author: HIGGINS, J.

text:
    BILLINGSLEY v. WEST et al.
    (No. 723.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 11, 1917.
    Rehearing Denied Nov. 1, 1917.)
    1. SUBROGATION &wkey;>7(7) — RIGHT 01? SURETIES on Secured Notes.
    Though the payment of a note, secured hy s deed of trust on a horse, by the sureties on the note, satisfied and extinguished the obligation arising thereon, the maker thereby beeamt obligated upon an implied promise to reim. burse the sureties, and, to secure the payment of this implied obligation, the sureties were subrogated to the rights of the creditor under the deed of trust, and were entitled to foreclose it, the lien not being extinguished but preserved for tlieir benefit.
    2. Evidence <&wkey;423(8) — Parol Evidence — Showing Nature oe Liability.
    Where persons executing a note were sureties, but the note on its face did not disclose such relationship, it was competent for them to show that they were sureties in an action to recover a horse mortgaged to secure the note after a foreclosure of the mortgage.
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    Action by N. W. West and another against J. J. Billingsley. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Cullen C. Higgins, of Snyder, and Sydney Smith, of El Paso, for appellant. C. S. Perkins, of Snyder, for appellees.
   HIGGINS, J.

C. T. Moon, N. W. West, and L. O. Johnston executed and delivered to the Snyder National Bank their promissory note in the sum of $150, dated September 9, 1915. West and Johnston were sureties, but the note upon its face does not disclose such relationship. To secure its payment Moon executed a deed in trust upon a horse to O. P. Thrane, trustee, for the use of the bank, dated September 6, 1915, filed for record in the office of the county clerk on September 9,1915. About December 13,1915, Moon sold and delivered the horse to J. J. Billingsley for a valuable consideration, who acquired same without actual notice of the bank’si lien. Moon defaulted in the payment of the note, and in January, 1916, the same was paid by West and Johnston, to whom the same was transferred and delivered by the bank. Thereafter, at the request of West and Johnston, the trustee foreclosed under the deed in trust and sold the horse to West and Johnston, who thereupon filed this suit against Billingsley to recover the animal. Judgment was rendered in their favor, from which Billingsley appeals.

Appellant contends that the payment of the note by the sureties extinguished and satisfied that obligation as well as the deed of trust lien, and that the subsequent sale under the deed of trust was illegal and void, and the only remedy of the sureties was for contribution against each other. It is quite true that the payment of the note by the sureties satisfied and extinguished the obligation arising thereon, but upon such payment Moon became obligated upon an implied promise to reimburse the sureties, and, to secure the payment of this implied obligation, the sureties were subrogated to the rights of the bank under the deed of trust, and were entitled to foreclosure thereunder. The lien was not extinguished, but was preserved for their benefit. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Bank v. Armstrong, 168 S. W. 873; United States F. & G. Co. v. Adoue & Lobit, 104 Tex. 379, 137 S. W. 648, 138 S. W. 383, 37 L. R. A. (N. S.) 409, Ann. Cas. 1914B, 667; 39 Cyc. 402. This being their legal right, it was competent to show that they occupied the attitude of sureties upon the note. An examination of the cases cited by appellant discloses that the principles which they announce arise upon a different state of facts, and have no ■application under the facts here presented.

The deed of trust was properly admitted in evidence without the necessity of proving its execution under the provisions of article 3710, R. S.

What has been said necessarily disposes of all propositions presented under the various assignments.

Affirmed.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    PATTILLO v. CITIZENS’ NAT. BANK OF STAMFORD.
    (No. 722.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 11, 1917.)
    1. Frauds, Statute oe &wkey;>14& — Promise to Answer eor Debt oe Another.
    A petition alleging that plaintiff loaned to a son the moneys represented by the notes sued on, upon a verbal promise of the father that he would secure its payment, that the notes were signed by the son only, and were extended from time to time, that thereafter just prior to the maturity of the note sued on the father declined to fix his personal signature to the notes as surety, delivered to plaintiff certificate of stock, and authorized it to be attached to the note as security, and that, relying upon such pledge of stock, plaintiff granted other extensions of time for payment, did not show that a cause of action was based upon oral promise within the statute of frauds; there being no verbal promise to pay the debt of another.
    2. Pledges &wkey;>9 — Consideration.
    An extension of time for the payment of the debt was sufficient consideration for the depositing of shares of stock by the father to secure notes of his son.
    3. Principal and Surety &wkey;>104(l) — Release oe Surety — Extension oe Time.
    If the relation of principal and surety existed, an extension of time without the consent of the surety would release him.
    4. Pledges t&wkey;25 — Renewal oe Notes — Liability oe Pledgor.
    Where the father refused to sign as surety, and simply deposited or pledged shares of stock to secure the payment of his son’s notes, the stock remained as security for the debt precisely as though there had been no renewal.

      5. Pledges t&wkey;57 — Eneobcement—Liability oe Pledgor.
    Where the father pledged shares of stock to secure payment of his son’s notes, the trial court properly foreclosed the pledge without personal judgment against the father.
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Action by the Citizens’ National Bank of Stamford, Tex., against C. M. Pattillo and another. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    Davenport & Davenport, of Stamford, for appellant. J. W. Boynton, of Anson, for ap-pellee.
   HARPER, C. J.

This appeal is from a judgment in favor of appellee against Milton Pattillo for $4,702.48 upon a promissory note, interest, etc., and against C. M. Pattillo, appellant, foreclosing lien upon certain certificate of stock in the Stamford Investment Company for I8V11 shares, same having been deposited by C. M. Pattillo as collateral to secure the payment of the notes sued on.

The first and fourth assignments urge that the petition shows that the cause of action is based upon an oral promise to pay the debt of another — is therefore within the statute of frauds. Substantially, the petition alleges and the evidence is sufficient to establish: That appellee loaned to Milton Pattillo the moneys represented by the notes sued on upon the verbal promise of C. M. Pattillo that he would secure its payment. The notes were signed by Milton Pattillo only; were extended from time to time during the years 1912 and 1913. That thereafter, just prior to the maturity of the note sued on, upon solicitation from the bank, C. M. Pattillo, father of Milton Pattillo, declining to fix his personal signature to the notes as surety, delivered to the bank the certificate of stock and authorized it to be attached to the note as security. That relying upon said pleuge of stock as its security, granted other extensions of time of payment. It will be noted from this statement that there was no verbal promise to pay the debt, so the statute of frauds invoked has no application, neither is there any question of limitation, since it was not the debt of pledgor.

The next question raised by second and fifth assignments is that there is neither pleading nor proof of consideration for the promise to pay the debt. It was not necessary that any consideration pass directly to C. M. Pattillo; an extension of time for the payment of the debt is sufficient. Bonner Oil Co. v. Gaines et al. (Sup.) 191 S. W. 552.

The next question urged (by the sixth and seventh assignments) is that Pattillo, Sr., stood in the position of surety, and that the extension of ‘ time without his consent operated to discharge him. If the relation of principal and surety existed, this is a correct proposition .of law. First Nat. Bank of Victoria v. Skidmore, 30 S. W. 564.

