author: CARL, J.

text:
    CITY OF SAN ANTONIO et al. v. HAMILTON et al.
    (No. 5643.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 17, 1915.)
    1. Nuisance <@=>19 — What Constitutes — Injunction.
    When a business lawful in itself becomes obnoxious to neighboring dwellings, rendering their enjoyment uncomfortable by smoke, noise, offensive odors, or otherwise, it is a nuisance which equity will restrain.
    [Ed. Note. — Por other cases, see Nuisance, Cent. Dig. § 55; Dec. Dig. <@=^19.]
    2. Nuisance <§=>31 — Temporary Injunction —-Ground oe Issuance.
    Where there was a showing that the construction of a garbage incinerator in the vicinity of plaintiffs’ residences would render their enjoyment uncomfortable by reason of offensive odors, attracting swarms of flies, etc., the construction of the incinerator will be enjoined until after hearing, notwithstanding the contract for the work provided that it should be odorless and it was the intention of the city to haul garbage in covered wagons.
    [Ed. Note. — Por other cases, see Nuisance, Cent. Dig. §§ 72-76; Dec. Dig. <S=>31.]
    Appeal from District Court, Bexar County ; W. P. Ezell, Judge.
    Action by R. W. Hamilton and others against the City of San Antonio and others. Prom an order granting temporary injunction, defendants appeal.
    Affirmed.
    Geo. R. Gillette and R. J. McMillan, both of .San Antonio, for appellants. Swearingen & Ward, John-H. Bickett, Jr., and P. L. Ripley, all of San Antonio, for appellees.
   CARL, J.

Appellees, R. W. Hamilton and about 100 others, applied to the Seventy-Third district court for an injunction to restrain the city of San Antonio, San Antonio Machine & Supply Company, E. M. Groos, and the Decarie Incinerator Company from erecting and using an incinerator plant on about 20 acres of land in the said city, bounded by North Dakota street on the north, St. Charles street on the east, Iowa street on the south, and South Palmetto street on the west, which land the city owned. After a hearing, tlie court granted a temporary Injunction, and this appeal is from that order.

The bill charged that said defendants were at the time in the process of completion of this plant; that said plant would be used for the incineration of garbage, dead animals and other refuse; that it would emit large quantities of smoke and gas, and would be equipped with large smokestacks which would be ungainly and unsightly, all to the great discomfort, annoyance, and inconvenience of plaintiffs, who allege that they own homes within a radius of four blocks of the proposed site. Plaintiffs further alleged that it would be necessary to haul the garbage past their homes in order to reach the incineration plant; that large numbers of flies would be there accumulated, spreading millions of germs, etc.; that large quantities of obnoxious, unhealthy, and dangerous gases would be emitted and borne by the breezes into their respective homes and residences; further, that the smoke from the stacks would blacken their homes and cover the tombstones in St. Mary’s and Hermann Sons’ Cemeteries, and cause the shrubbery growing there to blacken, wither, and decay. They further charge that they are residents and taxpayers of the city of San Antonio, and that the erection of the incineration plant there would render the city of San Antonio liable for innumerable damages, which would be paid by them, as well as other taxpayers. It should also be said that the Her-mann Sons and St. Mary’s Cemetery were parties plaintiffs, it being alleged that the Hermann Sons owned a cemetery near the incineration plant, where the order buried its dead and the members of their families.

Defendants the city of San Antonio and the officials of the city of San Antonio replied to this petition by a general demurrer, which was overruled by the court. Answering to the merits, the city denied that the incinerator would constitute the nuisance complained of, and alleged, on the contrary, that the same would be operated in an efficient, clean, and sanitary manner; that the garbage would be transported to the plant in covered wagons; that the incinerator would be constructed of neat red brick and would constitute no defacement to the neighborhood; that it would be operated without odors or noxious vapors or gases, the same being constructed under a guaranty that all material delivered to the incinerator should be evaporated without creating any obnoxious odors or gases. The city further alleged that it was the purpose and intention of the city to construct three additional incinerators, locating the same in various portions of the town; that the incinerator complained of in this case was to be used only for the consumption of a portion of the garbage of the city, namely, the garbage collected in that part of the city adjacent to the incinerator itself.

The city, further answering, alleged:

“These defendants represent to the court that this incinerator is guaranteed by the Decarie Incinerator Company to operate in a clean, sanitary, and odorless manner, and under the terms of the contract the city is not to accept same nor pay for it until it has been demonstrated that the incinerator will operate in such a wayi The honorable court will therefore see that, as the matter now stands, the city is not obligated to accept the incinerator, unless it is in all things in compliance with the contract, in which event the incinerator will not be a nuisance. This court will therefore not anticipate the action of the city by issuing a premature writ of injunction restraining it, as the matter now stands. For the information of the court, these defendants attach hereto the contract entered into by the city of San Antonio with the Decarie Incinerat- or Company, which shows the kind and character of the incinerator contracted for, and defendants now ask leave of the court at a convenient time to detach same and return it to the archives at the city hall, as it is the only copy in the' possession of the city of San Antonio. We direct the special attention of the court to the following provision of the contract: ‘We guarantee that all materials as specified delivered to the' incinerator shall be evaporated and incinerated to a complete mineral ash without creating any obnoxious odors or gases.’ There is nothing in the character of the incinerator provided for by this contract which can possibly constitute a nuisance warranting abatement, and the only possible grounds for complaint that plaintiffs can have would grow out of the manner of the operation of the incinerator. This honorable court will not presume in advance that the city is going to violate its duty in the operation of this plant, nor presume that the city is going to operate it in such a manner as to constitute a nuisance to its citizenship. The extraordinary equitable powers of this court will not be used to restrain the city of San Antonio and its officials in the conduct of the business of the city upon fanciful, speculative, or imaginary grounds. These defendants therefore say that plaintiffs are premature in asking for this writ of injunction.”

Further answering, the city pleaded the various provisions of the charter authorizing the governing body of the city to make all regulations necessary for the protection and promotion of the public health, further alleging that the city commissioners, in the exercise of their discretion, had selected this place for the incinerator, that the same was a site owned by the city of San Antonio, lying in a sparsely settled portion of the city, and that the selection had been made after the consideration of many places, and with due regard to the rights of all parties.

The Decarie Incinerator Company, Ernest M. Groos, and the San Antonio Machine & Supply Company filed a general demurrer and general denial.

In response to the defendants’ answers, plaintiffs filed their first supplemental petition, praying the court to restrain the city from experimenting with this incinerator until a final trial could be had upon its application for a permanent injunction.

As we view this case, since it is from the granting of a temporary injunction, the object of which is to preserve the status quo of the property, our inquiry should only concern itself with whether the trial court abused Its discretion in granting the temporary injunction, or as to whether the evidence is sufficient reasonably to raise the issue as to whether the plant, when completed and in operation, by the mode and manner of its use, would constitute a nuisance.

There is evidence in the record which tends to prove that a similar plant at Corpus Christi is a nuisance, and two physicians testified that the hauling and concentrating dead animals at that place, with their accompanying flies, vermin, and foul gases, would be a menace to the health of plaintiffs and all those living in that neighborhood.

“The law may be regarded as settled that, when a business, although lawful in itself, becomes obnoxious to neighboring dwellings and renders their enjoyment uncomfortable, whether by smoke, cinders, noise, offensive odors, noxious gases, or otherwise, the carrying on of such business is a nuisance which equity will restrain.” High on Injunctions, § 772.

And in section 4 of 1 High on Injunctions it is said:

“The sole object of an interlocutory injunction is to preserve the subject in controversy in its then condition and without determining any question of right, merely to prevent the further perpetuation of wrong or doing of any act.”

That a temporary injunction may be granted when a probable right or probable danger is shown is well settled. Such an order in no manner determines the rights of the parties on the trial, but merely preserves the status quo until those rights may be determined upon final trial on the merits. Again referring to High on Injunctions in regard to temporary orders:

“They merely recognize that a sufficient case has been made out to warrant the preservation of the property or the rights in issue in status' quo until a hearing upon the merits, without expressing, and indeed without having the means of forming a final opinion as to, such rights.”

In the case of Jung v. Neraz, 71 Tex. 399, 9 S. W. 344, the petition charged that the defendants were establishing a cemetery on land higher than and contiguous to complainant’s, and that the decaying, putrid matters from dead bodies would be washed down and would soak through the ground into the wells of the plaintiffs, thus rendering them dangerous to health. The Supreme Court said that this entitled the plaintiffs to a restraining order; and we do not think this rule has ever been changed in Texas.

The rule is that, if it be made reasonably to appear that the homes of plaintiffs would be rendered less comfortable, or that their health would be jeopardized, by the concentrating and burning of garbage and dead animals, a temporary injunction would properly issue pending the determination of the issues upon a trial. Lowe v. Prospect Hill Cemetery Ass’n, 58 Neb. 94, 78 N. W. 488, 46 L. R. A. 241; Jung v. Neraz, 71 Tex. 396, 9 S. W. 344; Kingsbury v. Flowers, 65 Ala. 484, 39 Am. Rep. 14; Rouse v. Martin, 75 Ala. 514, 51 Am. Rep. 463; Clark v. Lawrence, 59 N. C. 83, 78 Am. Dec. 241; Dunn v. City of Austin, 77 Tex. 146, 11 S. W. 1125.

We cannot agree to the contention of the city that it should be permitted to experiment so as to determine whether the plant can he operated without injurious consequences; that is, in so far as the issuance of a temporary injunction is concerned. The evidence does tend to show that the operating of same would endanger the health and comfort of plaintiffs. Their physicians say that the flies which feed and fatten on the putrid matters there to be concentrated would take refuge in their homes, that they would bear disease germs with them, etc., and that foul and noxious gases would be given off, much to their discomfort and danger.

We determine no issue in this case, and are not called upon to determine any, save whether the trial court abused his discretion in gx-anting a temporary injunction, and, since there was evidence given upon the hearing which tends to substantiate the allegations of the petition that a nuisance is about to he created on Knob Hill by the erection and operation of this incinerator, we would not he justified in saying that the trial court erred in maintaining the status quo until the issues can be determined by a trial on the merits.

Judgment affirmed.


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    MOOSE v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 9560.)
    (Supreme Court of Texas.
    Dec. 1, 1915.)
    1. OouRTS <&wkey;247 — County Courts — Jurisdiction-Amount.
    An action against a railroad in the district court to recover for the destruction of a house by fire, laying damages at $1,000, and interest from the date of its destruction, inclusive of interest, made the amount in controversy more than $1,000, and a case of which the county court would not have had jurisdiction, so that the jurisdiction of the Court of Civil Appeals over the case was not final.
    [Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247J
    2. Damages <&wkey;69 — Unliquidated Claims.
    In such action interest was recoverable only as a part of the damages.
    [Ed. Note. — Por other cases, see Damages, Cent.- Dig. §§ 137-140; Dec. Dig. &wkey;69.]
    On motion to dismiss a petition for a writ of error.
    Motion overruled.
    Por opinion below, see 179 S. W. 75.
    L. E. Blankenbecker, of Houston, for applicant. Baker, Botts, Parker & Garwood, of Houston, for- defendant.
   PHILLIPS, C. J.

The defendant in error has filed a motion to dismiss the petition for writ of error upon the ground that the jurisdiction of the Court of Civil Appeals over the case is final; the amount in controversy being such as to make the suit cognizable by the county court.

The suit was filed in the district court. It was one for the recovery of damages arising from the destruction of a house by fire. In the petition the damages are laid at $1,000, with interest from the date of the destruction of the house, June 2, 1913. In a suit of this character interest is recoverable only as a part of the damages. Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; Railway Co. v. Rayzor, 172 S. W. 1103. Inclusive of .the interest sued for, the amount in controversy exceeds $1,000, and the case is therefore not one of which the county court would have had jurisdiction.

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


author: YANTIS, J.

text:
    HOVENCAMP et al. v. UNION STOCKYARDS CO.
    (No. 2419.)
    (Supreme Court of Texas.
    Dec. 1, 1915.)
    1. Warehousemen &wkey;>34 — Stockyards—Negligence-Petition — SUFFICIENCY AGAINST General Demurrer.
    The petition in an action against a stockyards company for damages to live stock was not subject to a general demurrer, where it alleged that it was defendant’s duty to notify plaintiffs of the arrival of the stock, and that it neglected to do so, that the stock arrived in a bad condition, and that defendant negligently placed them in open and unprotected pens, thereby exposing them to the heat of the sun, in direct consequence of which several died, and others were injured, though there was no allegation as to how or in what manner it became defendant’s duty to notify plaintiffs.
    [Ed. Note. — Por other cases,,see Warehoúse-men, Cent. Dig. §§ 71-85; Dec. Dig. &wkey;>34.]
    2. Warehousemen <&wkey;34— Stockyards — Negligence of Agent — Question for Jury — Injuries to Live Stock.
    Where, in an action against a stockyards company for injuries to live stock from the negligence of defendant’s servants, there was some evidence that such servants were under directions of plaintiffs’ agent, but the evidence did not conclusively show that such agent had exclusive control over them, the question whether defendant was liable as for the negligence of its servants for injuries from their failure to give prompt notice of the arrival of the stock and properly care for them until such notice was given was for the jury.
    [Ed. Note. — Por other cases, see Warehouse-men, Cent. Dig. §§ 71-r85; Dec. Dig. <&wkey;>34.]
    3. Warehousemen <&wkey;24^ST0CKYARDS Company — Negligent Injury to Stock — Liability.
    Where the business in which a stockyards company is engaged for profit is to furnish pens for cattle to unload, weigh, feed, and water, and to deliver them into pens set aside for the use of several commission agents, it is liable for damages due to its failure to exercise ordinary care to safely handle stock intrusted to it.
    [Ed. Note. — Por other cases, see Warehouse-men, Cent. Dig. §§ 11, 48, 49, 51-54; Dec. Dig. <&wkey;24.]
    4. Damages <&wkey;113 — Stockyards Company-Negligent Injury to Stock — Measure of Damages.
    Where, in an action against a stockyards ciimpany for negligent injury to stock, the undisputed evidence showed that some of the animals were badly injured and some in a dying condition when received by defendant, the measure of damages, except as to those which died, was the difference between the market value at destination in the condition they were in when received by the stockyards company from the railroad company and the market value when delivered to plaintiff, and, as to those which died, the stockyards company, though not liable for those dying as the proximate result of injuries inflicted during transportation, being liable for the market value at destination of those dying from its own negligence.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 90, 91, 279, 280; Dec. Dig. &wkey; 113.]
    5. Carriers &wkey;>229 — Shipment of Live Stock —Measure of Damages.
    The measure of damages for injury negligently inflicted on live stock during transportation is the market value at the place of delivery of those killed or rendered worthless, and the measure of damages for those injured, but not killed or rendered worthless, is the difference be* tween their market value as delivered and what it would have been had they been handled with proper care.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <@^229.]
    Error to Court of Civil Appeals of Pourth Supreme Judicial District.
    Action by H. W. I-Iovencamp and others against the Union Stockyards Company and another. A judgment against the defendant named was reversed by the Court of Civil Appeals, and judgment rendered for such defendant, and plaintiffs bring error.
    Judgment of Court of Civil Appeals (144 S. W. 704) set aside, judgment of trial court reversed, and cause remanded, with directions.
    T. D. Cobbs and T. D. Cobbs, Jr., both of San Antonio, for plaintiffs in error. Webb & Goeth and F. C. Davis, both of San Antonio, for defendant in error.
   YANTIS, J.

Plaintiffs in error sued to recover damages from the Missouri, Kansas & Texas Railway Company of Texas for the alleged negligent handling of a shipment of bulls during their transportation and carriage by said railway company from Ft. AVorth, Tex., to San Antonio, Tex., and to recover damages from the defendant in error, the Union Stockyards Company, alleged to be a corporation doing business in . Bexar county, Tex., for its alleged negligence in handling the cattle after they were delivered to it by the said railway company. There was a judgment in favor of the railway company discharging it from liability, and no appeal therefrom was taken. The plaintiffs in error recovered a judgment against the Union Stockyards Company, and upon appeal the honorable Court of Civil Appeals reversed and rendered said judgment in favor of the defendant in error. The writ of error was granted by this court on the petition of XIovencamp et al., plaintiffs in error; this court expressing the view that the case should not have been rendered by the honorable Court of Civil Appeals. We adhere to that view. We have made a careful examination of the evidence, and have reached the conclusion that we cannot say there is no evidence of probative force tending to support the allegations of negligence upon which a recovery was sought. The evidence is sufficient to make an issue of fact as to whether the Union Stockyards Company was guilty of negligence in failing to notify the plaintiffs in error, or their agent, the Saunders Commission Company, of the arrival of the bulls, and in the manner in which said Stockyards Company exposed said bulls to the heat of the sun in open and unprotected pens; these being the grounds of negligence upon which a recovery was predicated.

It was not error for the trial court to overrule the general demurrer to the original petition on whiqh the case was tried. While the allegations would be insufficient against appropriate special exceptions, we think they are sufficient as against a general demurrer, where the rule is that every reasonable in-tendment should be indulged in favor of the pleading thus attacked. There is no allegation in the petition which directly alleges how and in what manner it became the duty of the Union Stockyards Company to notify the plaintiffs in error, or its agent, the Saunders Commission Company, of the arrival of the bulls, but the petition does allege that it was the duty of the Stockyards Company to so notify the plaintiffs, or their agent, and that it neglected so to do. The petition also alleges that the bulls arrived in bad condition, that several were in a dying condition, and that the Stockyards Company negligently placed them in open and unprotected pens, and thereby exposed them to the heat of the sun, and that such conduct was the direct and proximate cause of the death of some of the bulls, and of the injuries to several others. These allegations would admit evidence in support thereof. It would be better xolead-ing to show how the duty whose failure is complained of arose, rather than to plead a conclusion, but there was no special exception to the foi'm of the allegation, and it cannot be said, in view of the allegations recited, that the petition was fatally defective when giving it the benefit of every reasonable intendment, which it is our duty to do.

We cannot sustain the contention of the defendant in error that the agents and servants of the Stockyards Company who handled the bulls were handling them exclusively as the agent and servants of the Saunders Commission Company, and that the latter alone would be liable for their negligence, if any, in the manner of caring for the bulls. There is some evidence of this nature which might tend to prove that in several particulars the Saunders Commission Company, agent for the plaintiffs in error, had the power of direction over said servants, but it does not go to the extent of establishing, as a matter of law, that such power of control and direction was exclusive, there being evidence from which it could be inferred that it was the duty of the Stockyards Company to control its servants in the matter of giving prompt notice of the arrival of the bulls, as well as the degree of care the Stockyards Company should give the bulls until such time as the Saunders Commission Company could be notified of their arrival.

There is evidence from which it might be inferred by the jury that the agents and servants of the Stockyards Company were employed by it, and paid by it, and that the business of the Stockyards Company was to furnish pens for cattle to unload, weigh, feed, and water, and deliver them into the pens set aside for the use of the several commission agents in cases where the shipment was to any of the commission men who had arranged with it for the use of its pens, and that all this service was done by the defendant in error for hire; a charge being made and collected by it for such services. This was the line of its business which it conducted for profit, quite like the keeper of a livery stable conducts his business, and is similar to the business of the agistor who allows the use of his pasture to the owners of cattle ■ and horses for hire, in which cases it is well settled that the duty arises to exercise ordinary care to safely handle the stock intrusted to the livery stable keeper, or to the agistor. We think the same rule would apply in the instant case, except as to the performance of such duties by the servants of the Stockyards Company as were to be performed under tlie exclusive direction of tlie Saunders Commission ¡Company. Tlie (evidence presented on this appeal is not conclusive that the Saunders Commission Company had any control over such servants in the matter of giving notice to it of the arrival of the hulls, or in the matter of the proper care of hulls arriving in an overheated condition, lite these bulls arrived, until they could be actually delivered to the Saunders Commission Company, or until notice of their arrival and condition could be made to it. It was upon these questions that the plaintiffs in error alleged a failure to exercise ordinary care by the Stockyards Company and its servants, and we hold negligence could be predicated upon such questions, and it would be for the jury to determine from the evidence whether such negligence was, in fact, committed.

Several objections are leveled at the court’s charge. Some of them are well taken, and must he sustained. The first paragraph of the court’s charge authorized a recovery against the Union Stockyards Company for the negligence that occurred during the transportation of the hulls from Ft. Worth to San Antonio. This was error as applied to the defendant in error, as the undisputed evidence shows that the Stockyards Company had no control of the hulls until they were delivered to them subsequent to their shipment from Ft. Worth to San Antonio. Only the railroad company would be liable for injuries which were caused by negligence in the manner of shipment. The construction we give to this charge we realize was not intended by the learned trial judge, but still it contains the vice stated, and was calculated to mislead the jury.

The court’s charge on the measure of damages must have been intended to have application in case the jury should find damages against the railroad company, for it does not announce the correct rule as applied to the Union Stockyards Company, having in view the evidence introduced. The charge is as follows:

“If you find for the plaintiffs, the measure of the damages will be the difference between the market value of the bulls in San Antonio on May 5, 1906, if they had been delivered to the plaintiffs uninjured, and the market value in the condition they were in when delivered to thg plaintiff, not to exceed, however, the sum of $950, which is the amount claimed by plaintiffs in their petition, with interest from May I) 1906, to date at the rate of 6 per cent, per an-num.”

The true measure of damages for injury to live stock when negligently inflicted during transportation is the market value at the place of delivery of those killed or rendered worthless, and the measure of damages for those that were not killed or rendered worthless, but which were injured during shipment, would be the difference between their market value as delivered and what it would have been had they been handled with proper care during shipment. The charge on the measure of damages which was given allowed a recovery against the defendant in error for the injuries that were inflicted during their transportation, for which, under the facts, only the railroad company could be liable. It authorized a recovery against the defendant in error for the difference between the value of the bulls in an uninjured condition and their value when delivered to the plaintiffs in error. But the undisputed evidence shows that some of the bulls were badly injured, and some of them in a dying condition, when they were received by the defendant in error, and damages for such injuries as were inflicted before the defendant in error received them should not be recovered from the defendant in error.

The true measure of damages as applied to the defendant in error should be the difference between their market value in San Antonio in the condition they then were when received by it from the railroad company and the market value when delivered by it to the plaintiffs in error, except that it should not be held responsible for the value of any of the bulls which died as the proximate result of injuries inflicted during transportation, but as to the bulls which died it should only be held responsible for the market value in San Antonio of those that died as the proximate result of its own negligence, if any, and not for the value of those that would have died, if any, from the injuries received before they were delivered to the defendant in error. Railway v. Klepper (Civ. App.) 24 S. W. 567; Railway v. Godair, 3 Tex. Civ. App. 514, 22 S. W. 777; Railway v. Butler, 31 Tex. Civ. App. 576, 73 S. W. 84; Railway v. Leibold (Tex. Civ. App.) 55 S. W. 368; Railway v. Johnson (Civ. App.) 29 S. W. 430.

We conclude that the honorable Court of Civil Appeals erred in rendering judgment for the defendant in error, which judgment should be set aside, but we hold that the judgment of the trial court should be reversed, and the cause remanded for another trial as between the plaintiffs in error and the defendant in error, but the judgment of the trial court should be affirmed as between them and the Missouri, Kansas & Texas Railway Company of Texas; and it is so ordered.


text:
    WATKINS v. MINTER et al.
    (No. 2421.)
    (Supreme Court of Texas.
    Dec. 1, 1915.)
    1. Insane Pebsons <&wkey;53 — Custody—Bond-Requisites.
    A bond conditioned that the principal shall faithfully protect and cause to be protected all animal and human life, and become responsible for all damages by reason of the acts of an insane person, and that the principal will deliver such person into the hands of the county judge upon demand, cannot be sustained as a statutory bond under Rev. St. 1895, art. 140, providing that a lunatic may be committed to the care of relatives or friends upon the execution of a bond to tbe state, conditioned that the party giving such bond will restrain and take proper care of the lunatic, so long as his mental unsoundness continues or until he is delivered to the sheriff or other person to be proceeded with according to law, the bond differing from the statutory bond in being made payable to the county judge instead of the state and in carrying a somewhat onerous condition.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 84, 85; Dec. Dig. <3&wkey;53J
    2. Insane Persons <&wkey;53 — Custody Bond-Sufficiency.
    A bond conditioned for the care of an insane person by the principal and for the protection of animal and human life and to cover damages arising by reason of the acts of the insane person, given for a valid consideration by the principal and sureties voluntarily and of their own accord, is good as a common-law obligation.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 84, 85; Dec. Dig. <&wkey;53.j
    3. Courts <&wkey;247 — Certified Questions — Statement of Case.
    In answering a question certified from the Court of Civil Appeals, the Supreme Court will predicate the answer solely upon the statement of the case as contained in the certificate.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247.]
    4. Insane Persons <&wkey;53 — Custody Bond-Suit on Bond — Parties.
    Where a bond for the custody of a lunatic constitutes a valid obligation upon which the obligee may sue for the use of any one injured as a result of failure to restrain the lunatic, a person for whose use such suit might be maintained can himself prosecute it.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 84, 85; Dec. Dig. <&wkey;>53.]
    Certified Question from Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by J. C. Watkins against L. B. Minter and others. From an order sustaining a general demurrer to the petition, plaintiff appeals. On questions certified by the Court of Appeals.
    Questions answered.
    J. H. Beavers and Harris, Suiter & Brit-ton, all of Winnsboro, for appellant. D. Thornton, of Sulphur Springs, for appellees.
   PHILLIPS, C. J.

The questions which are certified by the honorable Court of Civil Appeals for our determination arise upon the action of the trial court in sustaining the general demurrer of the defendants there, L. B. Minter, A. H. Minter, and L. A. Lollar, to the petition of the plaintiff in the suit, J. C. Watkins.

The petition contained two counts. Under the first recovery was sought in the sum of $3,000 upon a bond executed by the defendants, which reads as follows:

“Official Bond.
“State of Texas, County of Hopkins.
“Know all men by these presents that we, L. B. Minter as principal, and A. H. Minter and D. A. Lollar as sureties, are held and bound unto F. W. Patterson, county judge of Hopkins county, Texas, and to his successors in office in the sum of $3,000 for the payment of which we hereby bind ourselves and our executors and administrators jointly and severally by these presents. Signed with our hands and dated this the 5th day of Sept., A. D. 1910.
“The condition of the above obligation is such that whereas on the 5th day of September, 1910, Claude Minter was duly and legally adjudged a lunatic in Hopkins county, in the state of Texas: Now, therefore, if the said L. B. Minter shall faithfully protect and cause to be protected all animal and human life and become responsible for all damages that may hereafter arise by reason of the acts of the said Claude Minter and the said L. B. Minter will deliver the said Claude Minter into the hands of F. W. Patterson, county judge, upon demand to be dealt with as the law directs in such cases, then this obligation is to be void, otherwise to remain in full force and effect.”

In this connection the averments of the petition, in substance, were that the Claude Minter referred to in the bond, prior to its execution, had been adjudged a lunatic, being then violently insane and dangerous, as was well known to the defendants; that the defendants were his relatives and friends, and executed the bond in order to obtain his custody and to prevent his incarceration in the county jail while awaiting removal to the asylum; that upon the execution of the bond Claude Minter was delivered to the custody of the defendants, who undertook to care for him, but they negligently permitted him to go without restraint, during which time he came unexpectedly into the plaintiff’s residence and assaulted him with a knife, inflicting upon him serious injuries. The certificate states that the averments of the1 petition are sufficient to constitute a cause of action, if the bond, executed under the circumstances related, will support the action.

In the second count, the averments in respect to the insanity of Claude Minter and his having been adjudged a lunatic, were reiterated; it being further alleged, in effect, that the defendants, on account of their relationship and friendship for him, desired to have charge of him pending his removal to the asylum; and promised and obligated themselves to the county judge and other officers of the county that they would control him and be responsible for all damages to the person or property of others that he might cause, and would return him to such officers ■on demand, if permitted to have his custody; that upon such promise and obligation, he was delivered into their possession by the county officials; that the defendants thereupon became responsible for his control and restraint, but shortly afterwards negligently permitted him to escape and go to the plaintiff’s house and commit an assault upon him with a knife, causing his damages in the sum of $3,000, which would not have occurred had they exercised ordinary care in his management and control.

The questions certified are as follows:

Did the petition state a good cause of action on the bond?

If not, did it state a good cause of action for common-law negligence?

Did the court err in sustaining the general demurrer?

At the time of the execution of the bond, September 5, 1910, article 140, Revised Statutes of 1895, governed the terms in which a bond of this nature was required to be executed. It read:

“No warrant to convey a lunatic to the asylum shall issue if some relative or friend of the lunatic will undertake, before the county judge, his care and restraint, and will execute a bond in a sum to be fixed by the county judge, payable to the state, with two or more good and sufficient sureties to be approved by the county judge, conditioned that the party giving such bond will restrain and take proper care of the lunatic so long as his mental unsoundness continues, or until he is delivered to the sheriff of the county or other person, to be proceeded with according to law; which bond shall be filed with and constitute a part of the record of the proceeding, and may be sued and recovered upon by any party injured, in his own name.”

The bond here differs from the bond of the statute in having been made payable to the county judge of Hopkins county, instead of the state, and in carrying a somewhat onerous condition. It cannot therefore be sustained as a statutory bond. Johnson v. Erskine, 9 Tex. 1.

Under the averments of the petition it was good, however, as a common-law obligation.

The rule which controls the question is dearly stated in Leona, etc., Co. v. Roberts, Governor, 62 Tex. 615:

“ ‘The general rule is that a bond, whether required by statute or not, is good at common law if entered into voluntarily, and for a valid consideration, and if not repugnant to the letter or policy of the law.’ Thompson v. Buckhannon, 2 J. J. Marsh. 416. All persons of proper age and discretion may make such contracts, and they will be binding although one of the parties was the superior of the other in authority, provided they stood upon equal terms in making the contract. But if the bond is exacted colore officii, or as the condition to some act or proceeding to which the party would be entitled without giving the bond, it will be void for duress. Germond v. People, 1 Hill (N. Y.) 343; Perry v. Hensley, 14 B. Mon. [Ky.] 474 [61 Am. Dec. 164] ; Aucoin v. Guillot, 10 La. Ann. 124; United States v. Tingey, 5 Pet. 115 [8 L. Ed. 66]; United States v. Bradley, 10 Pet. 361 [9 L. Ed. 448].
“Such is the result of all the decisions bearing upon this question, and the principle derived from them is decisive of this appeal. Eichoff v. Tidball, 61 Tex. 421; Wooters v. Smith, 56 Tex. 199; Dignan v. Shields, 51 Tex. 322; Alexander v. Silbernagel, 27 La. Ann. 557; Harris v. Simpson, 4 Litt. [Ky.] 165 [14 Am. Dec. 101]; Churchill v. Perkins, 5 Mass. 541; Hawes v. Marchant, 1 Curt. 150 [Fed. Cas. No. 6,240], and the authorities already cited.”

Its definite expression is also found in City of Marshall v. Bailey, 27 Tex. 686, and National Bank v. Sester, 73 Tex. 542, 11 S. W. 626, and application of it is made in the further cases of Jacobs v. Daugherty, 78 Tex. 682, 15 S. W. 160; Edmiston v. Concho County, 21 Tex. Civ. App. 339, 51 S. W. 353; and Hines v. Norris (Civ. App.) 81 S. W. 791.

The bond was not opposed to the policy of the law; the statute required a bond of its general nature as a condition for the release of an insane person from custody. For the same reason it was not exacted in relation to a right which the defendants were entitled to exercise without the giving of any bond. It was supported by a sufficient consideration — the discharge of Claude Minter from custody. Its validity as a common-law obligation is therefore to be determined according to whether its execution and delivery was voluntary. The certificate of the Court of Civil Appeals in its recital of the contents of the first count of the plaintiff’s petition does not reveal the state of the pleading in this particular.

In answering a certified question our practice is to predicate the answer solely upon the statement of the case as contained in the certificate of the Court of Civil Appeals. If we look merely to the certificate, our answer to the present question would necessarily be hypothetical. The petition itself, as contained in the transcript of the record of the case, accompanies the certificate and is before us. It shows that recovery was sought upon the bond as a common-law obligation in the event it should be held insufficient as a statutory obligation. In that part of the petition it is distinctly alleged that the bond was executed and delivered by the defendants, voluntarily and of their own accord, for the purpose of obtaining Claude Minter’s custody and control. It appears to have been framed with the rule to which we have adverted in the mind of the pleader. As the question certified turns on the state of the pleading, we will, in the present case, look beyond the certificate to the averments of the petition. Under the allegation, that the execution and delivery of the bond was altogether voluntary on the part of the defendants, the petition stated a cause of action on the bond as a common-law obligation, and the first question certified is accordingly answered in the affirmative. According to the petition the defendants obtained Claude Minter’s release from custody without giving the bond which the statute required, but through a bond, the terms of which they voluntarily imposed upon themselves. If it was given under such circumstances, they are in no position to say, accomplishing as it did the full purpose of the statutory bond, that it was extorted from them; and no sound reason can be advanced why it should not be enforced.

Being only a common-law obligation, the bond derives no aid from the statute. But its terms are such as to clearly render it enforceable without reference to the statute. Its condition is that the principal of the bond, L. B. Minter, will faithfully protect and cause to be protected all human and animal life from the acts of the insane person released into his care, and will be responsible for all damages that might arise by reason of such person’s acts.

Under these terms it is plain that a suit could be maintained on the bond by the obligee therein for the use of any one injured as the result of L. B. Mister’s negligence in his restraint of the lunatic; and a person for whose use such a suit might be maintained could himself prosecute it. Martel v. Somers, 26 Tex. 551; Smith v. Wingate, 61 Tex. 54.

It follows that the trial court erred in sustaining a general demurrer to the petition. Under our answer to the first question, a determination of the second question is unnecessary.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: DAVIDSON, J.

text:
    BOYD v. STATE.
    (No. 3689.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.
    On Motion for Rehearing, Dec. 1, 1915.)
    1. Criminal Law <@=982 — Suspended Sentence-Statute.
    Under the statute as to a suspended sentence expressly excepting murder from its provisions, the refusal to submit a plea for a suspended sentence was proper, where the court did net submit manslaughter, but submitted murder.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <@= 982.]
    2. Criminal Law <@=>376 — Evidence—Reputation — Suspended Sentence.
    Where the court declined to submit the issue of manslaughter, it was error to permit the state to attack defendant’s good character, which he had not placed before the jury, since it is only when the suspended sentence law applicable to manslaughter is an issue in the ease that the state can show defendant’s bad reputation as original testimony.
    LEd. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. <@=>376.]
    3. Homicide <@=>307 — Instructions — Negligent Homicide.
    In a prosecution for homicide, where the court submitted the state’s theory that defendant and his associates were to kill deceased, and there was evidence that they agreed to assault deceased with brickbats, with no purpose to kill him, but only to frighten him, although the wound inflicted caused his death, a charge on negligent homicide should have been given.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. <@=>307.]
    4. Homicide <§=3 — Assault — “Deadly Weapon.”
    In a prosecution for homicide the fact that the brickbat or whatever struck the deceased made an indentation and fractured the skull about the size of a quarter of a dollar, without showing its size or weight, did not show 'it to be necessarily a “deadly weapon,” and the fact that deceased died from the wound did not of itself prove that it was necessarily a “deadly weapon.”
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 5; Dec. Dig. <@=>3.
    Eor other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]
    5. Homicide <@=290 — Instructions — Means or Instrument Used.
    In a trial for murder, where the state’s theory was that defendant, with his two associates, were to waylay and kill deceased, .and where defendants’ theory and evidence was that they were to frighten him by throwing rocks, or in some way, without any purpose to kill him, and where it appeared that deceased was struck twice by a brickbat or something thrown, and that one missed him, an instruction under Pen. Code 1911, art. 1147, requiring consideration of the means or instruments used should have been given.
    [Ed. Note — For other cases, see Homicide, Cent. Dig. § 595; Dec. Dig. <@=>290.]
    6. Criminal Law <@=419, 420 — Evidence — Hearsay.
    Where deceased could not speak English, and the witness testifying to his statement, admitted as a dying declaration, spoke both English and Mexican, and in the presence of the county attorney and other officers translated from Mexican into English what she said the deceased Mexican said, the officers not understanding what occurred, except as stated by the witness, who had not been sworn as an interpreter, her statements in the translation of deceased’s statement to the officers, and their testimony as to what she said, was inadmissible, since it was purely hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@=419, 420.]
    On Motion for Rehearing.
    7. Homicide <@=309 — Instructions — Manslaughter.
    In a trial for murder, where the theory of the state was that the defendant and his two associates agreed to waylay and kill deceased, and where defendants' theory and evidence was that they wore to waylay and frighten him by throwing rocks, or in some other way, without any purpose of killing him, an instruction on manslaughter was properly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <@= 309.]
    8. Criminal Law <@=419, 420 — Evidence— Hearsay.
    In a trial for murder, statements of Oklahoma officers to Texas officers who had gone to Oklahoma in search of defendant, who had gone to that state after the homicide, that defendant was going under a different name from his real name, made when defendant was not present and knew nothing of the statement, was hearsay and inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@= 419, 420.]
    9. Criminal Law <@=424^-Evidenoe — Statements oe Conspirators.
    In a trial for murder, testimony for the state of a party who had been with defendant at the time of the homicide, as to what the other party with them had told him as to who threw the rock which hit and wounded deceased, made out of the hearing of defendant and after the offense was alleged to have been committed, was inadmissible, since the conduct and statements of coconspirators after the completion of the conspiracy cannot be used against other parties thereto who were not present and did not hear it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. <@= 424.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Wood County; W. R. Heath, Judge.
    Cliff Boyd was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    W. W. Campbell, of Alba, and M. D. Car-lock, of Winnsboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

The state’s theory of the case is practically made by the testimony of Gallagher. In substance, that witness testified: That he, defendant, and Farris were sitting in a restaurant in Alba, Wood county, when the deceased came in. The deceased carried a bundle showing he had made purchases which were in the sack. There are lignite coal mines in that immediate vicinity, and deceased was an employé of the mining company. The suggestion was made by one of the three that they waylay and frighten him by throwing rocks or in some other way, and Gallagher testified that one of them stated that they would brain him. This latter expression was supposed to mean that they would kill him. They further agreed among themselves that two of them would get in front of the Mexican and waylay him at some convenient point and chunk him. Gallagher was to follow behind and whistle so as to give the other two notice not to strike him, and segregate and identify himself from the Mexican so there would be no mistake in the man they struck or chased. That in pursuance to this agreement he followed the Mexican. On reaching a certain point he whistled, and the other two threw at the Mexican three times. The substance thrown at him struck him in the forehead and cracked the skull. The Mexican lived about 90 days and died. There were two operations performed on him and a piece of bone taken from the skull each time. There is evidence from Gallagher of an inferential nature tending to show the purpose was to kill. That was the state’s theory of the case. Quite a number of contradictory statements were introduced against Gallagher from almost immediately after the trouble, or very shortly thereafter, flatly contradictory of his testimony before the jury, which, if true, would show there was no purpose to kill. Gallagher turned state’s evidence under a contract with the state, for which he received manslaughter with suspended sentence. This was done, as shown by the testimony of the county attorney, or at least some'of the witnesses, because appellant filed a plea for suspended sentence. The case was dismissed against Gallagher with a view of his reindictment and a plea of guilty with suspended sentence.

The defendant’s theory of the case shows that there was no purpose of killing the Mexican, but it was only to frighten him. After they started on the expedition he and Farris went by a pile of bricks and broke some of them, and it would seem that the evidence indicates that it was with one of these pieces of brickbat that the Mexican was struck. The Mexican had on his head what is termed a miner’s lamp, which is intended to give'light in moving about in the mines or in the dark. Anyway, the Mexican had on the light, and one of the missiles seems to have been thrown at this light, and struck the Mexican just under or where it was. Appellant’s testimony is further to the effect that he did not understand the Mexican was to be killed, but was to be frightened and scared; in other words, his testimony excludes the idea of a homicide with intent. Upon that general proposition the state’s theory was that they had the ulterior purpose of killing, or by throwing the bricks' at the Mexican might result in his death, while that for the defendant was directly opposite, and there was no purpose or intent to kill. Appellant’s testimony is further to the effect that he did not participate in the throwing of the rocks or bricks, but after they started a friend of his by the name of Watson came along where he and Farris were and proposed they go to a picture show, and that he left and went to the picture show with Watson, and that the trouble all arose with the Mexican while he was absent at the picture show, and he had no connection with the immediate difficulty.

The defendant filed a plea for suspended sentence'. This was not submitted to the jury, because the court declined to submit the issue of manslaughter. The statute in reference to suspended sentence does not apply to murder; it being excepted out of the provisions of that law. Inasmuch as the court did not submit manslaughter, but submitted murder, there was no error in this ruling.

This brings up another question as shown by a bill of exceptions, to wit: That as original testimony the state introduced evidence attacking the reputation of appellant over his objection. This was admitted on the theory that he had filed a plea for suspended sentence. Inasmuch as the court declined to submit the issue of manslaughter, it was error to permit the state to attack appellant’s good reputation. He had not introduced any such evidence, and had not placed his reputation before the jury.- Had the court submitted the issue of suspended sentence, under the decisions of this court this would not have been error. It is only when the suspended sentence law is an issue in the case that the state is permitted to introduce the bad standing of the defendant as original testimony or before defendant places his reputation before the jury by facts or testimony.

The court’s charge is attacked because it failed to submit the issue of negligent homicide in the second degree. For cases cited and collated see Mr. Branch’s Criminal Law, § 500. A charge on negligent homicide should have been given. The court submitted the state’s theory of murder, and also gave a charge on aggravated assault in a general way. If appellant, Farris, and Gallagher agreed to assault the deceased with pieces Of brickbat, with no purpose to kill, but only to frighten, and the wound inflicted produced death without intention to hill, negligent homicide is in the case.

There is no positive evidence in the record that the weapon was a deadly weapon, and it is to be deduced from the fact that whatever struck the deceased Mexican on the head made an indentation and fractured the skull about the size of a silver quarter of a dollar, which was, it is claimed, the ultimate cause of death. It seems the only evidence indicating the instrument used which inflicted the wound was a piece of brickbat, the size of which is not given, nor is its weight mentioned. This is not necessarily a deadly weapon, and the fact that the Mexican died from the wound thus inflicted would not of itself prove it was necessarily a deadly weapon. It also seems from the testimony three missiles were thrown, one of which missed him, one struck him in the back, and the other on the head.

This served to emphasize the proposition that negligent homicide should have been given in charge to the jury. We are further of opinion that these facts also called for a charge under article 1147 of the Revised Penal Code of 1911. For authorities sustaining this proposition see Mr. Branch’s Criminal Law, § 434, and the numerous cases there collated. • If appellant was engaged in throwing rocks or pieces of brickbat at the Mexican with no purpose of killing, the jury should have been told that he might be, from that viewpoint of it, convicted of some degree of assault. Article 1147 and subsequent articles were not given in charge to the jury. The writer is of opinion that a charge on manslaughter should have been given under the facts, but my Brethren do not so believe. In addition, this record discloses that Parris was permitted to turn state’s evidence under a contract to plead guilty to manslaughter, which he did, and Gallagher, the other supposed or alleged conspirator, entered into contract with the state by which he was to plead guilty to manslaughter and obtain a suspended sentence, thus avoiding punishment. Had the killing not occurred, there could not have been a higher case than aggravated assault, and if there was no purpose to kill and no cruel circumstances attending the manner of killing, such as provided for in article 1149 of the Penal Code, the jury might have found appellant guilty of manslaughter, death having resulted.

There is another question presented. Shortly after, and within a couple of days after, the blow was inflicted, and nearly three months prior to the death of the Mexican, he made what is termed a dying declaration. The predicate for this was through the witness Mrs. Gonzales. She testified she was well acquainted with deceased, and that on the occasion in question he was sane, rational, and conscious of what was transpiring; that he believed, and so said, that he was going to die from such injuries inflicted upon him, and that he had no hope of recovery therefrom. It may be questionable whether this predicate is sufficient. Mr. Branch, in section 486, of his valuable work on Oriminal Law, states tersely this rule:

“State must show declarant was under the immediate apprehension of death, and it is not sufficient that the declarant believed he was going to die and would never get well, when the wounds were not necessarily fatal”—citing Edmondson v. State, 41 Tex. 500; Irby v. State, 25 Tex. App. 214, 7 S. W. 705.

Again he states:

“A sufficient predicate is not shown where the only statement of the deceased indicating approaching death was a statement that he believed he was fatally shot”—citing Craven v. State, 49 Tex. Cr. R. 81, 90 S. W. 311, 122 Am. St. Rep. 799.

Again he states the rule thus:

“Predicate is insufficient if proof fails to establish the fact that declarant at the time of making the declaration was conscious of approaching death and believed there was no hope of recovery”—citing Lebetter v. State, 23 Tex. App. 256, 5 S. W. 226; Phillips v. State, 50 Tex. Cr. R. 129, 94 S. W. 1051; Ex parte Meyers, 33 Tex. Cr. R. 204, 26 S. W. 196; Craven v. State, 49 Tex. Cr. R. 81, 90 S. W. 311, 122 Am. St. Rep. 799.

The predicate here referred to is found in two or three bills of exception, among others bill No. 5, in the qualification stated by the trial judge to said bill. If this is all the predicate, it may be seriously doubted whether or not the statement is sufficient, and the writer believes it was not. But the court overruled the objection, and permitted the testimony. Of course, Mrs. Gonzales could testify to the dying declaration if proper predicate had been laid.

The deceased Mexican could not speak English. Mrs. Gonzales spoke the Mexican and English languages. She testified on the trial, and, of course, her testimony would be admissible provided the proper predicate should be laid. When the dying declaration was made several of the officers—the county attorney and justice of the peace and some of the constabulary—were present. Mrs. Gonzales interpreted from the Spanish into the English language to them what she said the Mexican said, which is used as a dying declaration. These officers did not understand what occurred between them, except as stated by Mrs. Gonzales. She was not even sworn as an interpreter on the occasion. These officers were permitted to testify, and the state used their evidence as original testimony. Various objections were urged, which we think should have been sustained. Her interpretation of these statements of the deceased to the American officers was not admissible, nor was their testimony as to what she said admissible. It would be purely hearsay. They knew nothing that occurred, except the conversation in the Spanish language, which Mrs. Gonzales interpreted to them. This was hearsay.

There are other interesting questions in the case, but, for the reasons indicated, the judgment will be reversed, and the cause remanded. The other questions may not arise upon another trial.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

At a former day of this term the judgment herein was reversed. It was said in the opinion of the writer that manslaughter was in the case and should have been given in charge to the jury. The'majority of the court, however, did not agree to that. This is the principal basis of this motion for rehearing. In this respect the motion requests the majority of the court to agree with the writer and hold that manslaughter should be charged upon another trial.

Reviewing the record, the writer still adheres to his former belief that manslaughter was in the case and should have been given the jury, and upon another trial it should be so charged. I do not care to reiterate what I have said in the former opinion. The majority, however, adhere to their views. I cite in support of this Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; article 1148, Penal Code, 1911; Branch’s Crim. Law, § 504; Johnson v. State, 42 Tex. Cr. R. 371, 60 S. W. 48; Runnels v. State, 42 Tex. Cr. R. 555, 61 S. W. 479; Taylor v. State, 41 Tex. Cr. R. 151, 51 S. W. 1106; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195). Other cases might be cited, but these are sufficient.

Two other questions are suggested for decision which were not passed upon in the former opinion. The writer thought he had sufficiently passed upon these questions, in a general way, without specifying; they being hearsay statements made out of the presence of the defendant.

One presented the statements of officers of Oklahoma made to officers of Texas who had gone to the state in search of defendant, who it is shown had gone to Oklahoma after this tragedy. Those officers informed the Texas officers that defendant was going under a different name from his real name. Defendant was not present and knew nothing about it. We are of opinion this should not be introduced against the defendant.

Also, while Olaud Gallagher was on the stand testifying for the state, he was asked who it was Asa Earris told him (Gallagher) threw the rock and hit the Mexican, deceased, and wounded him in the forehead. Earris, Gallagher, and the defendant are the supposed participants in the wounding of the Mexican, which resulted in his death. This statement that Earris made to Gallagher was out of the hearing of the defendant and after the offense is alleged to have been committed, and should not be used against appellant. The acts and conduct and words and statements of coconspirators after the completion of the conspiracy cannot be used against the other parties to the transaction when they were not present and did not hear it. This is a well-settled rule, and is discussed extensively in Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746.

The original opinion not having dealt specifically with the latter two questions, and, appellant insisting upon their decision in order to avoid complications upon another trial, these matters are discussed. The trial court will understand that hearsay testimony is not admissible. We thought that the trial court would understand this from what was said in the original opinion about the hearsay testimony with reference to some of the other questions.

With these additions, the opinion as heretofore delivered will stand.

DAVIDSON, J., dissents.

      =jE'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    CASEY v. STATE.
    (No. 3717.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    Criminal Law <&wkey;>814 —■ Instructions — Applicability to Issues.
    Where the testimony raised the issue of defendant with two others being guilty of the offense, his requested instructions, that the evidence must show that he and no one else committed the offense, were improper.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dee. Dig. &wkey;814.]
    Appeal from District Court, Kaufman County; E. L. Hawkins, Judge.
    Joe Casey was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, and assessed the lowest punishment. It is unnecessary to state the evidence further than to state that it was amply sufficient to show that appellant, together with two others, committed the burglary alleged in the indictment. He has no bill of exceptions.

The court gave a correct charge on circumstantial evidence. He also correctly told the jury in a separate paragraph that all persons are principals who are guilty of acting together in the commission of an offense, and may be prosecuted and convicted as such. Appellant- requested three special charges on circumstantial evidence. They are literally in effect a copy of the court’s charge on that subject, except to the end of each in substance he added “that the defendant and no one else committed the offense charged.” The court correctly declined to give this, but the charge he did give, including that on principals, properly presented the issue. The effect of appellant’s requested charge, if it had been given, would have required the jury to acquit him even though he was guilty of the offense, because he was acting with others. The testimony did not raise the issue that he alone was guilty of the offense, but that he, together with two others, was guilty of the offense.

No question is raised in the motion for a new trial which can be considered in the absence of a bill of exceptions.

The judgment is affirmed.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BOOTH v. STATE.
    (No. 3835.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    Criminal Law <&wkey;1097 — Appeal—-Record-Motion fob New Trial.
    That the motion for new trial for newly discovered evidence may be considered on appeal, there must be a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey;1097.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    John Booth was convicted, and appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

The record is before us without a bill of exceptions or statement of facts. There are quite a number of affidavits attached 'to the motion for a new trial setting up newly-discovered testimony. In the absence of the statement of facts it will be impossible to form any estimate of the value that might be attached to the affidavits. In fact an intelligent revision of the contents of the affidavits would be impossible without the evidence adduced on the trial.

The judgment is affirmed.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PICKENS v. STATE.
    (No. 3757.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.
    Rehearing Denied Dec. 1, 1915.)
    1. Criminal Daw <&wkey;1102 — Appeal—Statement of Facts — Time of Filing.
    The statement of facts, filed 58 days after adjournment of the term at which defendant was tried, will be struck out on motion.
    [Ed. Note. — For other cases, see Criminal Daw, Dec. Dig. <&wkey;1102.j
    2. False Pretenses &wkey;>29 — Indictment—Nature of Pretenses.
    An indictment, charging that defendant obtained of M. money on falsely representing to •him that he was in a position and able to secure for him a position on the police, and that if paid the money, he would guarantee to secure the money for him, is good; the guaranty to do something in the future being only an incident of his representation as to being in a position and able to secure the position on the police force.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 34-36; Dec. Dig. <&wkey;>29.]
    Appeal from Bexar County Court; Nelson Dytle, Judge.
    D. R. Pickens was convicted, and appeals.
    Affirmed.
    Noah Allen and Butler D. Knight, both of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of swindling, and his punishment assessed at 60 days in jail and a fine of $25.

The statement of facts was filed some 58 days after the term of court at which he was tried had adjourned; hence the Assistant Attorney General’s motion to strike it out, and not consider it, must be and is sustained.

Appellant contends the complaint and information are fatally defective in that he claims they do not show he committed any offense, nor set out the facts claimed to constitute the false representations and pretenses made by him, nor allege any facts to have existed at the time he made false representations, etc., but promises to do something in future, nor the facts of his condition or position to secure the position of policeman for the prosecuting witness, McNulty. These pleadings are in strict accordance with the statute and the approved forms therefor, and are good and valid. In substance they aver that he, devising and intending to secure the unlawful acquisition of $10, the personal property of Andrew McNulty, and appropriate it to his own use, did unlawfully and fraudulently acquire possession thereof from McNulty by means of false and deceitful pretenses, devices, and fraudulent representations, unlawfully, knowingly, and fraudulently then made by him to McNulty, in this: That he then, and there did falsely pretend' and fraudulently represent to McNulty that he was in position and was able to secure for McNulty a position on the police force of the city of San Antonio, and that if he would pay him $10, he (Pickens) would guarantee he would secure said position for him, and thereby induced said Mc-Nulty to part with his $10 and deliver title and possession thereof to him, Pickens, for the services which he, Pickens, falsely and fraudulently pretended he could render him; whereas, in truth and in fact, Pickens was not in a position to secure said position for McNulty, nor in position to honestly and .in good faith guarantee said position to McNulty, and said pretenses and representations so made, and devices so used, were false and fraudulent, and he (Pickens) then and there well knew that the said pretenses, devices, and representations were false and fraudulent wlien made and used, etc.

Appellant’s special contention is that his alleged false, etc., representations, etc., were to do something in future, and that that could not be the basis of swindling. In this ease, however, his promise or guaranty to do something in future was an incident of his false representations, etc., that he was in a position and able to secure for McNulty a position on the police force.

An information, as near like this as one well could be, was sustained by this court in Boscow v. State, 33 Tex. Cr. R. 390, 26 S. W. 625, and also in Brown v. State, 37 Tex. Cr. R. 104, 38 S. W. 1008, 66 Am. St. Rep. 794, and is unquestionably good under the authorities. 2 Bishop, New Crim. Law, § 424, and volume 1, same work, §§ 337-339, and 774, 775. We think it unnecessary to discuss the questions.

The judgment is affirmed.


author: HARPER, J. DAVIDSON, J.

text:
    ENGMAN v. STATE.
    (No. 3713.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Juay &wkey;s95 — Competency of Jubobs — Sebvice in Other Case.
    Jurors who convicted defendant of selling liquor to P. are competent jurors on his prosecution for sale to D., they saying that they had no opinion whether he sold to D., though having one that he had violated the local option law, and the issue, after the evidence was all in, being whether he sold, or only gave, liquor to D., and there being no such issue in the P. case.
    [Ed. Note. — For other eases, see Jury, Cent. Dig. §§ 424-430; Dec. Dig. &wkey;95J
    2. Criminal Law <&wkey;372 — Evidence—Other Offenses — System.
    Witness on a prosecution for an illegal sale, having testified that defendant laid whisky at a particular place, and that he picked it up, and left the money there, may, to show that this was defendant’s system of making sale, testify that he had obtained whisky of defendant a number of times, and that was always the way he did it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372.]
    3. Criminal Law <&wkey;829 — Instructions—Requests Covered by Given Instructions.
    An instruction covered by the main charge and other requested instructions given is properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.]
    4. Criminal Law &wkey;925 — New Tria3>-Ob-jections Not Made at Trial — Juey.
    Objection that jurors were not sworn in the order in which the unscratched and unmarked names appeared on the list as returned to the clerk, but that one of them was omitted, cannot be made for the first time after verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2238-2247, 2250; Dec. Dig. <&wkey;>925.]
    5. Criminal Law &wkey;1184 — Appeal — Correcting Sentence.
    Error in changing the sentence, in the absence of defendant, from one running concurrently with, to one beginning at expiration of, the sentence in another case, can he corrected on appeal, and does not require reversal.
    [Ed. Note. — For other cases, see Criminal Law^Cent. Dig. §§ 3199, 3200; Dec. Dig. &wkey;
    Davidson, J., dissenting.
    Appeal from District Court, Potter County;' Hugh L. Umphres, Judge.
    Frank Engman was convicted, and appeals.
    Affirmed.
    Lumpkin & Harrington, of Amarillo, and Cooper & Merrill, of Houston, for appellant. O. C. McDonald, Asst. Atty. Gen.,- for the State.
   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at one year’s confinement in the state penitentiary.

In the first bill of exceptions it is made to appear that W. A. Rice, Erank Morris, W. D. I-Iopkins, and G. J. Brothers were jurors in another case in which appellant had been convicted of making a; sale of intoxicating liquor to Frank Pilcher. The indictment in this case charged him with making a sale to another and different person, to wit, Sid Denson. In the bill it is also shown that the above-named jurors on their voir dire examination,' and O. P. Elliott, W. J. Williams, Frank Loper, and D. J. Muncy, answered that they had an opinion that appellant had been guilty of violating the local option law, and selling intoxicating liquors, but answered that they had no opinion as to whether or not appellant had made a sale of intoxicating liquor to Sid Denson. That was the sole issue to be tried in the case. There was no contest as to whether local option was in force in Potter county, but the sole issue would he whether or not appellant had made a sale to a person named in the indictment, and on this issue each and every one of the men answered they had no opinion from hearsay or otherwise.

The question of when jurors are disqualified in this character of case was before this court in Edgar v. State, 59 Tex. Cr. R. 253, 127 S. W. 1053, and Id., 59 Tex. Cr. R. 488, 129 S. W. 140. In this latter case it was held, where the witnesses were the same and the issues the same, the jurors are disqualified, and we think it correctly so held. But in the case in 59 Tex. Cr. R. on page 252 (127 S. W. 1053), it is expressly held:

“Where upon trial for a violation of the local option law the jurors were objected to on the ground that they had tried defendant in another case and convicted him, and it developed that the purchaser in the case tried was not the same as the one alleged in the indictment for which defendant was being tried, and that the environments and conditions of the ease which had been tried were different from the one which was being tried, there was no error in overruling challenges for cause of said jurors ; they answering that they would try the cause according to the law and the evidence.”

This is peculiarly applicable to the facts in this case. Pilcher was not a witness in this ease, and his name does not appear in the record, except where appellant injected it into the case in an answer he made on cross-examination. The appellant was ashed if he had ever been indicted, charged with a felony, and he answered:

“I don’t know how many times I have been charged with a felony by indictment. I have been indicted several times for felonies—bribery and this other offense, a felony. I have never been convicted on but one, though, and that is that horse thief that they indicted me the other day. I am talking about Frank Pilcher. I did not prove that he was a horse thief when he was a witness against me. I will swear what other people have told me, they said he was a horse thief. I have been convicted but once, and that was on the testimony of a horse thief.”

This is the only time Pilcher’s name appeared in the entire record. The environments in this case and in the former case are wholly different. In this ease Sid Denson testified to going into appellant’s room and asking him if anything was doing. That appellant placed a quart of whisky on the dresser, and he went and picked it up and laid $2 down on the dresser. He testified to several similar transactions where appellant would place the whisky where he could get it, and he would leave the money at the place where he got the whisky.

Appellant testified in the case, and denied ever having made a sale of whisky to Den-son. 1-Ie said that he had given Denson several drinks of whisky, as he kept whisky for his own use, and that on one occasion he had given him some whisky in a quart bottle, Denson representing he wanted it for sickness, but he denied that Denson at any time had ever paid or offered to pay him anything for the whisky, or that he had ever received any money for it either directly or Indirectly.

So, after the evidence was heard, the issue in this case solely was: “Was it a gift or a sale of the quart of whisky? No such issue was involved in the prior case, and, as the jurors answered that they had no opinion as to whether appellant had sold Denson any whisky, the court did not err in his ruling. See, also, Arnold v. State, 38 Tex. Cr. R. 5, 40 S. W. 735.

As the state’s witness testified that appellant laid the whisky at a particular place, and witness picked it up, and left the money at the place where he got the whisky, it was incumbent on the state to prove that this was the system appellant had of making sales, and evidence of other similar transactions was admissible on the issue of whether or not that was the way appellant had adopted in making sales, and the court did not err in so holding. Denson testified that he secured whisky from appellant a number of times, and that was always the way he did.

The' court gave 'five of appellant’s special charges, among them being the following:

“You are instructed at the request of the defendant, as the law-of'this case, that it is not a violation of any penal law for one to give intoxicating liquors to another, and that before you can convict the defendant in this case you must find and believe from the evidence beyond a reasonable doubt that the defendant, Frank Eng-man, intended to receive a consideration from the witness Denson, at the time he received the particular quart of whisky upon which this prosecution is based, and that the defendant, Frank Engman, knew that the said state’s witness Denson would pay for the same at the time he placed it on the dresser, if he did so place it there, and that the said state’s witness Denson was going to pay a valuable consideration therefor, and, further, that the said Frank Engman knew that the said Denson intended to appropriate to his own use and keep the title and possession of the entire quantities of liquors contained in said bottle, if any there was, at the time it was so placed on said dresser, if it was so placed, and unless you find and believe from the evidence all of these facts, it will be your duty to acquit the defendant, and say by your verdict not guilty.”

The court also instructed the jury, at appellant’s request:

“You are instructed that the state has elected to prosecute this defendant upon a transaction alleged to have occurred some time during the summer of the year 1914, and in which the state claims that the state’s witness Denson acquired a quart of whisky, and in connection with the case as alleged by the state the said witness has been permitted to testify that he had other and different transactions with the defendant in which he acquired from defendant whisky. Now, you are instructed that any and all of such transactions claimed to have been had by said witness Denson, if any there were, were admitted for the purpose of proving a system pursued by the defendant for selling intoxicating liquors, if such evidence does so establish the same, and you must not consider the same for any other purpose, and the defendant cannot be convicted by you upon any other transaction than the one elected upon by the state.”

1-Ie also gave special charges defining a sale, at appellant’s request, and covered every feature of the case; therefore he did not err in refusing to give the one asking peremptory instructions of not guilty, nor special charge No. 7, it being fully covered in the court’s main charge and the other special charges given at appellant’s request.

It appears that, when the jury lists were returned to the clerk, the name of J. A. Stirrett appeared on the list before the name of J. S. Blair, but in some way Blair, and not Stirrett, was sworn in and served on the jury. No objection was made at the time, and no objection was made until after verdict; the complaint first being made in the motion for a new trial. As the names of both jurors were left unscratched or unmarked on the lists returned to the clerk, and a mistake in some way occurred, it not being contended that Blair was an unfair juror, it would be too late to raise this question after the verdict had been returned.

The only other bill complains that appellant was first sentenced in cause No. 1750, and then later sentence was pronounced in this cause No. 1757. When sentence was first pronounced in this cause, the terms of sentence were not made cumulative, but by the sentence, pronounced both would run concurrently. Appellant entered into recognizance in both causes, and was permitted to go at large. The court later on, having his attention called to the fact that they would run concurrently, in the absence of appellant, changed the sentence in this cause so it would not begin until the expiration of the sentence in cause No. 1750. This the court had no authority to do in the absence of appellant. He is entitled to be personally present when the sentence is pronounced on him. However, we are authorized to correct this matter on appeal, and it is not necessary to reverse the cause because of such incorrect sentence. Having the verdict, judgment, and both sentences pronounced in the record before us, the sentence in this cause will be reformed, and sentence entered authorizing appellant to be conveyed to the state penitentiary, and be there confined for one year from the date of issuance of mandate in this cause under the verdict rendered in this cause.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). This conviction was for violation of the local option law. The evidence for the state is based upon testimony showing that the alleged purchaser, whose name is Denson, bought whisky from appellant. His testimony, in substance, is that he had been sheriff of Gray county; had visited Amarillo, the home of appellant, on several occasions; that on more than one occasion he had gone in appellant’s room and had laid down money on the dresser either before or after he had obtained the whisky. These different transactions were introduced over objection of appellant. Various and sundry reasons are assigned why the testimony was not admissible. The defendant’s evidence is to the effect that he never sold Denson any whisky and never got any money from him, that Denson would come to his room, and they would take drinks together, as he did with any and all of his friends who came to his room, and that, if Denson left any money, he never heard of it and did not know anything about it. The writer does not believe this testimony was admissible. Appellant was not charged with pursuing the business of selling intoxicating liquor, but was charged with making an isolated sale to Denson. If Denson’s testimony was true, and that is the state’s case, and he left the money, and appellant got it, under the circumstances it would be a sale. The issue then was squarely presented as to whether this occurred or not. It, was affirmed upon one side and denied on the other. Some times this character of testimony is introducible to make out a case by circumstances, but this is not one of the cases. But, be that as it may, this evidence went before the jury evidently upon the theory of system, as the state’s witness testifies in each case that he would get the whisky and place the money on a dresser or put it in a drawer. The state’s theory evidently being this, it was system, and that this was the manner of selling. Appellant was indicted for violation of the local option law. He was prosecuted for pursuing the business of selling intoxicants. By statute those are different offenses. An accused ought to be tried on the indictment preferred against him.

Appellant’s contention was, further, that he never sold any intoxicants to Denson, but that the whisky Denson got from him was a gift. The theory of the state, of course, was this appellant was pursuing a systematic course in selling whisky, and this manner of selling was not a gift, but was a subterfuge to cover up a sale. This becomes important in view of the first bill of exceptions, which recites that Jurors Elliott, Bice, Morris, Hopkins, Brothers, Williams, Loper, and Muncy, while being tested on their voir dire, stated they had an opinion that the defendant was guilty of selling intoxicating liquors in Amarillo in violation of the local option laws. Upon these answers defendant challenged each and all of the jurors on account of having said opinion, whereupon the court asked the jurors whether or not they had an opinion as to whether th'e defendant had sold intoxicating liquors to Sid Denson, the alleged prosecuting witness. The jurors answered they did not, and thereupon the court overruled appellant’s challenges to the jurors, and defendant excepted; and upon further examination it appeared from the evidence of Jurors Bice, Morris, Hopkins, and Brothers that they were jurors in the case of State v. Appellant in cause No. 1750, on the docket of the court, and that each and all of said jurors had an opinion that the defendant was guilty of violating the local option law in precinct No. 1, Potter county, by reason of being jurors in said cause, and thereupon defendant renewed his challenges to the last-named jurors, which was by the court refused and overruled; and after the jury had been examined and attorneys for defendant had made their challenges, and after he had exhausted his challenges, he was compelled to accept on said jury Jurors Elliott, Morris, and Muncy, and thereupon requested the court to allow him additional challenges in order to challenge the last-named jurors, for the reason the defendant had been compelled to exhaust all of his challenges on more undesirable jurors. This request was by the court refused and overruled. I am of opinion, in view of this record, that these challenges should have been sustained. The companion case No. 1750 is before this court, submitted the same day as the record in this ease. This record shows for the state that appellant was selling systematically as before detailed, and these different matters were before the jury. Upon this the jurors who sat in the other case especially had convicted, and this record shows in another bill of exceptions this to be a fact, and because the sentence in cause No. 1750 is also embodied in this record in another bill of exceptions. Under this view of the case, and this condition of the record, we are of opinion that the court should have sustained these exceptions to the jurors and excluded them. Appellant brought himself within the nule and exhausted all of his challenges.

The judgment ought to be reversed, and the cause remanded. I cannot concur in this affirmance.
      «gssl'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I-IARPER, J.

text:
    KENNEDY v. STATE.
    (No. 3760.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.
    Rehearing Denied Dec. 1, 1915.)
    1. Criminal Law <@=>519 — Confessions—Admissibility.
    One’s confessions made after his discharge from arrest, and. while his movements were wholly unrestricted, are admissible, though he knew that the officers would make further investigation, and while doing so would keep him under surveillance.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. <@=> 519.]
    2. Criminal Law <@=>512, 538 — Proof of Guilt — Confession and Accomplice Testimony.
    Defendant’s guilt of an established offense is sufficiently proven by his extrajudicial confession and the testimony of an accomplice.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1111, 1227-1229; Dec. Dig. <@=>512, 538.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    E. Kennedy was convicted, and appeals.
    Affirmed.
    Lyles & Lyles, of Cameron, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   I-IARPER, J.

Appellant was convicted of theft from the person, and his punishment assessed at two years’ confinement in the penitentiary.

There are four bills of exception in the record, all relating to the same matter. It appears that a purse containing money was stolen from the person of one Robert Burton. Appellant and one Marcus King were arrested and placed in jail, charged with committing the theft. After investigation the assistant county attorney and the constable concluded that the evidence at command was insufficient to authorize holding appellant in custody, and he was discharged. However, the officers decided to investigate the matter further, and keep appellant under surveillance while making the investigation, and the bill recites that appellant knew the officers were going to make a further investigation and keep him under surveillance. After appellant was given his liberty and allowed to go, the officers and Marcus King agreed that the officers would conceal themselves about the jail, and Marous King would send for appellant and have a conversation with appellant that the officers could overhear. This testimony was objected to on the ground that appellant was then under such arrest or restraint as to render the statements made by him inadmissible, and all the bills are reserved to the introduction of this testimony, and special charges requesting its exclusion. In the argument before us, it was contended that the record disclosed that the officers would not have permitted appellant to leave the town, and his liberty was restrained. If such was a fact, there would be much strength in appellant’s contention. But we find no basis for such contention in the bills, nor in the evidence adduced on the trial. According to this record, his movements were wholly unrestricted after he was released from custody, and all that was agreed to between the officers was that they would make further investigation, and while doing so would keep appellant under surveillance. He could and did go where he pleased. No restraint was placed or kept on his movements. If by further investigation no further testimony was discovered, he would never again be arrested. It was while he was thus at large that the inculpatory statements were made.

Appellant cites us to the cases which hold that confessions made while under arrest are inadmissible. This is conceded to be the law, but the question resolves itself back to the inquiry: Was appellant under arrest, or any restraint in his movements? If not, the cases cited have no application. The case of Wood v. State, 22 Tex. App. 439, 3 S. W. 336, is seemingly relied on by appellant as sustaining his contention; but when we read the facts in that case it is shown that the reason given is that the statement was not a “voluntary” statement, but one required to be made in the course of a judicial investigation, and at a time when Wood was made aware that restraint had been placed on his going at will, and he notified he would be placed in jail after he testified, charged with this crime. In this case appellant was at large, under no restraint, and voluntarily made the statement to Marcus King in a conversation with King. He was not compelled by the officer to make any statement —in fact he did not know that the officers were concealed within hearing of the conversation at the time he made it. The distinction in this character of case and that in the Wood Case, supra, is clearly drawn by this court in Riley v. State, 44 S. W. 498.

The only other question in the case is the one alleging the insufficiency of the testimony — that the corpus delicti is not proven. The state relied on the testimony of the accomplice, Marcus King, who testified he saw appellant take the purse containing the money out of the pocket of Burton just after he arose from the table where they had been gambling, and the confession of appellant made under the circumstances discussed above. In this confession it is shown that appellant came to the window of the jail in which Marcus King was confined, and asking Marcus King if there was any one with him, and being told there was no one, Mr. Hamilton testified the following conversation took place:

“Marcus said, ‘I am getting mighty tired of staying in here and am freezing and cold;’ and appellant asked Marcus had he pleaded guilty to gambling; and Marcus said, ‘No, I have not pleaded guilty to anything;’ and appellant said, ‘Well, that is all that Mr. Hamilton cares anything about; he wants you to plead guilty to gambling;’ and Marcus said, ‘Yes; but Hamilton says I know something about the money, and he is not going to let me out until I tell him;’ and appellant said, ‘He thinks he knows something about it, but he cannot prove a damn thing4,’ and said, ‘Nobody knows anything about this but me and you, and you sit steady in the boat, and I will come around in the morning and make you a bond and plead guilty to the gambling; that is all Hamilton cares anything about;’ and Marcus asked him how much money this negro had. He asked how much money Robert Burton had, and appellant said $25; and Marcus said they are telling it around here that that nigger had $400 or $500; and appellant said, ‘Its a damn lie; there was not $25 in the pocketbook.’ And Marcus asked him where the money was, and said Hamilton thinks your wife carried it to Taylor,’ and appellant said, ‘No; the money is in town; it is not carried anywhere,’ and said, ‘You sit steady in the boat, and I will get you out in the morning, and will make your bond.’ Appellant did not stay long, and I stayed a good while, and he went off and that was all that took place.”

It is this confession and the testimony of the accomplice that the state relies on to prove that appellant committed the theft, and it is earnestly insisted this is insufficient to prove the corpus delicti. The theft is clearly shown by the testimony of Robert Burton and other witnesses, and in the well-considered case of Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989, this court, speaking through Judge Hurt, correctly stated the law to be:

“The rule being that in every criminal prosecution, before a conviction can be had, the state is required to prove two things: First, that a crime has been committed (in this case the death of Johanna Kugadt by some criminal agency) ; and, second, that her death was caused by the person (appellant) charged, and none other. There is some conflict in the authorities as to whether or not the corpus delicti can be proved by circumstantial evidence, but the great weight of adjudicated cases is in favor of the proposition that it can be done. But when proof of this character is relied upon, the evidence should be clear and sti-ong, fully complying with the rule laid down with regard to the proving of a case by circumstantial evidence. The general doctrine is that extrajudicial confessions, standing alone, are not sufficient proof of the corpus delicti; and some of the cases. hold that the corpus delicti must be proved independently of confessions. But we do not understand such to be the better doctrine. In other words, in the establishment of the corpus delicti the confessions are not to be excluded, but are to be taken in connection with the other facts and circumstances in evidence. See note 3 to case of State v. Williams, reported in 78 Am. Dec. p. 254. And this rule is recognized in this state. See Jackson v. State, 29 Tex. App. 458 [16 S. W. 247], Said case quotes with approval an excerpt taken from 4 American and English Encyclopedia of Law, p. 309, as follows: ‘A confession is sufficient, if there be such extrinsic corroborative circumstances as will; taken in connection with the confession, produce conviction of the defendant’s guilt in the minds of a jury beyond a reasonable doubt.’ ‘Such suppletory evidence need not ¡be conclusive in its character. When a confession is made, and the circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. “Full proof of the body of the crime, the corpus delicti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient.” ’ ”

In this case the accomplice testimony alone would be insufficient to- sustain the conviction, and the confession alone would be insufficient; but both being introduced in evidence, they each aid and support the other, and do sustain the verdict.

The judgment is affirmed.
      <@=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes