author: KING, J.

text:
    JEFFERSON COUNTY TRACTION CO. v. GILES.
    (No. 380.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 28, 1918.)
    1. Railroads <®=»442(2) — Killing 'Live Stock—Maintaining Outlook.
    Upon question of duty to maintain' outlook, testimony that other animals had been killed or struck by defendant traction company’s cars at or near the crossing where plaintiff’s animal was killed was admissible to show that defendant and its employés knew that animals were running at large in the vicinity of the crossing.
    2. Appeal and Error <@^>1051(1)—Admission op Testimony—Harmless Error.
    Although testimony as to other animals having been killed or struck at or near crossing in question was inadmissible, the ease will 'not be reversed because of admission of such testimony, where there is sufficient other testimony in the record to justify the judgment.
    3. Railroads <S=»443(1) — Killing op Live Stock—Negligence—Evidence.
    In action for value of plaintiff’s cow alleged to have been negligently killed by defendant traction company’s cars at a crossing, evidence held to support finding of trial court as to negligence of defendant’s servants and employés.
    Appeal from Jefferson County Court at Law; D. P. Wheat, Judge.
    Action by Joe L. Giles against the Jefferson County Traction Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Orgain, Butler & Bolinger, of Beaumont, for appellant.
    A. Ludlow Calhoun, of Beaumont, for appellee.
   KING, J.

Judgment was rendered in favor of appellee in the county court at law of Jefferson county in the sum of $100, the value of a cow alleged to have been negligently killed by appellant’s cars, and $20 as attorney’s fee. From this judgment appellant has appealed, and its first assignment of error complains of the action of the trial court in admitting the testimony of the witness B. F. Roberts, to the effect that other accidents had taken place and other animals had been killed or struck by cars of the defendant at or near the crossing where plaintiff’s animal was killed.

We overrule this assignment of error, as the record shows it was permitted for the purpose of showing knowledge upon the part of appellant and its employés that animals ran at large in the vicinity of where the cow: was killed, and that they were likely to be in the vicinity of the crossing where the accident occurred. The cases of I. & G. N. Ry. Co. v. Bandy, 163 S. W. 341, and Railway Co. v. Rowland, 82 Tex. 166, 18 S. W. 96, hold that it was error, where the question of liability of the company was at issue, for evidence to be admitted to the effect that other accidents had happened at the point, and that the company had settled for same. The evidence admitted in this case was not for the purpose of showing that the company had recognized that it was liable for the killing of other stock at this crossing by paying for same, but upon the question of their duty with respect to maintaining an outlook for cattle at this particular crossing. Furthermore if the testimony was immaterial and inadmissible, we would not reverse the case; there being other testimony in the record justifying the judgment of the court.

The other assignments of error attack in different methods the judgment of the courts claiming that the evidence adduced upon the trial that the defendant’s servants and employés in charge of the interurban car which struck appellee’s animal failed to ring the bell or blow the whistle, or give any warning before approaching and attempting to cross the road crossing where the accident occurred, nor that the failure, if any, to do so was the proximate cause of the accident in question.

We have examined the evidence in the case very closely, and are of opinion that the findings of the trial court as to the negligence of the appellant’s servants and employes is supported by the evidence. While perhaps not by positive evidence, the testimony of the witnesses that the track was straight for a long distance, that the car was equipped with powerful headlights, which shone plainly for 40 feet on each side of the track for several hundred yards ahead of the car, the sound of the crash as heard by one of the witnesses, and the condition of the cattle guard and the cow found after the wreck, and other circumstances, were sufficient for the trial court to conclude that the appellant’s employés were negligent, as complained of in the citation and pleadings of the appellee, and that such negligence was the direct and proximate cause of the death of the cow.

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


source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    MOORE et al. v. BELT.
    (No. 1397.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1918.)
    1. PRINCIPAL AND SURETY <i&wkey;152 — EIGHTS OP SURETY.
    If the holder of the note sued guaranteeing indorser, alleging that the maker was only an accommodation maker, it was right of the guaranteeing indorser to have the maker made a party for the determination of that issue.
    2. Bills and Notes <&wkey;459 — Actions—Parties.
    Notwithstanding a third person received part of the proceeds of a note, he was not a necessary party to an action on the note when his name did not appear on the face of the note.
    3. Husband and Wife <&wkey;275— Community Estate — Remarriage of Wife — Effect.
    Where surviving wife remarried, she could not, under Rev. St. art. 3611, be sued as a representative of the community estate.
    4. Pleading <&wkey;34(2) — General and Special Statements — Which Conteol.
    Where a petition alleged that a debt was created prior to conveyance, but the actual dates showed that it was not, the speciaLallegations controlled the general.
    5. Fraudulent Conveyances <&wkey;206(l) — Who May Complain — Prior Ceeditors.
    Ordinarily, only prior creditors can complain of a fraudulent conveyance.
    6. Descent and Distribution <&wkey;140 — Remedies — Death of Grantor.
    Where debtor, after alleged fraudulent conveyance to his wife, died leaving an insolvent estate, the creditor, without first securing administration upon the debtor’s estate and establishing his debt against the estate, could maintain a proceeding against debtor’s widow and children to set aside the conveyance, and in such proceeding the debt could be established and ordered paid out of the property.
    7. Fraudulent Conveyances <&wkey;228 — Attachment.
    In view of Rev.' St. art. 240, authorizing attachment only on affidavit that defendant is justly indebted to plaintiff, a creditor of deceased could not maintain attachment against property, in the hands of deceased’s widow, alleged to have been fraudulently conveyed to her by deceased during his lifetime.
    8. Evidence <&wkey;332(7) — Inventory of Estate —Admissibility.
    In action by creditor to set aside conveyance by deceased to his wife as fraudulent, the inventory of the wife as community administratrix was admissible to show the condition of deceased’s estate.
    9. Fraudulent Conveyances <&wkey;286(l) — Evidence — Payment of Taxes.
    In suit to set aside a fraudulent conveyance, evidence that the grantor paid taxes after the conveyance was not admissible.
    10. Witnesses <&wkey;135 — Transactions with Person Since Deceased.
    In creditor’s suit after the grantor’s death to set aside conveyance as fraudulent, representations made by grantor to plaintiff’s agent were admissible, since Rev. St. art. 3690, did not apply.
    11. Evidence <&wkey;230(3) — Declarations by Grantor.
    If a deed alleged to have been fraudulent was executed and delivered prior to the date of representations made by the grantor to the plaintiff, evidence as to such representations is not admissible in a suit to set aside conveyance as fraudulent.
    12. Fraudulent Conveyances <&wkey;206(2) — Prior Creditors — Effect of Holding Security.
    If the conveyance alleged to be fraudulent left the grantor’s estate insolvent, the mere fact that at the time of the conveyance the creditor held security then of value, which later lost its value, would not prevent the creditor from being classed as a prior creditor within Rev. St. art. 3967.
    13. Fraudulent Conveyances <&wkey;57(4) — Subsequent Insolvency.
    The question of insolvency is to be determined as of the time of the voluntary conveyance.
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by O. C. Belt against Mary Reynolds Moore and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    W. F. Schenck, of Lubbock, for appellants.
    W. D. Benson, of Flagstaff, Ariz., and Percy Spencer, of Lubbock, for appellee.
   BOYCE, J.

This suit was brought by ap-pellee, O. C. iBelt, on three notes, dated December 1, 1910, executed by R. C. Burns, payable to J. J. Reynolds, and transferred by said Reynolds to appellee Belt under the following indorsement:

“We guarantee the payment of the within note at maturity or on demand at any time after maturity, etc. [Signed] J. J. Reynolds.”

J. J. Reynolds had died prior to the institution of this suit, and his wife, Mary Reynolds, had married TJ, G. Moore. She and her said husband and the two minor children of J. J. Reynolds were made parties defendant. R. C. Burns was also made defendant, but plaintiff dismissed the suit as to him. In addition to the allegations as to the execution and transfer of the note above referred to, the petition alleged that J. J. Reynolds, prior to his death and after the creation of the debt herein sued upon, conveyed his j real estate to his wife, Mary Reynolds, on or' about the Slst day of August, 1910, for the purpose of defrauding his creditors. It was also alleged that there had been no regular administration on the estate of J. J. Reynolds, deceased, and there was no necessity for one, as he had no separate estate. There was an attachment sued out by plaintiff and levied on part of the real estate conveyed to the said Mary Reynolds. Judgment was entered upon trial of said cause, establishing the debt against J. J. Reynolds, as evidenced by said notes, and decreeing that the deed of conveyance from J. J. Reynolds to Mary Reynolds, dated August 31, 1910, conveying certain property, particularly described, was fraudulent as to the plaintiff, whereupon the attachment lien was foreclosed and said property decreed to be sold in satisfaction of said indebtedness. Many assignments are urged to this action of the court, which we may dispose of by a general discussion.