The way we view the facts in the record, C. M. Pattillo refused to sign the note as surety, and simply deposited or pledged the shares of stock with the bank to secure the payment of his son’s notes; under such state of facts it remained as security for the debt precisely as though there had been no renewal of the debt. Jones on Pledges, § 541; King v. Doane, 139 U. S. 166, 11 Sup. Ct. 465, 35 D. Ed. 84; Case v. Fant, 53 Fed. 41, 3 C. C. A. 418; Collins v. Dawley, 4 Colo. 138, 34 Am. Rep. 72. In Cotton v. Atlas Bank, 145 Mass. 43, 12 N. B. 850, it was held that:

“Where stock is pledged as collateral security for a promissory note and a new note is given in renewal, the stock will remain as security for the renewal note in absence of facts disclosing an intention to the contrary.”

The trial court was therefore right in •foreclosing the pledge without personal judgment against the pledgor. Killman v. Young, 171 S. W. 1065.

Finding'no error in the record, the cause is affirmed.
      <3^wr’or omer cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    SHERMAN COUNTY v. ROSS.
    (No. 1215.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1917.
    Rehearing Denied Oct. 31, 1917.)
    Taxation <&wkey;549(4) — Preparation oe Delinquency Record — Fee—“Record or Supplement.”
    Under Acts 34th Leg. e. 147, § 2, providing that in certain cases the tax collector shall prepare a supplement to the delinquency tax record of the county, which shall be prepared in duplicate to he filed, etc., and section 3, providing that the tax collector shall be entitled, for making up the delinquent record or supplement thereto where necessary, to five cents for every line of yearly delinquencies recorded or supplemented, although the tax collector prepared delinquent tax record in duplicate, he was not entitled to five cents per line for both, but only for one; the term “the record or supplement” being an indivisible entity, having its existence in each of the two copies prepared.
    Appeal from District Court, Sherman County; D. B. Hill, Judge.
    Action by Arthur Ross against Sherman County. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellant. W. I. Gamewell, of Stratford, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellee.
   BOYCE, J.

A decision of this case involves the construction of a portion of sections 2 and 3 of the Acts of the Legislature for the year 1915, pages 251, 252, providing for the preparation of delinquent tax records of the various counties, and compensation to the collectors for said work.

Appellee, tax collector of Sherman county, claimed to have prepared a delinquent tax record for said county under the provisions of section 2 of said act, which makes it the duty of the collector of the county in certain cases to prepare certain delinquent records, and sued to recover compensation therefor provided by section 3 of said act, said compensation being five cents for each line of delinquencies entered upon the record. The appellee, having prepared the record in question in duplicate, one copy being approved by the commissioners’ court, and filed with the county clerk of Sherman county, and the other being approved by and filed with the comptroller of public accounts, claimed that he was entitled to receive five cents per line entered on each copy of the record. The commissioners’ court of the county paid ap-pellee, without prejudice to his right to recover the additional sum if he should be so entitled, compensation at the rate of five cents per line computed on one copy, and the appellee in the court below recovered judgment for the sum of five cents per line computed on the other copy of the record.

We here quote that part of the act bearing on the controversy thus presented. Section '2 provides that, in certain cases:

“It shall be the duty of the tax collector * * * prepare or cause to be prepared, a supplement to such records (the delinquent tax record of the county) which shall be prepared in duplicate; one copy to be filed in the office o'f the county clerk and one copy thereof to be furnished to the comptroller of public accounts, subject to his approval; and whenever said supplement shall have been approved by the commissioners’ court and by the state comptroller, then the tax collector shall rely thereon for the data covering delinquent taxes,” etc.; “provided, said tax collector in making up said delinquent tax record and supplement shall examine the records of the district court,” etc.; “and no tract of land shall be shown delinquent on said delinquent tax record for any year where the records of the district court or the county clerk’s office show that the taxes for the said year have been paid.”

Section 3 of said act provides that:

“The tax collector shall * * * be entitled for making up the delinquent record or supplement thereto, where necessary under this act, the sum of five cents for each and every line of yearly delinquencies entered on said delinquent record or supplement, such compensation to be paid out of the general fund of the county upon the completion of said record or supplement.”

It will be noted that the Legislature, throughout the act, treats “the record or supplement” in the singular. The idea conveyed to us is that the record, or supplement, as the case may be, is regarded as a single, indivisible entity, having its existence in each of the two copies prepared. This is the conception we have of all writings prepared in duplicate. Two persons enter into a written contract, executed in duplicate; there is but one contract between the parties; each of the writings is “the contract,” and each writing is but the counterpart or double of the other. If section 3 of the act of the Legislature had provided that the tax collector should receive a stated sum for preparation of “the record or supplement” prepared under the provisions of section 2, it could hardly be reasonably asserted that he should receive such sum for each of the two copies of the record or supplement; but the vast difference between the size of the record in the various counties, and consequently the amount of work necessary in their preparation, required that the compensation be measured by some standard that would adjust it to the varying amount of work in each instance, hence the provision quoted which fixed such compensation by the number of lines entered on “said record or supplement.” We cannot think that the Legislature contemplated that each copy of the record was to be regarded as a separate record, so that there would be two records in each case on which the compensation should be based. If this had been contemplated it would have been easy for the Legislature to have provided that five cents should be paid for each and every line of yearly delinquencies entered on each copy of said record. We are of the opinion that the conception of oneness of the record prepared in duplicate, which evidently runs through the balance of the act, is also present in this provision for compensation for its preparation. See Dwyer v. City of Brenham, 70 Tex. 30, 7 S. W. 598.

This holding disposes of the case, and it will be unnecessary to discuss the other questions raised by appellant’s brief.

The judgment will be reversed, and rendered for appellant.
      iSs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    HANEY v. STATE.
    (No. 4625.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. Seduction <&wkey;46 — Corroboration—Sufficiency op Evidence.
    In a prosecution for seduction, evidence held to justify finding in favor of the state on the issue of corroboration.
    2. Seduction &wkey;>46 — Corroboration—Subsequent Acts and Declarations.
    Acts and declarations of defendant’s accomplice subsequent to the alleged seduction could not be used for corroboration.
    3. Criminal Law <&wkey;825(4) — Triaj>-Duty to Request More Specific Instructions — Corroboration.
    In a prosecution for seduction, embodiment of the law of corroboration in a general way in the charge was sufficient, in the absence of a request for additional instructions.
    4. Seduction <&wkey;50(2) — Instruction as to Corroboration — Statute.
    In view of Code Cr. Proc. 1911, art. 789, demanding corroboration as a predicate for conviction of seduction, in a prosecution for the offense, the court should have granted defendant’s request for a special charge in appropriate language to inform the jury that acts and declarations of the accomplice subsequent to the alleged seduction could not be used for corroboration.
    Appeal from District Court, Hood County; J. B. Keith, Judge.
    Ira Haney was convicted of seduction, and he appeals.
    Judgment reversed, and cause remanded.
    M. L. Arrington, of Granbury, and Moore & Myres, of Cleburne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a conviction for seduction. Nettie Cheek, an accomplice, testified to promises of marriage, an engagement lasting about 12 months, and one act of intercourse. The appellant thinks there is an absence of evidence of corroboration. The statute, art. 789, C. C. P., demands corroboration as a predicate for conviction. Without going into details, we think the-record discloses evidence upon which the jury would be justified in finding in favor of the state on the issue of corroboration. There was association of the i>arties, proof of the offspring, evidence of flight, and conversations with appellant, and other circumstances in view .of which we would be unwilling to hold that the evidence of corroboration was ■insufficient. It was controverted, however, and there were related acts and conversations of the accomplice occurring subsequent to the offense, which, in the absence of definite instructions to the contrary by the court, may have been treated by the jury as corroboration and may have entered into the verdict. The subsequent acts and declarations of the accomplice could not be used to corroborate her. James v. State, 72 Tex. Cr. R. 155, 161 S. W. 472; McCullar v. State, 36 Tex. Cr. R. 215, 36 S. W. 585, 61 Am. St. Rep. 847; Snodgrass v. State, 31 S. W. 366; article 789, C. C. P.

The court embodied in its charge the law of corroboration in a general way which, in the absence of a request for additional instructions, was sufficient. The appellant requested a special charge, framed in appropriate language, to inform the jury that acts and declarations of the accomplice subsequent to the act of intercourse could not be used to corroborate her testimony. The proper safeguard of appellant’s rights under the statute, considering the state of the record, require that this charge be given on request. In a similar case this court has so held. Barnard v. State, 76 S. W. 475. No other error is disclosed.

The judgment is reversed, and the cause remanded.


author: DAVIDSON, P. J.

text:
    WARD v. STATE.
    (No. 4605.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    On Motion for Rehearing, Nov. 7, 1917.)
    1. Larceny <&wkey;32(5) — Indictment—Alleging Ownership.
    Where the owner of a suit case and a suit of clothes which were at the residence of his father and mother wrote to his brother to send them to him, and the brother obtained their custody and control from the father and mother for this purpose, the brother was at least the special owner, and an indictment for theft properly alleged Ms ownership.
    On Motion for Rehearing.
    2. Larceny <&wkey;70(3) — Instructions—Ownership op Property.
    On a trial for theft instructions that, the state having failed to sustain the allegation that the alleged stolen property belonged to W., or to show that he had such possession as constituted him a special owner, the jury would return a verdict of not guilty, that the mere temporary custody of the property would not constitute W. the owner, and that in order to convict defendant the jury must find that his possession was not merely temporary, but that he had the care, management, and control of the Stolen property at the time of its taking, and that if W.’s brother owned the property and W. received it for the purpose of sending it to his brother and had no other right or interest in it, the jury would find defendant not guilty, all turned upon the ownership of the property and the sufficiency of the evidence to support it, and were properly refused, where the facts showed that W. had such a special ownership as supported the allegation of ownership in him.
    Appeal from Ealls County Court; F. S. Heffer, Judge.
    Will Ward was convicted of theft, and he appeals.
    Affirmed.
    W. E. Rogers, of Marlin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft of property under the value of $50.

The case is one of circumstantial evidence, but under the facts we are of opinion that the state sufficiently made its case. In order to review appellant’s contention it may be necessary to state some of the evidence. This shows that the alleged owner had a brother who was living in Ft. Worth. He had written to the alleged owner to send his suit case and a suit of clothes to him at Ft. Worth. It seems the suit case and the suit of clothes were at the residence of the father and mother of the alleged owner. They brought the clothes and suit case to the town of Marlin and turned them over to the alleged owner for the purpose of being shipped or conveyed to the brother at Ft. Worth. The alleged owner received the suit case, which contained the suit of clothes, and expected to send it to Ft. Worth by a certain woman who was going on the train, but by some means he did not find her, and concluded to send it by express. Before taking it to the express office for shipment he left it in a saloon, with the expectation of returning at the proper time to get it for the purpose of sending it to Ft. Worth. When he went for the suit case it had been taken. This is enough of the testimony to illustrate the question mainly relied upon by appellant, to wit, that the alleged owner was not such an owner under the law as justified the indictment alleging ownership in him. We are of the opinion that he was sufficiently the owner within the contemplation of the statute to authorize the allegation of ownership. The father and mother had turned it over to him for the purpose of its being shipped. He had exclusive control of it, and care and management, sufficiently so at least to make him the special owner. The objections to the testimony in this respect, as well as to the charges given and refused, are not well taken. We are of opinion that the court was correct in holding the indictment sufficiently alleged the ownership. This seems to be the main contention of appellant, and we are of opinion that it is not well taken.

The judgment is affirmed.

On Motion for Rehearing.

At a recent date of the present term the judgment herein was affirmed. Appellant’s contention, in his motion for rehearing, is that the court passed the case off on the sufficiency of the evidence, and that such was not his contention. He says that the proposition he was urging was the failure of the court to give certain requested instructions, and this as to the law of the case as to alleged ownership. We have reread the record and see no reason for changing what was announced in the original opinion. The facts show, as stated in the original opinion, how the alleged owner, Will Wallace, became possessed of the suit case and suit of clothes. Appellant’s contention was and is that Will Wallace was not such owner as would support such allegation; that his was only a temporary possession, and did not fulfill the measure of the law. In a certain sense the opinion turned upon the point of sufficiency of the evidence, and necessarily so in order to meet the question urged. We stated in the opinion, after stating the facts, as follows:

“This is enough of the testimony to illustrate the question mainly relied upon by appellant, to wit that the alleged owner was not such an owner under the law as justified the indictment alleging ownership in him.”

We held that it was sufficient; that he had such exclusive control, care, and management as to make him the special owner. In disposing of it we held:

“The objections to the testimony in this respect, as well as to the charges given and refused, are not well taken. We are of opinion that the court was correct in holding the indictment sufficiently alleged the ownership. This seems to be the main contention of appellant, and we are of opinion that it is not well taken.”

Appellant, we think, is somewhat in error in his statement that he did not rely on the insufficiency of the evidence. Every charge he asked was based upon the theory that the evidence was not sufficient, in that it did not support the allegation of ownership. The question raised was that the evidence did not support ownership in Will Wallace. We take the first charge requested by appellant as an example. It reads as follows:

“The state having failed to sustain the allegation in the information that the alleged stolen property belonged to Will Wallace, or to show that he had such possession as to constitute him a special owner, you will return your verdict in this case as follows: ‘We the jury find the defendant not guilty.’ ” Signed by the attorney for defendant.

This clearly raises the sufficiency of the evidence as to the ownership. 'If Will Wallace was not the owner within the meaning of the law under the facts, then this charge should have been given. In fact not only was there no error In refusing this charge, but no error in refusing the motion for new trial on the ground that the evidence did not support this allegation in the indictment. If he was the special owner, then the evidence was sufficient on that theory.

The second special instruction was to the same effect, except somewhat enlarged. In that charge he asked the court to instruct the jury that:

“The mere temporary custody of the items of personal property alleged to be stolen from Will Wallace would not constitute him the owner of the same. In order to convict this defendant of the charge herein, you must find from the testimony that his possession was not merely temporary, but that he had the care, management, and control of the said alleged stolen property,' at the time of its taking”

—and applies the law to the effect that if his brother owned the property, and Will Wallace had received the same for the purpose of sending it to his brother, at Ft. Worth, and left it setting in a saloon from where it was taken, and that Will Wallace had no other right or interest in it than to send it to his brother, the jury would find defendant not' guilty. The other charge is practically to the same effect. It all turned upon ownership and the sufficiency of the evidence to support it. If the evidence did not support that allegation in the information, a direct attack upon the sufficiency of the evidence would have been as effective. It is the issue, and the only one relied upon by appellant. He presented the matter in more . ways than one as to the sufficiency of the 'evidence showing ownership. We held before and hold now that the court was correct in holding this is a sufficient special ownership to authorize the allegation in the information that Will Wallace was the owner.

The motion for rehearing is overruled.
      . <8£»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J. PRENDER OAST, J.

text:
    STRICKLAND v. STATE.
    (No. 4556.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. Larceny <@=>55 — Hoa Theft — Sufficiency of Evidence.
    In a prosecution for hog theft, evidence held insufficient to sustain conviction.
    2. Criminal Law @=>763, 764(1) — Instruction — Weight of Evidence.
    In a prosecution. for hog theft, in' the absence of evidence to support the assumption that defendant took the hogs in A. county, or within 400 yards of the A. county line, bringing them into N. county, a charge with reference to the theft of the hogs in A. county,' or within 400 yards of its line, and bringing them into N. county, was erroneous, as on the weight of the evidence.
    Prendergast, J., dissenting.
    Appeal from District Court, Nacogdoches County; ,L. D. Guinn, Judge.
    Layton Strickland was convicted of hog theft, and he appeals.
    Reversed, and cause remanded.
    Ford Clevenger and Ingraham & Watson, all of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This appeal is prosecuted from a hog theft conviction, with two years’ punishment assessed.

The evidence for the state sought to show that appellant and his half-brother, Newt Snell, jointly committed the theft of hogs from Henry Crawford. There is evidence to show that the hogs ranged some time in Angelina county and some time in Nacogdo-ches county. The indictment charged the theft of eight hogs. Mr. Crawford testified; That he had that number, consisting of a sow and some pigs, and perhaps one or two others, making the total number eight. That they were marked two splits in each ear. Appellant had some hogs, a sow, and nine pigs, as shown by his testimony. His mark was two splits in one ear, an'd one split in the other ear. One morning about sunrise appellant and his-half-brother, the codefend-ant, drove to the residence of Tom Pinkard a bunch of hogs. Pinkard opened the gate to the lot into which these hogs were driven. That the two defendants went away and wei’e gone a little while and returned with another bunch of hogs, placing them in the same pen. The gate, it seems, this time was opened by the son of Tom Pinkard. Tom Pinkard in the meantime had gone to the field to work. Immediately upon getting these two bunches of hogs in Pinkard’s lot, amounting to 18 or 20 head, appellant and his half-brother killed three of them and cleaned them in the lot, Mrs. Pinkard assisting them in some of the work. When the hogs were dressed they got a horse and buggy belonging to Mr. Pinkard, placed the three hogs in it, and carried them to their home. After reaching their home these hogs were seen and examined by two witnesses who testified in the case, Prank Welch and J. O. Click. Welch describes the hogs, as does the defendant and his half-brother, as being two barrows and a sow. The state’s witness lost one barrow and two sows. This witness, as did Click, stated that the ears on the hogs brought home in Pinkard’s buggy bore- the mark of two splits in one ear and one split in the other. Click testified he also examined the- hogs, and remembered the fact that these hogs were there, and he saw them after they had been cleansed. He says:

“I looked at the hogs because I had heard something about the boys and I was obligated to watch them; I promised to watch them, and I done so. I was over there and noticed some lard, and I asked them where they got it, and they told me about killing the hogs. I went in whore they had the meat, and I saw the hogs’ heads, and I got down on my knees and looked at them, and I noticed the mark. The mark was two splits in the right ear and one split in the left. All of the heads were right there together, and I noticed all of the marks. * * * I was watching these boys at the time. As to whether or not I had been told they would steal hogs, will say I had been told to watch them, and I was doing it. I believe I had been told that they would steal hogs; two men told me that, but they were together at the time they told me; they told me on one Sunday morning.”

He gives this as the reason, why he was particular to notice the hogs and see whether or not they were stolen. In other words, his testimony gives evidence of the fact that he was trying to ascertain whether these were stolen hogs. Appellant testified these were his hogs, pigs of the sow above mentioned, and his codefendant also so testified. Pinkard, Adams, and Mrs. Pinkard all testified for the state. It was claimed and admitted by the defendant that some of the hogs he placed in the pen were the property of Crawford, and he drove these hogs up because he could not separate his from them, and put them in the pen, and killed his three and turned out the other hogs. There is also testimony to the effect that after they were turned out of the pen they were several times seen in the neighborhood where the hogs were killed. Appellant stated, among other things, the reason he did not carry them down to his own house, which was two or three miles away, was because it was difficult to drive them; that he had no dogs to “rally” them, so he put them in a lot at Mr. Pinkard’s and there killed them. Appellant further stated that he found these hogs not a great ways from the residence of Pinkard the evening before about the time they “bedded up” and he put them in the inclosure of a farmer who lived at the place so that they would be able to drive them the following morning. Early the next morning they went and got them and put them in Mr. Pihkard’s lot and killed three. They made a fire and heated water to scald and dress them in Mr. Pinkard’s lot, and, as before stated, Mrs. Pinkard assisted them to some extent. ’

It is contended the evidence is not sufficient to support the conviction. We are of opinion that appellant’s contention is correct. The public manner in which they were killed, driving them into the lot in the presence of witnesses, and assisted by one of the state’s witnesses, the wife of the owner of the premises ; carrying them home in the state’s witness’ buggy, and an inspection under the circumstances stated by Click, and seeing the hogs by Welch, in the absence of identity of the hogs otherwise by the state, would not justify a conviction for theft of the hogs in Crawford’s mark. No one undertakes to testify that appellant killed Crawford’s hogs. Mrs. Pinkard who testified could have known what hogs she saw at the time in her1 husband’s lot. The state’s case may be stated in brief to be that Crawford owned seven hogs running together; three of them, a barrow and two sows, disappeared. Some of his hogs were put in Pinkard’s lot by the defendant and his half-brother. The missing hogs of Crawford may or may not have been among the number. This is practically the state’s ease, and we are of opinion that this evidence, in view of the whole record, is not sufficient to justify sending these men to the penitentiary for the theft of Crawford’s hogs.

The court charged the jury with reference to the theft of the hogs in Angelina county, or within 400 yards of the Angelina county line, and bringing them into Nacogdoches county. Various exceptions were urged to this charge, and we believe the exceptions were well taken. The statute (Code Or. Proc. 1911, art. 245) it is true, provides that where hogs are stolen in one county and carried into another county that the latter county may have venue of the case and try it. But as we understand this case there is no evidence that appellant took Crawford’s hogs in Angelina county or within 400 yards of the Angelina county line. Appellant was never seen in possession of them except at Pinkard’s house in Nacogdoches county. This charge assumes that the hogs may have been stolen in Angelina county and driven into Nacogdoches county. The evidence is to the effect that these hogs ranged sometimes in-one county and sometimes in the other county, but perhaps more generally in Angelina than in Nacogdoches county. There is nothing in the record, as we understand it, to show that appellant or his half-brother, or either or both of them, .drove the hogs out of Angelina into Nacogdoches county. It seems that if they brought them from one into the other they would have to cross the river. Appellant’s testimony excludes the idea and shows what possession he had of the hogs-was in Nacogdoches county; that he never brought them from the other county, and there was no contention that appellant went over and got the hogs, except as a sort of inference from the fact that these hogs sometimes ranged in Angelina county. From the testimony it seems that the range of hogs in that section was rather erratic, problematical, and uncertain. All the testimony goes to the effect that when the hogs are in the range, seeking -acorns, they wander around the country and are liable to be in one place one day and somewhere else another day, but, following the hog instinct, they go where the acorns are to be found. This is to be inferred from the testimony of the witnesses. In fact; it may be said to be their testimony without an inference. It would hardly be contended that if the hogs changed their location from one section of woods to another in pursuit of acorns that this should be attributable to appellant as having committed the theft by reason of the change of locality of these hogs by their own act. The hogs in changing their location would not change the venue or confer venue by their action so as to-charge appellant with their theft in the county from or into which they may have-wandered. It would hardly be a fair construction of the statute to hold that hogs could change the venue, or fail to change then-location so as to confer venue in criminal cases. The taker is responsible for taking where he does the taking. Had appellant brought the hogs from Angelina into Nacog-doches county, Nacogdoches county would have had jurisdiction if theft had been committed ; but the fact the hogs wandered from Angelina into Nacogdoches county would not make appellant a taker in Angelina county. This charge by the court is based upon the assumption that appellant took the hogs in Angelina county, and if he -went across into Angelina county and drove the Crawford hogs into Nacogdoches county, it would tend to strengthen the state’s case as to whether or not appellant committed theft. This was a serious assumption of a fact not proved, and a charge given upon it. It might not make so much difference perhaps as to the question of venue, but behind that question was the assumption that appellant got the hogs, or may have gotten the hogs, in Angelina county and brought them into Nacog-doches county, and this without evidence to support It. We think tliis charge was error, and it was really a charge upon the weight of the evidence and directly against defendant. See Williams v. State, 11 Tex. App. 275.

The judgment is reversed, and the cause remanded.

PRENDER OAST, J.

(dissenting). I have read the record, and read and studied the statement of facts very carefully. The facts show a strong, clear case against appellant, and without doubt amply sustain the verdict, There is no reversible error shown in this record. The case should be affirmed. I dissent.
      <@=For other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    CLAY v. STATE.
    (No. 4683.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    Criminal Law <@=>1131(5) • —Appeal — Dismissal after Appellant’s Escape — Statutes.
    Where the state moves to dismiss appeal from a conviction of burglary on account of appellant’s escape from custody, and, accompanying the motion, there is an affidavit by the sheriff in compliance with Code Cr. Proc. 1911, art. 913, reporting the escape, the appeal will be dismissed pursuant to article 912.
    Appeal from District Court, Grayson County; C.-T. Freeman, Judge.
    Charley Clay was convicted of burglary, and he appeals.
    Appeal dismissed.
    A. P. Caywoód, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant appeals from a conviction for burglary. The state, through the Assistant Attorney General, has filed a motion to dismiss the appeal on account of the escape of the appellant. Accompanying the motion is an affidavit made by the sheriff, in compliance with article 913 of the Code of Criminal Procedure, reporting the escape of the appellant,- and in consequence of these facts, and in obedience to article 912 of the Code of Criminal Procedure, the appeal is dismissed.


text:
    COOPER v. STATE.
    (No. 4627.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. Criminal Law <§=>1090(7) — Review—Reserving Bui, of Exceptions — Continuance.
    The objection that the court erred in overruling defendant’s application for continuance cannot be reviewed when there was no bill of exceptions reserved and the application is not found in the record.
    2. Burglary <S=>41(1) — Sufficiency of EviDENCE.
    Evidence held sufficient to justify conviction of burglary.
    Appeal from District Court, Cass County; II. F. O’Neal, Judge.
    Clinton Cooper was convicted of burglary and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

There are no bills of exception, and all the matters presented for revision are found in defendant’s amended motion for new trial. The second ground of the motion is that the court erred in overruling appellant’s application for a continuance. This may be sufficiently answered by stating there was no bill of exceptions reserved to this action of the court, and the application for continuance is not found in the record.

The remaining ground, which is assigned as the first, is • that the evidence is insufficient to support the conviction, in that it failed to connect appellant with the burglary, and as the state relied upon circumstantial evidence, the circumstances were too remote, insufficient, and incomplete to connect him with the offense and warrant his conviction. We have read the evidence, which is rather full in detail, by which the state sought to connect him with the burglary. We are of opinion that the evidence is sufficient. It would add nothing, perhaps, to the opinion, or the jurisprudence of our state, to detail these circumstances. Appellant, was at the burglarized store where he had not been before, some six or seven miles from his residence and gave his name as being Johnson. He lived with his mother on the premises of a gentleman named Luck Lee. He was brought back for trial from Oklahoma, to which state he had gone. He denied the burglary, and denied having brought the goods to the place where they were found. The evidence is that he was out that night, and was seen four or five miles from his mother’s residence between sundown and dark. He accounts for being in that neighborhood by reason of the fact that Mr. Lee-had sent him to find a steer. One of his witnesses testified that appellant put in his pasture a yearling. This was between sundown and dark. There are other facts connected with the matter that indicate that the horses described were ridden from appellant’s residence to and on return from the store. These stolen goods were found, some in a barn and others in a cane patch, and some in a cornfield on the premises where he and his mother lived. Take the circumstances as they are, without going further into detail, we are of opinion the state made out a case which justified the verdict under the rules of circumstantial evidence.

The judgment, therefore, will be affirmed.
      <§u^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TERRELL v. STATE.
    (No. 4624.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. Criminal Law @=>621(2) — Right to Separate Trial — Order op Trial.
    In a prosecution of three defendants for assault with intent to kill, orders overruling a defendant’s motion to sever from another, and granting the latter’s motion that the other two defendants be tried before she was, deprived the first defendant of no right given him by Code Cr. Proc. 1911, art. 726, entitling him to a separate trial, and, there being no agreement between him and the female defendant as to the order of trial, the court, under article 727, was authorized to direct it.
    2. Criminal Law @=>621(2) — Order op Trial —Determination.
    Where separate trials were ordered, and, one of defendants being sick, to have directed her trial first would have resulted in a' continuance, it was not error to deny a motion that she be tried first.
    3. Criminal Law @=>1150 — Change op Venue — Local Prejudice — Evidence — Statutes.
    In a prosecution for assault to murder, the county having a population of 50,000, and the county seat about 15,000, while, of the witnesses who testified on defendant’s motion for change of venue on the ground of prejudice, under Code Cr. Proc. 1911, art. 628, a great preponderance in number gave opinion that there existed no such prejudice as would make it improbable that defendant would receive a fair trial, the court’s finding to such effect was supported by the preponderance of the evidence, and there was no such abuse of the discretion vested in the trial court as would authorize the Court of Criminal Appeals to reverse the judgment for failure to change the venue under article 634.
    4. Criminal Law @=>508(5) — Evidence—Co-defendant in Criminal Case — Statutes.
    One indicted as a principal with defendant for the same crime was not available to him as a witness under Code Cr. Proc. 1911, art. 791, or Pen. Code 1911, art. 91, providing that persons charged as principals, accomplices, or accessories cannot be introduced as witnesses for one another.
    5. Criminal Law @=>598(2) — Continuance-Absence of Witnesses.
    In a prosecution for assault to murder, overruling defendant’s motion for continuance to secure the testimony of throe witnesses who resided in the city where the case was tried, two or throe of the witnesses being present at the trial and not put on the stand, was proper, all being wanted to prove the fact that tibe injured party was a powerful man, violent, and dangerous.
    6. Criminal Law @=>855(1) — Trial—Misconduct of Jury — Reception of Evidence.
    In prosecution of a 19 year old defendant for assault to murder, where defendant made proof of his age, there was no misconduct of the jury because one remarked that defendant was a boy and his punishment should be lighter on that account, to which was replied that he was old in ways and had been a man a long time; some of the jurors in the course of deliberation having been for 15 years’ imprisonment, some for a lower term, the final agreement being for 12 years, such discussion not being within the rule against receiving evidence after retirement of jury.
    7. Criminal Law @=>1111(3) — Appeal—Conclusiveness of Finding.
    On the matter of comment on defendant’s failure to testify,* the court’s statement, qualifying the bill, that such comment did not occur, is not conclusive on the Court of Criminal Appeals; but his finding will not be disturbed, where all the jurors except one testified there was no such comment.
    8. Criminal Law @=>1159(1) — Appeal—Review — Extent of Punishment.
    The punishment for the offense of assault to murder was within the exclusive province of the jury, and, in the absence of error or evidence tending to show the verdict was the result of and enhanced by passion and prejudice, it will not be disturbed on appeal, solely on account of the extent of punishment.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Louie Terrell was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Birmingham & Johnson, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

On an indictment for assault with intent to murder appellant was convicted, and his punishment assessed at. confinement in the state penitentiary for 12. years.

Ed Bennett, Emma Rice, and appellant were charged by separate indictments with an assault to murder T. S. Stites. There is evidence supporting the following recital of facts: T. S. Stites was a man 52 years old, ruptured, and having a crippled hand. He- and his son, a boy, were traveling in a buggy, and Mr. Brooks and his boy in another buggy, at night, and met Ed Bennett, driving an automobile in which, besides himself, appellant, and Emma Rice were riding. The automobile, in passing Stites’ buggy, which was in front, came near striking it, and did strike and overturn and break the buggy in which Brooks and his son were riding. That the-collision was due to- the failure of Bennett to give a proper portion of the road. Brooks was caught in the wreck of his buggy, but was extricated uninjured by his son, and, after telling Bennett that he must pay for the-wreck, Bennett consenting, Brooks went after his horse. Stites had a flash light, and with this in his hand got out of his buggy and walked back to the scene of the wreck, and was undertaking, with the flash light, to show the tracks of the buggy and automobile, to make good his contention that the fault was Bennett’s in failing to give part of the-road. A quarrel followed, in which Bennett attacked Stites with a knife, cutting him several times; Stites defending by striking with his fists and by catching and holding Bennett’s hand containing the knife. Emma Rice called to appellant, who had n'ot previously taken part in the difficulty, to help-Bennett, whereupon he went up behind Stites and stabbed him in the side with the knife, giving him a serious wound. Stites called for help. Mr. Brooks returned at about this, time, and he and his son assisted Stites to his buggy and removed him to a doctor. Ap-Ipellant was 19 years of age. It was quite-■dark, and there is some suggestion in the evidence that Stites had struck one of his assailants with his flash light. This was denied, however, and there was some testimony that, while they were removing Stites, after he fell, appellant cursed and started to follow him.

The trial began April 26th. Shortly before the trial began appellant filed a motion to sever from Ed Bennett, which motion was granted; the court directing that Bennett be first tried-. Appellant also filed a motion to- sever from Emma Rice, charging that there was not sufficient evidence to convict her, and that she was a material witness, asking that she be put on trial before the appellant. It appears that Emma Rice also filed a similar motion, asking that Ed Bennett and Louie Terrell be tried before she was tried. The court entered an order overruling appellant’s- motion to sever from Emma Rice, but, in effect, granting her motion, stating that to grant appellant’s motion and direct that she be first tried would operate a continuance of the case, she being sick in bed; and in the order the court further recited that Emma Rice and appellant having failed to agree on the order of trial, that the court would direct that appellant be first tried. These orders deprived appellant of no right given him by the statute (article 726) entitling him to a separate trial, and in view of the fact that there was no agreement between him and Emma Rice as to the order of trial, the court, under article 727, was specifically authorized to direct it. Moreover, it appearing that to have directed the trial of Emma Rice first, in advance of that of appellant, would have resulted in a continuance, it was not error to deny it. Stouard v. State, 27 Tex. App. 1, 10 S. W. 442; Williams v. State, 27 Tex. App. 466, 11 S. W. 481; Thompson v. State, 35 Tex. Cr. R. 511, 34 S. W. 629; Bruce v. State, 76 Tex. Cr. R. 72, 173 S. W. 301; Millner v. State, 75 Tex. Cr. R. 22, 169 S. W. 899.

Appellant sought a change of venue on the ground of prejudice against him under article 628 of the Code of Criminal Procedure. His application was controverted, and about 20 witnesses testified. There was some conflict of testimony. It appeared, however, that the county had a population of some 50,000, and the county seat about 15,000, and of the witnesses who testified a great preponderance in number gave opinion that there existed no such prejudice as would make it improbable that appellant would receive a fair trial. The finding of the court to that effect, we think, is supported by the preponderance of the evidence,, and in any event there was no such abuse of the discretion vested in the trial judge as would authorize this court to reverse the judgment for failure to change the venue. C. C. P. art. 634; Joy v. State, 57 Tex. Cr. R. 93, 123 S. W. 584; Meyers v. State, 177 S. W. 1167, and other cases listed in Vernon’s C. C. P. p. 342.

Appellant sought a continuance to secure the testimony of three witnesses who resided in the city of Paris, where the case was tried; also to secure the testimony of Emma Rice, whose attendance could not be secured during the trial because of her sickness. The three witnesses residing in Paris were wanted to show that Stites, the injured party, was a powerful man, with a vio-’ lent temper, and a dangerous character. It is shown by the court’s qualification of the bill that two or three of the witnesses named were present at the trial and not put on the stand. Emma Rice was not available to appellant as a witness; she, being indicted as a principal, was precluded from testifying under article 791, C. C. P., as also under article 91, P. C. Stites, the injured party, had lived in the county for 17 years. The action of the trial court in overruling the motion is, we think, sustained by the decisions of this court. At least two, and possibly all, of the witnesses named in the application, who were qualified to testify, are shown by fhe bill to have been present. All of them were wanted to prove the same fact, namely, that the injured party was a powerful man, violent, and a dangerous character. Those who were present were not used. Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297; Craft v. State, 31 S. W. 367; Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368; Bratton v. State, 34 Tex. Cr. R. 477, 31 S. W. 379; Johnson v. State, 31 Tex. Cr. R. 456, 20 S. W. 985; Wade v. State, 65 Tex. Cr. R. 125, 144 S. W. 246; Vernon’s C. C. P. p. 323, note 35, and cases listed.

Misconduct of the jury is charged, first, because of the receipt by the jury of evidence in its retirement; and, second, allusion to appellant’s failure to testify. The motion was controverted, and *the jurors called as witnesses. There appears to have been a remark made by one of the jurors that appellant was a boy, and that his punishment should be lighter on that account, to which reply was made, “He was old in ways,” or something like that — “he had been a man a long time,” or something like that. There is some conflict as to whether this , occurred before the verdict was reached. In the course of the deliberations, some of the jurors were for 15 years and some for a lower-term ; they finally agreed on 12 years. We do not think this comes within the rule prohibiting receipt of other testimony. The appellant was, of course, present at the trial, made proof of his age, and thereby the matter of his age was a proper subject for discussion in the deliberations of the jury. Wade v. State, 43 Tex. Cr. R. 212, 63 S. W. 878.

On the matter of comment on his failure to testify, all of the jurors, except one, declared that there was no such reference. One of them declared that the matter was mentioned. The court, in qualifying the bill, states that it did not occur. What took place was a question of fact, necessary to be determined by the, trial judge from the evidence heard on the motion. His finding would not be conclusive; but, under the record, we do not think it should be disturbed. Appellant received a high punishment. This, however, was within the exclusive province of the jury, and in the absence of error in the trial, or evidence tending to show that the verdict was the result of and enhanced ■by passion and prejudice, it ought not to be disturbed on appeal solely on account of the extent of punishment.

The judgment of the lower court is affirmed.
      <§E5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BEGA v. STATE.
    (No. 4620.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    1. Criminal Law <S=»1056(1) — Appeal-^Necessity or Exceptions — Refusal of Charges.
    Where there were no exceptions reserved to the charge at or before its reading to the jury, the refusal of two special charges requested cannot be reviewed.
    2. Criminal Law <®=»814(3) — Trial — Instructions — Support by Evidence.
    In a prosecution for burglary, a charge, unsupported by evidence, that if the testimony raised a reasonable doubt as to whether or not the door of the burglarized house was closed at the time of the alleged entry, and the jury should find defendant entered the house, they should acquit, was properly refused.
    3. Criminal Law <S=^814(3) — Trial — Instruction-Inapplicability to Facts.
    In a prosecution for burglary, the testimony showing that two persons were engaged, a requested charge, that to find a verdict of guilty on circumstantial evidence the jury must believe beyond a reasonable doubt that defendant and no other committed the offense, was inapplicable to the facts, and properly refused.
    4. Burglary <S=3l6 — Commission of Offense With Another.
    If defendant, in connection with another, committed a burglary, he was guilty thereof equally with the other.
    Appeal from District Court, Runnels County; J. O. Woodward, Judge.
    M. Bega was convicted of burglary, and be appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Appellant was convicted of burglary; bis punishment being assessed at two years’ confinement in tbe penitentiary.

There were no exceptions reserved to tbe charge at tbe time of or before same was read to the jury. Two special charges were requested, but refused by the court. If they could be considered, then we find there is nothing presented requiring a reversal by either charge. The first was to the effect that the court, was requested to instruct the jury that if the testimony raised a reasonable.doubt as to whether or not the door of the burglarized house was closed at the time of the alleged entry, and they should find defendant did enter the house, they should acquit him. There is no evidence supporting this charge, or requiring it. Two witnesses who testified, the alleged owner and his wife, state positively that the door was closed and fastened, and was entered during the night and property taken from the house. There seems, to be no evidence suggesting that the door was not closed. The second charge was to the effect that in order to find a verdict of guilty on circumstantial evidence the jury must believe beyond a reasonable doubt that the defendaht and no other person committed the offense charged.

The charge is not applicable to- the facts, for the testimony show's that there w'ere two parties engaged in the burglary. Had there been but -one party engaged in it there might have been some force in appellant’s contention, but the charge as requested did not properly present that issue. It was not necessary for the jury to conclude that defendant alone burglarized the house when the facts showed there were two. On such state of facts if appellant, in connection with another, committed the burglary, he would be equally guilty; and under the facts the charge requested would be misleading. The evidence, we think, fully justified the finding of the jury.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    FAUDOA v. STATE.
    (No. 4632.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    Larceny <®=»61 — Theft from Person — Sufficiency of Evidence.
    In a prosecution for theft from the person, evidence held insufficient to sustain conviction.
    Appeal from District Court, El Paso County.
    Alejo Faudoa was convicted of theft from the person, and appeals.
    Reversed and remanded.
    Sydney Smith, of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

E. Prieto and appellant were jointly indicted for theft from the person of Babe Harris. They severed, and appellant was convicted.

Babe Harris, a woman, and her companion, were together on the streets of El Paso. She held in her hand her purse, with some money and other property in it. Prieto and appellant, it seems, walked up some stairs, out of a clubroom, onto the street, where Babe Harris and her companion were. Prieto snatched her purse and ran. She and her companion gave chase, but failed to catch him. Some 30 minutes later appellant was arrested. Prieto fled to New Mexico, and was arrested later, and brought back from there. Appellant was tried as a principal with Prieto. The evidence- wholly fails to disclose that he said or did anything whatever before, at the time of, or after, in connection with Prieto, so as to show he was a principal with Prieto. The sole fact shown was that the two walked up out of the clubroom just before Prieto snatched Babe Harris’ purse. The two persons were not shown to have been acquainted with one another, or to have been together before they walked up out of a clubroom, or after that. When appellant was arrested, some half hour later, Be had just had a $10 bill changed, and had $9 in change on his person at the' time. Neither the $10 bill nor any of the money that he had on him was of the character or denomination of the money, that was snatched by Prieto from Babe Harris.

The evidence is wholly insufficient to, authorize appellant’s conviction. Unless the state, by additional testimony, connects appellant with Prieto in the theft in such a way as to make him a principal with Prieto, the court should instruct his acquittal. He may be guilty, but the evidence in this case wholly fails to sñow it.

• The judgment is reversed and remanded.
      <53ss>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    GOLD v. STATE.
    (No. 4542.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.
    Rehearing Denied Oct. 31, 1917.)
    1. Lakceny <®=j58 — Cattle Theft — Evidence —Sufficiency.
    Evidence held sufficient to support a finding that the carcass of a cow found was the one alleged to have been stolen, and that defendant had killed it.
    2. Ckiminal Law <@=^786(2) — Evidence—Rebutting Defendant’s Testimony.
    An instruction that,if the jury believed a statement of accused they should acquit, but that the falsity thereof need not be proven by positive testimony, but might be “shown to be false by circumstantial evidence,” was not error.
    Appeal from District Court, Lavaca County; M. Kennon, Judge.
    Joe Gold was convicted of crime, and he appeals.
    Affirmed.
    Schwartz & Bagby, of Hallettsville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Prom a conviction of theft of cattle and punishment assessed at two years' confinement in the penitentiary, this appeal is prosecuted.

The evidence shows that John Roberts missed bis hiilk cow, and that a few days thereafter the carcass of the cow was found in a pasture under the control of appellant and his father. The carcass was sufficiently identified as that of the cow lost by Roberts. The animal had been shot in the head with a ball from a 22-caliber firearm. The appellant, some days after the carcass was found, stated to witnesses that it was his cow, that she was about to die, and that he had killed her, without stating by wbat means he killed her. At the time the carcass was found it was in the brush, and brush had been cut and piled over it as though to hide it. Appellant, when accused of the theft, admitted that he had skinned the animal and sold the hide but denied killing it. Tbe bide, when sold, was declared by a witness to have been that of a butchered animal, and not that of a fallen animal. Appellant was shown to possess a 22-caliber rifle.

We regard the evidence as sufficient to-justify the jury in concluding that the carcass found was that, of the cow alleged to have been stolen, and that appellant had killed it; and upon the authority of Hall v. State, 41 Tex. 287, Coombes v. State, 17 Tex. App. 259, Stegall v. State, 32 Tex. Cr. R. 100, 22 S. W. 146, 40 Am. St. Rep. 761, and other cases listed in Vernon’s P. G. p. 832, note 19, that the circumstances were such as to justify the finding that the killing of the animal had the requisite elements of the crime of theft as defined in our statutes. Vernon’s P. C., arts. 1329 and 1331, and cases there cited.

The court instructed the jury in appropriate language that appellant’s statement that he had not killed the animal, in connection with his statement, when accused, that he had taken the hide, would entitle to an acquittal unless proved untrue by tbe state. In connection with this instruction the court used the following language:

“But, in this connection, you are instructed that the state is not bound to prove the falsity of such statements or declarations by positive testimony, but the same may he shown to be false by circumstantial evidence.”

Exception was reserved to tbe part of the charge quoted and to the refusal of a special charge which appellant requested the court to give in lieu of the part of the main charge quoted. The requested charge was an instruction that the state-was not bound to prove its case by positive testimony, but that it might be established by circumstantial evidence, and that any portion of the defense-might be shown to be untrue by either positive or circumstantial evidence. In the Barfield Case, 41 Tex. Cr. R. 20, 51 S. W. 908, a criticism of the charge, which was practically the same as that complained of here, was considered and disposed of in the following language:

“Complaint is made of the court’s charge wherein the jury were instructed that the statements made by defendant with reference to when he got the horse might be proved untrue by circumstantial evidence * * * is sufficient to-satisfy the minds of the jury, etc. We think this fact could be proved by circumstantial evidence, and therefore do not think the court’s charge was erroneous. Wharton’s Grim. Ev. §§ 10, 11; Franklin v. State, 37 Tex. Cr. R. 312 [39 S. W. 680]. Furthermore, we think the evidence authorized the court to give the-charge.”

After examination of all tlie matters assigned our conclusion is, tliere is no reversible error pointed out, and that the judgment of the lower court should he affirmed; and it is so ordered.
      tó=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    RUSSELL v. KOENNECKE.
    (No. 5887.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1917.)
    1. Pleading <S=>245(7) — Trial Amendments —Time iron Piling.
    District and county court rule 27 (142 S. W. xix), provide that tidal amendments are filed during trial and not after final judgment, and a trial amendment, filed after the cause had been dismissed, without the knowledge or consent of the court, would not aid the original petition.
    2. Pleading @=^34(3) — General Demurrer— Designation oe Parties — Presumption.
    Although the style of the ease did not designate the parties as plaintiff and defendant, and the petition referred to them only as plaintiff and defendant, it may, on general demurrer, be presumed from the style that the party first ■ named is plaintiff and the other, defendant.
    3. Partition <s=>55(3) — Pleading — Demurrer.
    Where from one paragraph it appeared that plaintiff sought partition of one-half of 150 acres, and in the other he alleged that he and defendant were equal owners of 88 acres of this land, it could be inferred that plaintiff is claiming to his own right 62 acres, and that he desired to partition only 88 acres, and the petition was sufficient against a general demurrer.
    4. Pleading <§=>34(3) — Sufficiency op General Demurrer.
    In considering the sufficiency of a petition when assailed by general demurrer, every reasonable intendment must be indulged in in favor of the pleading.
    5. Partition <@=>55(3) — Description of Land —Sufficiency on General Demurrer.
    Although the description of the land in petition for partition was indefinite, the petition would not be subject to general demurrer where the description could be rendered certain.
    6. Partition <®=355(1) — Petition — Sufficiency.
    In a suit for partition, it was not necessary to allege that the land was incapable of division, in view of Rev. St. art. 6101, making it the duty of the court to determine same before entering the decree.
    Error from District Court, Gillespie County; N. T. Stubbs, Judge.
    Partition suit by A. E. Russell against Albert Koennecke. A general demurrer was sustained to plaintiff’s petition, and he brings error.
    Reversed and remanded.
    James Raley, of San Antonio, for plaintiff in error. A. W. Moursund, of Fredericks-burg, for defendant in error.
   FLY, C. J.

Plaintiff in error sought a partition of 150 acres of land, “more or' less out of survey 27 in the name of Matilda Rivers” in Gillespie county. A general demurrer to the petition’ was sustained, and, as recited in the judgment, “plaintiff refusing to amend, it was further ordered and adjudged that this case be and is dismissed.” No notice of appeal from the judgment was given by plaintiff. On the day after the judgment was rendered, plaintiff filed a paper denominated “Trial Amendment.” The record fails to show that the pleading was filed by leave of the court or was ever brought to its notice, and plaintiff filed another paper as follows:

“Pl’ff, having filed a trial amendment, refuses to further amend and the cause is dismissed, to which Pl’ff excepts and gives notice of appeal on the ground that the petition is a good one and the demurrer was not called to the attention of the court at the first term when the business of the court did not interfere.”

The court granted leave, on the day the judgment was rendered, to plaintiff to file a supplemental petition, which was done. The supplemental petition merely contained denials of allegations in the answer.

This is the second time this cause has been before this court. There was an attempt to give this court jurisdiction by appeal, but, no notice of appeal having been given, the cause was dismissed. Russell v. Koennecke, 190 S. W. 253.

The sufficiency of the original petition must he tested by its allegations alone, and cannot be aided by the allegations of the paper filed after the cause had been dismissed and styled “Trial Amendment.” It was filed without the knowledge or consent of the court, and trial amendments are filed during a trial and not after final judgment. Rule 27 (142 S. W. xix) District and County Court.

The petition is meager and quite unsatisfactory. The style of the case does not designate the parties as plaintiff and defendant, and yet in the petition the names of the parties are not given, but they are referred to as “Pl’ff” and defendant. However, from the style of the case it may be presumed, as against a general demurrer, that the party first named is the plaintiff and the other party the defendant.

The land is described as “land on the north side of the Pedernales river in Gillespie county, Tex., to wit, 150 acres more or less out of survey 27 in the name of Matilda Rivers. This land being all inclosed 'with a wire fence and being all the land in the survey owned by Silas Russell at the time of his death and known as Silas Russell’s farm and pasture. This is the same land deeded to defendant by Malinda Russell by deed dated Oct. 16, 1909, and recorded in 'Deed Book 14 page 597 deed records of Gillespie.” It would appear from that allegation that plaintiff was seeking to partition one-half of 150 acres of land, but in another paragraph it is stated:

“Pl’ff says that he and defendant are equal owners of S8-acres of this land which Silas Russell bought of W. Oehler Aug. 22,1881, conveyed by deed recorded in Deed Book P, page 304, and the balance of the farm and pasture being 62 acres belong to the plaintiff in fee simple.”

It may he inferred from these allegations that plaintiff is claiming to own in his own right 6% acres of the 150 acres of land, and that he desires to have partition of only 88 acres of the land which was sold hy Oehler to Silas Russell. Under the petition the court could have partitioned only the 88 acres of land, because it is described so as to segregate it from the larger tract. If plaintiff sought to partition 150 acres, as might appear from the first paragraph of the petition, and then in a succeeding paragraph sought to partition only S8 acres, there might be such evident conflict as to destroy the cause of action, but if, as may be presumed, he merely desired in the first paragraph to state that there were 150 acres in the whole tract, and in the second sought to set out the respective shares of the parties in the tract, the petition will not be considered subject to general demurrer.

In considering the sufficiency of a petition when assailed by a general demurrer, every reasonable intendment must be indulged in favor of the pleading, and it is only under the favor of that gracious rule that the petition can be sustained in this case as it was attacked by general demurrer alone.

The description of the land, while indefinite and not such as is contemplated in partition suits, is one that can be rendered certain, and would not be open to attack through a general demurrer.

It was not necessary to allege that the land was incapable of division, for that, is a matter which could and should be determined by the court, independent of any pleadings on the subject. Article 6101, Rev. Stats.; Oliver v. Oliver (Tex. Civ. App.) 181 S. W. 705; Gorman v. Campbell (Tex. Civ. App.) 135 S. W. 177.

The court erred in sustaining the general demurrer, and the judgment is reversed, and the cause remanded.
      iS^oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes