under an assignment of error in admission of evidence court cannot determine basis of objection, the assignment will be overruled.
    6. Master and Servant <§=⅞42(1) — Breach of Contract of Employment — Damages.
    Whore an employer breached a contract of employment, he was entitled to credit for whatever sums the employé may have earned after his discharge, as a reduction of the damages suffered.
    7. Appeal and Error <§=>736 — Matters Reviewable — Assignments of Error.
    Where an assignment of error is multifarious, in that appellant seeks to review all the different features of his case, it cannot be considered.
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Suit by D. White against J. Thomas Hall. Judgment for plaintiff, and defendant appeals.
    Affirmed on condition.
    Harris & Harris, of Nacogdoches, for appellant.
    Ingraham' & Watson and A. A. Seale, all of Nacogdoches, for appellee.
   BROOKE, J.

After a careful examination of the record in this ease, together with the briefs of counsel for the respective. parties, we have come to the conclusion that no reversible error is shown, and the cause should, therefore, be affirmed; and it is so ordered.

On Rehearing.

WALKER, J.

Appellant has filed a motion asking this court to discuss his different assignments of error. This motion is granted, and in complying with the same, we dispose of his assignments as follows:

This is a suit by appellee against appellant for damages growing out of breach of •contract. Appellee alleged the different elements of the contract, some of them being, to wit, that appellee was to furnish him a home and was to give him a portion of the crop and a portion of the increase in the stock and profits from the milk and from other things which were to be done jointly by appellant and appellee. A part of the contract was that appellant was to have a house to live in, and was to live on the premises of appellant during the year of the contract.

In his first assignment of error, appellant complains of the allegation in plaintiff’s petition that he is a married man and depends upon his manual labor to make a living for himself and wife. This assignment is overruled. In this case, while this allegation is possibly surplusage, the error of the court, if any, in overruling this exception, did not prejudice appellant.

By his second assignment, appellant complains of plaintiff’s petition, because it does not allege that he could not secure work after he was discharged by appellant. This assignment is overruled. Whatever action the court may have taken on this assignment, all the facts were introduced before the jury, and it was shown, without objection, that appellee did secure other employment, and appellant got the benefit of this testimony.

By the third assignment, appellant complains of the action of the court in overruling his exception to that portion of plaintiff’s petition, as follows:

“Plaintiff further shows the court that the cost of moving and the rent of the house from now until the termination of said contract is reasonably worth $100, and the cost of moving is $12.”

This assignment is overruled. Under the contract, as alleged by appellee, it was the duty of appellant to furnish him a house for the year, and in discharging appellant, as alleged in the petition, the loss of the house and the expenses incurred by appellant in moving to another house were proper elements of damage; such damage being reasonably within the contemplation of the parties at the time of the breach of the contract. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162.

By his fourth, fifth, and sixth assignments, appellant complains of the admission of testimony by appellee as to the value of milk sold from the farm and of pigs and of calves born on appellant’s farm during the year. There was no error in the admission of this testimony. Appellee had pleaded that he was to have an interest in the milk and in the stock, and this proof was properly admitted under this allegation.

By his seventh assignment, appellant-complains of the admission of testimony as to the expenses of moving. This assignment is overruled. If appellant had contracted with appellee to furnish him a home during the year, and wrongfully discharged him, he must have reasonably foreseen at the time he made such contract and at the time he breached the same, if he did breach it, that appellee would be compelled to move, and that it would cost him something to move. As to whether or not this cost of moving was an element of damage was a question of fact for the jury, and no error was committed by the court in admitting this testimony.

By the .eighth assignment, appellant complains of the admission of testimony by appellee as to the rent paid by him in Na-cogdoches. From the statement made under this assignment, we are not able to determine the basis of this objection. Hence this assignment is overruled.

In his ninth assignment, appellent complains that the verdict of the jury is excessive, the jury having rendered a verdict for $350. Under this record, appellant was entitled to a credit for whatever sums appellee may have earned after his discharge as a reduction of the damages suffered by appellee. As testified by appellee, the total damages claimed by him are as follows:

Milk sales. 131.00
Crops . 30.00
Pigs. 10.00
Moving. 12.00
Rent . 90.00
Wages. 155.00
Aggregating . $442.00

Plaintiff testified that on the 15th day of August he went to work for Dr. A. Nelson at a salary of $35 per month, aggregating, from such time until the termination of the contract, $157.50, which would leave a difference, under plaintiff’s testimony, in the amount he would have earned under his contract and the amount actually earned by him, of $285. Under appellee’s testimony he could not recover a greater sum than $285. We rather .think this assignment should be sustained.

Appellant prepared a special charge to have been submitted to the jury, submitting all the issues in the case as viewed by him. This charge was refused by the court, and appellant assigns as error the refusal of the court to give this charge. This assignment cannot be considered, because it is multifarious, by it appellant seeking to review all the different features of his case.

If appellee will remit his judgment to $285 within ten days hereof, this case will be affirmed; otherwise it will be reversed and remanded for another trial.
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