author: HUFE, C. J.

text:
    TABER et al. v. EYLER et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Venue (§ 50*) — Change op Venue — Pbeju-dice op Inhabitants — Discbetion.
    Where plaintiffs sued for breach of a lease of property to be used as a saloon, the fact that the ease had been once tried, resulting in a disagreement, that two of the defendants were long residents of the county well and favorably known, that one of them was the sheriff, etc., and that the issue of prohibition might enter into the case to some extent, did not require the court, in the exercise of discretion, to grant a change of venue; there being nothing in the case or record showing that the liquor question did or would enter into the case.
    LEd. Note. — For other cases, see Venue, Cent. Dig. § 73; Dec. Dig. § 50.]
    2. Landlobd and Tenant (§ 28) — Lease-Execution — Feaud.
    Defendants, having negotiated with plaintiffs for a term lease of premises to be used as a saloon, had insisted on the insertion of a prohibition defeasance clause in case the property could no longer be used as a saloon, because of the adoptioñ of a prohibition or local option law. Plaintiffs’ agent presented the lease, which, after reading, defendants refused to sign, because it did not contain such clause, whereupon the agent took it away, promising to have the clause inserted. He returned and informed the defendants that the clause had been inserted, whereupon they signed the lease without again reading it to verify the agent’s representation. Held, that such representation was a fraud, which defendants could urge as relieving them from liability for breach of the lease on the happening of such condition, though they might have discovered the truth by rereading the instrument before they executed it.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 82-84; Dec. Dig. § 28.]

      S.Pleading (§ 291) — Whitten Instrument —Non est Factum — 'Verification.
    In an action on a lease defendants pleaded the fraud of plaintiffs’ agent in obtaining their signatures by the misrepresentation that he had inserted a prohibition defeasance clause, terminating the lease on the happening of an event, which, in fact, did happen, such plea was not in the nature of a plea of non est factum, requiring that it be verified, but was a plea of fraud, the burden of proof of which was on the defendants.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 864, 865, 866½~879; Dec. Dig. § 291.]
    4. Pleading (§ 422) — Verification—Waiver.
    Failure of defendants to verify their answer may be waived by plaintiffs filing only a general exception thereto.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1414-1417; Dec. Dig. § 422.]
    5. Pleading (§ 349) — Admissions — Judgment.
    Plaintiffs sued defendants for breach of a lease of property rented for saloon purposes, and defendants answered, admitting that they executed the lease, but alleging that their signatures were obtained by the fraud of plaintiffs’ agent in falsely representing that he had inserted a defeasance clause, which would provide for the termination of the lease in case the property could no longer be used for saloon purposes, which in fact had not been inserted, and that the breach of the lease consisted of an abandonment of the premises because they could no longer be so used. Plaintiffs then filed a supplemental petition, alleging for the first time want of authority of their agent to agree to such defeasance clause, but alleging that he had made the contract for plaintiffs, and that they had accepted the same. Beld, that defendants’.admission did not include the allegation in the supplemental petition, but was only an admission of the cause of action originally pleaded, except as it might be defeated by the answer, and hence plaintiffb were not entitled to judgment on the pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1067-1069; Dec. Dig. § 349.]
    6. Landlord and Tenant (§ 49) — Relevancy — Issues.
    On an issue as to fraud of plaintiffs’ agent in obtaining defendants’ signature to a lease of premises to be used as a saloon by falsely representing that he had inserted a clause in the contract for termination of the lease in ease prohibition or local option was adopted in the county, evidence that such agent agreed to insert such a clause, and that defendants, who executed the lease, thought from his representation that the clause was in the contract when it was signed, was admissible.
    [Ed. Note. — For other cases, see Landlprd and Tenant, Cent. Dig. §§ 117-119; Dec. Dig. § 49.]
    7. Landlord and Tenant (§ 49) — Breach of Lease — Fraud—Rental Value of Premises — Evidence.
    Where, in an action for breach of a lease of premises to be used as a saloon, defendants pleaded fraud of plaintiffs’ agent in procuring their signatures on a misrepresentation that a . prohibition clause had been inserted in the lease,_ evidence as to the rental value of the premises for purposes other than the sale of liquor, and that the rent was fixed in the lease on the understanding that a saloon would be operated on the premises during the term of the lease, was admissible to show that the prohibition clause was considered by the parties a reason for stipulations for a defeasance clause in case the premises could not be used - for a saloon.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 117-119; Dec. Dig. §■ 49.]
    8.Witnesses (§ 344) — Impeachment—Materiality.
    In an action for breach of a lease, evidence that before the suit one of the defendants had transferred all of his property subject to execution to his nephew, who had agreed to reconvey it to such defendant’s wife,-was inadmissible to impeach such defendant, in the absence of any evidence to show that such transfer had been made with the intent to defeat the liability on which the suit was brought.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 800, 801; Dec. Dig. § 344.]
    9. Principal and Agent (§ 171) — Acts of Agent — Excessive Authority — Ratification.
    Where plaintiffs’ agent obtained a lease for a longer term than a year from defendants, covering certain premises to be used as a saloon, and obtained their signatures by false representation that it contained a prohibition de-feasance clause, which would terminate it in case the property could no longer be used as a saloon, and plaintiffs accepted the rents for part of the term and until the sale of liquor became illegal, and defendants abandoned the premises, when plaintiffs brought suit for breach of the lease, the court properly charged that the agent in making such representation represented plaintiffs, who could not accept the contract so far as it was to their advantage and repudiate the defeasance agreement if it had been made.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. § 171.

    10. Trial (§ 194) — Instructions—Weight of Testimony.
    Where, in an action for breach of a lease, defendants claimed that their signatures had been obtained by false representations of plaintiffs’ agent that the lease contained a prohibition defeasance clause, an instruction that, if the clause had been agreed to, and plaintiffs’ agent promised to put it in, and represented he had, and defendants thought he had, or they would not have signed the lease, and were deceived, and failed to discover its omission by reason of the agent’s false representations, plaintiffs could not recover was not objectionable in that the clause, “by reason of the fraudulent representation” of the agent, was on the weight of the testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    11. Trial (§ 252) — Instructions—Applicability to Issues.
    Where, in an action for breach of a lease, defendants claimed that their signatures had been obtained by the fraud of plaintiffs’ agent in misrepresenting that the lease contained a prohibition defeasance clause, and that the clause had been omitted by the fraud or mistake of the agent, but the trial court withdrew the question of mistake, and only submitted the question whether the defendants were induced to sign the contract by the agent’s fraudulent misrepresentation, a request to charge based on the mistake was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    12. Principal and Agent (§ 137) — Authority of Agent — Estoppel—Knowledge.
    Where, in an action for breach of a lease, defendants claimed fraud on the part of the plaintiffs’ agent in procuring their signatures by a misrepresentation that the lease contained a prohibition defeasance clause, and it appeared that the agent executed the lease for plaintiffs as their attorney in fact, defendants were not estopped, as against plaintiffs, to claim that plaintiffs were bound by such representations, in the absence of proof that defendants had any knowledge of any limitation on the agent’s authority as to the making of the contract.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 492-494; Dec. Dig. § 137.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by C. C. Taber and others against Charles Eyler and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Gustavus & Jackson, of Amarillo, for appellants. Crudgington & Works, of Amarillo, for appellees.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oasea see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFE, C. J.

The appellants, C. C. Taber and wife, Bertie Taber, sued Charles Eyler, W. M. Burwell, and N. E. Hord, for breach of a lease contract. The allegation of the petition is, in effect, that on the 11th day of November, 1910, appellants leased to Charles Eyler, lot No. 11, block No. 32, Glidden & Sanborn addition to the city of Amarillo, of of the dimensions 30x140 feet, with a certain two-story building situated thereon, and certain additions thereto, a part of which was then leased from appellants by other parties, and by the terms of the lease the entire lot, with all improvements thereon, were leased to Eyler, and an assignment and right to collect the rents becoming due from all such tenants, and which lease contract was not to interfere with the other tenants. The lease was to begin October 14, 1910, and run to March 1, 1914, for the consideration of $8,133.33, to be paid monthly in installments of $200 each, the first installment from October 14, 1910, to March 1, 1911, was paid and receipt acknowledged, and the other installments of $200 per month to be paid in advance on the first day of each succeeding month, and in case of the failure to pay any installment, suit could be brought for the entire amount unpaid. It is alleged that Felix A. Bryan made the contract in the name of appellants, which they thereafter accepted and ratified. In order to secure and guarantee the lease contract, appellees W. M. Burwell and N. E. Hord guaranteed the installments of the rent according.to the terms of the lease contract; that Eyler went into possession of the premises, collected rent from the other tenants, and paid all rent installments up until about the middle of November, A. D. 1911, when he vacated the premises, and on December 1, 1911, failed to pay the installment then due, and at all times since said date. Appellants elected to declare all installments due, amounting to the sum of $5,400, with interest and attorney’s fees, and prayed for judgment therefor.

The appellees, in their answer, allege, in substance, that Eyler rented the premises for saloon purposes in which to carry on the business of retailing intoxicating liquors, and that the rent for such business was greatly in excess of the rent obtainable for any other business, and that it was so known by the parties at the time the contract was entered into, and that Eyler would not have paid such rent for any other business, or for any longer time, than he could carry on such business lawfully therein. It is further alleged that Bryan, the agent of appellants, by fraudulent acts and representations, induced the appellees to sign the lease contract, and that at the time Bryan acted for appellants in the preparation and execution of the contract.

The allegation in the answer is as follows: “That the drafting of said contract was left to said Felix A. Bryan by these defendants, appellees, after the terms and conditions of same had been fully discussed and were fully understood by him and the defendant Eyler, as hereinbefore stated; that said Bryan prepared a written draft of said contract on or about the 11th day of November, 1910, and brought same to the Gosser Cigar Store, on Fourth street in Amarillo, Tex., where defendants were at said time and presented same to defendant Eyler, who read same and discovered that said written draft of contract did not contain the provisions that said premises should be used as a saloon, and that if during the term of said lease conditions in Amarillo should be so-changed by putting into effect a prohibition or local option law, whereby the carrying on of said saloon business and sale of intoxicating liquors therein should become unlawful, said contract should terminate and be at an-end, whereupon said Eyler called the attention of said Bryan to the omission of said provision from said written draft of contract,, and requested him to insert same before said contract should be signed in accordance with their real understanding. Said Bryan then’ stated that he would fix said contract according to said suggestion of defendant Eyler, by inserting therein said omitted provisions; the said Bryan, taking said instrument, left said cigar store and in a short time thereafter returned said written draft of contract, stating and representing to the defendant Eyler, in the presence of defendants Hord and Burwell, that he had changed the same according to said previous understanding, by inserting therein said omitted provisions, and that the same was all right and ready for signatures, whereupon, without, reading said contract further, but relying upon the honesty and good faith of said Bryan in the preparation of said contract and the-insertion therein, the provisions, etc., * * * defendant signed said contract.” That the appellees had the utmost confidence in the-good faith and truthfulness of Bryan, and in the statements and representations as to the contract contáining the provisions. That Eyler’s attention was then being demanded by workmen, who were arranging the building, and that appellees hurriedly signed the instrument without re-reading. If they had known of the omission they would not have signed the same. They further allege that a prohibition election was held in the commissioners’ precinct in which the property was situated, and that a law prohibiting the sale of intoxicants went into effect November 15, 1911, prohibiting the business for which the property was rented. Up to that time Eyler had regularly paid the rents, and after that time Eyler delivered the keys of the house and turned over the premises to appellant Taber, and that thereby appellees were relieved under the contract from the payment of further rents.

By supplemental petition, appellants deny that Bryan was their agent in the contract; that at that time they had left Amarillo and previous thereto had leased the premises to J. W. York and J. P. Jones, on the terms and price of the contract with Ey-ler set up in the original petition, and appel-lee Hord had guaranteed the York and Jones contract; that Bryan was only authorized to look after the property and collect the rents; that appellees knew or should have known of Bryan’s authority; and that his act in making the contract in controversy was unauthorized. After its execution it was sent to appellants, and they ratified it as written and signed, and as so drawn became binding upon them, and in no other manner were they bound by the statements, representations, or negotiations by Bryan, including the defea-sance clause. Appellants also pleaded estop-pel, in that while they were in Amarillo, Ey-ler tried to negotiate a lease on the property for the purpose of opening up a saloon, and that appellants refused to enter into a contract by the terms of which he could use the property during such time only as he could legally conduct the saloon business, and thereafter leased same to York and Jones upon the terms set out in the petition, all of which Eyler knew. Immediately after making the contract with York and Jones, they left the county, and with Bryan authority to collect the lease money; that thereafter Ey-ler applied to Bryan to rewrite the contract, making Eyler the lessee instead of York and Jones; that if there was any negotiations or representation as to the defeasance clause, it was unknown to appellants and without authority on the part of Bryan, and Eyler then knew appellants would not lease with the defeasance clause in the contract; that appellants at no time had notice after the execution of the contract in question that it did not express the terms of the agreement, and, relying on its terms, they ratified it as written, and would not have done so if there had been a defeasance clause; they could have rented to other parties without said clause, and that the York and Jones contract was a solvent and binding contract, and could have been enforced, and would not have been released except upon the condition of getting a like contract from Eyler; that the appellees, or either of them, while occupying the premises, and until long after, notified appellants that the contract did not express the terms of the contract agreed upon. Appellants charge tbe appellees with knowledge of Bryan’s authority to collect only the rent and look after the premises.

Trial was had before a jury and verdict rendered for the appellees, and judgment in accordance therewith, from which this appeal is taken.

The first assignment of error is to the action of the court in refusing to change the venue on a motion of appellants presented at the September term, 1912, of the district court. The case was tried at the January term, 1913, of that court. The evidence on the motion was to the effect that Hord was a man of long residence in the county, and well and favorably known, and that Mr. Burwell was sheriff of the county, well and favorably known; that the principal jury material lived in the city of Amarillo. The case had been discussed to some extent.. The issue of pro and anti prohibition might possibly enter into the case; where that was the case, some of the witnesses thought jurors were sometimes influenced by their conviction on that question. The case appears to have been tried once 'before, in which the jury was equally divided. One of the jurors testified that in his judgment it would be very hard for Taber to get a fair trial, considering Bur-well’s standing, and considering the three defendants in the case. The affidavits of appellants were properly controverted. We find no abuse of discretion by the trial court in overruling the motion to change the venue. There is nothing in the case or record showing that the question of prohibition did or would enter into the case. One party leased the property knowing the saloon was to be run in it, and the other rented it to carry on the business of selling intoxicants. The facts show no greater prejudice against one than the other. There is no error of the trial court pointed out in overruling the motion, and no Injury is shown, unless the fact that a verdict was rendered against appellants is such. The assignment is overruled.

In the second assignment of error complaint is made to the action of the court in overruling a general exception to the answer of appellees. The propositions presented thereunder are to the effect that the allegations did not present either fraud, accident, or mistake, and are insufficient to show fraud perpetrated by Felix A. Bryan upon appel-lees, because, after discussing the defeasance clause, appellees signed without re-reading the instrument, and no sufficient excuse is pleaded excusing them from doing so.

It is alleged the defeasance clause was agreed to, and that it was intended by all parties that it should be in the contract; that when first presented to appellees for their signature they read it over, and found that the clause had been omitted and Bryan’s attention was called to the omission, whereupon he assented thereto and took the instrument for correction in that particular, and after some time returned with the instrument, and stated he had corrected it, and that it was now all right and in accordance with their agreement, and upon such representations they accepted his word, believing at that time in his honesty and truthfulness, signing the same without re-reading; that they were further prevented from reading it because of hurry occasioned by the demand upon their time by workmen engaged in work on the building; that they relied upon Bryan’s statement, but for which they would not have signed the same.

If the clause agreed upon was not in the instrument the statement that it was by Bryan was clearly a fraud. 1-Ie had taken the instrument to put it in; he of course knew he had not. The allegation is that the appellees believed him, and had they known it was not, they would not have signed it. It is urged they should not have relied on this statement, but should for themselves have read it. Whether the reliance on the statement made by Bryan and their hurry at the time is sufficient excuse is the question for our determination. It has been frequently said if the representations were of such a character as to induce the complaining party to rely on them, and he did believe them to be true, this would be sufficient for relief, though he may by investigation have discovered the truth. Conn v. Hagan, 93 Tex. 334, 55 S. W. 323; Labbe v. Corbett, 69 Tex. 503, 6 S. W. 811; A. E. Land Mortgage Co. v. Pace, 23 Tex. Civ. App. 222, 56 S. W. 384, 385; Ry. Co. v. Shuford, 36 Tex. Civ. App. 251, 81 S. W. 1196; Hall v. Bank, 36 Tex. Civ. App. 317, 81 S. W. 762; Ry. Co. v. Harris, 65 S. W. 885; Chatham v. Jones, 69 Tex. 744, 7 S. W. 600.

If Bryan made the statement that he had put in the clause after he had agreed to do so when he knew he had not done so, and that, too, after taking the instrument to put in the very clause he represented he had, we do not think it lies in the mouth of appellants to say to appellees, “You might have known that what my agent represented was false by re-reading the deed.” Labbe v. Corbett, 69 Tex. 503, 6 S. W. 811. The appellees were misled, according to the allegations, by fraudulent representation, caused by their confidence in the agent’s truthfulness, to sign the instrument. This should not constitute such negligence as will refuse appellees relief from the consequences of such fraudulent representations. Conn v. Hagan, supra.

Under this assignment appellant presents the proposition that the plea in this case was in effect a non est factum, and, not being verified, as required for such pleas, the general exception should have been sustained. We are not inclined to treat the plea in effect as a non est factum. However, from some of the authorities the question is not free from difficulty. The plea of non est factum places the burden of proving the execution of the instrument on the one claiming under it. Such could not be the result in this case. The execution of the instrument in question is not denied, but admitted. The contention is that it does not give all the terms of the contract, and that through fraudulent representations the omission was not known at the time of its execution. This allegation clearly put the burden on the appellees to show that the parties had agreed to the clause omitted as part of the contract; that it was omitted, and that such omission was occasioned by the fraudulent representations. The case cited by appellants (Hurt v. Wallace, 49 S.' W. 675) is one where the defendant alleged that the instrument he signed was, he thought, a receipt for cattle and not a note, the instrument sued on. Hence he denied the execution of the note, but there is no denial of the lease in this case. The question presented was, Did it contain all the terms of the contract of lease agreed upon? The writing proved the terms as contended for by appellants, to show other terms not therein contained rested on appellees. The following authorities, we think, sustain us: Dewees v. Bluntzer, 70 Tex. 406, 7 S. W. 820; Kansas Mutual Life Ins. Co. v. Coal-son, 22 Tex. Civ. App. .64, 54 S. W. 388; Ruiz v. Campbell, 6 Tex. Civ. App. 714, 26 S. W. 295; Cook v. Roberson, 46 S. W. 866; Ry. Co. v. West, 88 S. W. 426; Ry. Co. v. Jackson, 86 S. W. 51.

If the failure to swear to the answer could be waived, appellants did so by presenting only a general exception. Sworn pleadings, as a rule, are for the benefit of thq opposite party, and he may waive it by not urging the failure in the lower court. A non est factum, however, if not sworn to, does not put the plaintiff upon proof of his case, and no exception would be required. Drew v. Harrison, 12 Tex. 279. The second assignment is overruled.

The appellants requested the trial court to instruct a verdict for them, and the refusal of the court to do so is the basis for the third assignment. The first proposition under this assignment is to the effect that Felix A. Bryan, without authority, in the absence of the appellants, executed the contract which was thereafter accepted by them as written, and that appellees partly performed the written contract, and, the suit being for the balance due thereon, the admission of appellants’ cause as pleaded precluded appellees from defeating the same by fraud. The original petition does not allege want of authority on the part of Bryan to agree to the defeasance clause, but alleges that he made the contract for appellants, which they accepted. After the ap-pellees answered, setting up the defeasance clause, and fraud in its omission, appellants replied thereto by supplemental petition, alleging lack of authority in Bryan to make an agreement for the alleged defeasance clause. The office of a supplemental petition is to reply to the answer, and not the statement of the cause of action required to be made in the original petition. The admission of the appellees in this ease was that appellants had a good cause of action, except as the same should be defeated by their answer. This was not an admission that Bryan had no authority to agree to the defeasance clause of the contract, or that appellants accepted without notice that such clause had been made, as set out by the supplemental petition. It was only an admission of the cause as originally pleaded and to which appellees were then answering. As herein-before said by us, in this case, we think the burden was on appellees to establish their defense, and we do not think the court committed error in permitting them to open and conclude. Neither do we think there was error in refusing to instruct a verdict for appellant because of the admission filed. The admission did not include the allegation in the supplemental' petition. Smith v. Traders’ National Bank, 74 Tex. 541, 12 S. W. 221; Ney v. Rothe, 61 Tex. 374; Ramsey v. Thomas, 14 Tex. Civ. App. 431, 38 S. W. 259. We do not think the court erred in refusing to instruct a verdict for the appellants for the reasons stated in the second proposition under this assignment. The contract purports to have been executed by Bryan, as attorney in fact for appellants. Appellants accepted the contract, and, whether he had authority or not to agree to the defeasance clause, it was one of fact, which we think from a view of the record presents evidence which at least tends to establish the agent’s authority. We do not think under the facts in this case this court should, as a matter of law, say that negligence was conclusively established, and that appellees did not rely upon the fraudulent representations by Bryan. The third assignment is overruled.

The fourth assignment of error is to the effect that the court erred in admitting the testimony of Charles Eyler, N. E. Hord, and G. A Gosser, in substance, that Felix A. Bryan agreed to insert the prohibition clause in the contract, and that they thought, from Bryan’s representation, the clause was in the contract when signed. This testimony, under the issues in the case, was admissible, and the court did not err in admitting the testimony.

The fifth assignment is to the effect that Charles Eyler’s evidence as to the rental value of the property for purposes other than saloon purposes was not admissible, and therefore irrelevant. Under the issues presented by the pleadings we think it was admissible. It is alleged, and the testimony tends to show, that it was known by all parties that the rental value of the property would not be as much for any other purpose as for a saloon, and the price was fixed on the understanding that a saloon would be run during the term of the lease in the house. We think it tends to show, and was a circumstance showing, that the prohibition clause was considered by the parties a reason for stipulations for a defeasance clause in case it could not be used for a saloon.

The sixth assignment complains of the action of the court in refusing appellants on the cross-examination of the witness N. E. Hord, to show by him that after the execution of the contract in question, and before the bringing of this suit thereon, he and his wife transferred all of his property subject to execution to his nephew, and that after that transfer the nephew, for $1 consideration, reconveyed to Hord’s wife. It is asserted in the proposition thereunder that it is legitimate cross-examination of a party to impeach him by showing an effort.to place his property beyond the reach of execution to be issued on a judgment that might be obtained in the suit then threatened, and in this case the acts related to his liability upon the contract. The witness was one of the guarantors to the contract. It the witness had been asked whether or not he transferred the property to defeat any judgment that might be obtained against him on the guaranty of the lease contract, it would perhaps have been proper to have permitted him to answer the question, but to prove the transfer of all his property subject to execution generally would require entering into another transaction, and open another case perhaps as long as the one on trial. If the witness had transferred his property to defeat this liability, it would have been germane, but simply to prove the transfer of the property generally would or might require a long explanation. The question" should have been, Did the witness transfer the property to defeat the guaranty? and should have been confined to that intent. If it was conveyed with some other intent, then it was not admissible. A witness cannot be impeached by proving discreditable acts on his part not bearing on the issue involved in the suit. The witness should have been asked if he made the transfer to defeat any judgment which might be obtained on the contract. If he denied that he did, then the facts showing such transfer could have been offered to impeach him. The impeachment would not have been an immaterial issue. We hold the bill as taken shows no reversible error. Ry. Go. v. Johnson, 83 Tex. 628, 19 S. W. 151; Moody v. Roland, 46 Tex. Civ. App. 412, 102 S. W. 911; Harrington v. Clafline, 28 Tex. Civ. App. 100, 66 S. W. 898. In the case cited by appellants (Hynes v. Winston, 40 S. W. 1025), the question propounded, which the court there held should have been permitted answered, “called for an admission or denial that he had transferred his property for the purpose of defeating the payment of the notes sued on, and had advised his codefendants to do likewise.” Such was not the question here. Assuming the transfer fraudulent, yet it does not follow the purpose was to defeat liability on the contract in question. The transaction may have been legitimate, and might have been explained; heiice the necessity to confine it to the specific issue of the case.

The eighth assignment complains of the fourth paragraph of the court’s charge, which is to the effect, if the jury believed from a preponderance of the evidence that Eyler and appellants, through their agent Bryan, entered into an agreement before the execution of the lease contract, that it should contain a prohibition clause, as set out by ap-pellees in their answer, and that as drawn when first presented, it did not contain the clause, and that Eyler refused to sign unless it contained that clause, and if they found that Bryan took it away for the purpose of writing said clause into the contract, and afterwards returned and announced to the appellees that he had inserted the clause in the contract, and that Eyler believed and relied upon such promise and representation, and that the appellees would not have executed the contract had they known the provision as to prohibition was omitted therefrom, and they were deceived and failed to discover the omission, “by reason of the fraudulent representations of said Eelix A. Bryan, then, if you so find and believe from the evidence,” they would return a verdict for ap-pellees. The propositions urged are that the charge assumes that Bryan was the agent of appellants in making the contract, and that no authority was imposed by the charge upon appellees to read the contract, and, further, that it assumes that the representations theretofore made by Bryan, were fraudulent.

The lease contract in this case was signed by Bryan as attorney in fact for appellants, purporting to be the conveyance by appellants. It is alleged in the petition that the lease was made by Bryan in the name of appellants, which they thereafter accepted and ratified. The evidence is that the rent was paid until prohibition went into ejieet, and the appellants received and accepted the money. There was no controversy on this point. The real contention appears to be that, as appellants testified that Bryan was only authorized to collect the rents for property at the time of executing the lease, he had no authority to make the lease contract, and especially had no authority to agree to the clause terminating the lease when prohibition would go into effect; that appellants would not have made the contract with that clause, and if it was agreed to by Bryan, he had no authority to do so, and that he had done so unknown to them upon receipt of the written contract. If there was such agreement made by Bryan, and he had no authority to do so, and the same was not ratified, then appellants have no case. For the lease is for a longer term than one year, and all rents were paid for that year. Appellants cannot accept that part of the contract which is to their advantage and reject the other. They must accept the contract as agreed to in its entirety. If they learned that, upon trying to collect' the rents, there was such clause which should be part of the contract, they should have at once repudiated the contract and Bryan’s authority to make it. When they instituted suit on it they made Bryan’s agreement theirs. They could only contend that in fact there was no such agreement, but if the facts show there was, as the jury found, then that part of the agreement was as valid as any other, and they ratified it as much as they did the other. The court, therefore, we think, could properly instruct the jury Bryan was appellants’ agent. Sargent v. Barnes, 159 S. W. 373; Bank v. Cruger, 91 Tex. 446, 44 S. W. 278; Allen v. Garrison, 92 Tex. 546, 50 S. W. 335; We think it is the established doctrine by the decisions of our court that, if a material representation is made, and is of such character which will induce a party to rely upon it and to believe it true, and to act upon it, this will be sufficient, although he might have ascertained by ordinary diligence that it was not true. This rests on the grounds that a party ought not to profit by his own fraudulent representations and obtain relief from its consequences because the one deceived could have learned of the fraud if he had been diligent. The authorities cited by us in discussing appellees’ general exceptions sustain the above proposition, and also the following authorities: Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900; Ry. Oo. v. Shuford, 36 Tex. Civ. App. 251, 81 S. W. 1196; U. S. Gypsum Co. v. Shields, 106 S. W. 724; Id., 101 Tex. 473, 108 S. W. 1165; Western College Piano Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S. W. 1061.

We do not think that the clause in the court’s charge, “by reason of the fraudulent representations of Felix A. Bryan,” was upon the weight of the testimony, when the context of the charge is considered. The charge told the jury, if they found the clause was agreed to, that Bryan promised to put it in; that he represented he had; that ap-pellees thought he had; that they believed his statements; and that they would not otherwise have signed the contract; that they were deceived, and failed to discover it was omitted by reason of the fraudulent representations. If the jury found all the preceding facts, the law denounced Bryan’s representations as fraudulent, but the court, by the charge, left the jury to say whether it was by reason of tbe fraudulent representations. The charge would have been as strong without the use of the word “fraudulent,” hence we find no injury. If by a strained construction the charge could have been held to instruct the jury, such representations which they were left to find were fraudulent, we yet think there would be no error. The eighth assignment is overruled.

The seventh assignment assails the third paragraph of the charge of the court, and the ninth assignment assails the fifth paragraph. The third paragraph in effect instructed the jury that a principal is liable for the fraud of his agent, and that he cannot take any benefit from the fraudulent representations made by the agent, though ignorant of the fraud, and a party dealing with the agent, if he suffered therefrom, may recover compensation from the principal, and may, by reason of his confidence in such misrepresentation, rescind the contract. The fifth paragraph, in substance, told the jury if Bryan did not have authority to execute the lease contract, yet if appellant knew said contract had been executed, ratified and acquiesced in the acts of Bryan, or, knowing it had been so executed by Bryan, accepted benefits thereunder, appellants would be bound by Bryan’s acts in making the contract as much as if they had expressly authorized such acts before they were done. We have not undertaken to set out the charges in full but we believe the trial court rightly conceived the law and properly charged it.

In the ease of Bank v. Oruger, 91 Tex. 451, 44 S. W. 278, Judge Denman quotes from Paley on Agency, with approval: “Contracts made for the benefit of another, without his privity or direction, may be rejected or affirmed at his election. But, by making the election to affirm it, he adopts the agency altogether, as well that which is detrimental as that which is for his benefit; but in seeking to enforce contracts entered into by agents, the principal is subject to have them impeached by any conduct of his agent which would have that effect if proceeding from himself. Every species of fraud, misrepresentation, or concealment, therefore, in the agent, affects the principal’s right to recovery.”

In Allen v. Garrison, 92 Tex. 546, 50 S. W. 335, Judge Gaines said: “When an agent has effected a transaction for his principal by fraudulent practices the latter cannot exempt himself from the consequences of such conduct by asserting that he had no knowledge of the fraud.” The appellants;, in bringing suit on the contract, thereby ratified the acts of the agent Bryan. They must abide by the entire contract as it was made by Bryan. They cannot avail themselves of its benefits without also accepting its burdens. They had the right of election. They by ratifying a part ratified the whole transaction. The ratification relates back, and made Bryan their agent throughout the transaction. 31 Cyc. 1259, 1280, and 1283. The seventh and ninth assignments are overruled.

The appellants assign error in the action of the trial court in refusing the third, fourth, and fifth special requested instructions by the appellants. The assignments are numbered 10, 11, and 12. Each of the requested special charges is based on the plea of mistake in leaving out the prohibition clause, and that appellees could not recover if there was negligence on their part when they signed the instrument. The trial court withdrew the question of mistake in signing the instrument by appellees from the jury, and only submitted the question as to whether they were induced to sign the contract upon the fraudulent representation of Bryan that the clause was in the contract, and whether they were induced thereby to sign the same. The jury were not authorized to find for appellees if there was a mistake. Under the issues presented to the jury by the trial court, it was unnecessary to charge the law of mistake. We think there was no error in refusing the requested charges, and these assignments are therefore overruled.

The thirteenth assignment complains because the trial court refused to instruct the jury, as requested in the sixth special requested charge by appellants. The charge requested asked the court to instruct the jury, in effect, if Bryan agreed to the defea-sance clause, but that prior to appellants’ removal from Potter county they had rented to York and Jones, and that Eyler learned that appellants did not want, to lease for a less term than until March 1, 1914, and that thereafter appellants rented to York and Jones, and that Bryan was given authority to look after the property and to collect the rents thereon, and that Eyler thereafter negotiated to take over the York and Jones lease, knowing at the time the terms of such lease, and thereafter the contract in suit was prepared and signed and sent to appellants, and that appellants, without knowledge of any negotiations for a prohibition clause in the contract, ratified that contract and released the York and Jones contract, and that they would not have accepted the contract sued upon and released the other had they so known of that clause, and that they have been misled to their injury, then appellees would be estopped from claiming fraud or mistake.

The facts upon which estoppel is invoked against appellees is that Bryan had authority to collect the rent and look after the property. There is no fact showing that appellees knew Bryan had no authority to make the contract. On the contrary, he did make it for appellants, purporting to be the attorney in fact for appellants. The testimony shows that Eyler had, previous to the York and Jones contract, tried to lease from appellants, but did'not do so. Taber testified be would not have leased for a shorter term than until &farch 1, 1914. His testimony is that be knew nothing of the agreement made by Bryan for a termination of the lease if prohibition should become effective, and that he knew nothing of such contract or claim of one until .after suit was filed.

We think the charge .requested was not correct under the facts in this case. If Ey-ler sought Bryan and procured him to execute the contract, and secured an agreement that the clause should be put in the contract, and he then knew Bryan had no authority to make such contract, and after the .contract was executed he knew the provision was left out, and,' thus knowing, failed to notify Ta-ber of such omission during the time he was holding under the contract, as he claimed it to be, we think then he should be estopped from claiming fraud, on thé part of. Bryan. The fact that appellees may have known that appellants wanted to lease the lot for the full term does not charge them with the knowledge that they would not lease on the conditions stipulated for less than that term. Erom the fact that they may have known that Bryan had authority to collect the rents and look after the .property, it does not necessarily follow that they therefore, knew that he did not have authority to execute the lease contract. If the facts were sufficient to charge appellees with knowledge, and they induced appellants to accept the contract by their own wrong, then estoppel would apply, but, as we understand the- requested charge, it recited certain facts which do not bring to appellees knowledge necessarily of Bryan’s lack of authority, or that appellees were guilty of any actual wrong in inducing appellants to accept the written contract. Mere negligence on their, part would not estop them from setting up the fraud of appellants’ agent. To create an equitable estoppel the acts, declarations or silences must have induced the other party to act, and such conduct must have been actually or. constructively fraudulent or injurious in result. Another element is that such acts or declarations must have been made to a party ignorant of the true facts, and known to the party making them, or ought to have been known, and must have been intended to induce the other party to act. In this case appellants knew whether or not Bryan was- their agent. It was their duty to have at once repudiated his act, and to have notified appellees of the repudiation returning the contract. If Bryan was their agent, it was his duty to disclose to his principal the terms of the contract. If he did not, he deceived his principal as well as the appellees. His misrepresentations. had, according to the pleadings and findings of the jury, disarmed appellees, and thereby exonerated them from diligence in ascertaining the terms of the contract as drawn. Mere negligence on the part of the appellees would.not estop them. The appellants, according to their testimony, accepted the acts of a man who had no authority to act for them, thereby making his acts their own. They testified they were ignorant of the clause. Appellees testified they were ignorant that it wás omitted. One or the other must suffer from the wrongful act of Bryan. In accepting the contract appellants and Bryan became one in identity, and it was the duty of the agent to communicate his knowledge to his principal. If he did not do so, the principal, rather than the other parties, should suffer. We think as the charge was drawn, and under the facts of this case, there was no error in refusing to give the charge to the jury, and this assignment is therefore overruled.

The fourteenth, fifteenth, and sixteenth assignments of error complain at the action of the court in overruling appellants’ motion for new trial. ■ The several grounds assigned in these assignments have each been considered under preceding assignments, and will be therefore overruled.

We find no reversible error, and the case is affirmed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    TOWERY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Ckiminal ' Law (§ 1076) — Appeal—Recognizance-.
    An appeal from a conviction of aggravated assault will be dismissed, where the recognizance is insufficient to confer jurisdiction on the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716, 3201; Dec. Dig. § 1076.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Bill Towery was convicted of aggravated assault, and he appeals.
    Dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      Por otter cases seo same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of the offense of making an aggravated assault on A. D. France. He undertakes to appeal to this court, but the recognizance entered into is insufficient in law to confer jurisdiction on this court. Therefore the appeal must be dismissed. Articles 886, 887 and 888, and decisions cited thereunder in White’s Ann. Code Or. Proc.

Appeal dismissed.

DAVIDSON, J., absent.


text:
    VERNON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    1.Criminal Law (§ 1028) — Appeal—Record —Presentation oe Error.
    In a criminal case the admission and exclusion of testimony could not be reviewed on appeal, where such matters were not presented in any way except in the motion for a new trial.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. § 1028.']
    2.Criminal Law (§ 1111*) — Appeal—Record —Conclusiveness.
    Defendant could not complain on appeal of the failure to submit a question which the charge as copied in the record submitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. 1111.]
    Appeal from District Court, Montague County; R. H. Buck, Special Judge.
    Tenny Vernon was convicted of manslaughter, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the, State.

      For other cases see_same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of the offense of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary.

The first three grounds in the motion for the new trial complains of the introduction of certain testimony, and the exclusion of other testimony. As these matters are not presented in any way except in the motion for a new trial, they cannot, under the law, be reviewed by us.

The fourth, the only remaining, ground in the motion complains of the action of the court in not submitting the question to the jury of the suspension of the sentence. As the charge copied in the record does submit this question to the jury, of course under such circumstances this ground in the motion presents no error.

Affirmed.

DAVIDSON, J., absent


author: PRENDERGAST, P. J.

text:
    YATES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    1. Assault and Battery (§ 92*) — Agoravat-ed Assault — Evidence—Sufficiency.
    Evidence held to support a conviction of aggravated assault notwithstanding the evidence in support of the defense of self-defense.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dee. Dig. § 92.*]
    2. Assault and Battery (§ 96*) — Aggravated Assault — Instructions—Sufficiency.
    On a trial for aggravated assault, requested instructions given by the court held to fairly submit the defense of self-defense.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.*]
    3.Criminal Law (§ 1090*) — Rulings on Evidence — Review—Bill of Exceptions — Necessity.
    Rulings on evidence complained of in the motion for new trial, but not shown by bill of exceptions, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822. 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    4.Criminal Law (§ 1090*) — Ruling on Instructions — Review—Bill of Exceptions —Necessity.
    In misdemeanor cases, objections to paragraphs of the instructions cannot be considered on appeal unless shown by bill of exceptions to the charges given, giving the reasons therefor, and requesting special charges covering the points which, if refused, must be excepted to and shown by bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2053, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    5. Criminal Law (§ 875*) — Verdict—Sufficiency.
    On a trial for aggravated assault, a verdict, “We * * * find the defendant guilty of aggrevate assault & assess his punishment in the county jail one month and fine him one hundred dollars ($100.00),” is sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2090; Dec. Dig. § 875.*]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    Lester Yates was convicted of aggravated assault and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was prosecuted, tried, and convicted of an aggravated assault under subdivision 6, art. 1022, P. C.; the charge being that the assault and battery was committed with a whip. Appellant’s defense was self-defense. He was convicted, and his punishment fixed at a fine of $100 and 30 days’ confinement in jail.

The evidence shows that the appellant was a young man 19 years of age, was something over six feet tall, very healthy, and weighed at least 160 pounds; that the assaulted party, Mrs. Webster, was a married woman 53 years old and weighed about 120 pounds. Appellant lived with his parents; the Websters lived about 250 yards from appellant’s family. Mrs. Webster had a young daughter about 14 years of age with whom appellant had been going and to whom he was paying his attentions. Mrs. Webster objected to this because of the age of her daughter and claimed that a few nights before the offense is alleged she had notified appellant to quit his attentions to her daughter and not to go with her, etc.; that a few days afterwards she saw appellant with her daughter in his buggy at his parents’ house; that this enraged her somewhat and she took her own cheap ten-cent buggy whip, and started to where the parties were with the intention of whipping her daughter. The daughter, seeing her coming, got out of the buggy and started to her home, meeting her mother. They met and passed on, but Mrs. Webster did not then stop and whip her daughter but proceeded to where appellant still sat in his buggy. She testified in effect that she reproached appellant for his further attentions to her daughter against her warning and protest; that he thereupon used violent and profane language to her and she struck him a few times with her buggy whip while he was in the buggy. The effect of his testimony and that of his sisters, if believed, would have established his defense of self-defense, but the testimony of Mrs. Webster and her husband on the other hand showed a state of facts, if believed by the jury, which would justify them in convicting appellant and believing that he did not act in self-defense. The testimony without contradiction shows that the appellant repeatedly struck Mrs. Webster with his buggy whip severe licks, in one cutting the blood and in several others severely bruising her body. Practically the only question is whether the evidence established, without question, his claim of self-defense, or whether the evidence would justify his conviction and not sustain his self-defense. The evidence was sufficient to have justified the jury to have found either way. They evidently believed the theory of the state and not his self-defense, and the evidence is sufficient to sustain their finding and the judgment of the court.

The court in the main charge substantially and fully submitted to the jury for a finding self-defense. In addition the court gave appellant’s special charges on that subject as follows:

No. 1: “You are charged that, when a person is unlawfully assailed, he had the right to use force against force and to defend himself by the use of every means in his power to defend himself against such assault. In this connection you are charged that the witness Nevada Webster, in making an attack upon the defendant with a buggy whip, made an unlawful assault upon him, and that he had a right to defend himself from such attack, and if you believe from the evidence that the defendant in striking the said Nevada Webster with a whip acted in his own necessary defense against such attack upon him, and that he did not use greater force than under the circumstances appeared to him to be necessary to cause the said Nevada Webster to desist from the attack on him, then you will acquit the defendant. And in this connection you are further charged that a person assailed is not bound to retreat but stand his ground and protect himself against an unlawful attack made upon his person by another.”
No. 2: “You are charged that a person has the same right to use force reasonably necessary to defend himself against an unlawful assault made by a woman as though the assault were being made by a male.”
No. 3: “You are charged that, even though you believe that defendant had been keeping company with the daughter of the alleged injured party against her consent and over her protests, such conduct on part of the defendant would not justify said Nevada Webster in making an assault upon the defendant with a whip, and the defendant, upon being attacked, had the right to use such force as was reasonably necessary to protect -himself against assault.”

This fairly and fully submitted the question to the jury.

Appellant has no bills of exception whatever. In his motion for new trial he complains of the admission of the state’s testimony in several particulars and says it will be shown by his bills of exceptions, numbering them, but there are no such bills in the record, and of course these questions, raised merely by motion for new trial, cannot be considered.

Appellant also, in his motion for new trial, complains in some particulars of certain paragraphs of the court’s charge, but the established law of this state is that in misdemeanors such matters cannot be considered unless shown by bill of exceptions to the charges given, giving the reasons therefor, and requesting special charges covering the points which, if refused, shall also be excepted to and shown by bill of exceptions. Nothing of the kind occurs in this case. So that the motion in these respects presents no error. Giles v. State, 148 S. W. 320, and cases there cited. It is unnecessary to cite any others. This is the uniform holding of the court.

The verdict of the jury, as shown by the judgment and record, is: “We, the jury, find the defendant guilty of aggrevate assault & assess his punishment in the county jail one month and fine him one hundred dollars ($100.00).” While there are some in-formalities in this verdict, it was clearly sufficient under all the decisions of this court.

The judgment is affirmed.

DAVIDSON, J., absent.


text:
    DANIELS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    1. Criminal Law (§ 1097)—Appeal—Ques-tions Reviewable—Statement oe Facts. In the absence of a statement of facts, the court, on appeal from a conviction of assault with intent to murder, cannot review the refusal to charge that if the assault was made with intent to rob, accused must be acquitted.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2882, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]

      2. Criminal Law (§ 29) — Offenses—Election by State.
    Where the facts showed that accused assaulted prosecutor with intent to murder, by lying in wait, or with intent to rob, the state could elect to prosecute him for assault with intent to murder.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 29.]
    Appeal from Jefferson County Court; John M. Conley, Judge.
    Ed. Daniels was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of making an assault with the intent to murder J. T. Lavery by then and there lying in wait, etc.

The only ground in the motion for a new trial complains that the court erred in refusing to give a special charge requested, in which the court was requested to instruct the jury that, if the facts showed that the assault was made with the intent to rob, to acquit. As no statement of facts accompanies the record, we cannot review this ground; but as the state elected to prosecute for assault to murder, if the facts showed that this offense was in fact committed, the state had a right to carve and elect for which offense it would prosecute.

Affirmed.

DAVIDSON, J., absent.


author: PRENDERGAST, J.

text:
    DREEBEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    Rehearing Denied June 27, 1913.)
    1. Pensions (§ 10) — Confederate Pensions —State Appropriation — Statutes — Warrants.
    Act March 26, 1909 (Acts 31st Leg. c. 118), appropriated $500,000 for confederate pensions for the years 1909 and 1910 but did not take effect until 90 days after March 26, 1909, and before that time, and before the appropriation became effective, the Legislature at the same session passed the General Appropriation Act May 12, 1909 (Acts 31st Leg. [2d Extra Sess.] c. 21), containing general appropriations for confederate pensions for those years. Held that, since under the Constitution as it, then existed the Legislature could appropriate only $500,000 for each of said years for that purpose, the General Appropriation Act superseded that of March 26, 1909, and hence the comptroller, in issuing pension warrants for that year, properly stated that the money was to be paid out of the appropriation covered by the Genera] Appropriation Act.
    [Ed. Note. — For other cases, see Pensions, Dec. Dig. § 10.]
    2. Pensions (§ 10) — Confederate Pensions —Warrants—Form—Signature by State Treasurer
    Under Act August 19, 1910 (Acts 31st Leg. [3d Called Sess.] c. 17) § 26, subd. 3, declaring that the forms for pension warrants shall be prescribed by the comptroller, and Act March 26, 1909 (Acts 31st Leg. c. 118) §§ 7, 15, regulating the issuance and payment of such warrants, it was not necessary that they he countersigned by the state treasurer before they were issued and sent out by the comptroller in order to be valid.
    [Ed. Note. — For other cases, see Pensions, Dec. Dig. § 10.]
    3. Pensions (§ 10*) — Pension Warrants — Form — Negotiability.
    Under Act August 19, 1910 (Acts 31st Leg. [3d Called Sess.] c. 17) § 26, subd. 3, providing that the forms for pension warrants shall be prescribed by the comptroller, and that they shall be uniform in size, arrangement, matter, and form, etc., the comptroller has power to' make such warrants negotiable or quasi negotiable by making them payable to order.
    [Ed. Note. — For other eases, see Pensions, Dec. Dig. § 10.]
    4. Forgery (§ 7) — Subject of Forgery — Pension Warrants — Indorsement.
    Pen. Code 1911, art. 924, declares that he is guilty of forgery who, without lawful authority and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such a manner that I the false instrument, so made, would, if true, have “in any manner affected any property whatever.” Article 931 defines such clause to mean every species of conveyance or undertaking in writing which supposes a right in the person purporting to execute it to dispose of or change the character of property of every kind, and which can have such effect when genuine. Article 930 defines pecuniary obligation to include every instrument having money for its object and every obligation for the breach of which a civil action for damages may be lawfully brought. Article 933 declares that it is forgery to make, with intent to defraud or injure, a written instrument by filling up over a genuine signature or by writing on the opposite side of a paper so as to make the signature appear as an indorsement. Held that, where a confederate pension warrant was drawn payable to the order of a pensioner who had died, and the warrant came into the hands of defendant, a clerk in the pension commissioner’s office, who forged an indorsement of the pensioner’s name on the back of the warrant and cashed it, the forgery of such instrument was sufficient to “in some manner affect the property” so as to constitute forgery without reference to whether the warrant was negotiable or not.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 2, 3, 8-15; Dec. Dig. § 7.*
    For other definitions, see Words and Phrases, vol. 3, pp. 2900-2910; vol. 8, p. 7665.]
    5. Forgery (§ 44) — Pension Warrants — Conviction — Evidence.
    In a prosecution for forgery of a confederate pension warrant, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 117-121; Dec. Dig. § 44.*]
    6. Forgery (§ 42*) — Confederate Pension Warrant — Issuance — Affidavits — Evidence.
    In a prosecution for forging the indorsement of a confederate pensioner to whom the warrant had been issued after he had died, the necessary affidavits required to accompany such warrant, stating the county of the pensioner’s residence, his post office address, and that he was the identical person to whom a pension had been granted, and that the conditions which existed at the time of making the application, on which the pension was granted, still existed, which were also shown to have been forged by accused, and which were clearly identified, were admissible.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 115; Dec. Dig. § 42.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Travis County; George Calhoun, Judge.
    E. L. Dreeben was convicted of forgery, and he appeals.
    Affirmed.
    Gregory, Batts & Brooks and Warren W. Moore, all of Austin, and Israel Dreeben, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

Appellant was convicted of forgery, and his penalty fixed at three years in the penitentiary.

The indictment is attacked on several grounds. After the necessary and usual formal allegations,, the indictment alleges as follows:

“That E. L. Dreeben in said county and state, on or about the 1st day of June, in the year of our Lord 1911, and before the presentment of this indictment, did then and there without lawful authority, and with intent to injure and defraud, willfully and fraudulently make a certain false instrument in writing purporting to be- the acts of others, to wit, purporting to be the act of W. W. Montgomery and J. W. Moore, by then and there writing on the back of a treasury warrant of the tenor following, to wit:

Forcy v. State, 60 Tex. Cr. R. 209, 210, 131 S. W. 586, 32 L. R. A. (N. S.) 327, correctly arid aptly held: “There is in the books much curious learning on the subject of forgery,- and the office of the tenor and purport clauses in the indictment for this offense have been refined upon by courts until it is sometimes difficult for one to grasp and comprehend the office of either, and these refinements have sometimes, it seems to us, gone to the extent of overshadowing and dwarfing the substance of the matter required to be alleged. What instruments may be the subject of forgery has also quite frequently received judicial interpretation. These instances and illustrations are numerous and not always wholly consistent. We think in later times the niceties of pleading in prosecutions for forgery have not always been recognized; that the trend of modern decisions is to look rather to the substance than to the form that such instruments may take. We cannot be unmindful of the fact that, with the progress of civilization and the frequency in commerce with which business is transacted by notes, bills, and letters of credit, it is essential to the protection of the citizen and the integrity of commerce that a reasonable and sensible rule in prosecutions for forgery should be established. In olden times trade was either a matter of barter or for money in hand. In these times, as we know, but a small per cent, of commercial transactions are carried on and complet-

“Indorsed across the back of It: ‘W. W. Montgomery, J. W. Moore’ (the latter right under the 'former name) — the names of W. W. Montgomery and J. W. Moore so as thereby to make said writing appear as an in-dorsement of the said treasury warrant by the said W. W. Montgomery and the said J. W. Moore and in such a manner that the said false indorsements so made would, if the same were true, have created a pecuniary obligation and have transferred said treasury warrant.”

It will be seen that the forgery is alleged to consist in appellant’s signing and forging the names of said Montgomery and Moore, indorsed by him on the back thereof.

This court, through Judge Ramsey, in ed in any other form than by note, bond, checks, orders, and drafts. While having due regard for the safety of the individual citizen who may be prosecuted for forgery of any of the manifold instruments conveying or undertaking to convey moneys and property, it is essential that at least some fair regard shall be had to the protection of the great body of our people who are interested in the honesty and integrity of these instruments.”

Among the grounds contesting the validity of this indictment, the material ones, we think, are in substance that said warrant is not negotiable, and the forged indorsement of the name of the payee in blank on the back in no way changes or affects the legal status of the paper and in no 'way affects it or constitutes evidence of a valuable right. That it is not countersigned by the state treasurer and for that reason is incomplete, which is apparent on its face. That the comptroller had no power to draw the warrant to the order of the payee and thereby make, or attempt to make, it negotiable. And that instead of showing that the warrant was to be paid out of money appropriated by the act of May 28, 1909 (Act 31st Leg. [2d Extra Sess.] e. 28), should have referred to the act of March 26, 1909.

The act of March 26, 1909, p. 231, passed at the regular session of the Thirty-First Legislature, and the Acts of August 19, 1910, р. 37, regulating the duties of the comptroller in the issuance of such warrants, and the act of May 12,1909 (Laws 1909 [2d Extra Sess.], с. 21), passed at the regular session of the Thirty-First Legislature, regulating the duties of the state treasurer as to such warrants, were in force at the time of the issuance and alleged forgery of this warrant. By the said act of March 26, 1909, appropriating $500,000 for the respective years, beginning September 1, 1909, and ending August 31, 1910, and beginning September 1, 1910, and ending August 31, 1911, from which payment of the confederate pensions could be made, this act and none of it took effect until 90 days after March 26, 1909. Before this part of the act of March 26, 1909, appropriating said money, took effect, or the appropriation thereunder became effective, the Legislature in the same regular session passed the general appropriation act and by that general appropriation act (page 514) it appropriated for said respective years the same said sum of $500,000.

Under the constitutional provision, as it then was, the Legislature could appropriate only $500,000 for each of said respective years. There is no question but- that the general appropriation act was intended to be in lieu of, and was in lieu of, said appropriation made by the act of March 26, 1909, and entirely superseded the prior act. So that the comptroller, in issuing the warrant, properly stated that the money was to be paid out of the appropriation of said general appropriation act.

Section 25, p. 41, and other sections of the act of August 19, 1910, prescribing the duties of the comptroller in issuing all pay warrants, prescribes minutely what shall appear in the face of such warrants, but expressly therein “excepts claims- for pension therefrom.” And in section 26, p. 42, subd. 3, expressly provides “the forms for pensions (pension warrants) shall be prescribed by the comptroller and shall be uniform in size, arrangement, matter and form.” And again in the same act (section 30, p. 43), in order to show that pension warrants shall not contain on their face all of what other warrants provided for shall contain, expressly - again enacts: “Applications for pensions and the issuance of , pension warrants shall not be subject to the provisions of this act” Then again • section 7, p. 233, of said act of March 26, 1909, after regulating how and when the comptroller shall issue pension warrants, enacts: “The comptroller of public accounts shall draw his warrant to the amount of such pension on the treasurer, and upon presentation' the treasurer shall pay the same out of any money in the treasury which- may be appropriated í to' this purpose.” And in section 15 of said act (page 234) it is again enacted: “And the eomptrol-. ler shall issue his warrant for the. amount due said pensioner in the manner hereinbe-fore provided for, all pensioners to be paid at the end of each quarter and shall begin on the first day of September and March after the filing and establishment of the applications herein provided for.”

It it perfectly apparent by the provisions in said several acts and the general trend of our laws on the subject that the Legislature intended to make and did make a distinction of pension warrants from any and all other pay warrants issued by the comptroller. And from all this it is our opinion that the Legislature did not intend that the treasurer should countersign these pension warrants so as to make them valid and payable; or, in other words, that they were perfectly valid and the treasurer required to pay them without his previously countersigning them before the comptroller sent them out.

The evidence in this case clearly and without contradiction shows that the comptroller and treasurer construed and acted upon the law, as stated above. We know as-current history of this state', and'by the legislation on the subject, that the confederate pensioners are scattered all over, and in most if not every county in this state. The treasurer testified that there were about 12,500 of them, and that about that number of pension warrants were to -be issued every quarter to pay’ them, and that the comptroller’s department, who issued the warrants, could not wait until the • first day -of the quarter to write up and mail out the pension warrants. That the pension warrants are mailed out by the comptroller’s office and paid when presented to his department, the treasurer’s office. Mr. Beauchamp, who -was an employs and clerk in the-comptroller’s department at the time the said warrant in this case was issued and who issued it, testified that the original warrant in this case, which was at the time he was testifying in his hands, was a pension treasury warrant and that such paper as that was cashed at the treasurer’s office when-presented for that purpose; that he, as such official in the comptroller’s office, got up all pension .warrants at that time and particularly the one in this case; that there were something near 12,000 such warrants to be sent out every quarter, and that they began starting them out about six weeks before they were dated; that they were dated the date they were supposed to he collected, but they mailed them out as soon as possible so the pensioners could get them and get their money on them by the date of payment.

We know of no law, and have been unable to find any, after the most diligent search, and appellant has cited us to none, which shows that the comptroller, under the power and authority given to him, is prevented from making them negotiable, or at least quasi negotiable. Our Supreme Court in Leach v. Wilson County, 62 Tex. 332, in discussing the character of a warrant properly allowed and issued by Wilson county upon the county treasurer, as to such warrants said: “When a claim has been presented and allowed, and a warrant upon the treasurer has been drawn in accordance with the order of allowance, while the order of the county is primary evidence of the right, yet the warrant is something more than a mere voucher; it is prima facie evidence of an existing and matured debt, which throws the burden upon the county to repel by showing the want of consideration or some other valid defense. Burroughs on Public Securities, p. 638, and authorities, note 2.” We can see no good reason why such warrants should not be made negotiable or quasi negotiable. As stated above, we know as current history and by the legislation on the subject, even without the testimony in this ease, that the 12,-000 or more confederate pensioners are in almost if not every county in this state. The largest amount at the time of the issuance of the warrant in this case which could be issued to any of said pensioners was $24. Most of the warrants issued were for less amounts. It would be entirely impracticable, if not impossible, for the holders of these pension warrants, when they receive them, to come to the city of Austin and present such warrants to the treasurer in person for payment. “In these times, as we know, but a small per cent, of commercial transactions are carried on and completed in any other form' than by note, bond, checks, orders, and drafts.” Eorcy v. State, 60 Tex. Or. R. 210, 131 S. W. 586, 32 L. R. A. (N. S.) 327.

So in this case, we know that such pension state warrants as were issued in this case are cashed and collected through the banks and other like instrumentalities by the pensioner, and that he indorses simply and solely his name on the back of such warrant, and that through that channel, and practically through that channel alone, such warrants are cashed by the state treasurer on presentation to him for payment. As illustrating this, the warrant in this ease was so presented and cashed by the state treasurer. The business of issuing, collecting, and having paid such warrants in such manner could hardly otherwise be conducted.

So that in this case, this warrant having been issued in a negotiable form by the comptroller, if it had reached the payee thereof and he had indorsed simply his genuine signature on the back thereof and delivered it to any bank or other person, it would thereby have evidenced the prima facie, if not the real, transfer thereof to such banker or other person; and we think there is no question but that any one in possession of such warrant, who forged the name of such payee on the back, as was done in this instance, would have been guilty of the forgery thereof, and there is no question but that such indorsement under such circumstances would in at least some, “manner have affected said property.” P. O. art. 924. And that such indorsement, if genuine, would have transferred or in some manner at least have affected property, and that such indorsement would unquestionably have indicated and supposed a right in the person purporting to execute it to dispose of or affect the same. P. G. art. 931.

As prescribed by our statutes under which this prosecution and conviction was had: “He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.” “ ‘Pecuniary obligation’ means every instrument having money for its object, and every obligation for the breach of which a civil action foi-damages may be lawfully brought.” P. O. art. 930. “By an instrument which would ‘have transferred or in any manner have affected’ property, is meant every species of conveyance, or undertalcing in writing, which supposes a right in the person purporting to-execute it, to dispose of or change the character of property of every kind, and’which can Have such effect when genuine.” P. O-art. 931. And “it is forgery to make, with intent to defraud or injure, a written instrument, by filling up over a genuine signature, or by writing on the opposite side of a paper so as to make the signature appear as an indorsement.” P. C. art. 933.

What character of perfectness or imperfectness is necessary to be shown on the-face of a claimed forged document has many times been before this court and well considered and thoroughly discussed. In-the case of King v. State, 42 Tex. Or. R. 109, 57 S. W. 840, 96 Am. St. Rep. 792, this court, through Presiding Judge Davidson, discussed and cited authorities and announced the law so clearly and tersely thereon we can do no better than to here-quote, as applicable to this case, what he therein held and said, which we now do: “Mr. Bishop, in his work on Criminal Law, says: ‘See. 533. The false instrument must be such as, if true, would be of some real or legal efficacy, since otherwise it has no tendency to defraud. In other words, it must either be in fact, or must appear to be, of legal validity, but it need not have both the appearance and the reality.’ In support of this proposition he cites many authorities collated in note 5 under above section. In section 538 he says: ‘A writing affirmatively invalid on its face cannot be the subject of forgery, because it has no legal tendency to effect the fraud. Entering into this question is the distinction many times adverted to in these volumes that every man is presumed to know the law, yet not to know the facts.’ So it will be seen that the distinction is clearly drawn between knowledge of law and knowledge of fact. If the instrument is void on its face, it cannot be the subject of forgery, but if valid on its face, though invalid as a matter of fact or under the proof, it would still be the subject of forgery. In section 541 the same author says: ‘Since men are not legally presumed to know facts, a false instrument, good on its face, may work a fraud, though extrinsic facts show it to be invalid even if it were genuine. Therefore there may be forgery of such an invalid instrument.’ In People v. Galloway, 17 Wend. [N. Y.] 540, 542, this language is found: ‘There is a distinction between the case of an instrument apparently void and one where the invalidity is to be made out by the proof of some extrinsic fact. In the former case the party who makes the instrument cannot in general be convicted of forgery, but in the latter he may.’ So with a fictitious person. ‘From this doctrine of a seeming validity sufficing, though it is not real, we have the further result that if the person, whose instrument the forgery purports to be, is dead, or if he is a mere fictitious person, still, as the question of the existence of such a person is one of fact, not of law, and the instrument appears valid on its face, the offense is complete. Bish. Grim. Law, § 543. In section 544: ‘(1) Restated, the ordinary doctrine is that, for the invalidity of the instrument to be a perfect defense, the defect must appear on its face, or, to exclude this sort of defense, it must appear on its face to be good and valid, for the purpose for which it was created. In another aspect: (2) Evidence of fact. The instrument must be such that if it were genuine it would be evidence of the fact it sets out.’ We are not undertaking here to discuss instruments or writings uncertain on their face. So it has been held that, if there is a bare possibility that another may be imposed upon, a conviction will be sustained. State v. Dennett, 19 La. Ann. 395; State v. Gryder, 44 La. Ann. 962, 11 South. 573 [32 Am. St. Rep. 358]. ‘It is immaterial whether the counterfeited instrument be such as, if real, would be effectual to the purpose it intends. If there is only a resemblance sufficient to impose upon those to whom it is uttered, or to the public generally, it is sufficient.’ 3 Chit. Grim. Law, 1035, 1039. ‘It is not necessary to the offense that the instrument should be one which, if genuine, would be a binding obligation. It is sufficient that the instrument purports to be good. The want of validity must appear on the face of the paper to relieve from the character of forgery.’ 13 Am. & Eng. Enc. of Law (2d Ed.) 1088; United States v. Turner, 7 Pet. 132, 8 L. Ed. 633. In the same volume (13 American and English Encyclopedia of Law) we find this language: ‘As a general rule, any writing in such form as to be the means of defrauding another may be the subject of forgery, or alterations in the nature of forgery.’ Page 1093, note 3, for collation of numerous authorities. ‘The writing need not be such as, if genuine, would be legally valid. If it is calculated to deceive and intended to be used for a fraudulent purpose, this is enough.’ Notes 4 and 5, Id., for authorities. An instrument valid on its face is equally the subject of felonious forgery or felonious uttering, though collateral or extrinsic facts, of whatever character, may exist that would render it absolutely void if genuine.’ Same authority, note 6, for authorities; People v. Rathbun, 21 Wend. [N. Y.] 509; People v. Galloway, 17 Wend. [N. Y.] 540; Russ. Grimes, 317-328; State v. Johnson, 26 Iowa, 407 [96 Am. Dec. 158]; State v. Hilton, 35 Kan. 338, 11 Pae. 164; State v. Pierce, 8 Iowa, 231. To. the same effect is Anderson v. State, 20 Tex. App. 595; and it follows the rule laid down by Mr. Bishop, supra. In view of these authorities, it will hardly be necessary to discuss the question further. If they are correct, this instrument is clearly the subject of forgery.”

Again, in the case of Wheeler v. State, 62 Tex. Or. R. 373, 137 S. W. 124, this court, through Judge Harper, held: “In the case in Costley v. State, 14 Tex. App. 156, it is held: ‘There can be no doubt but that a bail bond, executed for the appearance of a party to answer before the proper court an accusation against him of an offense against the law, is a pecuniary obligation to the state, binding upon him and his sureties, and is one which, by the very terms of the law permitting it, can be enforced in case of a breach of its conditions. Code of Criminal Procedure, art. 282 et seq., and art. 400 et seq. If an instrument in writing, which creates a pecuniary obligation, is a subject of forgery, then a bail bond is also such an instrument as may be the subject of forgery. Penal Code, art. 435; Com. v. Linton, 2 Ya. Cas. 476. It is not necessary that a bail bond should have been forfeited or attempted to be forfeited before it is the subject of an assignment and prosecution for forgery, for ‘an instrument, falsely made with intent to defraud, is a forgery, although, if it had been genuine, other steps must have been taken before the instrument would have been perfected, and these steps are not taken.’ Com. v. Costello, 120 Mass. 358. See, also, Morris v. State, 17 Tex. App. 660; Dooley v. State, 21 Tex. App. 550 [2 S. W. 884]; Lassiter v. State, 35 Tex. Cr. R. 540 [34 S. W. 751]; State v. Gullette, 121 Mo. 456, [28 S. W. 354]; and notes cited in 8 Am. St. Rep. 467. And in Cyc. vol. 19, p. 1384, the rule is laid down in speaking of forgery: ‘A paper is hot invalid on its face because certain steps have * * * not been taken’— citing Com. v. Wilson [89 Ky. 157, 12 S. W. 264], 25 Am. St. Rep. 528; Com. v. Costello, 120 Mass. 358; State v. Gee [28 Or. 100] 42 Pac. 7; Foute v. State, 15 Lea [Tenn.] 712, and other cases.”

Again this court, through Judge Harper, in another recent case (Horn v. State, 150 S. W. 949), quoting from Mr. Wharton, said: “Mr. Wharton in his work on Criminal Law, § 739 et seq., lays down the rule ‘that it' is only necessary, in order to make the instrument a subject of forgery, that it should be capable of being used as proof in a legal action.’ ”

Appellant presses and persistently urges that the said warrant was nonnegotiable and cites many authorities on that point, and, based on his contention that the warrant was not negotiable, he vigorously contends that the forging of the name by appellant of the payee, by indorsement on the back thereof, cannot be forgery. We cannot agree to this contention. Unquestionably the law is that a nonnegotiable instrument can be forged as well as a negotiable instrument. The fact, if.it be so, that, in order to maintain a suit in the civil court on a nonnegotiable instrument by an indorsee thereof, proof in addition or other than the mere indorsement in blank by the payee might be necessary, yet, even if that should be so, the indorsement by the payee would certainly be at least one link of the evidence to establish the transfer or assignment thereof to the holder in possession. And such indorsement of a nonnegotiable instrument would be some evidence which supposes a right in the person purporting to execute it to dispose of the same, and so would the writing and iridors-ing of the name by the payee thereof affect the paper so as to make the signature appear as an indorsement thereof. We think clearly under the statute that, whether the warrant be held negotiable or nonnegotiable, the forged indorsement of the payee’s name on the back amounts to forgery.

So that, whether the warrant is held to be negotiable or nonnegotiable, there can be no question but that the said warrant, in the condition it was, if indorsed by the genuine signature of the payee thereof, was capable of deceiving and unquestionably did deceive and was the subject of forgery, as alleged in the indictment herein. In this ease the evidence demonstrates, without contradiction, that the warrant as issued and the forged indorsement of the payee’s name thereon not only deceived the bank through which it passed but the state treasurer himself, who paid and cashed it when it was presented to him for that purpose in the condition it was. In our opinion the said indictment was perfectly legal and valid, and none of appellant’s objections thereto were good, and that all that was necessary or proper to be alleged in the indictment was sufficiently alleged.

The evidence in this case was uneon-troverted. There was no conflict therein. The appellant offered no evidence whatever. It authorized the jury to believe and find, if it did not unquestionably fully establish, that for some time prior to June 1, 1911, on which this forgery is charged, appellant was a clerk or at work in the pension commissioner’s office of this state and daily came in contact, because thereof, with the comptroller’s department in the issuance of pension warrants ; that the W. W. Montgomery, in whose favor this warrant purported to be issued, for many years prior to his death lived at Ennis, Ellis county, Tex., and prior to his death he was one of the confederate pensioners and had drawn a pension quarterly for some time prior to his death; that he never lived at San Antonio; that he died July 5, 1910; that, in order for any pensioner to get a pension quarterly, the law required that on or after the first of each quarter such pensioner to make an affidavit stating the county of his residence and his post office address, and that he was the identical person to whom a pension had been granted under the law, and that the conditions which existed at the time of making the application and on which the pension was granted still exist, and that his said affidavit shall be supported by the affidavit of some other credible person to the same facts; that such affidavits shall be filed with the pension commissioner for examination, and, if approved, it shall be furnished to the comptroller, and on the basis of it the comptroller should draw his warrant on the treasurer for the- amount of such quarterly pension; that the,appellant forged both of such affidavits and as an official from the pension commissioner’s office presented them to the comptroller and had the comptroller to issue said warrant; that, after the issuance of said warrant, it in some way, not made clear how by the evidence, went into the hands of the appellant, and that he thereupon forged the indorsement of the name of the payee thereof and of J. W. Moore, and that thereafter, based on said indorsements, the warrant was presented to the treasurer for payment and he paid the same. In addition the evidence tends to show and was sufficient for the jury to believe therefrom that on June 1, 1911, at which time he is charged with said forgery, appellant fled from Austin, in Travis county, where he then lived, and where his duties called him to be; that the sheriff of Travis county on that date diligently hunted for him but could not find him in Travis county and did not find him until some day or two later' when he was arrested and incarcerated by the sheriff of Tarrant county, Tex., in Ft. Worth, whence the sheriff of Travis at once went, received him, and brought him back to Travis county under arrest ; that upon his arrest in Ft. Worth there was procured from off his person or in his baggage a bank deposit book of one of the banks of Austin, Tex., the entries in which tended to show incriminating evidence in connection with the forgery charged herein; that that night, in the sleeper on the trip from Ft. Worth to Austin, appellant surreptitiously and without the knowledge and consent of the Travis county sheriff purloined the said bank book and made way with it; that, although the sheriff diligently searched therefor and had searches made all up and down the railroad over which they traveled that night, he could never find that book. Taken as a whole, we think the evidence, while it might have been strengthened on some points by the state, was sufficient to sustain the verdict.

The court did not err in admitting, over the appellant’s objections, the said forged affidavits and warrant. They were clearly identified, produced, shown to be forged by appellant, and were clearly admissible in evidence.

The charge of the court of what effect and for what purpose the said forged affidavits were admitted and could be used in evidence properly, fully, and correctly instructed the jury, and it was necessary and proper for the court to give the instructions and restrictions for what such testimony could be used, and that it could not be the basis of a conviction of the appellant for the forgery of said warrant.

We have carefully read and studied this case and the brief and oral argument by appellant’s able attorneys and all of the points raised, urged, and discussed by them. We find no reversible error in this case.

The judgment will therefore be affirmed.

DAVIDSON, P. J., dissents.