It appears from the face of the petition that R. C. Burns is the principal obligor, and J. J. Reynolds is secondarily liable, and none of the facts which might, under the provisions of R. S. art. 1843, authorized judgment against the parties secondarily liable, without also securing judgment against the principal, were alleged. Any judgment enforcing liability against those secondarily liable was therefore unauthorized. R. S. arts. 1842, 6336, 6331; Elliot v. First State Bank of Ft. Stockton, 105 Tex. 547, 152 S. W. 808. The plaintiff sought to prove on the trial that R. C. Burns was an accommodation maker, and' thus himself only secondarily liable. There was no pleading that would authorize the introduction of such an issue into the case, and a judgment based thereon would be without pleading to support it. Mullaly v. Ivory, 30 S. W. 259, cited with approval by the Supreme Court in the case of Elliot v. First State Bank of Ft. Stockton, supra. The judgment must be, for this reason, reversed.

We are also of the opinion that, if the pleading had alleged that R. C. Burns was an accommodation maker and J. J. Reynolds the principal debtor, the appellant would have had the right to have R. C. Bums made a party to the suit as she sought to do for the purpose of determining. this issue. Ft. Worth National Bank v. Daugherty, 81 Tex. 301, 16 S. W. 1028; Hume v. Perry, 136 S. W. 594.

There was some testimony which tended* to show that W. D. Benson received a part of the money that had been borrowed on this note and appellant sought to continue the case to make said Benson a party. Although the money may have been borrowed in part for W. D: Benson, and he received the benefit thereof, he could not be sued on the note, since his name appears in no way thereon. Texas Land & Cattle Co. v. Carroll, 63 Tex. 48; Sanger v. Warren, 91 Tex. 472, 44 S. W. 479, 66 Am. St. Rep. 913; Adams v. First National Bank, 178 S. W. 993; Borschow v. Wilson, 190 S. W. 204. He was therefore not a necessary party, since there was no liability as between him and the plaintiff.

We are also inclined to think that the general demurrer to the petition was well taken. Mary Reynolds, the wife of J. J. Reynolds, having married again, could not be sued as the representative of the community estate. R. S. art. 3611; Summerville v. King, 98 Tex. 332, 83 S. W. 682; Wingfield v. Hackney, 95 Tex. 490, 68 S. W. 264. No facts were alleged which would show any personal liability against either the said Mary Reynolds Moore or the minor children of J. J. Reynolds, deceased. So that the only possible relief to which the plaintiff could be entitled was a judgment establishing his debt against J. J. Reynolds, deceased, and directing its enforcement out of the property alleged to have been conveyed in fraud of creditors.

While the petition stated generally that the debt was created prior to the conveyance, the actual dates given show that the conveyance was made some time prior to the creation of the debt. And the particular statement would control the general. Ordinarily, only prior creditors can complain of a fraudulent conveyance. If plaintiff desired to show, as he attempted to do on the trial that the delivery of the deed to the land was not made and the conveyance complete until after the creation of Ms debt, or that the conveyance made before the creation of the debt came within an exception to the general rule that subsequent creditors cannot complain, we think he should have pleaded such facts. Cole v. Terrell, 71 Tex. 549, 9 S. W. 670; Dosche v. Nette, 81 Tex. 265, 16 S. W. 1013.

We do not agree with appellant’s contention that in no event could the plaintiff prosecute this suit without first securing administration upon the estate of said J. J. Reynolds, deceased, and establishing his debt against the estate by such proceeding. It has been held that, where it is shown that the estate was insolvent and any attempt to collect the plaintiff’s indebtedness through an administrator would be fruitless, a proceeding, such as this, can be maintained by the • creditor to set aside a conveyance of property made by the deceased and fraudulent as to such creditor and in such proceeding the debt may be established and ordered to be paid out of such property. Heard v. McKinney, 1 Posey, Unrep. Cas., 83; Willis & Bro. v. Smith, 65 Tex. 658; Cobb v. Norwood, 11 Tex. 556; Cole v. Terrell, 71 Tex. 549, 9 S. W. 668.

We do not believe that an attachment against this property in the hands of the appellant Mary Reynolds Moore can be sustained. As stated, none of the defendants were indebted to the plaintiff and no judgment could be rendered against them. Since the statutes (article 240) authorize an attachment only where affidavit is made stating that “the defendant is justly indebted to the plaintiff, in the amount of the demand, etc.,” it would not seem that a suit of this character would support the issuance of an attachment.

The defendant Mary Reynolds Moore, upon the death of J. J. Reynolds, had qualified as community administratrix and had filed an inventory of property in accordance with the provisions of law governing such administration. This inventory was offered in evidence, evidently for the purpose of showing the condition of the estate left by the said J. J. Reynolds, and we think it would be admissible for such purpose. The evidence to the effect that J. J. Reynolds had paid taxes on the property after conveyance to his wife was not admissible. O’Neal v. Clymer, 61 S. W. 545.

The statement under the seventh and eighth assignments is not sufficient to enable us to properly determine whether such assignments are well taken or not. If the indebtedness referred to in these assignments should be shown to have grown out of or represent indebtedness existing at the time of the conveyance from J. J. Reynolds to his wife, the evidence complained of would be admissible.

We do not understand how the testimony referred to in the ninth assignment would be relevant, though its admission would not appear to be harmful.

By the tenth assignment of error, objection is made to the introduction of testimony as to certain representations made by J. J. Reynolds at the time he secured the money from plaintiff; these representations being made to the agent of plaintiff Belt; This suit is not against any executor, administrator, or guardian, or against any heir or legal representative of the deceased claiming the property in controversy as such heir or representative, and the provisions of article 3690, R. S., would not apply to the evidence referred to. Newton v. Newton, 77 Tex. 508, 14 S. W. 157; St. Louis Union Trust Co. v. Harbaugh, 205 S. W. 502.

If it should appear that the deed had.' been delivered and had taken effect prior to the conversations detailed, this evidence would not be admissible. De Garca v. Galvan, 55 Tex. 57.

The payment of the note sued upon -was secured by transfer of certain shares of stock in the Lubbock Light & Ice Company, and it appears that at such time such stock was of sufficient value to be ample security for the payment of said note, but that it subsequently became of little value. Appellant contends that, because plaintiff’s note was thus secured, the conveyance from J. J. Reynolds to his wife could not be void as to such creditor. The evidence shows that the conveyance from J. J. Reynolds to his wife was without valuable consideration in law and is such that in our opinion a question of fact is presented as to whether the deed of conveyance to Mrs. Reynolds was delivered and took effect before or after the creation of plaintiff’s indebtedness. If the indebtedness was created prior to the conveyance and it should not appear that J. J. Reynolds, at the time of such conveyance, “was then possessed of property within this state subject to execution, sufficient to pay his existing debts,” we think the conveyance would be void as to the plaintiff, although at such time the security given plaintiff was sufficient to have satisfied his indebtedness; in other words, if the conveyance left J. J. Reynolds insolvent, the fact that plaintiff’s indebtedness was secured by liens on other property, that were then apparently of sufficient value to satisfy it, would not prevent him from being classed as a prior creditor within the provisions of R. S. art. 3967. Of course, the question of insolvency is to be determined as of the time of the voluntary conveyance. Morrison & Hart v. Clark, 55 Tex. 437; Bump on Fraudulent Conveyances (3d Ed.) pp. 280-290. If, on the other hand, the plaintiff is a subsequent creditor, the fact that his debt at the time of its creation was amply secured, would be a cogent, if not conclusive, circumstance on the issue as to whether the conveyance was fraudulent as to him.

Reversed and remanded.
      ©=>For other cases see same topic and KEY-N CJMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    LAWTON v. NESBIT.
    (No. 6084.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1918.)
    1. Contracts <@=>164 — Construction — Construing Instruments Together.
    Two or more writings, executed contemporaneously ’between the same parties, and in reference to same subject-matter, must be deemed one instrument, and as forming the same contract.
    2. Evidence <@=>441(1) — Parol Evidence — Several Writings Forming One Contract.
    Parol evidence is admissible to prove that two or more writings executed contemporaneously constitute but one contract.
    3. Contracts <@=>164 — Construing ¥/ritings Together.
    Where agent on cancellation of contract of agency gave principal release in full, but contemporaneously therewith principal in consideration of cancellation of contract agreed to sell agent an automobile at a reduced price, the receipt must be considered, together with the other agreements made at same time, as part of one contract, and cannot defeat agent’s right to the car at the agreed price.
    4. Evidence <@=>450(5) — Parol Evidence — Nature oe Agreement.
    Where agent gave principal a release in full upon termination of contract, and principal contemporaneously therewith signed contract agreeing to sell agent an automobile at a reduced price in consideration of release by agent of all claims against principal, parol evidence was admissible to explain any conflict between the two writings when read together as part of one contract.
    Appeal from Bexar County Court for Civil Cases; John PI. .Clark, Judge.
    Action by W. T. Nesbit against E. W. Law-ton. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Taliaferro, Cunningham & Birkhead and Augustus McCloskey, all of San Antonio, for appellant.
    Claude J. Carter, of San Antonio, for appellee.
   MOURSUND, J.

W. T. Nesbit sued E. W. Lawton, alleging that .they had entered into a certain written contract on April 15, 1916, by which Nesbit became sales agent for the Oldsmohile automobile, and that he had expended sums under said contract amounting to about $400; that on or about May 31, 1916, the contract was cancelled by mutual agreement, and in order to reimburse Nesbit, and in consideration of the cancellation of said contract, Lawton contracted in writing to deliver to Nesbit, in San Antonio, Tex., one Oldsmohile car, model 44, out of the first cars received, for the sum of $945.-25; that Nesbit, relying on such contract, entered into a contract with J. H. Oreen to sell him said car for $1,285, which sum was alleged to be the market value of the car; that Lawton received a shipment of cars about August 4, 1916, but when Nesbit, through his son and agent, W. E. Nesbit, presented said contract and Nesbit’s check for $945.25 to Lawton, and demanded a car, Lawton took the contract and tore it to pieces and refused to deliver the car. Nesbit alleged his damages at $330.75 by reason of such breach of contract on the part of Lawton.

Lawton answered by general demurrer, general denial, and a plea—

“that on or about May 31, 1916, for a valuable consideration, defendant received a receipt and acquittance, discharge, and release in full of any and every thing that this defendant then owed to plaintiff, that defendant owes plaintiff nothing whatsoever, and that he has paid and discharged any and all claims in full which plaintiff may have against him.”

Nesbit, by supplemental petition, denied the allegations of the answer.

The jury, in answer to the special issues submitted to them, found in favor of Nes-bit upon all the material issues pleaded by him, and that his damages by virtue of the breach by Lawton of the contract amounted to $339.25. Nesbit entered a remittitur of $8.50, and judgment was entered in his favor for $330.75.

Lawton did not request the submission of any issue made in his answer. He objected to the testimony of appellee to the effect that appellant executed and delivered to him a contract whereby he agreed to deliver to appellee an Oldsmohile automobile at the price pleaded; the objection being that such a contract controverted a receipt by Nesbit to him, acknowledging full satisfaction and accord of all claims which. Nesbitt had against appellant.

The evidence of Nesbit was to the effect that when the contract was canceled on May 31, 1916, four instruments were written. He signed a statement indorsed on the contract that for a valuable consideration he agreed to cancel the same. He also signed a receipt for $29, which recited that said sum was full payment of any and all claims he had against Lawton to date, of whatever nature. Lawton signed a receipt for $50, reciting that it was “for all rent due under our contract, which is this day canceled.” Lawton also signed a contract to sell him the car, as pleaded by Nesbit. Delivery was made of all of these instruments. The contract sued upon was proved to have been a written one, which imported a consideration, and no sworn plea was filed impeaching the consideration thereof.

Aside from the question whether the answer constituted a sufficient plea that in the matters covered by the receipt was included the contract sued upon, it appears from the' facts adduced that there is absolutely no merit in the contention made by appellant. Two or more writings, executed contemporaneously, between the same parties, and in reference to the same subject-matter, must be deemed one instrument, and as forming but the same contract. Simpkins on Contracts and Sales, p. 495. Parol evidence is admissible to connect the instruments. Weir Plow Co. v. Evans, 24 S. W. 40; Elliott on Contracts, § 1645. When the instruments are read together, in the light of the testimony connecting them, it appears that the agency contract was canceled in consideration of the payment by Nesbit to Lawton of $50 rent, and the payment by Lawton to Nesbit of $29, and the execution and delivery of a contract by which Lawton bound himself to sell Nesbit a car for $945.-25. The recital that the $29 was full payment of all claims cannot be permitted to abrogate the portion of the contract by which Lawton contracted to sell Nesbit the automobile. The receipt purported to acknowledge the cancellation of prior obligations,. and not those executed cotemporaneously therewith, and when it is read in connection with the other instruments there is no conflict or ambiguity but, if there was, parol testimony could be received to explain what the real agreement was.

The other assignments in the brief present the same contention as the first, and are overruled.

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


author: GREENWOOD, J.

text:
    STATE v. ELZA.
    (No. 2871.)
    (Supreme Court of Texas.
    Nov. 20, 1918.)
    1. Public Lands <@=>173(21) — School Lands —Occupancy—(Statute—“And.”
    In Rev. St. 1911, art. 5424, providing that, if any purchaser shall fail “to reside upon and improve” in good faith school lands purchased by him, he shall forfeit the same to the state, the word “and” should be read “or.”
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, And.]
    2. Public Lands <&wkey;173(21) — School Lands —Improvements—Forfeiture.
    In suit to cancel defendant’s purchase of school lands for failure to erect improvements of the value of $300 within three years, as required by Rev. St. 1911, art. 5424, held, that defendant did not, by securing from lessee assignment of lease to land subsequently purchased, acquire title to fences erected by lessee, so that they could be counted as part of improvements.
    3. Public Lands &wkey;>173(21) —. School Lands — Improvements—Ownership.
    If fences were reserved by lessee of school lands when he assigned lease to defendant, they would not become defendant’s, so that they could be counted as part of improvements required by Rev. St. 1911, art. 5424, by virtue of his purchase of the land, prior to expiration of time for removal under article 5457, and lessee’s failure to remove within 60 days after expiration of lease as provided by said section; title not being in defendant but in the state thereafter.
    4. Appeal and Error <@=>1122(2) — Power to Make Findings — Reversal.
    The Court of Civil Appeals, though disapproving the trial court’s material finding of fact, has no power to substitute its finding and render judgment thereon, but can only reverse.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Trespass to try title by the State against Spencer Elza. Judgment for the State was reversed by the Court of Civil Appeals (169 5. W. 633), and the State brings error.
    Judgment of the district court and of the Court of Civil Appeals reversed, and case remanded for trial in the district court.
    B. E. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., Walter Gillis, of Del Rio, and J. D. Martin, of San Antonio, for the State.
    Charles Rogan, of Austin, W. Van Sickle, of Alpine, and Geo. M. Thurmond, of Del Rio, for defendant in error.
   GREENWOOD, J.

This controversy is over the right of the state to recover certain school land purchased by defendant in error, upon the ground that he did not within three years after his purchase erect on the land permanent improvements of the value of $300. The state recovered the land in the district court on the finding that defendant in error had failed to erect such improvements. The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment for defendant in error, holding that he had fully complied with his obligation with respect to improvements; one of the justices dissenting from the action of the court in rendering judgment. Elza v. State, 169 S. W. 633.

The state’s right to recover depends upon the proper application to the facts of that portion of section 3 of the act of April 19, 1901, now article 5424, R. S., which reads:

“If any purchaser shall fail to reside upon and improve in good faith the land purchased by him as required by law, he shall forfeit said land and all payments made thereon to the state, to the same extent as for the non-payment of interest, and such land shall be again upon the market as if no such sale and forfeiture had occurred.”

We cannot adopt the literal construction of this language, as urged by defendant in error, and require both a failure to reside upon the land and a failure to improve same in good faith before the purchaser incurs forfeiture. Under such a construction, the purchaser might never reside on school land, and yet he could acquire title, which would be manifestly contrary to the intent of the Legislature. We reconcile the intent and purpose of the act with its language by reading the word “or” in place of the word “and,” where the latte'r word first appears in the part of the act under consideration, and there can be no doubt, under these circumstances, that the law requires this substitution. Witherspoon v. Jernigan, 97 Tex. 105, 106, 76 S. W. 445; Slaughter v. Terrell, 100 Tex. 603, 604, 102 S. W. 399.

If certain fences should be included in the improvements erected by the defendant in error, then such improvements exceeded $300 in reasonable market value. Without such fences, defendant in error erected less than $300 worth of improvements. These fences were erected by L. Haley, when he held the land under lease from the state, and the Court of Civil Appeals rendered its judgment on the finding that defendant in error became the owner of the fences “by purchase and by limitation.”

The trial court expressly found that defendant in error did not purchase the fences. This finding was certainly not without support in the evidence, unless the view be correct, which seems to have been entertained by a majority of the Court of Civil Appeals, that four miles of the fences necessarily passed to defendant in error through the assignment by L. Haley of his lease of the lands then unsold. We cannot approve that view, because there was evidence, such as that of L. Haley, hereinafter recited, clearly authorizing the trial court to conclude that the fences were reserved by Haley, when he assigned the lease, as the trial court evidently concluded, when he found that defendant in erorr had. never purchased the fences. The testimony of L. Haley was that there might have been a written contract in regard to the purchase of these fences, as to which he did not recollect; that no bargain for the fences was dosed, before the lease was transferred; and that he would have moved the fences, within 60 days after the lease expired, if he had not been paid the price promised by defendant in error. Moreover, defendant in error pleaded that within 60 days after the sale of the lands to him he purchased the four miles of fences from Haley. The transfer of the lease is dated April 28, 1906, and he did not apply to purchase the lands on which these fences stood until May 17, 1906. Hence defendant in error expressly pleaded that Haley continued to own these fences subsequent to the date of transfer of the lease to him.

It is contended that even though the fences were reserved by Haley, yet they became defendant in error’s property by virtue of his purchase of the land, on Haley’s failure to remove them within the time allowed by article 5457, R. S., which provides that—

“All improvements made by lessees on lands leased by them are hereby declared to be personal property, which may be removed by such lessees on the expiration of their lease contracts ; and they shall have sixty days after such expiration in which to remove the same.”

It is conceded tjiat the fences became a part of the realty, when not removed in due time; but it is said that, since defendant in error had previously bought the land, the fences never became the property of the state, but instead passed to defendant in error. The error in this contention lies in the assumption that the title to the realty was in defendant in error when the fences became a part thereof.

The effect of the purchase of school land, with actual settlement required, was declared by this court, in an opinion of Justice Williams, in the case of Williams v. Finley, 99 Tex. 474, 90 S. W. 1087, in the following language:

“The title remains in the state, and the purchaser has only the right to acquire it by continued compliance with the conditions prescribed by the statute. Neither at the date of the institution of his action nor of the trial was it true, therefore, that Williams (the purchaser) had acquired the title of the state by merely paying or agreeing to pay for it the amount allowed defendant as a credit on the purchase money notes, 'but he still labored under other onerous conditions the value of the performance of which cannot be ascertained and measured in money.”

It would be absurd to say that, because the title to certain improvements would pass from the state to defendant in error upon his compliance with the express condition precedent that he erect improvements of spécified value on the land, he was relieved of the condition. The state, on Haley’s failure to remove the fences, if he had not made a sale thereof to defendant in error, as found by the trial court, held the title to both land and fences, subject to defendant, in error’s right, under his contract of purchase, to acquire the title by compliance with the obligations assumed by him to the state. One of those obligations was:

“Within three years after his purchase to erect permanent and valuable improvements on the land purchased by him, which improvements shall be of the reasonable market value of three hundred dollars.”

Without compliance with that obligation, defendant in error could never have title to the land, and hence could never have title to fences which became part of the land. The utmost liberality of construction, within reason, would not warrant treating improvements as erected by one who had nothing to do with their original construction, and who had never become invested with title thereto.

What has been said precludes our sustaining the claim by defendant in error that he acquired title to the fences by limitation. He could have had possession of the fences for only a few weeks when they were personalty. From the time the fences became part of the realty, the title, as we have shown, was in the state, subject to defendant in error’s contract of purchase, and the realty was necessarily held by defendant in error under the terms and conditions of his contract of purchase. Bourn v. Robinson, 49 Tex. Civ. App. 157, 107 S. W. 876.

Concluding that the fences did not pass to defendant in error, as assignee of Haley’s lease, by operation of law, and that defendant in error acquired no right thereto by limitation, and that the evidence was such as to warrant a finding either way with respect to whether defendant in error actually purchased the fences from Haley, it follows that the Court of Civil Appeals was not authorized to render judgment against plaintiff in. error ; for, as tersely expressed by Chief Justice Phillips, in Post v. State, 106 Tex. 500, 171 S. W. 708:

“The province of determining questions of fact is in the trial court. The Court of Civil Appeals has the power to set aside its finding and remand the cause for a new trial. Where the evidence is without conflict, it may render judgment. But where there is any conflict in the evidence upon a material issue, it has no authority to substitute its findings of fact for those of the trial court. Choate v. Railway Co., 91 Tex. 406, 44 S. W. 69.”

The action of the Court of Civil Appeals, in disapproving of the trial court’s material finding of fact, which was within the scope of its authority, requires that the judgment of the district court be reversed. Tweed v. Telegraph Co., 107 Tex. 254, 166 S. W. 696, 177 S. W. 957; Pollock v. Railway Co., 103 Tex. 70, 123 S. W. 408.

The judgments of the district court and of the Court of Civil Appeals are accordingly reversed, and the case is remanded for trial in the district court.

HAWKINS, J., did not sit in this case, being disqualified.
      <j&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    BOATTENHAMER v. STATE.
    (No. 4964.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.
    On Motion for Rehearing, Nov. 6, 1918.)
    1. Criminal Law <@=>726 — Improper Argument.
    In prosecution for wife desertion, where defendant’s counsel urged jury not to assess fine which defendant’s old father would have to pay, defendant cannot complain of argument of state’s attorney urging jail penalty because fine would be paid by defendant’s father.
    On Motion for Rehearing.
    2. Husband and Wipe <@=>318 — Wipe Desertion — Lack op Justification .
    In prosecution for wife desertion, part of state’s case was to prove desertion was without justification.
    3. Husband and Wipe <@=>314 — 'Wipe Desertion — Lack op Justipication — Question por Jury.
    In prosecution for wife desertion, what conditions or facts justify the conclusion that desertion was without justification is for the jury, statute not defining them.
    4. Criminal Law <@=>815(5) — Wipe Desertion — Instruction — Withdrawing Issue.
    In prosecution for wife desertion, defendant introducing evidence to meet contention that he was not justified, special charge at request of state submitting issue of ratification of marriage void for duress, heli erroneous, as withdrawing issue of justification from jury.
    5. Criminal Law <@=>824(1) — Duty to Request Proper Charge.
    In misdemeanor case, ordinarily a defective charge, where no special charge is requested, is not reversible error; but where charge is affirmatively wrong, and exception is properly taken and shown by proper bill, though no special charge is requested, Court of Criminal Appeals cannot hold there is no reversible error.
    Appeal from Olay County Court; E. W. Coleman, Judge.
    Lawrence Boattenhamer was convicted of wife desertion, and he appeals.
    Reversed, and cause remanded.
    Fitzgerald & Weldon, of Wichita Falls, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged with wife desertion under article 640a, P. C. (Vernon’s Ann. Pen. Code 1916) and his punishment fixed at a fine of $100 and confinement in jail for 90 days.

Appellant contended that the marriage was void because under duress; that, if the marriage was legal, the desertion was not without justification. The state met the plea of duress by evidence of ratification. These issues were submitted, to the jury in a written charge prepared by the court and a special charge given at the request of state’s counsel. The special charge submitted the issue of ratification, and is complained of in appellant’s brief upon the ground that it ignored the other defensive issues, and instructed a verdict against appellant in the event the jury decided in favor of the state on the issue of ratification of the marriage. The only exception to the court’s charge was embodied in a written exception directed against the special charge mentioned. The state contends that, this being a misdemean- or case, the defect in the charge is not available on appeal, in the absence of a request for special charge correcting the defect. The rule seems to be well established that .in a misdemeanor case complaint of a charge is not available on appeal in the absence of written request for a special charge curing the error. See cases listed in Vernon’s C. C. P. p. 499; also the following: Ellis v. State, 80 Tex. Cr. R. 208, 189 S. W. 1074; Wilson v. State, 80 Tex. Cr. R. 266, 189 S. W. 1071; Bennett v. State, 79 Tex. Cr. R. 380, 185 S. W. 14; Teem v. State, 79 Tex. Cr. R. 285, 183 S. W. 1144; Salter v. State, 78 Tex. Cr. R. 325, 180 S. W. 691; Robison v. State, 77 Tex. Cr. R. 556, 179 S. W. 1157; Young v. State, 78 Tex. Cr. R. 305, 181 S. W. 472. The strictness of this rule appears 'to be based upon the fact that under article 739, C. C. P., the court is not required to give a charge in a misdemeanor case except upon request in writing, and the fact that in such case the court may, with consent of the parties, give a verbal charge. See cases listed in Vernon’s C. C. P. p. 500, art. 740. The theory is that on appeal the proceedings in the trial court are presumed regular in the absence of a legal showing to the contrary, and, where a defect in the charge appears which might have been cured by a verbal charge given by consent, the presumption that it was so cured obtains when not negatived and when necessary to support the judgment. Carr v. State, 5 Tex. App. 153.

One of the bills shows an argument by the state’s attorney urging the jury to fix a jail penalty for the reason that a finé would not punish .the appellant in that it would be paid by his father. This was an improper argument, and unexplained, we think, should result in a reversal. The excepted hill, however, is qualified by. the statement that the argument was invited by appellant’s counsel urging the jury not to assess a fine which appellant’s old father would have to pay. This qualification in the bill seems to bring it within the rule laid down by Mr. Branch in section 363 of his An. P. C., wherein he cites a number of decisions of this court supporting the proposition that appellant is not entitled to complain of an argument of state’s counsel which is occasioned and justified í>y his own counsel.

The bills of exception which we have not discussed we have examined, and. we think they present no reversible error.

The judgment is affirmed.

On Motion for Rehearing.

We conclude we were in error in entering a judgment of affirmance in this case.

The special charge complained of was subject to the construction and was doubtless construed by the jury as an instruction that, if the appellant ratified the marriage, he should be convicted of desertion without reference to the conclusion the jury might reach with reference to the other defenses urged by him. A part of the state’s case was to prove that the desertion was without justification. What conditions or facts justify the conclusion that the desertion was without justification is for the jury to solve, as the statute does not define them. Appellant urged and introduced evidence to meet the contention of the state that he was not justified in desertion, and the effect of the special charge was to withdraw this issue from the jury. It is true that the court charged the statute — that is, that the desertion must be without justification — in his main charge, but the effect of the special charge was to impress the jury with the view, in the absence of ratification, the appellant was to be convicted.

In reviewing the matter we are of the opinion that the bill of exceptions which appellant reserved to the action of the court in giving the special charge in question, under the peculiar facts of the .case, was such as to require this court to consider it, and that it presents an affirmative error such as was passed on in the case of Novy v. State, 62 Tex. Cr. R. 492, 138 S. W. p. 139, wherein the court used the following language:

“Ordinarily in a misdemeanor case * * * a defective charge of the court, where no special charge is requested by the appellant, would not be reversible error; but where the charge itself is affirmatively wrong, * * * and an exception is properly taken thereto, * * * and * * * shown by a proper bill of exception, * * * and * * * further set up in motion, for new trial, we cannot hold, and do not hold, that it is not reversible error.”

The motion for rehearing is therefore granted, the judgment of affirmance set aside, and the judgment of the county court reversed, and the cause remanded.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALSUP v. STATE.
    (No. 5119.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    Criminal Law <©=31210 — Cumulative Sentences — Effect of Appeal.
    That accused has appealed from a previous conviction, and that the appeal has not been decided, does not prevent the imposition of a cumulative sentence on a subsequent trial for another offense as authorized by Code Or. -Proe. 1911, art. 862.
    Appeal from District Court, Tom Green County; C. E. Dubois, Judge.
    Orle Alsup was convicted of theft, and he appeals. Motion to amend judgment overruled.
    Affirmed.
    Anderson & Upton, of San Angelo, for appellant.
    J. A. Thomas, of San Angelo, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of the charge of theft of an automobile of the value of $500, and his punishment fixed at confinement in the state penitentiary for two years.

The sentence was made cumulative with a conviction of appellant of a felony in Coke county. The appellant does not complain of the conviction, but insists that the judgment should be reformed, taking the position that, the appellant having appealed from the judgment of conviction in Coke county, under article 862 of the Code Cr. Proc., the trial court was without authority to make the sentence in this case cumulative. His position is that, when appellant appealed from the first conviction, the statute authorizing the court to make the judgment in the subsequent conviction cumulative of the first has no application. His contention is supported by the decision of this court in Law v. State, 73 Tex. Cr. R. 5, 163 S. W. 90. The state insists that the conclusion there reached misapprehends the effect of the statute. The statute in question is as follows:

“When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in the penitentiary or the county jail for a term of imprisonment, judgment and sentence shall be rendered and pronounced in each case in the same manner as if there had been but one conviction, except that the judgment in the second and subsequent convictions shall be that the punishment shall begin when the judgment and sentence in the preceding conviction have ceased to operate, and the judgment and execution thereof shall be accordingly.”'

The construction of this statute contended for by appellant would put it within the power of the accused to annul the effect of the statute by giving notice of appeal. We quote from Law’s Case, supra:

“Therefore we must look to that article of the Code to cumulate sentences, and by turning to it we find that it is only after a final conviction that one terns of imprisonment can be made to begin at the expiration of the other. The first case, at the time of this trial, being on appeal and pending in this court, the judgment had not become final, and therefore the court was without authority to order this sentence to begin at the expiration of the first sentence in case we affirmed it.”

The statute, article 862, supra, does not use the term “final conviction.” It is true that in many instances this court has held, in construing particular statutes, that the term “conviction” meant “final conviction”; such, for instance, has been the construction with reference to the competency of a witness of one who has been convicted of a felony. This statute, however, has other explanatory words:

“The judgment in the second and subsequent convictions shall be that the punishment shall begin when the judgment and sentence in the preceding conviction have ceased to operate.”

The judgment and sentence in a case appealed from, if affirmed, would cease to operate when the accused had served the allotted time in the penitentiary Or had been discharged for any- lawful reason. The penalty subsequently fixed could then be enforced. The language of the statute clearly evinces the intention of the Legislature and method of procedure by which the judgment of conviction in the district court in a subsequent case could be made cumulative of one in a prior case. The power is given the district court to enter the judgment. If the accused, by appealing the first case, postpones the time when it will begin to operate, he does not thereby deprive the court of the power vested in it by the statute, but siinply postpones the beginning of the operation of the second sentence until the first one has “ceased to operate.”

The motion to amend the judgment is overruled, and an affirmance ordered.
      ©nnFor otter cases see same topic and KEY-NUMBER in ail Key-Numbered'Digests and Indexes


text:
    ISAAC v. STATE.
    (No. 5137.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Larceny @=>60 — Ownership of Stolen Property — E-vibence.
    Evidence, -in a prosecution for the theft of a hat’alleged to have been in possession of a milliner and sold to a third party who left it in the store, held not to show ownership in the milliner either general or specific so as to support a conviction.
    2. Larceny @=>55 — Evidence—Sufficiency.
    Evidence, in a prosecution for the theft of a hat, held not sufficient to sustain a conviction.
    Appeal from Austin County Court; W. I. Hill, Judge.
    Peachie Isaac was convicted Qf theft, and she appeals.
    Reversed.
    Johnson, Matthaei & Thompson, of Bell-ville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of theft, and her punishment fixed at a fine of $5 and 10 days’ confinement in the county jail.

The- information charges the theft of a hat of the value of $3 from the possession of Mrs. Clara McDade. This alleged owner was engaged in the' millinery business and had a shop in the store of a mercantile company. She sold the hat in question to Callie Bush. It was paid for and placed in a paper bag and laid on a counter belonging to the mercantile company for the purpose of remaining until' the purchaser should leave town. Appellant had left a coat and package in the store, and later called and got the packages from the clerk of the mercantile company, who testified that she at the same time got the paper bag with the hat in it, and appellant claimed it was her hat. Appellant claimed to have gone into the store and purchased a cap and to have worn the cap, leaving her hat with one of the clerks in the mercantile company’s store, who was told to put it in a paper bag; that she left a package also, and later returned, got her package and the paper bag believing that it contained her hat; that she did not learn to the contrary until she was approached by the officers while she and another young lady were in a buggy starting home. When the officers approached her and inquired whether she had a hat in a bag, she said she had, and they asked her if she owned a white hat, and she told them no. Upon examination of the bag, it was found to contain a white hat, the ownership of which she disclaimed. Mrs. McDade protested against the prosecution, insisting that there was some mistake. The only state witness to contradict appellant’s theory was impeached to some extent, and the appellant was corroborated with reference to her conduct when approached by the officers and her disclaiming the hat that was found in the bag.

We are of the opinion that the facts did not show the ownership in Mrs. McDade, the party named as the owner in the indictment. She had sold the hat to Callie Bush, received pay for it, parted with possession of it, and it had been left in the part of the store which was under the control of the mercantile company and was delivered to appellant by one of the employes of the mercantile company. We do not think that Mrs. McDade was in the attitude of a special owner. The ownership was in Miss Bush, and the custody, so far as there was custody, appears to have been in the em-ployés of the mercantile company. Moreover, we regard the evidence insufficient to sustain the conviction.

The judgment is reversed and remanded.
      <§=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    SKELTON v. STATE.
    (No. 5164.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    Criminal Law @=>1159(5) — Review—Suspended Sentence — Discretion of Jury.
    Where one accused of hog theft pleads guilty and pz’ays for a suspended sentence, whether such sentence will be awarded is exclusively within the discretion of the jury, whose decision will not be reversed. ,
    Appeal from District Court, Walker County ; E. A. Berry, Judge.
    Joe Skelton was convicted of hog theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State,
   DAVIDSON, P. J.

Appellant was convicted of hog theft under a plea of guilty and allotted two years in the penitentiary.

He filed a plea for suspended sentence, which the jury did not award. The only ground of the motion for new trial is based upon the failure or refusal of the jury to award the suspended sentence. The evidence is clear that he had never been charged with any violation of the law prior to this, and had borne a good reputation. The jury saw proper not to award him the suspended sentence, and this court would not be justified in reversing for this reason. It is a matter peculiarly within the province of the jury to decide, and, having decided it, this court would not feel authorized to reverse their finding.

The judgment will be affirmed.


text:
    CANALES v. STATE.
    (No. 5101.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    Criminal Law <@=>784(1) — Charge on Circumstantial Evidence — Necessity.
    In prosecution for selling intoxicants, where, to overcome testimony of purchaser and of defendant and his wife, and to establish sale, state relied on circumstances, and in reaching conclusion of guilt jury should have been guided by charge as to law of circumstantial evidence, refusal of the court to so instruct was error.
    Appeal from District Court, Jackson County ; John M. Green, Judge.
    Rafael Canales was convicted of the unlawful sale of intoxicating liquors, and he appeals.
    Reversed and remanded.
    McCrory & Vance, of Edna, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the unlawful sale of intoxicating liquors, and punishment assessed at confinement in the penitentiary for 18 months.

The indictment charged the sale to Ramon Sifuentes. The theory of the state was that an officer, desiring to entrap violators of the local option law, sent the party named in the indictment, Ramon Sifuentes, to purchase a bottle of whisky, giving him a $5 bill; that Ramon got the whisky and delivered it to the officer, together with $3.25 in change, stating that the price of the whisky was $1.75. It was in the nighttime, and the officer saw Ramon go to appellant’s house and talk to appellant, and saw the appellant go to a cupboard and reach up and hand something to Ramon, and Ramon then handed appellant something out- of his pocket, which the witness supposed to be money, and then the appellant ran his hand in his pocket and gave Ramon something, which he supposed < to be change.

Ramon, the purchaser named in the indictment, appeared as a witness for appellant, and testified that it was his own whisky; thati,he had bought the whisky and placed it in the house without the knowledge of appellant ; that he had gotten permission from appellant to leave a package in the house, and that he had several bottles of whisky, and left some of them in one place/in the house and one of them in the closet; that when he went to the house for the whisky appellant was eating supper, and he asked appellant to hand him the bottle out of the dresser; that they then went to the poolroom, which seems to adjoin or is built onto the house in which appellant lived, and appellant gave him ichange for $5. He claimed that Yarbrough, the officer, owed him some money, and that he gave him the whisky and kept the $1.75, because Yarbrough had owed him $1.60 for a year. He claimed that he did not buy the whisky from appellant, and did not pay him any money, and that the whisky belonged to the witness, and not to appellant. It' appeared that the witness had been indicted by the grand jury for making the sale.

Appellant claimed and testified that he did not sell the whisky and that he did > not receive any money for it; that he had given Ramon permission to put a package in his house; and this last statement is corroborated by other testimony. He was also corroborated by his wife, who testified that Ramon had asked her husband to give him change, and had also asked him to give him the bottle that was on the top of the dresser; that her husband took the bill, and went to the cupboard, and gave Ramon the package. There were some bottles about appellant’s premises, which his little boy claimed he collected for the xiurpose of selling the empty bottles.

The appellant upon the trial raised the point that the conviction rested upon circumstantial evidence, and brings here the view that there was error in the action of the court in refusing to so submit it.

It occurs to us that the only proof that the transaction between appellant and Ramon Sifuentes constituted a sale, as contended by the state and as charged in the indictment, was not the transaction described by the alleged purchaser, in which he obtained his own whisky and sold it'to Yarbrough, is that which is to be inferred from the facts and circumstances which were developed. The facts that Ramon obtained the bottle of whisky at appellant’s house, and that appellant handed it to him, and that Ramon delivered this whisky to Yarbrough, are conceded. That the whisky belonged to appellant, or that he previously knew that it was in his house, and that he received or was promised any pay for it, are contested questions. To overcome the testimony of Ramon, the alleged purchaser, and of appellant and his wife, and to establish the fact that the transaction was a sale by appellant, the state, it would seem to us, relies upon circumstances, and that the conclusion of guilt drawn by tbe jury is from these circumstances, and that in reaching this conclusion they should have been guided by a charge of the court instructing them as to the law of circumstantial evidence, and the refusal of the court to so instruct was an error requiring reversal, which is ordered.

Reversed and remanded.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CAMPBELL v. STATE.
    (No. 5068.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.
    Rehearing Denied Nov. 20, 1918.)
    1. Homicide |@=300(7) — Instructions — Issues — Abandonment of Difficulty.
    Where deceased brought on the trouble and followed it to its conclusion, accused not being to blame at any point from any view of the evidence, the issue of abandonment of the difficulty was not in issue, although appellant attempted in good faith to leave the vicinity; hence failure to charge thereon was not error.
    2. Criminal Law <@=»823 (1)- — Instructions— Plea of Suspended Sentence.
    While it might be proper to charge that jury should not regard a plea for suspended sentence as evidence of guilt, it was not fatal to refuse to so charge, where court instructed that, if jury convicted defendant, they could then consider question of a suspended sentence.
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    L. A. Campbell was convicted of manslaughter, and he appeals.
    Affirmed.
    Carrigan, Montgomery & Britain, of Wichita Falls, E. T. Brooks, of Anson, W. H. Murchison, of Haskell, and Kenan & Glasgow, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The court only submitted the issue of manslaughter, and in this connection the facts briefly show that appellant and deceased had been partners in the mercantile business, and a few months prior to the homicide had dissolved partnership, the deceased becoming the partner in another competing firm, and was depot agent of the railway company and in control of the post office. Appellant, doing business with the railway company, had complained of deceased as its agent with reference to freight bills, and so wrote to the company. This letter found its way to deceased, who called upon appellant on Sunday morning at appellant’s place of business, and hot words ensued. The controversy became sufficiently warm for appellant to pull off his overcoat with a view of engaging in a personal encounter. At this juncture parties interfered. The deceased was taken in charge by an uncle, and appellant also by a relative, and started away. There is a contention as to whether appellant was pulled away forcibly, or whether he went willingly. The evidence shows that, whatever the facts may be in this connection, the deceased followed him, and, while appellant was being held by his relative, was knocked down by deceased perhaps twice. While upon the ground, appellant pulled his pocketknife, opened it, and in their further fighting used it. There was one blow inflicted by this knife which within 10 or 12 days resulted in the death of deceased. The state’s evidence shows that appellant was forcibly pulled away and did not abandon, the difficulty and had no intention of abandoning it, while the defendant’s testimony is to the contrary. There is no question, however, as we understand this record, that the deceased brought about thei occasion of the difficulty and provoked it. This put appellant in the right from the beginning of the trouble to its ending. The court, recognizing this, charged the jury with reference to self-defense and from the standpoint of using more force than was necessary.

The main contention of appellant is the failure of the court to charge the issue of abandoning the difficulty. We are of opinion, under the facts and the authorities, that this issue was not in, the case, and therefore there was no error in regard to this. The authorities lay down the proposition that the abandonment of the difficulty by the defendant does not arise where the difficulty was continuous, the only change being in the position of the parties during the progress of the encounter. Branch’s Ann. P. C. § 1965. It was also held in Renow v. State, 49 Tex. Cr. R. 284, 92 S. W. 891, and Humphrey v. State, 73 Tex. Cr. R. 433, 165 S. W. 589, that it was error to charge on the theory of an abandonment of the difficulty by defendant if there is no proof that he produced the occasion or provoked the difficulty. It was also held by a line of authorities (Roberts v. State, 30 Tex. App. 306, 17 S. W. 450; Chalk v. State, 35 Tex. Cr. R. 129, 32 S. W. 534; Kelly v. State, 68 Tex. Cr. R. 317, 151 S. W. 304) that, to entitle an accused to a charge on abandonment of the difficulty, there must be evidence that he indicated his intention of abandoning the difficulty so that his adversary so understood it, but this is taken in connection with the other thought and line of decisions above mentioned. It is also held that a mere retreat and firing back is not an abandonment. Burris v. State, 34 Tex. Cr. R. 387, 30 S. W. 785. If the charge does not submit the state’s theory of a mutual combat, but ignores that theory altogether, it is not error to fail to charge on defendant’s theory of mutual combat and his abandonment thereof where a general charge on. self-defense is given. Guerrero v. State, 41 Tex. Cr. R. 165, 53 S. W. 119. So it would seem, under these authorities, that the issue of abandonment of the difficulty was not in the case. Appellant was not in the blame at any point from any viewpoint of the evidence. The deceased brought on the trouble and followed it to its conclusion. If appellant started away in good faith, as claimed by his testimony, and the deceased continued the attack, it would he a case of self-defense from the inception of the difficulty. The court gave a full and sufficient charge on the issue of self-defense under the facts. Under this theory of the facts and condition' of the law, we are of opinion that the court was not in error in not charging on abandonment of the difficulty.

It is contended that the court should have given the charge asked by defendant to the effect that the jury should not regard a plea for suspended sentence as any evidence of guilt. A plea of suspended sentence is always based upon the idea that there might be a conviction, and, if this should occur, appellant would be entitled to ask the jury for a suspension of the sentence. While it might be proper to give this charge, it is not necessarily fatal to a conviction that the charge was not given; ‘especially so in this ease, because the court instructed the jury that,if they convicted defendant of manslaughter, they could then consider the question as to whether or not they should give him the benefit of a suspended sentence. This was tantamount to charging the jury that it was only in case of conviction that they should find on the plea of suspended sentence. In other words, the plea of suspended sentence would only apply when, a conviction was had. While it might have been proper for the court to have instructed the jury that they should not consider a plea of suspended sentence as evidence of guilt, yet, under the circumstances and the charge given, we are of opinion it was not such an error as to require a reversal of the judgment because he did not give it. There was no exception to the charge taken at the time it was given, and, if an exception can be regarded at all, it would be only because appellant asked special instructions with reference to the plea of self-defense and abandonment of the difficulty. We are of opinion that the court’s charge on self-defense was full, and in view of the fact that the count gave a sufficient charge on self-defense, and abandonment of the difficulty not being in the case, there was no reversible error from this view of the case.

The record as presented to us does not show sufficient reason why a reversal should occur.

The judgment is affirmed.
      cgrsjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WOOD v. STATE.
    (No. 4936.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Witnesses @=371 — Animus of Witness— Testimony Admissible.
    Where a negro woman had given testimony tending to show animus of accused’s witness towards deceased, her animus towards such witness was a proper subject of inquiry, and evidence that she had been arrested by him was admissible, although evidence of offense for which she was arrested was not relevant.
    2. Witnesses @=3340(3) — Impeachment—General Reputation.
    Testimony of a witness might have been discredited by proof of her general reputation as a prostitute, or by proof of complaints or prosecutions therefor.
    3. Criminal Law @=1170(1) — Excluding Impeaching Testimony — Haemless Eeeok.
    Where testimony of a negro woman boro alone upon animus of accused’s witness towards deceased, and accused’s witness gave no testimony as to the incidents of the homicide, but testified alone to facts which were established by other witnesses, excluding testimony tending to show her animus towards accused’s witness will not justify reversal.
    4. Witnesses @=330(1) — Impeopee Cross-Examination.
    It was improper on cross-examination to ask accused if his statement that he had not used an oath in a difficulty with deceased on the day preceding the homicide was as true as any of his other testimony.
    5. Criminal Law @=763, 764(3, 4) — Erroneous Charge — Refusal.
    Requested special charge ’that there was no evidence showing, or tending to show, that a witness for accused instigated or was connected with the homicide, if given, would have been a comment by the court on the weight to 'be given the facts.
    6. Criminal Law @=854(9) — Separation of Jury.
    That one juror went to bed in a room over the room, in which the jury deliberated, leaving the others in the lower story, would not, where he had no communication with outsiders, and was not outside the building in which the jury was confined, disclose such separation as would justify reversal under the statute.
    7. Criminal Law @=855 (8) — Conversation of Juror with His Family.
    That after the jury had been impaneled one of the jurors, whose wife was sick, was, with permission of the court and consent of defendant and one of Ms attorneys, allowed to communicate with his family, held without injury to accused; Code Cr. Proc. 1911, art. 74S, permitting conversations by permission and in presence of court.
    8. Criminal Law @=1153(4) — Review-Leading Questions — Discretion.
    The discretion allowed the trial judge as to the method of ascertaining what occurred in the jury room is of such breadth that the fact that a leading question may have been asked would not furnish ground for reversal.
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Marshall Wood was convicted of murder and appeals.
    Affirmed.
    Clark & Sweeton, of Greenville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, and punishment fixed at confinement in the penitentiary for five years.

Appellant, using a shotgun, shot deceased, Mike Yeager, twice and killed him. They had a wordy altercation the day before the homicide. Deceased became angry, and went to his home, and started away with his pistol, making threats, but, upon importunities of his wife and friends, remained at home. Appellant and deceased were both negroes, and on the day of the homicide deceased went to the home of a white man for whom he had done work at intervals for several yeairs. He took his pistol with him, wrapped it in cloth or paper, and laid it in an outhouse. A negro woman seeing it, and inferring from remarks deceased had made to her that he contemplated injury to appellant, she notified the wife of deceased, and also sent word to appellant to avoid the premises, as the deceased was armed and threatening to kill him. Appellant was working on an ice wagon for a witness named Waid, and, after receiving information from the messenger and others, he procured the shotgun with which he killed deceased from Waid’s office. The evidence touching the immediate incidents of the homicide was conflicting. Deceased was working with a hoe near a rosebush, and, according to the testimony of the lady of the house, was so engaged when the first shot was fired, he having prior thereto made no demonstration and had no conversation with appellant. Appellant’s theory was that be-for the-first shot was fired some words between him and deceased passed; that after the first shot deceased retreated, but when both shots were fired he was unwrapping his pistol. The state’s theory was that the deceased’s pistol was in the outhouse and not in his possession when he was shot.

The issues of manslaughter and self-defense were submitted in a charge which was not subject to any of the exceptions addressed to it.

Several witnesses testified that the reputation of deceased was that of a violent and dangerous man. One of these was Waid, the city marshal, and the employer of appellant. Waid also testified to the effect that after the homicide the deceased’s pistol was found in an outhouse, the defendant’s theory being that it had been taken there by some one after the shooting. When Waid heard of the trouble he went to the premises, and, according to the testimony of the negro woman, said, referring to deceased, “Where is the damn negro son-of-a-bitch.” Objection was made to this testimony, but the bill is silent as to the surrounding facts, and fails to give the court sufficient information upon which to determine that its reception was erroneous. It was doubtless received by the trial court on the theory that it tended to show the animus of the witness Waid.

While the witness who gave this testimony was on the stand she was, on cross-examination, asked if Waid had not arrested her and her girls for running a disorderly house. She answered this inquiry in the negative. The defendant offered to prove that she had been arrested by Waid for prostitution and other offenses. Her animus toward Waid was a proper subject of inquiry, and the fact that she had been arrested by Waid might have enabled the jury to form an estimate of her attitude. We think, however, that the offense for which she was arrested was not a revelant inquiry.

Pier testimony might have 'been discredited by proof of her general reputation as a prostitute, or by proof of complaints or prosecutions therefor. We think the court should have allowed the testimony.

We do not think, however, that the error in rejecting it is of such importance as would justify a reversal. Her testimony ■bore alone upon the animus of Waid, a witness for appellant, who gave no testimony as to the incidents of the homicide, but testified alone to facts which were established by the testimony of other witnesses, namely, the bad reputation of deceased, and the fact that deceased’s pistol was found in an outhouse on the premises where the homicide took place, after the homicide.

Appellant, while on the stand and under cross-examination, denied that in the difficulty with deceased on the day preceding the homicide he had used an oath, and was asked if that statement was as true as any of his other testimony. This was not a proper question, but, as the record is presented in the bill, it appears that the appellant did not answer it further than to reiterate his statement that he did not use an oath on the occasion mentioned.

The witness Waid was, on cross-examination by the state, assailed by innuendo as to his bias in favor of appellant. He admitted having employed an attorney for him; that the appellant had for a long time been in his employ; that on a former occasion, in a difficulty'with deceased, he had shot him, wounding him; that he regarded him as a dangerous man; and the gun used by appellant at the time of the homicide belonged to the witness, and was obtained by appellant from the office of the witness during his absence. The court was requested to inform the jury in a special charge that there was no evidence showing, or tending to show, that the witness Waid instigated or was connected with the homicide. This charge, if given, would have been a comment by the court on the weight to be given the facts legitimately developed tending to disclose the bias of the witness Waid in favor of appellant.

During their deliberations the jury used a sleeping room in the same building over the room in which they deliberated, and separated therefrom by a partition and stairway. It was in the same inclosure, and the outside doors shut and locked. One of the jurors went to this room to bed, leaving the others in the room in the lower story. This juror had no communication with outsiders, was not out of the building in which the jury was confined, and we think the facts disclose no such separation as under the statute would justify a reversal. Jenkins v. State, 41 Tex. 128; Cox v. State, 7 Tex. App. 3; Branch, An. P. C. p. 299, and cases listed,Watson v. State, 199 S. W. 1115, and cases cited.

The wife of one of the jurors was sick, and, after the jury were impaneled, he had telephone communication with his mother-in-law and other members of his family, which, according! to his testimony, had no reference to the case, but was confined to an inquiry as to the condition of his wife. These communications are stated by the trial judge, and, as we gather from the record, admitted by counsel to have been with the permission of the court and the consent of the defendant and one of his attorneys. The persons to whom the juror talked were not called to verify his statement, and we are referred to Early’s Case, 51 Tex. Cr. R. 390, 103 S. W. 868, 123 Am. St. Rep. 889, as an authority for the contention made by appellant that these facts require a reversal of the judgment. They are distinguished from those disclosed in Early’s Case by the important fact that in that case the conversation was had without the consent of either the court or the defendant or his attorney. It was held that the communications over the telephone, being unauthorized, would be treated as injurious unless the state was able to show the contrary. In this case the statute! (article 748) was in no sense transgressed, unless it be that the conversations which the juror had were not in the presence of the court. That article of the statute permits conversations in the presence and by the permission of the court. It is uncertain whether the bill shows that the conversations were not in the presence of the court. It does show that he gave his permission, and that the appellant and his attorney consented that the conversations should be had over the telephone with members of his family. A fair implication from this consent and agreement, we think, is that no injury resulted to the appellant by the juror conversing with the members of his family. And we are of the opinion that the agreement and permission mentioned, together with the proof, which was not controverted, that the juror only talked to members of his family and about the condition of his wife, would, under the facts of this ease, discharge such burden as rested upon the state. See Johnson v. State, 27 Tex. 758; Nance v. State, 21 Tex. App. 458, 1 S. W. 448; Watson v. State, 48 Tex. Cr. R. 323, 87 S. W. 1158; Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; Kutch v. State, 32 Tex. Cr. R. 184, 22 S. W. 594; Murphy v. State, 40 S. W. 978.

In developing facts concerning the alleged misconduct of the jury, there were questions asked by the state which appellant complains of on the ground that they were leading. This inquiry was before the court, and not before the jury, under which circumstances the rules of evidence governing the introduction of testimony are much more lax than in developing facts on the trial of a case before a jury. The discretion allowed the trial judge as to the method of ascertaining what occurred in the jury room is of such breadth that the fact that a leading question may have been asked would not furnish ground! for reversal of the case.

Finding no reversible error, the judgment is affirmed.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte HEIDINGSFELDER.
    (No. 5136.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    Contempt <@==>6 — Acts Constituting — Remarks oe Counsel.
    That defendant’s attorney in a criminal ease stated in the presence of the court to a witness on cross-examination, “All you know about it is you want to put J. B. in the penitentiary,”' did not justify the court in fining him for contempt.
    Original application by A. E. Heidings-felder for a writ of habeas corpus.
    Relat- or discharged.
    T. H. McGregor, of Austin, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The relator, under arrest upon an order of the criminal district court adjudging him in contempt, seeks release upon an original application for writ of habeas corpus to this court.

The facts stated in the judgment show that one John Bockel was on trial for theft of cattle, that relator was his counsel, and that T. X. Parker was a witness for the state. We copy from the order as follows:

“During the examination of said witness, and at a time in the examination where A. E. Heid-ingsfelder was cross-examining the' witness, he' representing the defendant, in an attempt to discredit and break down the witness’ testimony before the court and before the jury insolently remarked to the witness: ‘All you know about it is you want to put John Bockel in the penitentiary.’
“The court being of the opinion that said conduct upon the part of the attorney, A. E. Heid-ingsfelder, being insulting to a witness who was under process of this court, and therefore under protection of the court, was an indignity to the court itself, thereupoit adjudged the said attorney in eontempt of court, and then and there entered a fine of $100 against said attorney.”

From the statement of facts accompanying the record it appears that the witness had testified in an examining trial relative to the same facts, and had given for the state testimony adverse to the defendant on trial, which the relator, in representing the accused, was endeavoring to show, by cross-examination of the witness, was in conflict with previous statements on the examining trial, and to show that the witness was prejudiced against the accused.

The examination immediately connected with tlie alleged contempt we set out as follows :

“Q. Now, Mr. Parker, I want to ask you whether any of your fence was down along there? A. No, sir; all the fence was up. -
“Q. None of the gates were down? A. No, sir.
“Q. And none of them had been down, none of the fence and none of the gates? A. No, sir.
"Q. Didn’t you make this statement, T found one of the gates down about a week ago’? In the justice court didn’t you make that statement? Here it is right here (showing witness examining trial record), T found one of the gates down about a week ago.’ A. Tes, sir.
“Q. Was that true or not? A. Tes, sir.
“Q. Then when you state to this jury that there was none down, what caused you to make that statement? Why did you tell this jury there were none down, and tell Judge Lusk down there they were down? A. That is two different times. When I saw this gate down, it was about a week before this.
“Q. About a week before that trial? A. Tes, sir.
“Q. Isn’t it a fact that gate was down the next day? A. Tes, sir; after he went through it.
“Q. It was down the next day? A. Tes, sir.
“Q. Tou are satisfied it was down the next day? A. Tes, sir; after he went through it.
“Q. Didn’t you testify that it wasn’t down the next day, down in the justice court? Now do you tell the jury it was down the next day and you testified in the justice court it wasn’t down?. Tell me about that. A. All I know about it, it was down the next morning.
“Q. All you know about it is you want to put John Bockel in the penitentiary?
“By the Court; I am going to fine you $100, and I am going to make you pay it. I have lot you off with these things two or three times, and the next time you do this I am not only going to fine you, but put you in jail.”

Relator immediately said: “I did not mean anything by that; I am just showing the feeling and animus of this witness.” Then, proceeding with the examination, asked: “Tou are prejudiced against Mr. Bockel, aren’t you?” Answer: “I don’t like a man that will steal cows.”

We quote from the written argument of counsel:

“The purpose of the offending question in this case, as shown from the record, was to develop the prejudice of the witness Parker. It is fundamentally permissible to show the animus of an adverse witness, and no agency can so accurately demonstrate the hostility of the witness as can a cross-examination. The law recognizes this and gives to counsel the right of cross-examining the witnesses of his adversary. It is not a right incident only to the right tg appear by counsel, but it is a right inherent in and a substantive part of the right to appear by counsel. The right of cross-examination is a condition of the reception of direct testimony ; that is, testimony is not admissible unless the opposing party have the right to cross-examine the witness. Mr. Thompson (on Trials, vol. 1, art. 406 et seq.) says: ‘The importance of the right of full cross-examination can scarcely be overestimated. As a test of the accuracy, truthfulness, and credibility of testimony, it is invaluable. It is the clear right of the cross-examining party to elicit suppressed facts, which weaken or qualify the case of the party examining in chief, or support the case of the cross-examining party.’ * * * The right of cross-examination being established, it is conceded that it must, or should, be exercised under the supervision of and controlled by the discretion of the trial court, subject at all times and in all things to the right of review by this court. ‘Great latitude’ should be allowed in cross-examination is the conclusion reached and stated by Mr. Thompson, supra, after an exhaustive review of many authorities. .The control of the trial court (the discretion exercised) is a judicial control (a judicial discretion), and when properly presented is always subject of review by this court.
“I am not unconscious of the fact that the committing judge in this case is possessed of eminent judicial qualifications; is of established and known patience, integrity, and fairness; that he, has brought to the bench which he occupies dispatch, decorum, and dignity. But the limitations set upon this ‘invaluable right’ as to the manner, method, and scope of its enjoyment are legal limitations and are to be dealt with by trial and appellate courts as any other legal question inherent in the case. * * *
“That there is a charmed circle of judicial dignity and decorum that surrounds a court, the invasion of which by counsel constitutes contempt, is not to be disputed. It is equally true that there is a sphere of duty and obligation belonging to counsel engaged in the defense of one charged with crime, the invasion of which by the court operates a denial of fundamental rights guaranteed to defendant and his counsel by the organic law of the land. There are rights inherent in the court which counsel must respect; there are also rights belonging to counsel which courts must not deny or abridge. The right to appear by counsel in a criminal case is fundamental in our government, and finds terse and apt expression in section 10 of our Bill of Rights.”

Conceding that the manner of counsel in conducting the cross-examination was not such as to meet the approval of the court, and that the language used in directing his questions was not such as would have been chosen for the purpose by the trial judge, and that the court would have been well within its rights in admonishing counsel to mend both his manner and method, it does not follow that the court would be authorized in advance of such admonition to enter a summary judgment for contempt. If the views of the counsel and court do not coincide as to the procedure, the court’s views when declared must prevail; counsel reserving his point for review. But the fact that counsel pursued a method at variance with that which the court deemed correct, with no intended disrespect to the court, would not subject him to penalty. In Ex parte Snodgrass, 43 Tex. Cr. R. 363, 65 S. W. 1064, this court said:

“Courts will look with much allowance upon the zeal and partisanship of counsel representing their clients in the courts. Without zeal, and without an honest and fervent desire to have everything done and to do everything that can be done within his power that is honorable to promote the interests of his client, and secure him a fair and impartial trial, the object of counsel would be destroyed, and the bar would soon fall into disrepute.”

In Duncan’s Case, 42 Tex. Cr. R. 661, 62 S. W. 758, it is said:

“We wish to say that the power of the court is official — judicial, and not personal — and the relations of court and attorney are correlative. Courts may, will, and should enforce judicial power and functions when necessary; yet this must be done in a manner sanctioned by law, aurl in consonance with judicial dignity, and with due regard to the rights of parties to be affected. Attorneys are bound and will be hold to obey legal orders of courts; yet the court should invoke its judicial authority under the law, and in obedience thereto. The relationship of courts and attorneys, bench and bar, are reciprocal, and each, in their proper sphere, is clothed with powers, rights, and privileges which are to be recognized and respected by the other. These relations should be recognized and respected alike by_ the bench and bar, and, being carefully kept in view and followed as rules of action and conduct, will avoid friction.”

Believing that the learned trial judge, in his commendable desire to maintain the decorum of the court, allowed himself in the present instance to adjudge relator guilty of contempt on insufficient facts, we are constrained to order his discharge.
      ig=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes