author: DAVIDSON, J.

text:
    HERRERA v. STATE.
    (No. 3484.)
    (Court of Criminal Appeals of Texas.
    March 24, 1915.
    On Motion for Rehearing, April 21, 1915.)
    1. Criminal Law &wkey;>1092 — Appeal—Bills of Exception — Time for Filing.
    Where accused appealed from the county court, filing his bills of exception more than 20 days after his conviction, while the statute requires that evidence and bills be filed within that time, there was nothing to review on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-28Gl, 2919; Dec. Dig. &wkey;>1092.]
    On Motion for Rehearing.
    2. Husband and Wife <&wkey;312 — Abandonment-Complaint and Information — Sufficiency.
    In a prosecution for wife desertion, where the information alleged that the county attorney presented to the court that on a certain date, before the filing of such information, the defendant deserted his wife, etc., not referring to the complaint, which alleged that theretofore defendant deserted his wife without justification and refused to provide for her support, and tliat she was in destitute and necessitous circumstances, such complaint and information sufficiently charged the offense as against general demurrer; it not being necessary that the information should make mention of the complaint.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1109: Dec. Dig. &wkey;312.]
    Appeal from El Faso County Court; Albert S. Eylar, Judge.
    Catarino Herrera was convicted of crime, and he appeals.
    Affirmed.
    W. D. Howe, of El Paso, for appellant. C. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted under the statute which punishes a husband for deserting his wife and refusing to provide for her support and maintenance.

Several questions are suggested by bills of exception and in motion for new trial, but these cannot be considered, because they were all filed beyond the time authorized by law. The court adjourned on 30th day of November. The bills of exception and statement of facts were not filed until the 26th day of December. An order was allowed granting 30 days in which to file these papers. Under the statute, and the decisions construing it, in county court cases 20 days is the limit in which the evidence and bills of exceptions may be filed. These matters, therefore, cannot be revised. Under the recent case of Clark v. State, 174 S. W. 354, we think the information is sufficient.

The judgment will therefore be affirmed.

On Motion for Rehearing.

At a former day the judgment herein was affirmed, without reference to the merits of the case. The statement of facts and bills of exception were filed too late to be considered.

Appellant moves for a rehearing now upon the ground that, first, the information charges no offense against the law, and, second, if it charges any offense, it wholly fails to charge the commission of an offense prior to the presentment of the information. We find that the complaint was filed 28th of July, and alleges that theretofore, to wit, 27th of -July, appellant deserted his wife, without justification, and neglected and refused to provide for her support and maintenance, and that she was in destitute and necessitous circumstances. The information, filed August 4th, alleges that the county attorney presented to the court that on or about the 27th day of July, 1914, and before the filing of this information, in said county of El Paso and state of Texas, appellant deserted his wife, etc. It is not necessary that the information should make mention of the complaint, as was decided by this court in Johnson v. State, 17 Tex. App. 230. The general demurrer that the complaint and information do not charge an offense against the law, we think, is without any substantial merit. Such complaint and information have been heretofore treated as being sufficient to charge the offense.

The motion for rehearing will be overruled.
      <@rs>Eor other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    HALE v. STATE.
    (No. 3496.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    Criminal Law <&wkey;1114 — Appeal and Error —Review.
    In the absence of motion for new trial, statement of facts, and bill of exception, the only question for review on appeal from conviction of crime is the sufficiency of the indictment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921;. Dec. Dig. <&wkey;> 1114.]
    Appeal from District Court, McLennan County; E. C. Street, Special Judge.
    Jim Hale was convicted of forgery, and he appeals.
    Affirmed.

      C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Indictment was filed against appellant charging him with forgery. When the case was called for trial he entered a plea of guilty,- praying that the sentence be suspended. The jury found against him on his plea, asking a suspension of the sentence, and assessed his punishment at two years’ confinement in the penitentiary. From this judgment appellant gave notice of appeal' to this court, but in the record there is no motion for a new trial, no statement of facts, nor any bill of exception. Under such circumstances the only question we can review is the sufficiency of the indictment. The indictment is valid and charges the offense of forgery, and the judgment must be affirmed.


text:
    HALE v. STATE.
    (No. 3497.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    Appeal from District Court, McLennan County; E. C. Street, Special Judge.
    Jim Hale was convicted of forgery, and he appeals.
    Affirmed.

      G. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

The record is before us without a statement of facts, bill of exceptions, or motion for new trial. There being nothing to discuss and no alleged error, the judgment will be affirmed.


text:
    BRANNAN v. STATE.
    (No. 3510.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Criminal Law <&wkey;1081 — Notice on Appeal.
    A notice of appeal referred to in the sentence pronounced, part of the minutes of the court, bearing evidence that notice of appeal was given in open court, confers jurisdiction on the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2722-2724, 2962; Dec. Dig. &wkey;1081.]
    2. Criminal Law <§=s31114^-Appeal — Review —Affirmance.
    On appeal on a record without a motion for a new trial, or any bill of exceptions or statement of facts, all the court can do is to look to the sufficiency of the indictment, and, where that is valid, affirm the judgment.'
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. &wkey;1114.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    W. A. Brannan was convicted of forgery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of forgery and his punishment assessed at two years’ confinement in the state penitentiary.

The record is before us without a motion for a new trial, any bill of exceptions, or a statement of facts. A notice of appeal is vaguely referred to in the sentence pronounced, but no, notice other than this appears in the record. In the case of Young v. State, 41 Tex. Cr. R. 247, 53 S. W. 1028, it is held that such indefinite notice is insufficient to confer jurisdiction on this court. However, in the case of Lewis v. State, 39 S. W. 370, it is held that the sentence being a part of the minutes of the court, and it bearing evidence that notice of appeal was given in open court, would confer jurisdiction on this court, and we are of the opinion that this latter opinion is more in consonance with the articles regulating an appeal. In the condition the record is, all we can do is to look to the sufficiency of the indictment, and, it being valid, the judgment must be affirmed.

The judgment is affirmed.
      (@=^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte SUPER.
    (No. 3519.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    Criminal Law &wkey;>273 — Plea— Sufficiency.
    A conviction of violation of the gambling laws entered upon plea of guilty by defendant’s mother, not an attorney at law, unauthorized by him, and made in his absence, was void.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634; Dec. Dig. <&wkey;273.]
    Appeal from Anderson County Court; E. V. Swift, Judge.
    Habeas corpus on the relation of William Super.
    Relator discharged.
    Kay & Seagler, of Palestine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator, having been arrested under a commitment issued by the justice of the peace under a judgment convicting him for violation of the gambling laws, resorted to a writ of habeas corpus to obtain his discharge.

The statement of facts, in substance, discloses that Emerson, justice of the peace of precinct No. 4, Anderson county, entered a judgment in favor of the state, on a complaint filed in his court, charging relator with gaming, assessing his punishment at a fine of $10. This occurred in May, 1914. On the 6th day of March, 1915, capias pro-fine was issued to Ellis county. Relator was taken in custody and brought back and placed in jail in Anderson county. The justice of the peace testified that Mollie Super, mother of relator, appeared before him and entered a plea of guilty for relator; and it is upon this plea of guilty that the judgment was founded. The mother of relator testified that he is 23 years of age, being 22 at the time he is charged with gaming; that about the 18th day of May, 1914, she went to see the justice of the peace Emerson about James Super, another son against whom there was pending a charge. She says at that time she did not know they had any charge against relator, and that she never entered any plea of guilty for him, nor for her son James. She further testified relator did not authorize, and has never authorized, her to plead guilty for him; that he was at the time a grown man with a family; and that she is not an attorney at law. Relator himself testified that he was not arrested on a charge of gaming; that he never gave bond, and did not appear in court about that time nor since; and that he did not authorize his mother nor any one else to enter a plea of guilty for him; that he did not know there was a case against him when he left Anderson county and went to Ellis county; that he is of age and married. Under this state of case, relator claims he should be discharged from custody, in that the judgment was void.

This question came before the court in Ex parte Jones, 46 Tex. Cr. R. 433, 80 S. W. 995, and was there decided favorably to relator’s contention. The Constitution and the statute authorize the defendant to appear in person or by counsel, either or both, and in finable misdemeanors a plea of guilty may be entered through his counsel. But this seems to be a limitation placed upon pleas of guilty; otherwise, the law would seem.to require the presence of the defendant in court, and that he enter the plea himself. This matter was discussed in the Jones Case, supra, and it is unnecessary to review it further.

The relator is ordered discharged from custody.


author: HARPER, J. DAVIDSON, J.

text:
    Ex parte LAWSON.
    (No. 3524.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    1. Habeas Corpus <5&wkey;4 — Appealable Orders — Suspension of Sentence — Setting Aside Order — Appeal.
    An appeal lies from an order setting aside an order suspending sentence during good behavior.
    LEd. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 4; Dee. Dig. <&wkey;4J
    2. Habeas Cobpus <&wkey; 30 — Review op Voidable Judgment.
    Habeas corpus does not lie to review a judgment not void, but voidable only, as a judgment which the court had jurisdiction to render cannot be collaterally attacked.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. &wkey;>30.]
    3. Habeas Corpus <&wkey;4 — Suspension op Sentence — Setting Aside — Review op Facts.
    Ordinarily the court will not inquire on habeas corpus into facts on which the court sets aside a suspension of sentence during good behavior, but it is otherwise where the right of appeal is denied, and the judgment recites facts showing its action was unauthorized.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. <&wkey;>4.]
    4. Criminal Law <&wkey;>1001 — Suspension of Sentence — Setting Aside.
    It is only on final judgment of conviction in another case that suspension of sentence during good behavior can be set aside, and it cannot be done pending appeal from such conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2554-2559; Dec. Dig. <&wkey;> 1001.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Mrs. S. E. Lawson was convicted of felony. Suspension of sentence was set aside, and appeal denied, and she brings habeas corpus to review the judgment.
    Reversed, and relator discharged.
    J. S. Stephenson and S. H. Sanders, both of Center, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State
   HARPER, J.

It appears from the record in this case that relator was convicted of a felony at the August term, 1914, of the district court of Shelby county, and her punishment assessed at one year’s confinement in the state penitentiary, in cause No. 5007; the sentence, on the recommendation of the jury, being suspended during good behavior.

It further appears that at the February term of the district court of Shelby county appellant was convicted of three other felonies, and her punishment assessed at one year’s confinement in the state penitentiary-in cause No. 5102, two years’ imprisonment in cause No. 5080, and one year’s confinement in the state penitentiary in cause No. 5081. In these three cases she filed a motion for' a new trial, and when the motion was overruled she gave notice of appeal in each of these cases to this court, and they are now pending, and will be heard when the transcripts are received by this court.

On the day the motions for new trial were heard in causes Nos. 5102, 5080, and 5081 the court caused process to issue and be served on relator to show cause why the order suspending the sentence in cause No. 5007, rendered at the September term, 1914, should not be set aside and relator sentenced to serve the term in the penitentiary fixed by the jury in that cause. On the hearing on that motion relator insisted that the court had no .authority to set aside the order suspending the sentence in cause No. 5007, as the judgments in causes Nos. 5080, 5081, and 5102 were not final judgments, by reason of the fact that she had perfected an appeal in each of said causes to this court The court overruled this plea and set aside the order suspending the sentence in cause No. 5007, and sentenced relator in said cause. From this order of the court it is made to appear by bill of exceptions No. 1 relator undertook to give notice of appeal from the order setting aside the suspension of the sentence, but the court refused to recognize the right of appeal from such order, and refused to enter same of record. In this the court was in error. In Bierman v. State, 164 S. W. 840, we held that there was no right of appeal from a judgment suspending the sentence until the court set aside the suspension of the sentence, but that the right of appeal accrued whenever the court set aside the order suspending the sentence. Had the court not denied the right of appeal from the order setting aside the order suspending the sentence, no right to sue out a writ of habeas corpus, in our opinion, would have existed.

For it is the rule that, if the judgment is not void, but voidable only, no relief can be granted under the writ of habeas corpus; for, if the court had jurisdiction to render the judgment in, question, it cannot be collaterally attacked. In Bailey on Habeas Corpus it is said:

“The courts, in treating the question of jurisdiction, usually use the terms ‘of the subject-matter’ and ‘of the person.’ These expressions are generally well understood by the profession, and scarcely need to be specifically defined; yet a treatise would not be considered complete without it. It was stated by one court: ‘By jurisdiction of the subject-matter is meant the nature of the cause of action and of the relief sought, and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. The power to render the judgment or decree which the court may undertake to make in the particular cause depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause.’
“It was stated by another court that ‘jurisdiction of the subject-matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, or which is claimed to have arisen, under that general question.’ One court has jurisdiction in criminal cases, another in civil cases; each in its sphere has jurisdiction of the subject-matter; yet the facts, the acts of the party proceeded against, may be the same in a civil case as in a criminal case; as, for instance, in a civil action for false and fraudulent representations and deceit, and in a criminal action for obtaining property under false pretenses. We should not say that the court of civil powers had jurisdiction of the criminal action, nor vice versa. So that there is a more general meaning to the phrase ‘subject-matter,’ in this connection, than power to act upon a particular state of facts. It is the power to act upon the general, and, so to speak, abstract, question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power. Jurisdiction of the subject-matter is the power lawfully conferred to deal with the subject involved in the action.”

In the law governing a suspension of sentence the court is authorized to set aside the suspension of the sentence upon a given state of facts, and we ordinarily would not inquire into whether or not the facts authorized the court to set aside the suspension of the sentence, but in this case the court, in his order setting aside the suspension of the sentence and sentencing relator to confinement in the penitentiary, adjudges as follows:

“It is therefore also ordered, adjudged, and decreed that the punishment heretofore in this case adjudged against her, the said Mrs. S. E. Lawson, shall begin and operate at the expiration of the term of such previous judgment and sentence of conviction, and the said defendant is now remanded to jail to await the further orders of the court, and, the said Mrs. S. E. Lawson having excepted to the sentence heretofore rendered in said causes Nos. 5080, 5081, arid 5102, and given notice of appeal to the Court of Criminal Appeals of the state of Texas, it is further ordered by the court that the execution of this sentence in said cause No. 5007 be and is suspended until the decision and judgment of the Court of Criminal Appeals in said causes Nos. 5Ó80, 5081, or 5102, or either of them, shall be received, pending which said defendant, Mrs. S. E. Lawson, is remanded to jail.”

It is thus made to appear by the recitals of the order setting aside the suspension of sentence that the judgments in causes Nos. 5080, 5081, and 5102 are not final judgments, and, the right of the court to set aside the suspension of the sentence by the law being dependent upon a final conviction for a felony in another case, the judgment in and of itself authorizes this court to take cognizance of the matters in question under a writ of habeas corpus, and especially would this be true in a case where the right of appeal is denied.

Ordinarily, as we have said, if the court had found, as a matter of fact, that the facts existed which authorized the setting aside of the suspension of the sentence (the court having authority under the law to set aside the suspension of the sentence), we would not go behind the judgment so finding, as the right of appeal from such judgment existed. But in this case the right of appeal was denied, and, in addition thereto, the court, in his judgment setting aside the suspension, of the sentence, recites such facts that would show a want of authority to set aside the suspension of the sentence, and we are of the opinion we can review the matter in question, and, in our opinion, the court had no authority to set aside the suspension of the sentence in cause No. 5007 until the judgment in causes Nos. 50S0, 5081, and 5102 had become final, or one of them had become final by judgment of affirmance of this court.

It is only upon final judgment of conviction of a felony in another case that the right to set aside the judgment suspending the sentence arises in the trial court; and, no final judgment in causes Nos. 5080, 5081, and 5102 having been rendered, the court did not have the authority to set aside the judgment suspending the sentence in cause No. 5007 at the time it did do so.

If the judgments in causes Nos. 5080, 5081, and 5102 should' be affirmed by this court, or either of them, then the court would have the right and authority to set aside the suspension of the sentence in cause No. 5007, and it should do so.

The judgment is reversed, and relator discharged from imprisonment in cause No. 5007, but this order shall ha-ve no effect in causes Nos. 5080, 5081, and 5102.

DAVIDSON, J.

I concur. This opinion is correct in holding the trial court was without authority to set aside suspended sentence under the stated facts. This he could only do after final conviction in another proper case. The other convictions are not final.
      <i&wkey;Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALLEN v. STATE.
    (No. 3500.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    1. Criminal Law <&wkey;202 — Former Jeopardy.
    In a prosecution for receiving stolen property, it was not error to ignore a plea of former jeopardy based on an acquittal of burglary, as the Code of Criminal Procedure specifically provides that prosecution and conviction of burglary will not bar a prosecution for theft or any offense growing out of or connected with it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 386-403, 408, 409; Dec. Dig. &wkey;
    2. Criminal Law <&wkey;772 — Trial — Instructions.
    Though defendant, in a prosecution for receiving stolen property, testified to receiving property on his prior trial for burglary, wherein he was acquitted, and his testimony in the burglary case with other evidence was sufficient to convict, it was reversible error to refuse an instruction in his favor based on the testimony of a witness for the state who testified, as he also did in the burglary case, to facts showing defendant guilty of theft only.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. &wkey;772.]
    Appeal from Montague County Court; Homer B. Latham, Judge.
    Arthur Allen was convicted of receiving stolen property, and he appeals.
    Reversed.
    W. T. Russell, of Nocona, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of receiving and concealing stolen property, and his punishment assessed at 15 days’ imprisonment in the county jail and a fine of $50.

It is made to appear by the record that the store of Elemming Bros., under the care and control of Sam Elemming, was burglarized on the night of March 2d, and, among other things, eleven neckties and three pairs of socks stolen therefrom. Henry 1-Iale, appellant, and some others were arrested, charged with having committed the offense. Henry 1-Iale made an agreement with the state to testily against appellant and others, and he was not prosecuted. Appellant was indicted, charged with burglarizing Elemming Bros.’ store. 1-Ie was tried for that offense and acquitted; he testifying on that trial that on the night of the burglary he (appellant), Henry Hale, and Henry Harper and others went to an entertainment in Bonita. Upon their return they went to a restaurant, and after they had been there awhile Henry Hale called him (appellant) and Henry Harper to one side and told them he had broken open Elemming Bros.’ store, and handed him a hat, some neckties and socks, and he took them and hid them under his coat, and carried them to a barn on Mr. Langford’s place. The jury evidently believed what he said, and acquitted him of the charge of burglary. The state then indicted him., charging him with receiving and concealing the property, knowing it was stolen, To this charge appellant entered a plea of former jeopardy, based on his acquittal of the offense of burglary.

In many ways appellant complains of the action of the court in failing to submit this plea to the jury, to the failure of the court to give his special charges on this issue, and to the action of the court in instructing the jury not to consider the plea of former acquittal. These bills present no error; for the Code of Criminal Procedure specifically provides that a prosecution and conviction for burglarly even will not bar a prosecution for theft or any offense growing out of or connected therewith. In Loakman’s Case, 32 Tex. Cr. R. 564, 25 S. W. 22, this question is discussed in an opinion by Judge Davidson, and decided adversely to appellant’s contention, and this decision has always been followed, and necessarily so by reason of the provisions of our Code of Criminal Procedure.

We do not deem it necessary to discuss but one other question raised by appellant; for it, and it alone, presents error. It appears in the trial for burglary the state used Ilenry Hale as a witness, and he testified on that trial that they all went to the restaurant, and that appellant and Henry Harper were gone awhile, and then returned to the restaurant; that appellant and Henry Harper told him they had broken into the store of Elemming Bros., and they all went into the store together; that he (Henry Hale) took an overcoat and hat and wore them off; that he did not know what the others got out of the store, but the next day appellant told him he had gotten a hat, some neckties, and some socks out of the store, and had put them in the barn where the goods were found.

As hereinbefore stated, on that trial appellant testified and swore that it was Henry Hale who had broken into the store and stole the goods and had given them to him, and he had hid them in the barn, The jury accepted his version and acquitted him. On this trial, in which he was charged with receiving and concealing the stolen property, the state introduced appellant’s testimony on the burglary trial and other evidence, and it was sufficient to authorize, and would sustain, a verdict of conviction for receiving and concealing stolen property. However, on this trial appellant did not testify, and he called only one witness, Henry 1-Iale, and he testified as he did on the burglary trial, adding that he did not steal the neckties and socks out of Flemming Bros.’ store and deliver them to appellant; his testimony being that appellant stole them himself.

Appellant requested the court to charge the jury that, if they found from the testimony that he broke and entered the store in connection with Henry Harper, as testified to by Henry Hale, and they all three entered the store, regardless of who took the articles out of the store, he would be a principal in the commission of the offense and guilty of theft, and, if they so found, they would find him not guilty of the offense of receiving the stolen property from Henry Hale and concealing it. The testimony of Henry Hale put this issue in the case, and the charge should have been given. If appellant was guilty of the theft of the articles, and Hale’s testimony would make him guilty, he could not be guilty of receiving and concealing property he himself had stolen. Because the court failed to submit this issue to the jury will necessitate a reversal of the case. It was clearly raised by the testimony of Henry Hale, and, although the jury might not have believed it, and evidently the court did not, the court is not authorized to take issues of fact away from the jury and decide them himself.

The judgment is reversed, and the cause remanded.
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    BALDWIN v. STATE.
    (No. 3529.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Larceny <&wkey;80 — Information— Description of Property — Sufficiency.
    Under Code Cr. Proc. art. 458, providing that, when it is necessary to describe property in a complaint’ and information, a general description of it by name, kind, quality, number, and ownership is sufficient, a complaint and information alleging that accused unlawfully took from the possession of prosecutor one suit of clothes of a specified value sufficiently described the property stolen.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 64-75, 99; Dec. Dig. <&wkey;30.]
    2. Larceny &wkey;^29 — Complaint and Information-Sufficiency.
    A complaint and information charging-theft, which does not allege that accused fraudulently took the property 1'rom the alleged owner, is fatally defective.
    [Ed. Note. — For other cases, see Larceny Cent. Dig. §§ 60, 63; Dec. Dig. &wkey;?29.]
    3. Larceny <&wkey;75— Evidence — Instructions.
    Where accused, on trial for theft, showed that, when first charged with the offense, he claimed that he bought the property from a certain third person for a specified price, the court should charge that if accused did not steal the goods, but bought’ them from the thief knowing them to be stolen, he was not guilty of theft, ■ which was a separate offense.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 190, 198; Dee. Dig. &wkey;75.]
    Appeal from Potter County Court; T. W. McBride, Judge.
    W. F. Baldwin was convicted of petty theft, and he appeals.
    Reversed, and cause dismissed.
    James N. Browning and Rollie H. Scales, both of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant appeals from a conviction for petty theft.

The complaint and information allege that on February 22,1915, appellant “did then and there unlawfully take from the possession of J. W. Logue certain corporeal personal property, to wit, one suit of clothes, of the value of $10.”

The court did not err in overruling appellant’s motion to quash on the ground that the alleged stolen property was not described with sufficient certainty. The-statute (C. C. P. art. 458) prescribes that, when it becomes necessary to describe property of any kind in an indictment or complaint and information, a general description of it by name, kind, quality, number, and ownership, if known, shall be sufficient. The many decisions of this court under this statute hold the description of said property was sufficient.

However, appellant, for the first time, in this court, contends that the complaint and information are fatally defective in that they do not charge, in the terms of the statute, that the appellant “fraudulently” took the property from the alleged owner. This is true, and is a fatal defect in the pleadings, and necessarily results in the reversal and dismissal of the ease. Watt v. State, 61 Tex. Cr. R. 662, 136 S. W. 56; section 1479, White’s Ann. P. C., and cases there cited.

In view of another prosecution, we will pass upon some other questions raised. When appellant was first charged with having stolen the suit of clothes, he at once claimed that he bought them from a certain party, paying him $2 therefor. He asked special charge No. 3, on the possession of recently stolen property and his explanation of how he came in possession. This charge should not have been given, hut the court should have charged thereon in substance as held in Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913, and other cases. See section 1518, White’s Ann. P. C.

The court should have given his charge No. 2 in substance at least, for if appellant himself did not actually steal the suit, but bought it from the thief, knowing it to be stolen, he would not be guilty of the theft, but he would be guilty of receiving it. Buying stolen goods, knowing them to be stolen, is a separate offense from that of the theft of the goods. McAfee v. State, 14 Tex. App. 675; White’s Ann. P. C. § 1510, p. 616.

The court should not have given appellant’s requested charge peremptorily instructing the jury to find him not guilty, because the state’s evidence was amply sufficient to show his guilt, if believed by the jury.

For the fatal defect In the complaint and information, the judgment is reversed, and the cause dismissed.
      <§=s>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    ETHERIDGE v. STATE.
    (No. 3525.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    Perjury <&wkey;22 — Indictment — Jurisdiction of Court.
    An indictment, alleging that accused committed perjury by giving false testimony in the county court on a trial on a complaint charging a violation of the gaming laws, is sufficient for the filing of a complaint in the county court; and arrest thereunder, plea of not guilty, and trial confer jurisdiction on the county court.
    . LEd. Note. — -For other cases, see Perjury, Cent. Dig. 71, 76-79; Dec. Dig. &wkey;22.]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge.
    Jim Etheridge was convicted of perjury, and he appeals.
    Affirmed.
    Faulk & Parker, of Austin, for appellant C. C. McDonald, Asst Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of perjury; his punishment being assessed at two years’ confinement in the penitentiary. The record does not contain a statement of facts, but as the ease is presented the evidence is not necessary to a decision.

The indictment charges perjury as having been committed in the county court on a trial based alone on a complaint charging appellant with a violation of the gaming laws. In substance he testified in the gaming ease that he did not play at a game of craps and was not present. A detail of the indictment is not necessary. It charges that he was tried on a complaint, and the whole case was submitted on the theory that he was tried on a complaint alone. There was no information filed in the county court. This is presented in every conceivable way — first, by a motion to quash the indictment upon the ground that the county court had no jurisdiction in the gaming case, because he was tried alone upon a complaint without an accompanying information; and, second, that the indictment shows upon its face that the county court had not acquired jurisdiction and did not have jurisdiction to try appellant in the gaming case. These are based upon the proposition that in a case originating in the county court there must not only be a complaint, but also an accompanying valid information charging the same offense as set out in the complaint. The motion to quash should have been sustained.

The court charged the jury:

“As to the jurisdiction of the county court you are instructed that a complaint duly charging James Etheridge with unlawfully and willfully betting and wagering at a game played with dice, to wit, craps, in Travis county, state of Texas, on or about the 13th day of September, A. D. 1914, has been admitted in evidence before you. Now you are instructed that the filing of this complaint in the county court of Travis county gave to said court jurisdiction of the subject-matter of said case against the said James Etheridge; it was not necessary to said jurisdiction to hear and determine said case that any information charging said offense' against the said Etheridge should have been presented and filed in said court.”

Exception was duly reserved to this charge, and the following instruction asked:

“Gentlemen of the jury, you are instructed in this case that the jurisdiction of the county court did not attach by the filing of a complaint alone; therefore the county court having no jurisdiction in the said cause in the county court wherein perjury is assigned, you will acquit the defendant and say by your verdict not guilty.”

This charge was refused and exception reserved. The defendant then moved the court to instruct a verdict of not guilty because, first, the testimony shows absolutely that the gaming case was tried in the county court only on complaint, without an information being filed in the ease, that the complaint was filed originally in the said county court, and that the indictnient alleges and the testimony of the state’s witnesses discloses that said cause in the county court is the proceeding wherein perjury is assigned for which the defendant is now on trial; second, because the Court of Criminal Appeals, in causes Nos. 3364 and 3365, Etheridge v. State, 172 S. W. 784, 786, handed down on January 6, 1915, and being an appeal from the said county court of Travis county, and being the same and identical proceeding in which it is alleged perjury was committed by the defendant, for which defendant is now being tried, and that the said county court did not and could not acquire jurisdiction until an information had been filed, and that no plea could be accepted in said county court until an information had been filed; that since the Court of Criminal Appeals in this identical case has decided that the said county court had no jurisdiction, the district court could not charge the jury that the said county court did have jurisdiction ; that under the Constitution and the law of this state, and according to the holdings of every decision of the higher courts of this state from the first decision announced to the last one rendered (the Etheridge Case), the county court in this case did not and could not acquire jurisdiction by the filing of a complaint alone, without the filing of an information, therefore defendant contends that the trial court is not authorized to charge the jury that the said county court had jurisdiction, and in such event the defendant is entitled to an instruction to return a verdict of guilty.

The court overruled this motion. These matters are properly presented by bill of exceptions. To the bill of exceptions reserved to the refusal to give appellant’s requested instruction to acguit the court appends this qualification:

“This bill is given with the following explanation: It is a fact that there is no evidence before the court that an information was filed in the county court in the case wherein James Etheridge was charged with bet-ting, wagering, and being present at a game played with dice, to wit, craps, in Rector’s pasture, and as a matter of fact the court finds that no such information was filed in such case, and that such case was prosecuted alone upon the complaint.”

So we have the indictment and the charges of the court specifically setting forth the fact that appellant was tried alone upon a complaint in the county court, in a case originating in the county court, without filing an accompanying information. Of course, there being no information in the case, none was introduced in evidence before the jury. The trial judge finds this as a matter of fact, and so certifies in his qualification to the bill of exceptions. So we have the broadly stated question from this ■ record that the county court in a case originating in that court had jurisdiction to try a misdemeanor without an accompanying affidavit, and that perjury could be committed upon the trial of that case. The learned trial judge followed the majority opinion in the recent case of Lee Etheridge v. State, a perjury case growing out of this same transaction.

The writer dissented in that case, on the ground that the county court having acquired no jurisdiction, perjury could not be committed; in other words, that in order to form a basis of perjury the testimony must be given in a court having jurisdiction to try the ease and hear the testimony and render judgment upon the merits. It is the law in Texas that a case cannot be tried in the county court in which it originates without a valid complaint, and a valid information baaed on that complaint. If there is no valid complaint filed, there is no basis for the information, and therefore the court is without jurisdiction. If there is a valid complaint, and no information filed, the court cannot acquire jurisdiction to try the case. If the complaint be bad, the prosecution will be reversed and dismissed; and in some instances where the information was defective, the case has been reversed and prosecution dismissed. But in some cases it has been held, if the complaint is valid and information is bad, the judgment will be reversed, and the complaint may be used as a basis for another information; but in all such cases the case is a new one, and costs and all matters incident to the first prosecution passes out. The authorities are collated by Mr. Branch in his work on Criminal Law. Mr. Branch thus states the rule:

“When the information is quashed or set aside on motion of either state or defendant, the filing of a new information, though based on the same complaint, constitutes a new case, and defendant cannot legally be tried upon the new information until after his rearrest, unless he waives the right and the time. Turner v. State, 21 Tex. App. 199 [18 S. W. 96]; Whitesides v. State, 44 Tex. Cr. B. 410 [71 S. W. 969]; McFadin v. State, 44 Tex. Cr. R. 471 [72 S. W. 172].”

Again he states this rule:

“When information is quashed or set' aside on motion of either the state or defendant, and a new information is based on the same complaint, the case then becomes a new case, and defendant is relieved from all liability for costs and continuances under the old information, and is entitled to all the rights incident to an original prosecution. Turner v. State, 21 Tex. App. 199 [18 S. W. 96]; McKinney v. State, 41 Tex. Cr. R. 414 [55 S. W. 337]; McArthur v. State, 41 Tex. Cr. R. 640 [57 S. W. 847]; Whitesides v. State, 44 Tex. Cr. R. 410 [71 S. W. 969]; McFadin v. State, 44 Tex. Cr. B. 471 [72 S. W. 172.]”

The statute requires that before an information can be filed there must be a valid complaint filed as basis for the information. The authorities are very numerous on this, and Mr. Branch in his work (section 893) thus states the rule:

“A prosecution for a misdemeanor in the county, district, or criminal district courts must be based upon an information, and the information in turn must be based upon a complaint. Except when the case is tried upon appeal to those courts, the prosecution cannot be legally conducted upon a 'complaint alone. Deon v. State, 3 Tex. App. 435; Garza v. State, 11 Tex. App. 410; Prewitt v. State, 34 S. W. 924; Sponberg v. State [60 Tex. C. R. 168] 131 S. W. 541.”

There are other cases, some of which are here cited: Paschal v. State, 9 Tex. App. 205; Johnson v. State, 40 Tex. Cr. R. 225, 49 S. W. 619; Thornberry v. State, 3 Tex. App. 36; Smith v. State, 3 Tex. App. 549-551; Davis v. State, 2 Tex. App. 184; Daniels v. State, 2 Tex. App. 353; Strickland v. State, 7 Tex. App. 35; Dishough v. State, 4 Tex. App. 158 (see, also, Bose’s notes under this case); Jennings v. State, 30 Tex. App. 428, 18 S. W. 90; Diltz v. State, 56 Tex. Cr. R. 127, 119 S. W. 92; Dickinson v. State, 38 Tex. Cr. R. at page 477, 41 S. W. 759, 43 S. W. 520; McVea v. State, 35 Tex. Cr. R. 1, 26 S. W. 834, 28 S. W. 469. It is also necessary that an information be filed in order to validate a prosecution under such circumstances. See Branch notes collated in section 893, some of which have already been cited; Stepp v. State, 53 Tex. Cr. R. 158, 109 S. W. 1093; Johnson v. State, 17 Tex. App. 230, and cited cases; Watson v. State, 45 S. W. 718; also Branch’s Crim. Law, § 894. See, also, Etheridge v. State, 172 S. W. 784, where quite a number of cases are cited, both in the main opinion and in the concurring opinion by Judge Harper.

The Constitution also provides (section 17, art. 5) that prosecutions may be commenced in misdemeanor cases by information filed by the county attorney or by affidavit as may be provided by law. Article 448 of the Code of Criminal Procedure thus reads:

“All misdemeanors may be presented by either information or indictment.”

Article 449:

“All offenses, known to the penal law of this state, must be prosecuted, either by indictment or information. This provision does not include fines and penalties for contempt of court, nor special cases in which inferior courts exercise jurisdiction.”

Article 35 of the Code of Criminal Procedure reads as follows:

“If the offense be'a misdemeanor, the attorney shall forthwith prepare an information, and file the same, together with the complaint, in the court having jurisdiction of the offense.”

Cases are cited in support of this in Etheridge v. State, supra; Garza v. State, 11 Tex. App. 410; Kinley v. State, 29 Tex. App. 532, 16 S. W. 339; Leal v. State, 51 Tex. Cr. R. 426, 102 S. W. 414; Baker v. State, 54 Tex. Cr. R. 53, 111 S. W. 735. See, also, Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Sponberg v. State, 60 Tex. Cr. R. 168, 131 S. W. 541; Etheridge v. State, 172 S. W. 784. The Constitution provides that these prosecutions may be by affidavit or information, either or both, as may be provided by law. The statute quoted shows, and this is the law, that where the misdemeanor .originates in the county court there must be both a complaint and an information. Had the Legislature provided that cases might be tried only on affidavit in the county court, possibly it might bo legal; but it is unnecessary to discuss that or go into it. The Legislature has not undertaken to do so, and we take the law as we find it, without speculation as to what the Legislature might or might not do if they saw proper. Therefore it is a self-evident proposition from these authorities that the county court could not and did not acquire jurisdiction to hear and determine the gaining case without an information based oil and filed with the complaint.

There is an unbroken line of cases in Texas, at least since Ex parte Degener, 30 Tex. App. 560, 17 S. W. 1111, laying down three proiiositions: First, the court must have jurisdiction of the subject-matter; second, must have jurisdiction of the person; and, third, that the court must have authority to render the judgment rendered. Without the concurrence of these three propositions the judgment would be void, and this by all the authorities. There is another line of decisions, equally well known and unbroken, to the effect that the judgment of the court would be void where the court had gone in excess of or beyond its jurisdiction. These authorities can be found collated in White’s Ann. Code of Crim. Proc., under article 150, on page 97, § 98, subd. G, and this even to the extent of relief to the party under writ of habeas corpus. It is also settled that a judgment of a court may be attacked by writ of habeas corpus, where that judgment is void for any of the above-stated reasons. We have still another line of decisions to the effect that the county court cannot acquire original jurisdiction by means of the complaint. By some of these decisions it is held that a bond taken for the appearance of the accused before the county court before the information is filed and where the arrest is made only on the complaint would be void, and judgment nisi could not be rendered or made final upon it. One of the later cases upon this is Leal et al. v. State, 51 Tex. Cr. R. 425, 102 S. W. 414. There are quite a number of other cases, commencing iu the earlier reports, but it is deemed unnecessary here to collate those. It is the well-settled and accepted doctrine.

Now, then, in order to constitute appellant’s testimony in the county court perjury, that court must have jurisdiction of the person, subject-matter, and the .authority to render the particular judgment. In other words, the court must have the jurisdiction to hear and determine the matter to a final conclusion in that court; otherwise, the jurisdiction would nol: attach, and perjury cannot be committed in a court without jurisdiction. It is not a case unless the court has jurisdiction to try it, and false swearing or false testimony given in what purports to be a court, when it has not jurisdiction, cannot constitute perjury. The trial is not before a court, and therefore a judicial proceeding could not occur. In Wilson v. fetate, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180, this question came before the court, the opinion being rendered by Presiding Judge White. Quoting from that opinion it is said:

“In all cases of prosecution for perjury committed in a judicial proceeding, it must be made to appear by the allegations of the indictment that the court had jurisdiction of the judicial proceedings (Willson’s Grim. Stats. § 307), and it is equally important and necessary that the evidence should sustain the allegation in order to warrant a conviction. It was alleged in the indictment in this case that the judicial proceeding was a trial in the county court ‘wherein one Bean was duly and legally charged by information’ with unlawfully carrying on or about his person a pistol, etc. To sustain this allegation the prosecution simply introduced in evidence the infoi'mation. This was not sufficient. An information cannot be presented until oath has been made by some credible person charging the defendant with an offense. Code Grim. Proc. art. 431. This oath is called a complaint. It is the basis and foundation upon which the information rests, and is a necessary part of, and must be filed with, the information. Code Grim. Proc. art. 36. Without a complaint an information would be wholly invalid, would confer no jurisdiction upon the court, and would be worthless for any purpose. Willson’s Grim. Stats. § 3999. It follows, then, that in order to sustain an allegation of judicial proceeding by information, not only must such information be introduced in evidence but the complaint upon which it is based or founded, must be also introduced.”

This ease has been followed undeviatingly, unless it is the recent ease of Etheridge v. State, 173 S. W. 1031, not yet officially reported. As late as 60 Tex. Cr. R. 168, 131 S. W. 541, Judge McCord, writing the opinion •of the court in Sponberg v. State, supra, laid down the same proposition. Quoting the headnotes, without going into the opinion in full, it says:

“All prosecutions for misdemeanors in the county court must be by information, without reference to whether the offense is one which might be prosecuted to a final termination in the justice court, and where no information was filed in the county court, the defendant could not be prosecuted to conviction on affidavit.”

The indictment and this record shows beyond any question that appellant was tried in the county court alone upon a complaint, and that no information has ever been filed in the case, at any time — that is, in the gaming case; and to make this evident and patent the learned trial judge instructed the jury that it was not necessary to file an information, and that the jurisdiction to hear and determine the gaming case could be had alone upon a complaint. He refused a special charge stating the contrary proposition of law; that is, the county court could not acquire jurisdiction upon a complaint, but that an information was absolutely necessary. To emphasize this the trial judge certifies that no information in fact was ever filed, in the case, and none introduced in evidence. He did this in obedience to the majority opinion in the recent perjury case of Lee Etheridge v. State, not yet officially reported. The trial judge evidently is not in harmony with the majority opinion in the Lee Etheridge Case. So the trial court places the question incisively and sharply that the county court has jurisdiction to try a citizen of Texas on a complaint alone, without the information accompanying it. The writer dissented in the Lee Etheridge Case, supra, and believed that my Brethren upon further consideration would overrule that case; and that it should be overruled is not debatable, as I understand the Constitution and laws of Texas.

Under this record, and the question suggested, and from the viewpoints and the authorities referred to and discussed, the judgment ought to be reversed, and the prosecution dismissed. The above is the opinion of the writer; but, from what my Associates write at the end of what I have written, it seems my conclusions are not to be regarded as the law.

PRENDERGAST, P. J., and HARPER, J. The only question in this case is whether or not the filing of a complaint in county court, and an arrest thereunder, a plea of not guilty, and trial thereunder, confers any jurisdiction on the county court. In the companion case of Lee Etheridge v. State, 178 S. W. 1031, recently decided, we expressed our views, and under the holding in that case the judgment should be affirmed.
      <©=^For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    FRANCIS v. STATE.
    (No. 3511.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.).
    1. Homicide <&wkey;300 — Trial>-Instructions— Self-Defense.
    Where the evidence showed that after the first shot deceased fled, ran through a store, and that defendant pursued him, shooting as he entered the store door, shooting him again as he fled out the back door, and once more back of the store, where deceased fell and died, an instruction that, if deceased had done any act that made defendant believe from his own standpoint at the time that deceased was about to attack him and inflict death or serious bodily injury, defendant had the right to shoot deceased and continue to shoot him as long as such danger or apparent danger continued, and that though deceased retreated defendant had the right to pursue him and continue shooting until the real or apparent danger from his viewpoint had ceased to exist, was sufficiently favorable to defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=>300.]
    2. Homicide <&wkey;300 — Trial—Instructions— Self-Defense — Threats.
    Where deceased made no threats before the difficulty which culminated in the fatal shooting, but only during such difficulty, the refusal to give a special charge on the issue of self-defense from threats was not error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=>300.]
    Appeal from District Court, Wharton County; Sam’l J. Styles, Judge.
    Mack Francis was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Upon an indictment charging him with murder, appellant was convicted of manslaughter and his punishment assessed at five years’ confinement in the state penitentiary.

There is no bill of exceptions in the record in regard to the introduction of testimony; no exception was reserved to the charge of the court as given, but an exception was reserved to the failure of the court to give one of the special charges requested by appellant. In addition to his main charge presenting the issue of self-defense, the court gave the following special charge at request of appellant:

“In this case you are charged that if you believe from the evidence that defendant, Mack Francis, shot deceased, and you further believe that at the time he fired the first shot deceased had done some act that made defendant believe, viewed from his standpoint at the time, that he, the said Joe Pinkney, was about to attack him and inflict death or serious bodily injury upon him, you are charged that defendant had the right to shoot the said Joe Pinkney and continue to shoot him as long as such danger, or apparent danger, if any, continued; and, although you may believe that deceased retreated, defendant had the right to pursue and to continue shooting until such danger, real or apparent, viewed from the standpoint of defendant at the time, from all the facts and surrounding circumstances. had ceased to exist.”

This was certainly as favorable to defendant as the record authorized, for the facts show that after the first shot, at least, deceased fled, running through a store; that defendant pursued him and shot at deceased Just as he entered the store door, and shot at him again as he fled out at the back door, and once more back of the store, where deceased fell and expired.

The special charge refused presented the issue of self-defense from threats, etc. As the record shows there were no antecedent threats, but the threats, if any, were made during the difficulty which culminated in the fatal shooting. This did not call for a charge on threats, and the court did not err in refusing the special charge presenting that issue. Armstrong v. State, 50 Tex. Cr. R. 26, 96 S. W. 15; Hancock v. State, 47 Tex. Cr. R. 3, 83 S. W. 696; Dobbs v. State, 54 Tex. Cr. R. 552, 113 S. W. 923; Davis v. State, 52 Tex. Cr. R. 149, 106 S. W. 144.

The judgment is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    GONZALES v. STATE.
    (No. 3512.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Indictment and Information <@=>86 — Venue — Offense Triable in Different County.
    An indictment for a crime which is tried in a county other than that in which the offense was committed, but in the same judicial district, as permitted by statute, should charge the commission of the offense in the county where it actually occurred, not in the county where the offender is to be tried.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. <@=>86.]
    2. Criminal Law <@=31101 — Appeal—Statement of Pacts — Pauper Defendant.
    .Where a pauper defendant, convicted of a capital crime, secured an order for the preparation of a statement of facts by the official stenographer, but the statement was not furnished, and he then, within the time allowed, wrote out a statement from memory, which the trial judg'e did not approve, the conviction will be reversed, and the cause remanded.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. <@=>1101.]
    Appeal from District Court, Atascosa County; P. G. Chambliss, Judge.
    Jacinto Gonzales was convicted of crime and sentenced to death, and he appeals.
    Reversed and remanded.
    David C. Brown, of Jourdanton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of rape and given the death penalty.

The record is before us without a statement of the facts or bill of exceptions. The indictment charged the rape to have been committed in Atascosa county. It seems from the record before us that the offense was committed in Live Oak county, which was in the same judicial district as Atascosa county. Under the circumstances stated in the statute, the county of Atascosa might have jurisdiction to try the offense, although it was actually committed in Live Oak county ; this being rape. The statute authorizing this has been held constitutional by various decisions, commencing with Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780. The court instructed the jury on that question as fallows:

“The jury are further instructed that the county of Atascosa is in the Thirty-Sixth judicial district of Texas, and that the county of Live Oak is in the Thirty-Sixth judicial district of Texas; therefore if, from the evidence, you find that the crime of which the defendant stands accused was committed in Live Oak county instead of Atascosa county, and you believe and find, beyond a reasonable doubt, from the evidence, that the defendant was the person who committed it, the proof of the venue will be sufficient to warrant you in finding him guilty as charged in the indictment.”

Motion in arrest of judgment was made which, was also treated by the court' as a motion for new trial, presenting the error of the court in trying the case in Atascosa county. The indictment does not charge the offense as having been committed in Live Oak county as a prerequisite and reason why Atascosa county would have jurisdiction on the question of venue. It seems the authorities, since the case of Chivando v. State, 15 Tex. App. 330, have held, where a county was attached to another county for judicial purposes, it is necessary to allege in the indictment that fact in order to give jurisdiction in the county to which the other county is attached. This was followed in Miles v. State, 23 Tex. App. 410, 5 S. W. 250. Because the indictment in those cases did not allege that the county in which the offense was committed was attached to the county of venue by legislative act, it was insufficient, and the cases were reversed. In Mischer’s Case, supra, that rule was followed with reference to the rape venue statute. If this rulo has been changed by the decisions, the writer has overlooked it. The general rule where not otherwise fixed by statutory enactment, is that the county in which the offense is committed alone has jurisdiction. The statute may change this order, and in many cases has done so. We notice this in passing on the case, so that upon another trial this rule of law will be observed.

It seems the case was tried about the adjournment of the term of court. Proper orders were taken and entered, first, giving 60 days in which to file statement of facts and bills of exception, then subsequent 30 days added, but appellant failed to secure a statement of facts and bills of exception. The showing made in this court is uncontroverted that appellant did what he could to obtain both the evidence and the bills of exception. Counsel were appointed to defend him ; it is a death penalty; being a pauper, he filed his oath to the effect that he was unable to pay the necessary money to secure the statement of facts. The court ordered the statement of facts máde by the stenographer,' which was not done. Appellant, through his counsel, urged the matter, but the 90 days elapsed, and he failed to get a statement of the facts or bills of exception. In the meantime, using full diligence, he, from memory, made out what he believed a fair statement of the facts and sent same to the district judge,'who was in another county in the district. This statement of facts was not returned approved by the trial judge, and, so far as the record is concerned, was not returned nor filed. This was handed the trial judge in time for his disposition before the expiration of the 90 days. Under the recent case of Burden v. State, 70 Tex. Cr. R. 349, 156 S. W. 1196, this judgment will have to be reversed, as it is brought within the rule there laid down; perhaps the showing in this case is even stronger than was the showing in that case.

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


author: HARPER, C. J.

text:
    TEXAS & P. RY. CO. v. MARTIN BROS.
    (No. 415.)
    (Court of Civil Appeals of Texas. El Paso.
    March 18, 1915.
    Rehearing Denied April 15, 1915.)
    1. Appeal and Error <§=>971 — Opinion Evidence-Competency op Witness — Discretion op Trial Court.
    The competency of a witness to testify as an expert is primarily for the trial court, and its decision will not he disturbed unless manifestly erroneous.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. <§=> 971.]
    2. Evidence <§=>543% — Opinion Evidence-Competency op Witness.
    A witness, who testified that he had had 13 years’ experience with cattle, and that from this experience as a shipper and dealer knew how much more his cattle would have brought if they had been transported without delay than they did bring, was competent to give his opinion of the extra shrinkage in the cattle caused by delay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2359; Dec. Dig. <¿=>543%.]
    3. Evidence <§=>533 — Opinion Evidence — Conclusion op Witness.
    The testimony of a witness qualified to express an opinion that a shipment of live stock shrunk in weight a specified number of pounds per animal is not objectionable as a conclusion of the witness, but is admissible as an opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2341; Dec. Dig. <§=>533.]
    4. Carriers <§=>229 — Transportation op Live Stock — Delay — Measure of Damages.
    Where there is negligent delay in transporting cattle, the measure of damages is the difference between the amount received for them and the amount which would have been received had they reached the market on time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <§=>229.]
    5. Carriers <§=>227 — Transportation op Live Stock — Delay — Evidence — Sufficiency.
    A shipper suing a carrier for negligent delay in transporting live stock need only prove delay and resulting injury, and the carrier must plead and prove facts excusing the delay.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. <§=>227.]
    Appeal from Ector County Court; E. Y. Graham, Judge.
    Action by Martin Brothers against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Jno. B. Howard, of Pecos, and Geo. Thompson and R. S. Shapard, both of Dallas, for appellant. Frank Judkins, of Odessa, for appellee.
   HARPER, C. J.

Martin Bros. instituted this suit against the Texas & Pacific Railway Company for damages for injuries to certain cattle alleged to have resulted from negligent delays in their transportation to market. This is the second appeal of this case. The former opinion, reported in 167 S. W. 792, is referred to for a more complete statement of the contentions of the parties.

The first assignment reads:

“The court erred in overruling the defendant’s motion to render judgment for it, because a judgment by default should have been rendered in favor of the defendant upon the pleadings and evidence, in that the court found the only negligible delay chargeable to the defendant was the delay at Baird, and the defendant in its sworn answer specially denied such delay was caused by or through any negligence upon its part and stated the facts which caused such delay, and the said facts so stated excused the said delay at Baird as a matter of law, and the plaintiff filed no controverting pleadings denying the facts as pleaded by the defendant, or showed or offered to show any evidence controverting the facts as alleged by the defendant.”

It is overruled, because the record shows that the defensive matters pleaded were specifically denied by plaintiffs.

The second assignment reads:

“The court erred to the injury and prejudice of the defendant in permitting the plaintiff, Will A. Martin, while upon the stand as a witness in his own behalf, to testify, over the objection of defendant, that: ‘From my experience as a shipper I estimate that the extra shrinkage in my cattle wpuld be from 20 to 25 pounds per head and the calves about one-half that.’ Because the witness had not qualified to give an expert opinion, that such estimate was an opinion, and it was not shown that the witness had ever weighed any cattle before being shipped, and he could not have known what the shrinkage would be unless he had have done so, and any estimate based upon guesswork was wholly an opinion and could not be based upon knowledge and was mere speculation; that the proper predicate was not made' for the introduction of this testimony, if it had have been shown that the witness was qualified to give such testimony.”

The bill of exceptions was approved with, the following statement by the trial judge:

“The foregoing bill of exceptions is approved subject to the following qualification: The witness had testified without objection from defendant ‘that, he had had 13 years’ experience with cattle, that from this experience as a shipper and dealer in cattle knew what his damage would be, knew how much more his cattle would have brought if they had arrived without delay, than they did bring.’ The same testimony was drawn from the witness by the defendant on their cross-examination.”

The competency of the witness to testify to such matters was primarily a question for the judge to determine. Unless his decision was manifestly erroneous, it cannot be disturbed on appeal.

The statement by the court shows that the witness had sufficient knowledge of the facts to render him a competent witness. Lefkovitz v. Sherwood, 136 S. W. 850.

The third assignment is overruled for the same reason as the second.

The fourth assignment reads as follows:

“The court erred to the injury and prejudice of the defendant in permitting the plaintiff, Will A. Martin, while upon the stand as a witness in his own behalf, to testify over the objection of the defendant that: ‘Practically speaking, I think that this shipment shrunk on the cows from 85 to 95 pounds, and from 30 to 40 on the calves; that is, pounds per animal. I counted 20 to 25 pounds more per hundredweight to 25 cents more per hundredweight, if they had gone through without this 21 hours delay at Baird.’ Because this answer is a conclusion of the witness, and it was the province of the court to state what the damage was after the witness had stated the facts. This defendant could not be charged with what the witness ‘counted on.’ He should have stated the facts and let the court have done the counting in rendering his judgment, this being shown by defendant’s bill of exception No. 4.”

We cannot agree with appellant that this is the statement of a conclusion, but is clearly an opinion from a witness who has qualified to express it. Its probative force was for the court, and this was not the only witness who testified to the same effect.

The fifth assignment of error reads as follows:

“The court erred in the following findings of facts: "That the reasonable market value of said cattle at said time, on the market at Et. Worth, was the sum of $5,610.’ Because there is no competent evidence in the record to base said findings of fact upon.”

The finding as it appears in the record has no bearing upon any issue in this case. It is that the cattle were of the above value on the day they were shipped. The question in this case is: What did plaintiff lose by reason of the delay in shipment? What was the difference between the amount received on the 17th and that which would have been received had the cattle reached the market 21 hours earlier. The court has found this amount to be $330, and there is sufficient evidence in the record to sustain the finding.

The sixth assignment reads as follows:

“The court erred in finding the following fact: ‘That said delay was caused by the negligence of the defendant.’ Because there was no evidence to support the finding, that negligent delay will not be inferred, but must be proven as other facts.”

All that the plaintiff was required to prove was the delay which caused injury to the cattle. If there is an unreasonable delay, and there is a cause for it which would in law excuse, the facts are peculiarly within the knowledge of the defendant carrier and its agents, and the rule is that it is incumbent upon the carrier to plead and prove it. G., H. & S. A. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45.

A simple setting up of a defense, as contended in the seventh assignment, is not sufficient, especially where the plaintiff by amendment specifically controverts the allegations upon which the defense is based, as was done in this case.

The eighth and ninth assignments of error are in effect that the. evidence does not support the verdict.

The evidence is sufficient to sustain the judgment of the lower court.

'Finding noi error in the record, the cause is affirmed.
      <§=>Ror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    HOUSTON & T. C. R. CO. v. LINDSEY et al.
    (No. 5438.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 3, 1915.
    Rehearing Denied March 17, 1915.)
    1. Appeal and Error <@=>1053 — Harmless Error — Erroneous Admission op Evidence.
    Where, in an action against a terminal carrier for delay and rough handling of cattle, the court charged that the carrier was only responsible for damages occasioned by its_ own negligence, there was no error in permitting the shipper to prove the appearance and condition of the cattle at the initial point and at destination, without first showing their condition when received by the terminal carrier.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. <@=> 1053.]
    2. Evidence <@=>54314 — Opinion Evidence— Competency op Witness.
    One who has had considerable experience in shipping cattle, and who has made many shipments from one point to another, may express his opinion as to the condition of cattle at destination caused by delay and rough handling.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356½-2358; Dec. Dig. <@=> 543%.]
    3. Evidence <@=>501 — Opinion Evidence — Admissibility.
    Where, in. an action against a terminal carrier, the shipper sought to recover for injuries to the cattle by reason of the insufficiency of the pens in size, at the point of delivery to the terminal carrier, and he detailed the facts as to the pens, stating that he and the agent of the terminal carrier had looked at the pens and that the agent had wired to the carrier’s officials that the pens were not large enough to hold the shipment, but that the agent was told to put them into the pens, and that the cattle were unloaded into the pens and so crowded as to prevent them from eating or resting, it was proper to permit him to testify that the cattle were injured by reason of the insufficiency of the pens.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. <@=501.]
    4. Appeal and Error <@=1050 — Harmless Error — Erroneous Admission oe Evidence.
    Where testimony proving a fact was received without objection, error in admitting evidence to prove the same fact was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <@=1050.]
    5. Carriers <@=229< — Carriage of Live Stock —Delay and Rough Handling — Measure of Damages.
    The measure of damages for live stock injured by rough handling and delay' in transportation is the difference between the market value of the stock in the condition it was delivered and what the market price would have been at destination if proper care had been exercised, though the stock was shipped for pasturage only.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <@=229.]
    6. Trial <@=194, 244^-Instructions — Weight of Evidence — Undue Prominence to Evidence.
    In an action for delay and rough handling during transportation of cattle shipped for pasturage, an instruction that, if the cattle were not shipped for market, but for pasturage, and they were put on good grass with water and recovered any loss in weight or shrinkage, the same should be considered in determining the damages, if any, was properly refused, as on the weight of the evidence and as singling out a part of the evidence and giving undue prominence thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446, 454, 456-466; Dec. Dig. <@=>194, 244.]
    7. Carriers <@=228 — Carriage of Live Stock —Delay and Rough Handling — Damages —Mitigation.
    A carrier, guilty of delay and rough handling in transporting cattle for pasturage, may show that the cattle, though injured during transportation, soon recovered as bearing on the damages.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <@=228. ]
    8. Trial <@=253, 260 — Instructions—Ignoring Issues — Covered by Charge Given.
    Where, in an action against a terminal carrier for delay and rough handling of cattle during transportation, the shipper demanded a recovery for injuries caused by insufficiency of pens into which the cattle were unloaded at the point of delivery to the terminal carrier, and the court charged that the carrier was only required to use ordinary care, a requested charge that if the employes of the initial carrier at the point of delivery to the terminal carrier used ordinary care in caring for the cattle, then on the issue as to the handling of the same at that point the finding should be for the terminal carrier was properly refused because covered by the charge given, and because ignoring the issue of the insufficiency of the pens.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623, 651-659; Dec. Dig. <@=253, 260.]
    Appeal from Llano County Court; A. H. Wilburn, Judge.
    Action by J. E. Lindsey against the Houston & Texas Central Railroad Company and another. From a judgment for plaintiff against defendant named, the latter appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Garrett & Garrett, of Austin, for appellant. J. H. McLean, of Llano, for ap-pellees.
   RICE, J.

This suit was brought by ap-pellee Lindsey against the appellant and the Gulf, Colorado & Santa Fé Railway Company, to recover damages alleged to have been sustained by him to a shipment of 140 head of cattle from Ft. Worth to Llano, on the 11th of November, 1913, on account of delay, rough handling, and causing the same to be unloaded and held in insufficient pens at Lampasas. Appellant answered by general denial, and specially that said shipment was delivered to it by the Santa Fé Company at Lampasas at about 5:30 o’clock p. m. on November 12, 1913, and that according to its regular published schedule, known to plaintiff, it had no train leaving Lampasas for Llano until the early morning of November 13th, whereby it became necessary to unload, feed, and water said cattle, which was done by it at Lampasas, where the same were given reasonable care and attention; that the cattle were reloaded next morning, and taken from thence to Llano on its regular train, and delivered to plaintiff in good condition. A jury trial resulted in a verdict and judgment in favor of the Gulf, Colorado & Santa Fé Company, for which reason it is unnecessary to state its pleadings, but against appellant in favor of appellee Lindsey for the sum of $2S0, from which this appeal is prosecuted.

We do not think any error was committed in permitting appellee to prove the appearance and condition of the cattle at Ft. Worth, as well as their appearance and condition when received at Llano, without first showing their condition at Lampasas, where they were received by appellant from the Santa Fé Company, since the court expressly charged the jury that the appellant was only responsible for damages, if any, occasioned by its own negligence.

Nor do we think there was an error committed in permitting plaintiff to testify that the cattle were in worse condition when they reached Llano, the point of destination, than they would have been had they been transported in the usual and ordinary way, because it appears that he was a cattleman, having had considerable experience in shipping cattle, having made many shipments from Llano to Ft. Worth over the lines of railways in question, and therefore was qualified to express his opinion. Besides this, it appears that other testimony of the same import was admitted without objection.

The cattle were unloaded and kept all night in the railway pens at Lampasas. The plaintiff testified, over appellant’s objection, that the cattle were injured by reason of the pens being insufficient in size. It is urged by appellant that the court erred in permitting the witness to express his opinion as to the sufficiency of the pens, claiming that this was a matter wholly for the determination of the jury under the facts, citing Railway v. Slator, 102 S.W. 156; Railway v. Cage Cattle Co., 95 S. W. 705; Railway v. Cooper, 32 Tex. Civ. App. 592, 75 S. W. 328. While in the Slator Case it was ruled that evidence of this character was inadmissible, still that case and the other cases cited are distinguishable from this in that in the present case the witness, before expressing his opinion, detailed the facts as to the sufficiency of the pens, stating, among other things, that he and the agent of the company went out to look at the pens, and upon their return the agent himself wired appellant’s officials that the pens were not large enough to hold the bunch of steers, but they told him to put them in there anyway, whether it would hold them or not; that the cattle were unloaded into pens about 40 or 50 feet square, very small; that the cattle were crowded' into the pens, were unable to eat and rest, and had no room to lie down. We think it is unquestionably the law that a nonexpert witness is allowed to express his opinion, when in so doing he at the same time details the facts and circumstances upon which the same is based. See Gulf, Colorado & Santa Fé Ry. Co. v. Richards, 83 Tex. 203-205, 18 S. W. 611; American Construction Co. v. Caswell, 141 S. W. 1013-1017; American Const. Co. v. Davis, 141 S. W. 1019; M. B. of America v. Jordan, 167 S. W. 794, 795; Guerra v. S. A. S. P. Co., 163 S. W. 669; Johnson v. Griffiths & Co., 135 S. W. 683; St. L. & S. F. Ry. Co. v. Sizemore, 53 Tex. Civ. App. 491, 116 S. W. 403-408; S. A. & A. P. Ry. Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 474.

Even if appellant’s contention were true, the admission of such evidence was harmless, because similar testimony, without objection, was admitted. For which reasons we overrule the third assignment.

These cattle were stock cattle, shipped for the purpose of placing them upon pasturage. There was testimony to the effect that they were hooked up, damaged, and injured by reason of the delay en route and placing them in insufficient pens at Lampasas; also that many of them were foot-sore, stiff, badly drawn, and scarcely able to travel upon their arrival at destination. There was also testimony to the effect that some of the cattle recuperated in a short time after they were placed upon pasturage, while others did not get well for quite a while, and some did not get over their injuries entirely. In this connection appellant requested, and the court refused to give, its special charge No. 6, wherein the jury were instructed that if they should find from the evidence that the cattle were stock cattle, and not shipped for market but for pasturage, and should believe and find from the evidence that said cattle were put on good grass, with water, and further find that they afterwards recovered' any loss in weight or shrinkage, they were authorized to take such fact into consideration in estimating any damages, if any, which they should find plaintiff sustained; and the refusal of this charge is assigned as error, ‘citing Quigley v. Railway, 142 S. W. 633; Railway v. Godair, 3 Tex. Civ. App. 514, 22 S. W. 777; Railway v. Shank & Deen, 167 S. W. 1093. It is now well settled, we think, that the measure of damages to a shipment of this character is the same, irrespective of whether they are shipped for pasturage or to be placed' upon the market; that is, the difference between their market price in the condition they were delivered, and what their market price would have been at destination if proper care had been exercised during their shipment. See M., K. & T. Ry. Co. v. Golson, 133 S. W. 456, and authorities there cited; also Missouri, K. & T. R. Co. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753; M., K. & T. Ry. Co. v. Mulkey & Allen, 159 S. W. 111-114. In such cases, however, the carrier has a right to show, if such be the fact, that the cattle, although injured en route, soon thereafter recovered from their injuries, so that the jury could properly estimate the amount of damages sustained. But while this is true, we do not think this authorized or required the court to give the requested charge, for the reason that it is on the weight of the evidence, and because it singles out a part of the evidence and gives undue prominence thereto. In discussing a similar question in M., K. & T. Ry. Co. v. Mulkey & Allen, supra, where proof was offered tending to show the condition of the cattle at the time of their arrival, as well as subsequent improvement in their condition, Mr. Justice Rasbury said:

“As we understand it, these are inquiries going to prove or disprove the actual damage, and may be, and doubtless were, considered by the jury in the instant case; but we do not understand that proof of such matters is authority for the court to suggest to the jury in its charge that such facts have been proven and may be considered _ by the jury in estimating the actual loss. Their admission in evidence is the warrant for their consideration, but the court may not single out that particular fact, and especial- • ly direct the attention of the jury to the fact that that particular testimony may be considered. The rule is that the actu'al loss is recoverable, and what the actual loss is, is a question to be determined by the jury from all the facts taken and considered as a whole, 'without special reliance on any particular fact or circumstance. Railway Co. v. Word, 51 Tex. Civ. App. 206, 107 S. W. 753.”

While the ease of Quigley v. Railway, supra, seems to authorize the giving of the charge in question, and indicates that its refusal was error, still we are not prepared to follow it, and believe that the better doctrine is the one announced by Mr. Justice Rasbury, as above mentioned, for whi^ch reason we hold that the court did not err in refusing to give the requested charge, and therefore overrule the fourth assignment.

The fifth assignment urges that the court erred in failing to give appellant’s special charge No. 7, as follows:

“If the jury believe that the employés of the Houston & Texas Central Ry. Co. at Lampasas used ordinary care as defined to you, in caring for said cattle at Lampasas, then on the issue as to the handling of the same at said point you should find for said defendant.”

• — Insisting that said charge specially submitted the issue of negligence vel non in the handling and' care of the cattle by appellant at Lampasas, for which reason the court erred in refusing same, this issue not having been submitted in the main charge, defendant having pleaded that the cattle were given proper care and attention at Lampasas, supporting such pleading by proof. We do not think there was any error in refusing this charge, because, if submitted, it would have ignored the question of the insufficiency of the pens in which the cattle were unloaded, and, further, because the court in its general charge had covered the feature of the case with reference to the care required on the part of appellant in handling said shipment, telling the jury, in effect, that appellant was not required to use any higher degree of care or diligence than that of ordinary care.

The remaining assignments relate to the insufficiency of the evidence to support the verdict, which was a question, we think, entirely for the determination of the jury; and as there was evidence upon which the jury could have predicated their verdict, we are not willing to set the judgment aside.

Believing that the court committed no reversible error upon the trial, its judgment is in all things affirmed.

Affirmed.
      <g=3Eor other esses see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    BIGGERSTAFF v. McGILL et al.
    (No. 8116.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 6, 1915.
    Rehearing Denied April 10, 1915.)
    1. Chattel Mortgages <&wkey;197 — Removal on? Property prom Country — Recording Mortgage.
    The term “valuable consideration without notice,” in Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6841, declaring a chattel mortgage void “as to all creditors and purchasers” of the mortgaged property “for valuable consideration and without notice,” on the property being removed, with consent of the mortgagee, from the county where the mortgage is recorded, and the mortgage not being recorded within four months after the removal in the county to which the property is removed, qualifies not only “purchasers” but “creditors.”
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 430-433; Dec. Dig. &wkey;> 197.]
    2. Appeal and Error &wkey;>1051 — Harmless ‘Error — Admission op Evidence.
    It being substantially admitted and shown by other evidence that defendant had knowledge of the fact, ex-ror in admitting secondary evidence of the giving of notice thereof was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. &wkey;> 1051.]
    Appeal from Mitchell County Court; A. J. Coe, Judge.
    Action by J. F. McGill against E. L. Big-gerstaff and another. Judgment for plaintiff, and said defendant appeals.
    Affirmed.
    Joseph H. Aynesworth, of Childress, and Royall G. Smith, of Colorado, Tex., for appellant. Shepherd & Sandusky, of Colorado, Tex., for appellees.
   CONNER, C. J.

McGill instituted this suit against J. C. Pelton and the appellant Big-gerstaff, alleging that, at a date named, Pel-ton had executed the promissory note declared upon, to secure which he had also executed a chattel mortgage upon certain cattle described in the petition. It was charged that the mortgage had been duly recorded in Mitchell county, where the cattle were at the time of the execution of the mortgage, and that later Biggerstaff, with full knowledge of the mortgage, had seized and converted the mortgaged property. The prayer was therefore for judgment against Pelton for the amount of the note and foreclosure of the lien, and against Biggerstaff for the value of the converted property. Pelton made no defense, but Biggerstaff specially pleaded that the plaintiff McGill had permitted Pel-ton to remove the mortgaged property from Mitchell to Childress county, where his levy and sale occurred, there to remain more than four months before the levy of the execution under which Biggerstaff claimed.

The execution of the note' and mortgage by Pelton as alleged is undisputed. It is also undisputed- that, upon the execution of the mortgage, appellee McGill caused it to be duly registered in Mitchell county, where the mortgaged property was then located, and the case was submitted upon two special issues only. They were:

“Did the plaintiff McGill give J.' C. Pelton permission to peiunanently remove the property in controversy from Mitchell county, Tex.? And, if so, did Biggerstaff, before the levy of his execution (which was in Childress county), have notice of McGill’s mortgage and of its due registration in Mitchell county?”

The jury answered the first question in the negative, and the second question in the affirmative, and judgment was rendered in ap-pellee’s favor against both Pelton and Big-gerstaff, as prayed for, from which judgment Biggerstaff alone appeals.

Article 5654, Vernon’s Sayles’ Tex. Civ. Stat., provides that:

“Reservation of title to or property in chattels, as security for the purchase money thereof, shall be held to be chattel mortgages, and shall, when possession is delivered to the vendee, be void as to creditors and bona fide purchasers, unless such reservations be in writing and registered as required of chattel mortgages,” etc.

Article 5660 provides that:

“The person making any such instrument shall not remove the property pledged from the county, nor otherwise sell or dispose of same without the consent of the mortgagee,” etc.

Article 6841, so far as pertinent to the present inquiry, reads:

“Every deed, mortgage, or other writing, respecting the title of personal property hereafter executed, which by law ought to be recorded, shall be recorded in the clerk’s office of the county court of that county in which the property shall remain; and if afterwards the person claiming title under such deed, mortgage, or other writing, shall permit any other person in whose possession such property may be to remove the same, or any part thereof, out of the county in which the same shall be recorded, and shall not, within four months after such removal, cause the same to be recorded in the county to which such property shall be removed, such deed, mortgage, or other writing, for so long as it shall not be recorded in such last-mentioned county, and for so much of the property aforesaid as shall have been removed, shall be void as to all creditors and purchasers thereof for valuable consideration without notice.”

A proper disposition of this case is dependent upon the construction to be given to the article from which we have last quoted. Appellant insists, and the evidence very strongly tends to show, that, after the execution and registration of the mortgage in Mitchell county, appellee permitted Pelton to remove the mortgaged stock to Childress county, where it remained for more than four months prior to the levy of appellant’s execution, and in which county the mortgage had never been re-recorded. Appellant, at the date of his levy, was undoubtedly a creditor of Felton’s, and it is insisted that, regardless of appellant’s knowledge of tha mortgage in question, he was entitled to protection under the statute; the contention being that the failure to re-record the mortgage in Childress county renders the mortgage absolutely void as to appellant. This construction has been given to a failure to properly register a mortgage under article 5654, which we first cite. Under that article, it is held to be unimportant whether a creditor have notice or not; registration being essential to give the instrument effect as to them. Brothers v. Mundell, M. & Co., 60 Tex. 240; Keller v. Smalley & Harris, 63 Tex. 519. We think, however, article 6841 must receive a different construction. The language of that article as to property which has been removed without a re-record of the mortgage, as in the present case, is that the mortgage “shall be void as to all creditors and purchasers thereof for valuable consideration without notice.” We think the term “valuable consideration without notice” qualifies not only purchasers but all creditors as well; there being nothing in the act indicating any legislative purpose to distinguish between these classes or persons. Brothers v. Mundell, M. & Co., 60 Tex. 240; Goggan & Bro. v. Synnott, 134 S. W. 1184; Brewing Ass’n v. Mfg. Co., 81 Tex. 99, 16 S. W. 797.

It follows, we think, that the alleged errors relating to special issue No. 1 are immaterial. In other words, it is immaterial that appellee failed to specially deny appellant’s verified allegation that he had permitted the removal of the mortgaged property to Chil-dress county and permitted such property to there remain for more than four months. It is also immaterial that the court, in submitting the issue, required a finding that the permission was for a permanent removal. For, if we are right in our construction of the article of the statute relating to the subject, it may be admitted that appellee did permit the removal of the stock, and that he permitted its permanent removal, yet if appellant, as found by the jury, and as the evidence seems to conclusively show, knew of appellee’s mortgage, and knew of its proper registration in Mitchell county at the time of his levy and conversion, he was liable for the value of the converted property, which it is undisputed is equal to the amount of the judgment in this case.

Objection was made to appellee’s testimony to the effect that he had written appellant, prior to appellant’s levy, several letters in which information had been given of the mortgage. The objection was that the letters themselves were the best evidence of their contents, but the rulings are harmless, in view of the fact that appellant himself testified to the receipt of letters from appellee of substantially the same effect, and also further testified that he had first known of the McGill mortgage on the property “about a year or more before the levy of his execution and the sale of the property.” Appellee also testified:

“I asked Mr. Biggerstaff if he did not know, at the time he caused this property to be sold under execution, that it was mortgaged to me, and that my mortgage was registered in the office of the county clerk of Mitchell county, and he answered that he did know.”

No denial of this testimony is pointed out, and, as before stated, we think it is substantially undisputed that appellant knew of ap-pellee’s mortgage at the date of his levy and the sale thereunder. Any error, therefore, incidentally relating to the manner of proving notice, becomes immaterial.

We conclude that the judgment must be affirmed ; and it is so ordered.
      (gx^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes